Cedric A. Jones, 827624 v. Texas Department of Criminal Justice I-D

NO. 07-06-0468-CV IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL B DECEMBER 3, 2008 ______________________________ CEDRIC JONES, APPELLANT v. TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION, ET AL., APPELLEES _________________________________ FROM THE 251ST DISTRICT COURT OF POTTER COUNTY; NO. 88,649-C; HON. PATRICK A. PIRTLE, PRESIDING _______________________________ Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ. MEMORANDUM OPINION Appellant Cedric Jones, a Texas prison inmate appearing pro se, challenges the dismissal of his suit against James Beach, an employee of the unit in which appellant is incarcerated. We will dismiss the appeal. As a general rule, our appellate jurisdiction is limited to review of final judgments. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001). In the absence of statutory provision for appeal of an interlocutory order, a judgment must dispose of all issues and parties in the case to be final and appealable. New York Underwriters Ins. Co. v. Sanchez, 799 S.W.2d 677, 678-79 (Tex. 1990) (per curiam), citing North East Independent School Dist. v. Aldridge, 400 S.W.2d 893, 895 (Tex. 1966). Our exercise of appellate jurisdiction over an interlocutory order in the absence of express statutory authorization is jurisdictional error. New York Underwriters, 799 S.W.2d at 679. We must, therefore, consider our jurisdiction sua sponte. Jones began by suing Senior Warden Joseph K. Price, Lieutenant James R. Beach and Property Officer Gary Gifford, asserting claims arising from loss of his personal property and violations of his constitutional rights. The trial court signed an order granting a motion to dismiss the suit filed by Price and Gifford, and dismissing his claims against them. When Jones appealed that order, we dismissed the appeal because his claims against Beach had not been adjudicated. Jones v. Gifford, No. 07-01-0507-CV, 2002 WL 342660 (Tex.App.–Amarillo 2002, no pet.) (mem. op.). Beach later filed an answer to Jones’s suit, and a motion to dismiss the claims against him as frivolous. The trial court entered an order granting “Defendant Beach’s Motion to Dismiss,” and dismissing Jones’s claims. It is from this order that Jones brings this appeal. In the meantime, however, Jones filed his sixth amended petition, adding the Texas Department of Criminal Justice–Institutional Division as a defendant, and asserting additional claims against that agency. The record before us does not reflect that the Texas Department of Criminal Justice–Institutional Division has filed an answer or any other pleading responsive to Jones’s petition. To be final, a judgment rendered in a proceeding other than a conventional trial on the merits must actually dispose of all claims and parties or state clearly and unequivocally that it is a final judgment as to all claims and all parties. Lehmann, 39 S.W.3d at 205. The order from which this appeal is brought, even when coupled with the order earlier appealed, does not dispose of the claims Jones has asserted against the Texas Department of Criminal Justice–Institutional Division, nor does it state clearly and unequivocally that it is a final judgment as to all claims and all parties. Nor does the record reflect that Jones’s claims against the Texas Department of Criminal Justice–Institutional Division have been severed, dismissed, or otherwise resolved. Under the record before us, they remain pending and unadjudicated. Because Jones again attempts to appeal an order that is not final and appealable, we must find we have no jurisdiction over the attempted appeal. It is therefore dismissed. James T. Campbell Justice n; it must have actual, subjective awareness of its fault in the incident. Simons, 140 S.W.3d at 348. The purpose of the notice requirement is to ensure prompt reporting of claims in order to enable a governmental unit to gather information necessary to guard against unfounded claims, settle claims, and prepare for trial. Cathey, 900 S.W.2d at 340. The accident occurred on February 27, 1998. McAllister references a portion of the clerk's record designated "Notice-Correspondence" in support of his contention that TxDOT had been given notice. All but one of the letters reference the property damage claim by Rob Smets and Carla Smets, as insured and owners of the truck McAllister was driving at the time of the accident. On August 4, 1998, McAllister's attorney wrote an Assistant Attorney General generally complaining about the "screening process" in deciding to prosecute a subrogation claim against McAllister to recoup benefits paid on behalf of Hood. Counsel continued in the letter: Brad McAllister is a fine, decent young man. Like any normal person who cares for people, a tragedy of this kind has seriously affected him personally, mentally and emotionally. He truly needs to get this behind him, and not be forced to relive through the drama of the courtroom the details of this event, and