the Estate of Harvey L. Schwartz, by and Through the Independent of the Estate of Harvey L. Schwartz, Kenneth C. Schwartz v. the Estate of Dorothy J. Schwartz, Michael Wayne Taylor And Tana Sue Pyssen
03-15-00651-CV
| Tex. App. | Oct 5, 2016Background
- Appellant (executor Kenneth C. Schwartz) sought to appeal adverse summary-judgment rulings entered Sept. 4, 2009 and June 2, 2014, challenging pre-death transfers by decedent Harvey L. Schwartz.
- Appellant filed a timely post-judgment motion after the June 2, 2014 summary judgment, so an appeal would be due within 90 days (i.e., by Sept. 1, 2014).
- Appellant did not file his notice of appeal until October 13, 2015 — more than a year late.
- Appellant argued uncertainty about whether the June 2, 2014 summary judgment was final (potentially interlocutory), and alternatively that a September 2015 letter from the trial judge constituted a final appealable order, making his subsequent notice of appeal timely.
- The trial court previously told the parties (by letter) it considered the judgments final; the letter was undated, not filed, and did not meet formal judgment requirements.
- The appellate court concluded that whether the June 2014 order was final or interlocutory, the court lacked jurisdiction because the notice of appeal was untimely and the trial-court letter was not a signed, filed judgment; the appeal was dismissed for want of jurisdiction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether June 2, 2014 summary judgment was final for appealability | June 2014 order lacked unequivocal language; might be interlocutory so the 90-day clock did not necessarily begin | The June 2014 summary judgment disposed of all claims/parties and was final; 90-day clock applied | Court: Regardless of finality, appellant's notice was untimely; lack of timely appeal means no jurisdiction. |
| Whether trial court’s Sept. 2015 letter constituted a final, appealable order starting the appeal clock | Letter + summary judgments together amounted to a final decision; appellant filed notice within 30 days of letter | Letter was a non-filed, undated communication that did not satisfy formal judgment requirements | Court: Letter did not constitute a judgment or signed, filed order; it did not start the appellate deadline. |
Key Cases Cited
- Lehmann v. Har-Con Corp., 39 S.W.3d 191 (Tex. 2001) (finality test for nonjury/judgment-on-paper; judgment final if it disposes of all claims and parties or states finality unequivocally)
- Hood v. Amarillo Nat’l Bank, 815 S.W.2d 545 (Tex. 1991) (summary judgment that does not dispose of all parties/issues is interlocutory and not appealable absent severance)
- In re K.M.Z., 178 S.W.3d 432 (Tex. App.—Fort Worth 2005, no pet.) (timely filing of notice of appeal is jurisdictional)
- In re Burlington Coat Factory Warehouse of McAllen, Inc., 167 S.W.3d 827 (Tex. 2005) (a nonfinal judgment must ‘unequivocally express’ intent to finally dispose of the case to be appealable)
- Goff v. Tuchscherer, 627 S.W.2d 397 (Tex. 1982) (letters to counsel generally are not appealable judgments)
- Perdue v. Patton, 142 S.W.3d 596 (Tex. App.—Austin 2004, no pet.) (letter from judge is an order only if it substantially complies with formal judgment requirements)