Van Zandt Health Care Property, Inc., D/B/A Anderson Nursing Center v. Mary Redd and Rodney Redd ( 2017 )

NO. 12-16-00283-CV
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
VAN ZANDT HEALTH CARE § APPEAL FROM THE
PROPERTY, INC., D/B/A ANDERSON
NURSING CENTER,
APPELLANT
§ COUNTY COURT AT LAW
V.
MARY REDD AND RODNEY REDD,
APPELLEES § VAN ZANDT COUNTY, TEXAS
MEMORANDUM OPINION
Van Zandt Health Care Property, Inc., d/b/a Anderson Nursing Center (Van Zandt)
appeals the trial court’s order granting summary judgment in favor of Rodney and Mary Redd. In
one issue, it argues that the trial court erred in granting the Redds’ motion for summary judgment.
We dismiss for want of jurisdiction.
BACKGROUND
In October 2013, Van Zandt sued the Estate of Arletta Turner and Turner’s heirs, the
Redds. In its petition, Van Zandt alleged that it had a contract to provide nursing care and
maintenance for Turner and that the contract was breached when payments were not made in
accordance with the contract’s terms.
In their answer, the Redds asserted a counterclaim for conversion. They also moved for
summary judgment, alleging that Van Zandt’s claim was barred by the statute of limitations
because suit was required to be brought within six months of Van Zandt’s appointment as
dependent administrator of Turner’s estate. The Redds argued that this Court previously
determined that Van Zandt’s claim was untimely and that, consequently, the current suit was also
barred under res judicata.1 Following a hearing, the trial court granted the summary judgment.
This appeal followed.
JURISDICTION
Before we address Van Zandt’s sole issue, we first consider the Redds’ argument that the
summary judgment order is not a final and appealable order and that this Court does not have
jurisdiction over Van Zandt’s appeal.
Standard of Review and Governing Law
Appellate jurisdiction is never presumed. Beckham Group, P.C. v. Snyder, 315 S.W.3d
244, 245 (Tex. App.–Dallas 2010, no pet.). Unless the record affirmatively shows the propriety
of appellate jurisdiction, we must dismiss the appeal. See id. This court’s jurisdiction is
established exclusively by constitutional and statutory enactments. See, e.g., TEX. CONST. art. V,
§ 6; TEX. GOV’T CODE ANN. § 22.220(c) (West Supp. 2016). Unless one of the sources of our
authority specifically authorizes an interlocutory appeal, we only have jurisdiction over an appeal
taken from a final judgment. See Lehmann v. Har–Con Corp., 39 S.W.3d 191, 195 (Tex. 2001);
N.E. Indep. Sch. Dist. v. Aldridge, 400 S.W.2d 893, 895 (Tex. 1966).
“‘[A] judgment issued without a conventional trial is final for purposes of appeal if and
only if either (1) it actually disposes of all claims and parties then before the court, regardless of
its language, or (2) it states with unmistakable clarity that it is a final judgment as to all claims
and all parties.’” Farm Bureau Cty. Mut. Ins. Co. v. Rogers, 455 S.W.3d 161, 163 (Tex. 2015)
(quoting Lehmann, 39 S.W.3d at 192–93). “An order does not dispose of all claims and all
parties merely because it is entitled ‘final’, or because the word ‘final’ appears elsewhere in the
order, or even because it awards costs.” Lehmann, 39 S.W.3d at 205. “Rather, there must be
some other clear indication that the trial court intended the order to completely dispose of the
entire case.” Id.
Analysis
In this case, there is no unmistakably clear statement on the face of the trial court’s
summary judgment order indicating that the trial court intended the order to be a final judgment
as to all claims and parties. See Rogers, 455 S.W.3d at 163; see also Lehmann, 39 S.W.3d at
205. Rather, the order simply states that Van Zandt’s claim is without merit and “the Motion for
1
See In re Estate of Turner, No. 12-14-00055-CV, 2014 WL 3845803 (Tex. App.—Tyler Aug. 6, 2014,
pet. denied) (mem. op.).
2
Summary Judgment of Rodney Redd and Mary Redd is granted.” Thus, the express terms of the
order itself clearly indicate that it is not a final judgment.
Furthermore, the record does not indicate that the trial court’s order actually disposed of
all claims and parties before the court. In their answer, the Redds asserted a counterclaim for
conversion and sought an award of damages, court costs, and attorney’s fees. The summary
judgment order, however, does not address or dispose of the Redds’ conversion claim. See
Garcia v. Equity Trust Co., No. 07-15-00184-CV, 2016 WL 736151, at *1 (Tex. App.—
Amarillo Feb. 23, 2016, no pet.) (mem. op.) (dismissing appeal for want of jurisdiction because
summary judgment order did not dispose of counterclaims).
Based on the foregoing, we conclude that the trial court’s order did not state with
unmistakable clarity that it is a final judgment as to all claims and parties or actually dispose of
all claims and parties then before the court. See Rogers, 455 S.W.3d at 163. Accordingly, we
hold that the order is not a final or otherwise appealable interlocutory order. See id.; see also
Dowtech Specialty Contractors, Inc. v. City of Nacogdoches, No. 12-15-00236-CV, 2016 WL
3050061, at *2-3 (Tex. App.—Tyler May 27, 2016, pet. denied) (mem. op.) (dismissing appeal
for want of jurisdiction when judgment was not final or otherwise appealable); see also TEX. CIV.
PRAC. & REM. CODE ANN. § 51.014 (West. Supp. 2016). For this reason, we lack jurisdiction to
consider Van Zandt’s appeal. See Rogers, 455 S.W.3d at 163; see also Dowtech Specialty
Contractors, Inc., 2016 WL 3050061, at *3.
DISPOSITION
Having held that the trial court’s order granting the Redds’ motion for summary judgment
is not a final judgment or otherwise appealable interlocutory order, we dismiss this appeal for
want of jurisdiction.
GREG NEELEY
Justice
Opinion delivered May 24, 2017.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
(PUBLISH)
3
COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
MAY 24, 2017
NO. 12-16-00283-CV
VAN ZANDT HEALTH CARE PROPERTY, INC., D/B/A ANDERSON NURSING
CENTER,
Appellant
V.
MARY REDD AND RODNEY REDD,
Appellees
Appeal from the County Court at Law
of Van Zandt County, Texas (Tr.Ct.No. CV05010)
THIS CAUSE came to be heard on the appellate record and the briefs filed
hrein; and the same being considered, it is the opinion of this court that this court is without
jurisdiction of the appeal, and that the appeal should be dismissed.
It is therefore ORDERED, ADJUDGED and DECREED by this court that
this appeal be, and the same is, hereby dismissed for want of jurisdiction; and that this decision
be certified to the court below for observance.
Greg Neeley, Justice.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.