the anguish he will go through from this point up to the time of trial. No mention is made in the August 4 letter of a claimed injury by McAllister, the time and place of the incident, or the incident that gave rise to the claim as required by section 101.101(a). Further, although TxDOT had investigated the accident, there is no evidence in the record indicating it had actual notice of McAllister's claim or that its fault produced or contributed to the claimed injury. Thus, we conclude that McAllister's failure to comply with the notice requirements barred any action under the Act. Loutzenhiser, 140 S.W.3d at 365. Hood's Official Immunity TxDOT argues that it was protected from liability because Hood's decisions fell under the doctrine of official immunity. McAllister contends official immunity does not apply. Official immunity shields government employees and public officials from suits arising from performance of their (1) discretionary duties (2) in good faith (3) within the scope of their authority. See Ballantyne v. Champion Builders, Inc., 47 Tex. Sup. Ct. J. 852, 2004 WL 1533950, at *5 (Tex. July 9, 2004). However, a claimant's failure to give notice under section 101.101 precludes the waiver of official immunity. Johnson v. Nacogdoches County Hosp. Dist., 109 S.W.3d 532, 537 (Tex.App.-Tyler 2001, pet. denied). Having previously concluded that McAllister did not provide formal, written notice of his claim nor establish that TxDOT had actual notice, we need not address whether Hood was entitled to official immunity. We agree with TxDOT that McAllister's claim fell outside the Act and sustain its first issue and four sub-issues. McAllister's Non-Negligence By its second issue, TxDOT contends the jury's verdict that McAllister was zero percent responsible for the accident was against the overwhelming weight of the evidence. We disagree. The mere occurrence of an accident does not present evidence of negligence. Gomez v. Adame, 940 S.W.2d 249, 251 (Tex.App.--San Antonio 1997, no writ); Weaver v. U.S. Testing Co., Inc., 886 S.W.2d 488, 490 (Tex.App.--Houston [1st Dist.] 1994, writ denied). The State was required to prove specific acts of negligence by McAllister that proximately caused the accident. In Dow Chemical Co. v. Francis, 46 S.W.3d 237, 241-42 (Tex. 2001), the Court discussed the appropriate standard of review of an issue on which the party attacking an adverse finding had the burden of proof. In summary the Court held: [w]hen a factual sufficiency challenge is presented, the complaining party must demonstrate that the adverse finding is against the great weight and preponderance of the evidence. Under this review, after considering and weighing all the evidence, we can set aside the verdict only if the evidence is so weak or if the finding is so against the great weight and preponderance of the evidence that it is clearly wrong and unjust. See also Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986); Raw Hide Oil & Gas v. Maxus Exploration, 766 S.W.2d 264, 266 (Tex.App.--Amarillo 1988, writ denied); Hall, Standards of Review in Texas, 34 St. Mary's L.J. 173-74. According to the uncontradicted evidence of eye witnesses, while McAllister was driving in the right lane of traffic below the speed limit, another vehicle was driving in the same direction in the left lane making it impossible for him to change lanes. The TxDOT truck was parked on the shoulder near the fog line when Hood walked into the right lane of traffic. One particular witness, a coach from a nearby community, testified: [w]e were fixing to create or coming upon creating what I call a tight formation. Moreover, McAllister was not speeding nor was he cited for any traffic violations. The DPS officer who conducted the investigation concluded he was not at fault. Thus, the evidence presented showed that McAllister was driving at a lawful rate of speed, in his lane of traffic and unable to change lanes when Hood walked into his lane. Having reviewed all the evidence, we conclude the jury's finding of zero negligence on McAllister's part is not so against the great weight and preponderance of the evidence as to be clearly wrong and unjust. Issue two is overruled. Accordingly, that portion of the trial court's judgment awarding Bradley A. McAllister $7,560, plus prejudgment interest in the amount of $3,213 for property damages, and $50,000, plus prejudgment interest in the amount of $21,250 for physical pain and mental anguish, is reversed and judgment is hereby rendered that Bradley A. McAllister take nothing against the State of Texas acting by and through the Texas Department of Transportation; in all other respects, the judgment is affirmed. Don H. Reavis Justice 1. The truck driven by McAllister was owned by a third party. By his counterclaim, McAllister sought recovery of the property damage for the use and benefit of the third party. 2. Tex. Civ. Prac. & Rem. Code Ann. ǧ 101.001 - 101.109 (Vernon 1997 & Pamph. Supp. 2004-05), hereafter referred to as the Act.