Opinion
No. 04-18-00121-CV
06-20-2018
John M. DONOHUE, Appellant v. Ross A. RODRIGUEZ and William T. Reece, Appellees
MEMORANDUM OPINION
From the 166th Judicial District Court, Bexar County, Texas
Trial Court No. 2015-CI-09123
Solomon Casseb III, Judge Presiding PER CURIAM Sitting: Marialyn Barnard, Justice Rebeca C. Martinez, Justice Patricia O. Alvarez, Justice APPEAL DISMISSED FOR WANT OF JURISDICTION
The clerk's record was filed May 10, 2018. Our review of the clerk's record showed appellant filed a notice of appeal in which he contends he is appealing summary judgments granted in favor of Ross A. Rodriguez and William T. Reece. The clerk's record shows appellant filed suit against Ross A. Rodriguez, William T. Reece, Ruben Rodriguez, Carolyn Doe, and Edith Doe. The trial court granted summary judgment in favor of William T. Reece by written order signed August 17, 2015. That order appears in the clerk's record. However, although the clerk's record includes "Judge's Notes" dated December 11, 2017, that indicate the trial court granted summary judgment in favor of Ross A. Rodriguez, the clerk's record does not include an order to that effect. Moreover, this court contacted the office of the district clerk and was advised there is no order granting summary judgment in favor of Ross A. Rodriguez on February 8, 2018, as stated in appellant's notice of appeal. Additionally, although appellant filed a nonsuit as to the remaining defendants — Ruben Rodriguez, Carolyn Doe, and Edith Doe — there is no order granting the nonsuit.
Accordingly, based on our review of the record and the information received from the district clerk, it appeared there is no order or judgment in this case disposing of appellant's claims against Ross A. Rodriguez. Moreover, there is no order granting the nonsuit or a judgment memorializing it. Thus, it appeared there is no final judgment from which an appeal may be taken at this time. Accordingly, we ordered appellant to file a written response in this court showing cause why this appeal should not be dismissed for want of jurisdiction. We advised that if appellant failed to satisfactorily respond within the time provided, the appeal would be dismissed. See TEX. R. APP. P. 42.3(c). Appellant filed a response, conceding there is no final judgment from which an appeal may be taken at this time.
With regard to the summary judgments, generally, an appeal may be taken only from a final judgment. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 196 (Tex. 2001). A judgment is final for appellate purposes if it disposes of all pending parties and claims in the record. Id. This court has specifically held that "[a] judge's handwritten notes are for his or her own convenience and form no part of the record." In re L.H., No. 04-13-00174-CV, 2013 WL 3804584, at *1 (Tex. App.—San Antonio July 17, 2013, no pet.) (mem. op.) (citing In re A.W., 384 S.W.3d 872, 873 (Tex. App.—San Antonio 2012, no pet.)); First Nat'l Bank of Giddings, Tex. v. Birnbaum, 826 S.W.2d 189, 190 (Tex. App.—Austin 1992, no writ). In other words, judge's notes do not constitute an appealable order. See L.H., 2013 WL 3804584, at *1; Birnbaum, 826 S.W.2d at 190.
Additionally, with regard to the nonsuit as to Ruben Rodriguez, Carolyn Doe, and Edith Doe, although a nonsuit is effective when filed, for purposes of appeal, appellate deadlines do not begin to run until an order granting the nonsuit is signed, even though the signing of the order is purely ministerial. See Iacono v. Lyons, 6 S.W.3d 715, 716-17 (Tex. App.—Houston [1st Dist.] 1999, no pet.).
Based on the foregoing, we hold there is no final judgment or order from which appellant may appeal, and we have found no authority permitting an interlocutory appeal in the circumstances presented here. See Texas A & M Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 840 (Tex. 2007) (holding appellate courts have jurisdiction to consider interlocutory orders only if statute explicitly provides such jurisdiction). Accordingly, we hold this court has no jurisdiction over this attempted appeal. Accordingly, we dismiss the appeal for want of jurisdiction. We order that no costs be assessed against appellant because he is indigent.
PER CURIAM