Opinion
No. 10-14-00392-CV
10-05-2016
WILLIAM M. WINDSOR, Appellant v. SEAN D. FLEMING, Appellee
From the 378th District Court Ellis County, Texas
Trial Court No. 88611
ORDER
Upon review of the record and the parties' letter briefs, the Court concludes that Appellee Sean Fleming's motion to dismiss was not denied by operation of law because the trial court had stayed the action and all deadlines (specifically including Fleming's motion to dismiss) from March 10, 2014 to August 11, 2014 and because the trial court allowed discovery. See TEX. CIV. PRAC. & REM. CODE ANN. § 27.004(c) (West 2015) (extending hearing date to 120 days if trial court allows discovery).
If the motion to dismiss had been denied by operation of law, only the moving party (Fleming—not Appellant William Windsor) could have appealed. See TEX. CIV. PRAC. & REM. CODE ANN. § 27.008(a) (West 2015) ("If a court does not rule on a motion to dismiss under Section 27.003 in the time prescribed by Section 27.005, the motion is considered to have been denied by operation of law and the moving party may appeal.") (emphasis added).
Because the motion to dismiss was not denied and there was no interlocutory appeal of that denial, there was no stay of proceedings, TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(12), (b) (West Supp. 2016), and the trial court's December 18, 2014 order was not improper despite Windsor's two notices of appeal.
All three of Windsor's notices of appeal were of interlocutory rulings for which there is no statutory right to appeal, but the trial court's dismissal of the underlying case in its entirety on February 2, 2015 made the case final and the interlocutory rulings appealable. See Nancarrow v. Whitmer, No. 10-14-00045-CV, 2014 WL 2159552, at *1 & n.1 (Tex. App.—Waco May 22, 2014, no pet.) (mem. op.); see also TEX. R. APP. P. 27.3. --------
We also conclude that, because Windsor's purported removal was a nullity, see Windsor v. Joey Is A Little Kid, No. 3:14-CV-03020, slip ord. at 2 (D. S.D. Jan. 28, 2015), it did not deprive the trial court of jurisdiction to enter its December 18, 2014 order. See Parrish v. State, 485 S.W.3d 86, 89-90 (Tex. App.—Houston [14th Dist.] 2015, pet. ref'd).
PER CURIAM Before Chief Justice Gray, Justice Davis, and Justice Scoggins (Due to his dissent from the August 3, 2016 order in this proceeding, Chief Justice Gray did not participate in deciding this order.)
Order issued and filed October 5, 2016
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