DISMISS and Opinion Filed December 31, 2018




                                           S    In The
                                 Court of Appeals
                          Fifth District of Texas at Dallas
                                        No. 05-18-01021-CV

      THOUSAND HILLS CATTLE COMPANY, LLC AND KAREN FAIRCLOTH,
                              Appellants
                                 V.
                     TERRY JEAN ARNOLD, Appellee

                       On Appeal from the 354th Judicial District Court
                                    Hunt County, Texas
                               Trial Court Cause No. 85130

                              MEMORANDUM OPINION
                 Before Chief Justice Wright, Justice Francis, and Justice Brown
                                    Opinion by Justice Brown

       We questioned our jurisdiction over this appeal from the trial court’s May 1, 2018 order

granting appellee’s traditional motion for summary judgment as it appeared to have been untimely

filed. See Brashear v. Victoria Gardens of McKinney, LLC, 302 S.W.3d 542, 545 (Tex. App.—

Dallas 2009, no pet.) (op. on reh’g) (timely filing of notice of appeal is jurisdictional). As reflected

in the record, the live pleadings at the time appellee filed her summary judgment motion were her

original petition, which sought declaratory relief as to certain property and alternatively asserted

an adverse possession claim, and appellants’ original answer--a general denial. On April 23, 2018,

the day of the summary judgment hearing, appellants filed an amended answer and a counterclaim.

The May 1st order recites the trial court granted appellee’s summary judgment motion “in its

entirety” and also granted appellee’s “oral motion made on the record to disregard [the]
Counterclaim . . . and First Amended Original Answer.” Because appellee’s summary judgment

motion addressed all of appellee’s claims against appellants and the trial court disregarded the

amended answer and original counterclaim, it appeared the May 1st order was final and either a

motion for new trial or the notice of appeal needed to be filed by May 31, 2018. See TEX. R. CIV.

P. 329b(a); TEX. R. APP. P. 26.1; Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001).

Appellants, however, did not file a motion for new trial until July 2, 2018 and their notice of appeal

was not filed until August 30, 2018.

       At our request, the parties filed letter briefs addressing our concern. In their letter brief,

appellants dispute the May 1st order was final. They note appellee filed a motion to strike the

amended answer and counterclaim on May 15, 2018, and the trial court granted that motion June

4, 2018. Appellants contend that the counterclaim remained pending until the trial court struck it,

and only when it was stricken did the May 1st order become final. Because the May 1st order did

not become final until June 4th, appellants assert the motion for new trial, filed within thirty days

of June 4th, was timely. Appellee responds that the May 1st order was final because the trial court

did not grant leave to file the amended answer and counterclaim.

       A judgment issued without a conventional trial on the merits is final for purposes of appeal

if it disposes of all claims and parties before the court or it states “with unmistakable clarity” that

it is a final judgment as to all claims and parties. See Lehmann, 39 S.W.3d at 192-93. Texas Rule

of Civil Procedure 63 prohibits the filing of any pleadings, responses, or pleas within seven days

of trial unless a party first obtains leave of court. See TEX. R. CIV. P. 63. A trial court must grant

leave unless the opposing party shows surprise. See id.; Goswami v. Metro. & Sav. Loan Ass’n,

751 S.W.2d 487, 490 (Tex. 1988). For purposes of rule 63, a summary judgment proceeding is a

trial. Goswami, 751 S.W.2d at 490.




                                                 –2–
           The record here does not reflect the trial court granted appellants leave to file the

counterclaim. Rather, the record reflects the trial court explicitly granted appellee’s request to

disregard it. As of the signing of the May 1st order then, the only claims before the court were

appellee’s claims against appellants, and the order disposed of those claims. Having disposed of

all pending claims, the order was final, and the appellate deadlines began to run from the date the

order was signed.1 See TEX. R. APP. P. 26.1; Watson v. Tipton, 274 S.W.3d 791, 796-97 (Tex.

App.—Fort Worth 2008, pet. denied). Because appellants’ notice of appeal was not filed until

August 30th, it is untimely, and we lack jurisdiction over the appeal. Accordingly, we dismiss the

appeal. See TEX. R. APP. P. 42.3(a).




                                                                            /Ada Brown/
                                                                            ADA BROWN
                                                                            JUSTICE

 181021F.P05




       1
         Because the May 1st order was final, the trial court retained plenary power over the case until May 31st absent a timely filed motion for new
trial. See TEX. R. CIV. P. 329b(d). The June 4th order striking the amended answer and counterclaim, signed outside the court’s plenary power, is
therefore void. See Kenseth v. Dallas Cty., 126 S.W.3d 584, 599 (Tex. App.—Dallas 2004, pet. denied).

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                                       S
                              Court of Appeals
                       Fifth District of Texas at Dallas
                                      JUDGMENT

 THOUSAND HILLS CATTLE                              On Appeal from the 354th Judicial District
 COMPANY, LLC AND KAREN                             Court, Hunt County, Texas
 FAIRCLOTH, Appellants                              Trial Court Cause No. 85130.
                                                    Opinion delivered by Justice Brown, Chief
 No. 05-18-01021-CV        V.                       Justice Wright and Justice Francis
                                                    participating.
 TERRY JEAN ARNOLD, Appellee

       In accordance with this Court’s opinion of this date, we DISMISS the appeal.

       We ORDER appellee Terry Jean Arnold recover her costs, if any, of this appeal from
appellants Thousand Hills Cattle Company, LLC and Karen Faircloth.


Judgment entered this 31st day of December, 2018.




                                             –4–
