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Farmer v. Ben E. Keith Co.

Supreme Court of Texas
Jun 15, 1995
907 S.W.2d 495 (Tex. 1995)

Summary

holding that the "appellate timetable runs from the date the district court signs the judgment, rather than from the date the judgment is rendered"

Summary of this case from Butler v. Amegy Bank, N.A.

Opinion

No. 95-0036.

June 15, 1995.

Appeal from 153rd District Court, Tarrant County, Ken Curry, J.

Ken Wigginton, Wigginton Associates, Wichita Falls, for petitioner.

Chris S. Medlenka, William L. Latham, McDonald Sanders, Fort Worth, for respondent.


In this case we must decide if the petitioner's appeal was timely perfected. We hold that it was.

Linda Farmer sued her employer, Ben E. Keith Company, for injuries she contends she received on the job. She alleged two claims: breach of contract and negligence. Her employer moved for summary judgment on the contract claim. On December 17, 1992 the trial court signed an order granting partial summary judgment finding there was no issue of material fact concerning the contract claim. On April 19, 1993, Farmer filed a document entitled "supplemental petition" in which she abandoned her negligence claim but continued to assert the contract claim on which judgment had been granted. On April 20, 1993, she filed a motion for rehearing and abatement of the summary judgment. On July 19, 1993, rehearing and abatement was denied by a signed, written order. An order which purports to be a "final judgment" was signed August 16, 1993. Farmer's appeal was perfected September 15, 1993.

The court of appeals dismissed Farmer's appeal as untimely. That court opined that the time for perfecting appeal ran from the filing of Farmer's "supplemental petition," which it treated as a motion to dismiss Farmer's negligence claim. 886 S.W.2d 492.

The Rules of Appellate Procedure calculate the period within which one must perfect an appeal from the time the judgment is signed, not from the filing of a pleading. Tex.R.App.P. 41(a)(1). Likewise Rule 5 provides that "the date a judgment or order is signed shall determine the beginning of the periods described by these rules for filing in the trial court the various documents in connection with an appeal, including but not limited to . . . certificate of cash deposit. . . ." Tex.R.App.P. 5. When a judgment is interlocutory because unadjudicated parties or claims remain before the court, and when one moves to have such unadjudicated claims or parties removed by severance, dismissal, or nonsuit, the appellate timetable runs from the signing of a judgment or order disposing of those claims or parties. Martinez v. Humble Sand Gravel, Inc., 875 S.W.2d 311, 313 (Tex. 1994). See also Shadowbrook Apartments v. Abu-Ahmad, 783 S.W.2d 210, 211 (Tex. 1990) (calculating appellate timetable from signing of order of dismissal); Harris County Appraisal Dist. v. Wittig, 881 S.W.2d 193, 194 (Tex.App. — Houston [1st Dist.] 1994, orig. proceeding); Avmanco, Inc. v. City of Grand Prairie, 835 S.W.2d 160, 163-64 (Tex.App. — Fort Worth 1992, appeal dism'd as moot); Hermann Hospital v. Aetna Life Ins. Co., 803 S.W.2d 351, 352 (Tex.App. — Houston [14th Dist.] 1990, writ denied). The appellate timetable does not commence to run other than by signed, written order, even when the signing of such an order is purely ministerial. Tex.R.App.P. 5; Wittig, 881 S.W.2d at 194.

In Martinez v. Humble Sand Gravel, Inc., 875 S.W.2d 311, 313 (Tex. 1994), we recognized that the appellate timetable runs from the signing date of whatever order that makes a judgment final and appealable, i.e. whatever order disposes of any parties or issues remaining before the court. Further, the appellate timetable can begin yet again with the signing of an order or judgment where there is nothing on the face of the record to indicate it was signed for the sole purpose of extending the appellate timetable and the order is signed within the trial court's plenary power. Tex.R.Civ.P. 329b(h); Mackie v. McKenzie, 890 S.W.2d 807 (Tex. 1994). The August 16 "final judgment" is the only signed, written order which even purports to dispose of Farmer's "nonsuited" claim and the appeal was perfected within 30 days of when that order was signed. Therefore,

Since the appeal was perfected within 30 days of the signing of that order, we need not decide whether Farmer's motion for reconsideration should be treated as a motion for new trial. Perfection was timely whether 30 or 90 days is the proper allotment of time.

Farmer's appeal should not have been dismissed.

Accordingly, a majority of the court grants Farmer's application for writ of error, and, pursuant to Tex.R.App.P. 170, without hearing oral argument, reverses the judgment of the court of appeals and remands to that court for consideration of Farmer's previously dismissed appeal. To the extent that Merrill Lynch Relocation Management, Inc. v. Powell, 824 S.W.2d 804 (Tex.App. — Houston [14th Dist.] 1992, orig. proceeding) is inconsistent with this opinion, it is disapproved.


Summaries of

Farmer v. Ben E. Keith Co.

Supreme Court of Texas
Jun 15, 1995
907 S.W.2d 495 (Tex. 1995)

holding that the "appellate timetable runs from the date the district court signs the judgment, rather than from the date the judgment is rendered"

Summary of this case from Butler v. Amegy Bank, N.A.

holding that a severance, dismissal, or nonsuit may dispose of unadjudicated claims and parties

Summary of this case from Wasserberg v. Res-Tx One, LLC

holding that "[w]hen a judgment is interlocutory because unadjudicated parties or claims remain before the court, and when one moves to have such unadjudicated claims or parties removed by severance, dismissal, or nonsuit, the appellate timetable runs from the signing of a judgment or order disposing of those claims or parties."

Summary of this case from Nichols v. Nichols

reiterating that when judgment is interlocutory due to unadjudicated claims or parties and one moves to have these unadjudicated claims or parties nonsuited, appellate time-table runs from trial court’s signing of order disposing of them

Summary of this case from OHK Glob. v. Motaghi

signing of final judgment triggers appellate deadlines

Summary of this case from In re C.B.

In Farmer, the supreme court merely held the deadline for calculating the period within which an appeal must be perfected runs from the time a judgment disposing of all parties and claims is signed.

Summary of this case from Brewer v. Schlumberger Tech. Corp.

providing that "appellate timetable runs from the signing date of whatever order that makes a judgment final and appealable," such as an order of severance

Summary of this case from Empire v. Pipeline

In Farmer, after the trial court granted a summary judgment as to Farmer's contract claim, Farmer filed a supplemental petition in which she abandoned her negligence claim but continued to assert the contract claim.

Summary of this case from Green v. Vidlak

discussing necessity of signed order from trial court to begin running of appellate timetables

Summary of this case from Baroid Equip. v. Odeco Drilling
Case details for

Farmer v. Ben E. Keith Co.

Case Details

Full title:Linda Katherine FARMER, Petitioner, v. BEN E. KEITH COMPANY, Respondent

Court:Supreme Court of Texas

Date published: Jun 15, 1995

Citations

907 S.W.2d 495 (Tex. 1995)

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