Guajardo v. Conwell

• Decision Date: 26 April 2001
• Docket Number: No. 00-1234,00-1234
• Parties: (Tex. 2001) Clarissa Guajardo a/k/a Clarissa Guajardo Shaw, Petitioner v. Tracey D. Conwell and Creole Construction Co., Inc., Respondents
• Court: Texas Supreme Court

Page 862

46 S.W.3d 862 (Tex. 2001)

Clarissa Guajardo a/k/a Clarissa Guajardo Shaw, Petitioner v. Tracey D. Conwell and Creole Construction Co., Inc., Respondents

No. 00-1234

Supreme Court of Texas

April 26, 2001

On Petition for Review from the Court of Appeals for the Fourteenth District of Texas

Per Curiam

The court of appeals dismissed this appeal as not having been timely perfected. 30 S.W.3d 15 (Tex. App. Houston [14th Dist.] 2000). We agree that dismissal was appropriate but for a different reason, which is that the trial court did not render a final, appealable judgment.

Clarissa Guajardo, an attorney, sued Tracey Conwell, another attorney, and Creole Construction Company, and the parties reached a mediated settlement agreement. Before the case could be resolved, however, defendants filed a counterclaim against Guajardo for breach of the settlement agreement. Guajardo's attorney, Wayne Paris, withdrew from representing her and filed an intervention asserting a claim for attorney fees. Guajardo amended her petition to assert additional claims against the defendants. She also moved to strike Paris's intervention and, in the alternative, asserted a claim against him. Guajardo and the defendants filed cross-motions for summary judgment on defendants' counterclaim. Paris filed a response stating that the defendants' motion for summary judgment should be granted for specific performance of the settlement agreement only and not for any other relief, that Guajardo's motion for summary judgment should be denied, and that settlement funds should be paid into the court registry pending a final adjudication of his claim.

The trial court struck Guajardo's amended petition as having been filed after the deadline for amended pleadings set by a scheduling order. The court also denied Guajardo's motion for summary judgment and granted the defendants' motion. The court did not strike Paris's intervention or Guajardo's claims against him, even though both were filed after the deadline set by the scheduling order. The court signed a summary judgment on July 9, 1999, that granted the defendants' motion, ordered Guajardo and the defendants to perform the settlement agreement, taxed costs against the party who incurred them, and stated that "all relief herein not expressly granted is denied." The judgment did not mention the claims by Paris and Guajardo against each other.

The disputes between Guajardo and the defendants continued. Guajardo filed two motions to enforce the court's judgment, and the court held three hearings in an effort to resolve the matter. Clearly frustrated, the trial judge at the third hearing on October 15, 1999, ordered the parties to perform the settlement agreement within ten days or suffer dismissal of the case for want of prosecution. Following the hearing, the court signed the following order:

The court signed a final judgment in the case on July 9, 1999. No motion for new trial was filed. The trial court's plenary jurisdiction expired August 9, 1999. Accordingly, the court dismisses the parties' post-judgment motion for want of jurisdiction.

Guajardo filed a notice of appeal twenty-seven days later.

Paris moved to dismiss the appeal as not having been timely perfected, and so did the defendants. Both motions argued that the "Mother Hubbard" language in the summary judgment showed the trial court intended that it be final, and thus the notice of appeal was too late. The court of appeals agreed and dismissed the...