Pepos S. Dounson and Elisa L. Dounson v. Bexar Appraisal District and Bexar Appraisal Review Board ( 2011 )

MEMORANDUM OPINION
No. 04-11-00010-CV
Pepos S. DOUNSON and Elisa L. Dounson,
Appellants
v.
BEXAR APPRAISAL DISTRICT and Bexar Appraisal Review Board,
Appellees
From the 57th Judicial District Court, Bexar County, Texas
Trial Court No. 2008-CI-13133
Honorable Janet P. Littlejohn, Judge Presiding
Opinion by: Rebecca Simmons, Justice
Sitting: Catherine Stone, Chief Justice
Sandee Bryan Marion, Justice
Rebecca Simmons, Justice
Delivered and Filed: June 22, 2011
AFFIRMED
Appellants Pepos S. Dounson and Elisa L. Dounson appeal the trial court’s denial of their
no-evidence motion for summary judgment. Following the denial of the Dounsons’ motion, the
trial court dismissed their suit for want of prosecution. Because the Dounsons appeal only the
denial of their no-evidence motion for summary judgment, we affirm the trial court’s judgment.
04-11-00010-CV
BACKGROUND
The Dounsons own a two-story house in San Antonio. In 2008, they protested the
appraisal of their property due to Bexar Appraisal District (BCAD)’s alleged failure to follow
statutory procedures. The Bexar Appraisal Review Board (ARB) denied the Dounsons’ protest.
The Dounsons filed an original petition for review of the ARB’s denial of their protest in district
court on August 15, 2008. BCAD and the ARB filed an original answer and jury demand.
No further action was taken in the case until July 26, 2010, when the trial court specially
set the Dounsons’ case for dismissal for want of prosecution and scheduled a hearing for October
20, 2010. The Dounsons then filed a no-evidence motion for summary judgment, arguing, inter
alia, that BCAD had failed to present any evidence of the market value of their property, which
the Dounsons argued was “an essential element on which [BCAD] would have the burden of
proof at trial.” The trial court denied the motion after a hearing.
On October 20, 2010, the Dounsons did not appear at the hearing on the dismissal for
want of prosecution, and the trial court accordingly dismissed the case. The Dounsons did not
file a motion to reinstate their suit, but filed a motion for new trial, which the trial court did not
grant. The Dounsons appealed, challenging only the denial of their no-evidence motion for
summary judgment.
DENIAL OF THE NO-EVIDENCE MOTION FOR SUMMARY JUDGMENT
After a trial court has rendered a final judgment, a trial court’s denial of summary
judgment is an appealable order only if the trial court grants an opposing motion for summary
judgment. See Holy Cross Church of God in Christ v. Wolf, 44 S.W.3d 562, 566 (Tex. 2001)
(explaining that when competing motions for summary judgment are filed and the trial court
grants one and denies the other, an appellate court should render the judgment the trial court
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04-11-00010-CV
should have rendered); Ackermann v. Vordenbaum, 403 S.W.2d 362, 365 (Tex. 1966) (limiting
appellate review of denied motions for summary judgment “to cases in which motions for
summary judgment have been filed by all of the real parties at interest and the appeal is
prosecuted from a judgment granting one or more of them”). The denial of a motion for
summary judgment after a final judgment is not an appealable order because in cases where “a
motion for summary judgment is overruled and thereafter, . . . the suit is removed from the trial
court docket by dismissal or a judgment following a conventional trial on the merits, . . . review
of the overruled motion for summary judgment could result in judgments which would be
patently unjust.” Ackermann, 403 S.W.2d at 365.
The Dounsons appeal only the denial of their no-evidence motion for summary judgment.
BCAD did not file—and the trial court did not grant—any competing motion for summary
judgment. The trial court dismissed the Dounsons’ suit for want of prosecution. This is a final
judgment that the Dounsons do not challenge on appeal. Under these circumstances, the trial
court’s denial of the Dounsons’ no-evidence motion for summary judgment is not an appealable
order. Therefore, we overrule this issue.
CONCLUSION
Because the Dounsons’ sole issue attacks an order that is not appealable, and because the
Dounsons do not otherwise challenge the final judgment, we affirm the trial court’s judgment.
Rebecca Simmons, Justice
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