Harvey Browning v. 3M Company F/K/A Minnesota Mining and Manufacturing Company

• Court: Court of Appeals of Texas
• Decided: September 9, 2004
• Docket: 14-04-00523-CV
• Status: Published

Opinion

Dismissed and Memorandum Opinion filed September 9, 2004

Dismissed and Memorandum Opinion filed September 9, 2004.

In The

Fourteenth Court of Appeals

____________

NO. 14-04-00523-CV

HARVEY BROWNING, Appellant

V.

3M COMPANY, f/k/a MINNESOTA MINING AND MANUFACTURING COMPANY, Appellee

On Appeal from the 56th District Court

Galveston County, Texas

Trial Court Cause No. 02CV1405

M E M O R A N D U M   O P I N I O N

This is a premature appeal from an order granting appellee=s motion for summary judgment signed April 7, 2004.  The clerk=s record was filed June 17, 2004.  The record reveals that the judgment is not final because appellee is only one of many defendants in the underlying suit.  A summary judgment is final if it disposes of all issues and parties.  Lehmann v. Har‑Con Corp., 39 S.W.3d 191, 192 (Tex. 2001).

On July 15, 2004, the parties filed a joint motion to abate the appeal for thirty days so that appellant could ask the court to reconsider its ruling.  According to the motion to abate, if the court denied appellant=s motion to reconsider, the parties would obtain a severance of the claims addressed in the order from the remaining claims.  Texas Rule of Appellate Procedure 27.2 provides as follows:

The appellate court may allow an appealed order that is not final to be modified so as to be made final and may allow the modified order and all proceedings relating to it to be included in a supplemental record.

Tex. R. App. P. 27.2.  Thus, this court has discretion to permit the parties to take the steps necessary make the order being appealed final.  Accordingly, on July 29, 2004, we granted the parties= motion and ordered the case abated and remanded to the trial court for a period of thirty days to permit the parties to obtain an order severing the claims being appealed from the remainder of the case. 

On September 2, 2004, appellant filed a motion to dismiss the appeal.  See Tex. R. App. P. 42.1.  In the motion, appellant stated that the parties had been unsuccessful in their attempt to obtain a severance to make the order at issue in this appeal final and appealable.  Therefore, appellant acknowledges there is no final, appealable order.  Appellant=s motion is granted.

Accordingly, the appeal is ordered dismissed.

PER CURIAM

Judgment rendered and Memorandum Opinion filed September 9, 2004.

Panel consists of Chief Justice Hedges and Justices Frost and Seymore.