iii i i i

MEMORANDUM OPINION

No. 04-07-00853-CV

Eduardo DIAZ,

Appellant

v.

Leticia COVARRUBIAS and Jose Guadalupe Covarrubias,

Appellees

From the 341st Judicial District Court, Webb County, Texas

Trial Court No. 2005CVE203-D3

Honorable Elma Salinas Ender, Judge Presiding

Opinion by: Alma L. López, Chief Justice

Sitting: Alma L. López, Chief Justice

Sandee Bryan Marion, Justice

Rebecca Simmons, Justice

Delivered and Filed: July 9, 2008

REVERSED AND RENDERED

Eduardo Diaz appeals a judgment rendered in favor of Leticia Covarrubias and Jose

Guadalupe Covarrubias (collectively “Covarrubias”) contending the trial court erred by: (1) denying

his motion for summary judgment based on limitations; and (2) entering a judgment contrary to the

jury’s verdict. Covarrubias responds to these issues and further asserts that this court lacks

jurisdiction to consider this appeal because the notice of appeal was untimely filed. We reverse the

trial court’s judgment and render judgment in accordance with the jury’s verdict.
04-07-00853-CV

-2-

JURISDICTION

Covarrubias contends this court does not have jurisdiction to consider this appeal because

Diaz’s motion for new trial was untimely filed and the notice of appeal was not filed within thirty

days after the date the judgment was signed. See TEX.R. APP. P. 26.1. On December 11, 2007, this

court issued an order directing Diaz to show cause why this appeal should not be dismissed for lack

of jurisdiction because the motion for new trial appeared to have been untimely filed. Diaz

responded that the motion for new trial was deposited in the mail in a properly addressed and

stamped wrapper on or before the last day for its filing and was received by the trial court clerk

within ten days after the filing deadline. On December 20, 2007, this court issued an order deeming

this response adequate to show cause why the appeal should not be dismissed based on Rule 9.2(b)

of the Texas Rules of Appellate Procedure. See TEX.R. APP. P. 9.2 (b). Because Diaz’s motion for

new trial was timely filed by mail pursuant to Rule 9.2(b), his notice of appeal was timely filed, and

this court has jurisdiction to consider this appeal.

SUMMARY JUDGMENT

In his first issue, Diaz contends the trial court erred in denying his motion for summary

judgment based on limitations. Following the denial of the summary judgment, a jury trial was held

on the merits of the underlying cause. A trial court’s denial of a motion for summary judgment is

not reviewable on appeal when the case has been tried on the merits. Orozco v. Orozco, 917 S.W.2d

70, 72 (Tex. App.—San Antonio 1996, writ denied); see generally Timothy Patton, Summary

Judgments in Texas § 8.01[3][a] (2007). Accordingly, we do not review the trial court’s denial of

Diaz’s motion for summary judgment.
04-07-00853-CV

-3-

ERRONEOUS JUDGMENT

In his second issue, Diaz contends that the trial court erred in entering a judgment that was

inconsistent with the jury’s verdict. Although the jury found Diaz to be only 70% negligent, the trial

court entered judgment awarding Covarrubias 100% of the amount of the damages awarded by the

jury. Covarrubias responds that Diaz waived this objection by failing to appear at the hearing on

the motion for judgment on the verdict. It is well established, however, that where there is no

irreconcilable conflict in the jury’s findings, the trial judge has a ministerial duty to enter a judgment

on the verdict, and the matter involves no judicial or discretionary powers. Traywick v. Goodrich,

364 S.W.2d 190, 191 (Tex. 1963); TEX.CIV.PRAC.&REM.CODE ANN. § 33.011 & 33.012 (Vernon

Supp. 2007) (providing trial court shall reduce amount of damages to be recovered by claimant by

a percentage equal to the claimant’s percentage of responsibility and defining claimant to include

person injured and any person seeking damages for injury to that person). Because the trial court

erred in failing to enter a judgment on the jury’s verdict, the judgment is reversed, and judgment is

rendered in accordance with the jury’s verdict.

CONCLUSION

The trial court’s judgment is reversed, and judgment is rendered in accordance with the

jury’s verdict.

Alma L. López, Chief Justice