Quanaim v Frasco Restaurant
| Decision Date | 09 March 2000 |
| Citation | 17 S.W.3d 30 |
| Parties | <!--17 S.W.3d 30 (Tex.App.-Houston 2000) HENRY QUANAIM, Appellant v. FRASCO RESTAURANT & CATERING AND FRASCO, INC., Appellees NO. 14-98-00890-CV In The Fourteenth Court of Appeals |
| Court | Texas Court of Appeals |
On Appeal from the 133rd District Court Harris County, Texas, Trial Court Cause No. 97-36097
[Copyrighted Material Omitted]
[Copyrighted Material Omitted] Panel consists of Justices Yates, Fowler and Frost.
Appellant's motion for rehearing is granted. This court's opinion of September 23, 1999, is withdrawn and this opinion is issued in its place.
Appellant, a personal injury plaintiff in the court below, seeks reversal of three summary judgments rendered in favor of defendants/appellees. In a challenge to this court's appellate jurisdiction, appellees urge the court to dismiss on the ground that appellant failed to timely perfect this appeal.1 We overrule appellees' challenge to this court's jurisdiction. After considering the merits of the appeal, we affirm in part and reverse and remand in part.
In November 1997, Henry Quanaim, appellant and the plaintiff in the suit below, sued Frasco Restaurant & Catering for injuries he sustained in June 1995, when he slipped and fell in the hallway of the Stouffer Renaissance Hotel. Quanaim, then a hotel employee, alleged that Frasco Restaurant & Catering, which had been hired to cater a wedding reception at the hotel, was negligent in permitting the floor to become hazardous and in failing to properly train and supervise its employees. Frasco Restaurant & Catering filed a verified answer denying it was the proper party. Quanaim then joined Frasco, Inc. as a party defendant and asserted the same claims based on negligence and gross negligence. Frasco, Inc. asserted several affirmative defenses, including: (1) Quanaim's claims are barred by the two-year statute of limitations; (2) Frasco, Inc. was an agent of Quanaim's employer (the owner of the Stouffer Renaissance Hotel) for the purpose of catering the wedding, and thus, is barred from bringing the suit by section 408.001(a) of the Texas Labor Code; and (3) Quanaim's claims are barred by a previous federal court judgment.
Frasco, Inc. filed two separate motions for summary judgment, each of which sought dismissal of the suit on independent grounds. In its first motion, filed March 18, 1998, Frasco, Inc. sought a "no evidence" summary judgment on the ground that it was not a possessor of the premises. On the same day, but in a separate motion, Frasco Restaurant & Catering moved for summary judgment on the ground that it was not a legal entity at the time of the incident and, therefore, could not be sued. On April 15, 1998, Frasco, Inc. filed its "Second Motion for Summary Judgment," alleging that because Quanaim had sued his employer (the owner of the Stouffer Renaissance Hotel) in federal court to recover damages for the injuries made the subject of his state court suit, he was barred by the exclusive remedy provisions of the Texas Labor Code, section 408.001(a), and by the doctrine of collateral estoppel2 from asserting claims against Frasco, Inc. in this suit.
The trial court did not rule on the summary judgment motions in the order they were filed, but in the course of a few weeks' time, the court granted each of the motions by entry of three separate orders. On May 5, 1998, the trial court granted the motion filed by Frasco Restaurant & Catering on the ground that it was not a legal entity at the time of the incident and therefore could not be sued. On May 11, 1998, the trial court granted the second motion for summary judgment disposing of Quanaim's claims against Frasco, Inc. on the grounds that they are barred by the Texas Labor Code's exclusive remedy provisions and a prior federal court judgment. On May 18, 1998, the trial court granted Frasco, Inc.'s first motion for summary judgment on the ground that Frasco, Inc. was not a possessor of the premises.
