Summary
holding that order granting nonsuit was not final, even though it was entitled "final judgment," because it mentioned only one defendant and not other
Summary of this case from MARYLAND CAS v. AM HOME ASSUROpinion
No. 01-05-00495-CV
Opinion issued May 25, 2006.
On Appeal from the 278th District Court, Walker County, Texas, Trial Court Cause No. 19153C.
Panel consists of Chief Justice RADACK and Justices TAFT and NUCHIA.
MEMORANDUM OPINION
Appellant, Prudencio Cordova, voluntarily nonsuited all of his claims against the Texas Department of Criminal Justice ("TDCJ"), and the trial court granted the nonsuit and dismissed the case with prejudice. Despite the nonsuit, appellant brings this appeal contending that his claim is not barred by sovereign immunity. We dismiss the appeal for want of jurisdiction.
Procedural and Factual History
Appellant was working in the dining hall at TDCJ on October 25, 1994, when he was injured. Appellant received burns to his leg, ankle, and foot when another inmate, Andrew Odem, Jr., threw boiling water on appellant while mopping the floor. Two guards, William E. Harkins and Ola M. Oliphant, allegedly instructed the inmate to boil the water before using it to clean the floors.
Appellant originally brought this negligence suit against the guards, the inmate, and TDCJ. Prior to trial, appellant voluntarily dismissed his claims against the guards, leaving the inmate and TDCJ as defendants. At trial, after appellant rested, the trial court rendered a directed verdict in favor of TDCJ on the ground that TDCJ had not waived its sovereign immunity. The Texarkana Court of Appeals reversed and remanded the cause for further proceedings, holding that TDCJ's statutory immunity had been waived under the applicable statute. Cordova v. Harkins, No. 06-01-00022-CV, 2002 WL 84262, at *4 (Tex.App.-Texarkana Jan. 23, 2002, no pet.).
In February 2005, appellant voluntarily non-suited all of his claims against TDCJ. The trial court granted appellant's non-suit against TDCJ and dismissed the cause with prejudice. Appellant appeals to challenge the dismissal with prejudice, contending that he merely sought a postponement to investigate his case further, not a dismissal, and further contends that, upon further investigation, TDCJ is not immune from suit.
Appellant based the non-suit on the Texas Supreme Court's holding in Texas A M University v. Bishop, 156 S.W.3d 580 (Tex. 2005), which further defined the Tort Claims Act's "use" requirement for tangible personal property.
Jurisdiction — Finality
The date the judgment is signed begins the appellate timetable. TEX. R. CIV. P. 306a(1); TEX. R. APP. P. 26.1. A signed, written judgment or order is, therefore, an absolute prerequisite to this Court's exercise of appellate jurisdiction. See Harris County Flood Control Dist. v. Adam, 66 S.W.3d 265, 266 (Tex. 2001); TEX. CIV. PRAC. REM. CODE ANN. §§ 51.012-.014 (Vernon 1997 Supp. 2005) (all referring to appeals from a signed "final judgment" or an "interlocutory order" made appealable by statute). Section 51.014(a) recognizes this requirement in authorizing appeals from certain interlocutory orders. TEX. CIV. PRAC. REM. CODE ANN. § 51.014(a) (Vernon Supp. 2005). Excluding those statutory exceptions, which do not apply here, this Court's jurisdiction is, therefore, limited to review of final judgments that dispose of all parties and claims. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 192 (Tex. 2001). In the event of vagueness in the judgment or order challenged, the record on appeal will determine finality. See M.O. Dental Lab v. Rape, 139 S.W.3d 671, 674 (Tex. 2004) (citing Lehmann, 39 S.W.3d at 205-06).
The trial court's order granting appellant's nonsuit treats TDCJ as the only remaining defendant and states, "[i]t is hereby ordered that said nonsuit be, and it is hereby granted, Plaintiff's petition is dismissed with prejudice. All relief not herein granted is denied. This is a final judgment." Appellant's original petition identifies an additional defendant dismissed by the order, specifically, the inmate. Although a trial court may dismiss a portion of an inmate's claims, the court must designate "the issues and defendants on which the claim may proceed." TEX. CIV. PRAC. REM. CODE ANN. §§ 14.010(a)-(b) (Vernon 2002). The trial court's order here does not partially dismiss appellant's cause as authorized by section 14.010(b); instead, it dismisses appellant's entire cause.
An order or judgment is not final for purposes of appeal unless it actually disposes of every pending claim and party or clearly and unequivocally states that it finally disposes of all claims and all parties. Lehmann, 39 S.W.3d at 205. An order that disposes of claims by only one of multiple plaintiffs or against one of multiple defendants does not adjudicate claims by or against other parties. Id. If the record reveals the existence of parties or claims not mentioned in the order, the order is not final. Id. at 206. Further, an order does not dispose of all claims and all parties merely because it is entitled "final," or because the word "final" appears elsewhere in the order. Id. at 205. Nor does a "Mother Hubbard" clause in an order issued without a full trial on the merits indicate finality. See id. at 192.
Nothing in the trial court's order indicates that it disposes of all pending claims and parties. The order dismisses appellant's claims against TDCJ, but does not mention the inmate. The record provided to this Court does not show that the inmate had been nonsuited prior to the trial court's order nor that a severance order had been granted. As the record demonstrates, the defendant named in the order is not the only defendant remaining in the case. See Rape, 139 S.W.3d at 674 (citing Lehmann, 39 S.W.3d at 206). Finally, the inclusion of the "Mother Hubbard" clause and the indication that the order is a "final judgment" do not indicate finality. See Lehmann, 39 S.W.3d at 192, 205. Thus, it appears to this Court that the trial court's order is not final because it does not address all parties and all claims. See id. at 206.
Conclusion
We dismiss the appeal for want of jurisdiction. TEX. R. APP. P. 42.3(a).