carriage-house-manor-inc-v-john-r-folowell-mary-p-folowell-woodhaven ( 1994 )

Carriage House Manor, Inc. v. Folowell IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,

AT AUSTIN









NO. 3-93-694-CV

CARRIAGE HOUSE MANOR, INC.,

APPELLANT

vs.

JOHN R. FOLOWELL; MARY P. FOLOWELL; WOODHAVEN, INC.;

BEVERLY ENTERPRISES-TEXAS, INC. D/B/A LEISURE LODGE

NURSING HOME; TEXAS DEPARTMENT OF HUMAN SERVICES;

BURTON F. RAIFORD; AND GARY ALLEN,

APPELLEES

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 353RD JUDICIAL DISTRICT

NO. 92-07606, HONORABLE PAUL R. DAVIS, JR., JUDGE PRESIDING

PER CURIAM

Appellant Carriage House Manor, Inc. appeals by petition for writ of error the district court's May 11, 1993, final summary judgment in favor of appellees John R. Folowell; Mary P. Folowell; Woodhaven, Inc.; and Beverly Enterprises-Texas, Inc. and against the Texas Department of Human Services; Burton F. Raiford, in his official and individual capacity; and Gary Allen, in his official and individual capacity. Carriage House attempted a postjudgment intervention in the district court on June 4, 1993. Carriage House also has filed a motion to use the original papers and exhibits filed in cause number 3-93-450-CV in this appeal.

Appellees have filed a motion to dismiss the petition for writ of error for want of jurisdiction arguing that Carriage House may not appeal by writ of error because it was not a party to the May 11 final judgment. DSC Finance Corp. v. Moffitt, 815 S.W.2d 551, 551 (Tex. 1991). We have previously determined, however, that the May 11 judgment was not in fact a final judgment because it did not dispose of all issues or parties in the case. Carriage House Manor, Inc. v. Folowell, No. 3-93-450-CV, slip op. at 1 (Tex. App.--Austin Feb. 2, 1994, no writ h.) (not designated for publication). We, therefore, overrule appellees' motion to dismiss for want of jurisdiction.

An appeal by writ of error may only be brought from a final judgment of the trial court. Tex. Civ. Prac. & Rem. Code Ann. § 51.013 (West 1986); Moffitt, 815 S.W.2d at 551. Because there is no final judgment in this cause, we dismiss the petition for writ of error for want of jurisdiction and Carriage House's motion to use the original papers and exhibits filed in cause number 3-93-450-CV. Tex. R. App. P. 60(a)(2).

Before Justices Powers, Aboussie and Jones

Petition for Writ of Error Dismissed for Want of Jurisdiction

Filed: March 9, 1994

Do Not Publish