On June 17, 1998, Quanaim simultaneously filed a motion for new trial and a separate motion asking the trial court to reconsider its rulings on the summary judgment motions. In both of his June 17 motions, Quanaim set forth arguments addressing each of the grounds on which Frasco Restaurant & Catering and Frasco, Inc. (hereafter collectively referred to as "Frasco") had moved in each of the respective motions for summary judgment. In opposing Quanaim's motion for new trial, Frasco asserted the trial court lacked plenary jurisdiction to hear the motion because Quanaim had filed it more than thirty days after the court's May 11 order, which had disposed of all remaining parties and claims.3
After Quanaim initiated this appeal, Frasco filed a motion asking this court to dismiss the appeal for lack of jurisdiction on the ground that Quanaim's notice of appeal was not timely filed as to two of the three orders granting summary judgment. According to Frasco, the appellate timetable was not extended, which made Quanaim's notice of appeal, filed August 3, 1998, untimely. Frasco contends the orders the trial court entered on May 5 and 11, 1998, disposed of both defendants and all claims of the plaintiff, thus making Quanaim's motion for new trial or notice of appeal due no later than June 10, 1998. Frasco asserts that inasmuch as Quanaim's notice of appeal was not filed until August 3, 1998, it was untimely and insufficient to confer appellate jurisdiction on this court. Quanaim responds that the only consequence of the court's entry of multiple orders is that he must "address three different grounds for summary judgment on appeal." Quanaim contends that his time for filing a motion for new trial did not begin to run until the last summary judgment order was signed and therefore his motion for new trial and subsequent notice of appeal were timely filed.
On November 19, 1998, this court denied Frasco's motion to dismiss, without opinion. In its appellate brief, Frasco urges us to reconsider our previous ruling and to dismiss the appeal for lack of jurisdiction.
The first jurisdictional prerequisite to an appeal is the timely filing of a notice of appeal. If a notice of appeal is not timely filed, the appellate court acquires no jurisdiction over the appeal except to dismiss it. See Bixby v. Bice, 992 S.W.2d 615, 616 (Tex. App.-Waco 1999, no pet.); Gonzalez v. Doctors Hospital East Loop, 814 S.W.2d 536, 537 (Tex. App.-Houston [1st Dist.] 1991, no writ); K & S Interests, Inc. v. Texas American Bank/Dallas, 749 S.W.2d 887, 890 (Tex. App.-Dallas 1988, writ denied). In determining whether a notice of appeal was timely filed, we look to the date of the final judgment, i.e., "whatever order disposes of any parties or issues remaining before the court." Farmer v. Ben E. Keith Co., 907 S.W.2d 495, 496 (Tex. 1995); Martinez v. Humble Sand & Gravel, Inc., 875 S.W.2d 311, 313 (Tex. 1994). There can be only one final judgment in a lawsuit. See TEX. R. CIV. P. 301; Logan v. Mullis, 686 S.W.2d 605, 609 (Tex. 1985); Wang v. Hsu, 899 S.W.2d 409, 411 (Tex. App.-Houston [14thDist.] 1995, writ denied). Because this case involves multiple court orders disposing of claims, the first question we must decide is which, if any, of the orders granting summary judgment is the final judgment.
A judgment is final and appealable when it determines the rights of all parties and disposes of all issues in a case so that no future action by the court is necessary to settle the entire controversy. See Schlipf v. Exxon Corp., 644 S.W.2d 453, 455 (Tex. 1982); Cowan v. Moreno, 903 S.W.2d 119, 121 (Tex. App.-Austin 1995, no writ). Ordinarily, an order granting summary judgment must expressly dispose of all parties and all issues in the case for it to be a final, appealable judgment. See Mafrige v. Ross, 866 S.W.2d 590, 591 (Tex. 1993). Once a summary judgment becomes a final and appealable judgment, the timetables for challenging the judgment begin to run. See TEX. R. CIV. P. 329b(d) (); TEX. R. APP. P. 26.1 (appellate timetable). The trial court's initial period of plenary power over its judgment and the last day to file a motion for new trial or perfect an appeal are the same: thirty days after the date the judgment is signed. See TEX.R. CIV. P. 329b(a), (d); TEX. R. APP. P. 26.1. If a motion for new trial is timely filed by any party, the trial court's period of plenary power is extended until thirty days after all timely filed motions for new trial or motions to vacate, modify, correct, or reform the judgment are overruled. See TEX. R. CIV.P. 329b(e).
The following timetable illustrates the operative dates for purposes of determining when the time for Quanaim to challenge the trial court's rulings began and ended:
Nov. 25, 1997 March 18, 1998 April 15, 1998
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1st Amended Petition (1) Frasco Restaurant Frasco, Inc. files
Alleging Negligence & & Catering files 2nd MSJ alleging
Gross Negligence against a MSJ alleging that that Quanaim's
(1) Frasco Restaurant it was not a legal entity claims are barred
& Catering and at the time of the by the "exclusive
(2) Frasco, Inc. accident and therefore remedy" provision
cannot be sued. of the Texas Labor
(2) Frasco, Inc. files its Code....To continue reading
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