Garza, Ricardo v. Crecelius, Phil, Rene R. Barrientos and Rene R. Barrientos, P.C. ( 2000 )

NUMBER 13-00-292-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

___________________________________________________________________

RICARDO GARZA, Appellant,

v.

PHIL CRECELIUS, RENE R. BARRIENTOS, RENE R.

BARRIENTOS, P.C. Appellees.

___________________________________________________________________

On appeal from the 275th District Court

of Hidalgo County, Texas.

___________________________________________________________________

O P I N I O N

Before Chief Justice Seerden, and Justices Dorsey and Rodriguez

Opinion Per Curiam

We dismiss this entire appeal for want of jurisdiction for the following reasons. Accordingly, all pending motions are dismissed as moot except for Barrientos' motion to dismiss for want of jurisdiction, which is granted.

In this case, the appellant was the plaintiff in a legal malpractice suit filed in 1993 against Barrientos, Barrientos, P.C., and Crecelius. In 1994, summary judgment was granted in favor of Barrientos and Barrientos, P.C. It appears that at that time, Crecelius had never been served.⁽¹⁾

The order granting that summary judgment contained a Mother Hubbard clause. The order states, in pertinent part:

On this date the Court considered the Motion for Summary Judgment of Defendants, Rene R. Barrientos and Rene R. Barrientos, P.C. The Court has concluded that such Motion is meritorious. It is therefore ORDERED that the Motion for Summary Judgment of Defendants, Rene R. Barrientos and Rene R. Barrientos, P.C., is granted in its entirety; judgement is rendered as a matter of law in favor of Rene R. Barrientos and Rene R. Barrientos, P.C., and Plaintiff shall take nothing against those Defendants; . . . and, any and all relief requested by Plaintiff which is not expressly disposed of by this Judgment is hereby denied.

That order was signed on October 25, 1994 (emphasis added).

The plaintiff filed a motion for new trial. The trial court never ruled upon the motion, and thus, it was overruled by operation of law. The plaintiff later filed a motion to sever, which the trial court denied "for lack of jurisdiction." The clerk's record on appeal indicates that no other documents were filed in this cause until September of 1999, over five years after the summary judgment was signed.

In September of 1999, the plaintiff filed a new motion for summary judgment, this time against Defendant Crecelius. Crecelius filed a response to this motion asserting that he had never been served with the lawsuit.

We hold that the summary judgment rendered in 1995 was the final judgment in this cause, and, accordingly, dismiss the entire appeal for want of jurisdiction.

First, we hold that the rule in Mafrige and Inglish applies. Under Mafrige, "[i]f a summary judgment order appears to be final, as evidenced by the inclusion of language purporting to dispose of all claims or parties, the judgment should be treated as final for purposes of appeal." Mafrige v. Ross, 866 S.W.2d 590, 592 (Tex. 1993). In Inglish v. Union State Bank, 945 S.W.2d 810 (Tex.1997), the supreme court held that even if a summary judgment grants more relief than was requested, if it contains a Mother Hubbard clause or "clearly purports to be final," it is final and appealable. Id. at 811.

As this Court has noted,

Mafrige and Inglish make clear, [that] the intent of the trial court is not the controlling consideration in determining whether a judgment is final. Rather, we look to the four corners of the judgment. The rule, harsh as it is, remains . . . .

In re Cobos, 994 S.W.2d 313, 315 (Tex. App.--Corpus Christi 1999, no writ.). The practical effect of this rule is that a final judgment is recognizable on its face. Id.

Accordingly, the 1995 summary judgment stating that "all relief requested by Plaintiff which is not expressly disposed of by this Judgment is hereby denied," was the final judgment for purposes of appeal.

Even if that language had not been included in the judgment, it still would have been final. The well-established rule is that when a judgment disposes of all parties who have been served, but not those who have not been served, "the case stands as if there had been a discontinuance as to the unserved parties, and the judgment is to be regarded as final for the purposes of appeal." Youngstown Sheet & Tube Co. v. Penn, 363 S.W.2d 230, 232 (Tex. 1962); accord Slater v. National Medical Enterprises, Inc., 962 S.W.2d 228, 232 (Tex.App.-Fort Worth 1998, pet. denied); Osborne v. St. Lukes Episcopal Hosp., 915 S.W.2d 906, 908­09 (Tex.App.--Houston [1st Dist.] 1996, pet. denied); Flanagan v. Martin, 880 S.W.2d 863, 865 (Tex. App.--Waco 1994, no writ); Young v. Hunderup, 763 S.W.2d 611, 612­13 (Tex.App.--Austin 1989, no writ); Zepeda v. Bulleri, 739 S.W.2d 496, 496­97 (Tex.App.--San Antonio 1987, no writ); City of Brady v. Bennie, 735 S.W.2d 275, 287 (Tex. App.--Eastland 1987, no writ); First Dallas Petroleum, Inc. v. Hawkins, 715 S.W.2d 168, 170 (Tex. App.--Dallas 1986, no writ).

Crecelius, the only remaining defendant, had not been served at the time the summary judgment was entered. Accordingly, the appellate deadlines began to run on October 25, 1994. Because no appeal from that judgment was taken, we are without jurisdiction to hear an appeal of that order, or any other subsequent order purported to be entered in that cause.

PER CURIAM

Do Not Publish.

Tex. R. App. P. 47.3.

Opinion delivered and filed this

the 28^th day of September, 2000.

1. Plaintiff has never attempted to refute Crecelius' sworn testimony that he was never served with the suit.