Eduardo Diaz v. Leticia Covarrubias and Jose Guadalupe Covarrubias ( 2008 )

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MEMORANDUM OPINION
No. 04-07-00853-CV
Eduardo DIAZ,
Appellant
v.
Leticia COVARRUBIAS and Jose Guadalupe Covarrubias,
Appellees
From the 341st Judicial District Court, Webb County, Texas
Trial Court No. 2005CVE203-D3
Honorable Elma Salinas Ender, Judge Presiding
Opinion by: Alma L. López, Chief Justice
Sitting: Alma L. López, Chief Justice
Sandee Bryan Marion, Justice
Rebecca Simmons, Justice
Delivered and Filed: July 9, 2008
REVERSED AND RENDERED
Eduardo Diaz appeals a judgment rendered in favor of Leticia Covarrubias and Jose
Guadalupe Covarrubias (collectively “Covarrubias”) contending the trial court erred by: (1) denying
his motion for summary judgment based on limitations; and (2) entering a judgment contrary to the
jury’s verdict. Covarrubias responds to these issues and further asserts that this court lacks
jurisdiction to consider this appeal because the notice of appeal was untimely filed. We reverse the
trial court’s judgment and render judgment in accordance with the jury’s verdict.
04-07-00853-CV
JURISDICTION
Covarrubias contends this court does not have jurisdiction to consider this appeal because
Diaz’s motion for new trial was untimely filed and the notice of appeal was not filed within thirty
days after the date the judgment was signed. See TEX. R. APP. P. 26.1. On December 11, 2007, this
court issued an order directing Diaz to show cause why this appeal should not be dismissed for lack
of jurisdiction because the motion for new trial appeared to have been untimely filed. Diaz
responded that the motion for new trial was deposited in the mail in a properly addressed and
stamped wrapper on or before the last day for its filing and was received by the trial court clerk
within ten days after the filing deadline. On December 20, 2007, this court issued an order deeming
this response adequate to show cause why the appeal should not be dismissed based on Rule 9.2(b)
of the Texas Rules of Appellate Procedure. See TEX. R. APP. P. 9.2 (b). Because Diaz’s motion for
new trial was timely filed by mail pursuant to Rule 9.2(b), his notice of appeal was timely filed, and
this court has jurisdiction to consider this appeal.
SUMMARY JUDGMENT
In his first issue, Diaz contends the trial court erred in denying his motion for summary
judgment based on limitations. Following the denial of the summary judgment, a jury trial was held
on the merits of the underlying cause. A trial court’s denial of a motion for summary judgment is
not reviewable on appeal when the case has been tried on the merits. Orozco v. Orozco, 917 S.W.2d
70, 72 (Tex. App.—San Antonio 1996, writ denied); see generally Timothy Patton, Summary
Judgments in Texas § 8.01[3][a] (2007). Accordingly, we do not review the trial court’s denial of
Diaz’s motion for summary judgment.
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04-07-00853-CV
ERRONEOUS JUDGMENT
In his second issue, Diaz contends that the trial court erred in entering a judgment that was
inconsistent with the jury’s verdict. Although the jury found Diaz to be only 70% negligent, the trial
court entered judgment awarding Covarrubias 100% of the amount of the damages awarded by the
jury. Covarrubias responds that Diaz waived this objection by failing to appear at the hearing on
the motion for judgment on the verdict. It is well established, however, that where there is no
irreconcilable conflict in the jury’s findings, the trial judge has a ministerial duty to enter a judgment
on the verdict, and the matter involves no judicial or discretionary powers. Traywick v. Goodrich,
364 S.W.2d 190, 191 (Tex. 1963); TEX. CIV. PRAC. & REM. CODE ANN. § 33.011 & 33.012 (Vernon
Supp. 2007) (providing trial court shall reduce amount of damages to be recovered by claimant by
a percentage equal to the claimant’s percentage of responsibility and defining claimant to include
person injured and any person seeking damages for injury to that person). Because the trial court
erred in failing to enter a judgment on the jury’s verdict, the judgment is reversed, and judgment is
rendered in accordance with the jury’s verdict.
CONCLUSION
The trial court’s judgment is reversed, and judgment is rendered in accordance with the
jury’s verdict.
Alma L. López, Chief Justice
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