Opinion
No. 04-18-00121-CV
05-16-2018
John M. DONOHUE, Appellant v. Ross A. RODRIGUEZ, Appellee
From the 166th Judicial District Court, Bexar County, Texas
Trial Court No. 2015-CI-09123
Honorable Solomon Casseb III, Judge Presiding
CORRECTED ORDER
The clerk's record was filed May 10, 2018. Our review of the clerk's records shows appellant filed a notice of appeal in which he contends he is appealing the summary judgments granted in favor of William T. Reece and Ross A. Rodriguez. After reviewing the clerk's record, we find that 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 were 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 appears 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 appears 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.).
Thus, it appears there is no final judgment or order from which appellant may appeal. There is no final judgment in the clerk's record disposing of the claims against Ross A. Rodriguez, Ruben Rodriguez, Carolyn Doe, and Edith Doe, 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, in the absence of an order granting summary judgment in favor of Ross A. Rodriguez and either an order granting the nonsuit with regard to Ruben Rodriguez, Carolyn Doe, and Edith Does, or a judgment memorializing the nonsuit, it appears this court has no jurisdiction over this attempted appeal.
Accordingly, we ORDER appellant to file a written response in this court on or before June 15, 2018, showing cause why this appeal should not be dismissed for want of jurisdiction. If appellant fails to satisfactorily respond within the time provided, the appeal will be dismissed. See TEX. R. APP. P. 42.3(c). If a supplemental clerk's record is required to establish this court's jurisdiction, appellant must ask the district clerk to prepare one and must notify the clerk of this court in writing within May 29, 2018 that such a request was made. All deadlines in this matter are suspended until further order of the court.
We order the clerk of this court to serve a copy of this order on the trial court, appellant, all counsel, the district clerk, all court reporters.
/s/_________
Marialyn Barnard, Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said court on this 21st day of May, 2018.
/s/_________
KEITH E. HOTTLE,
Clerk of Court