In re ROC Pretrial
This text of 75 S.W.3d 15 (In re ROC Pretrial) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
Opinion by
We are asked to consider whether a nonsuit order is void to the extent it dismisses claims not encompassed by the motion for nonsuit. We hold the order is not void and therefore dismiss the appeals of 155 appellants against nine appellees.
Factual and Procedural Background
This appeal arises out of a mass tort action that consolidated eighteen cases involving over eight thousand plaintiffs and over thirty defendants. The notice of appeal and the appellants’ docketing statement identify 161 plaintiffs as appellants, twenty-six defendants as appellees, and a March 28, 2001 summary judgment as the judgment appealed. However, of the 161 appellants, 1551 are encompassed by or[17]*17ders nonsuiting their claims against nine appellees,2 severing these claims into Cause Number 2001-CI-00831, and dismissing the severed case.
Discussion
In an earlier order, this court questioned its jurisdiction over the appeals of the 155 appellants whose claims against the nine appellees were nonsuited and severed into Cause Number 2001 Cl 00831. In response to our order, these 155 appellants contend the trial court’s order severing and dismissing their claims in Cause Number 2001-CI-00831 is void to the extent it nonsuits claims not encompassed by the motion for nonsuit. In support of their argument, these 155 appellants cite Abu-Ahmad v. Shadowbrook Apts., 776 S.W.2d 704 (Tex.App.—Fort Worth 1989), rev’d, 783 S.W.2d 210 (Tex.1990) (per curiam).
In Shadowbrook Apts., two plaintiffs filed suit against four defendants. Sha-dowbrook Apts., 783 S.W.2d at 211. Sometime thereafter, the plaintiffs filed a motion to nonsuit their claims against one of the defendants. Id. The following day the trial court signed an order (prepared by the plaintiffs’ attorney) dismissing the entire case. Id. After the time for filing an appeal, the plaintiffs filed a motion for judgment nunc pro tunc, seeking an amended dismissal order that dismissed the plaintiffs’ claims only as to the defendant encompassed by their motion for non-suit. Id. This motion was denied because, in the trial court’s view, it had lost plenary power over the judgment and the error was judicial rather than clerical and thus not subject to post-plenary power nunc pro tunc correction. See id. The plaintiffs appealed the trial court’s denial of their motion for judgment nunc pro tunc. Shadowbrook Apts., 776 S.W.2d at 706.
The court of appeals reversed the “case and remanded to the trial court.” Id. at [18]*18710. During the course of its discussion, the court stated that the dismissal order was “void” to the extent it dismissed the plaintiffs’ claims against the three defendants not encompassed by the motion for nonsuit. Id. at 709. See also In re Bridges, 28 S.W.3d 191, 195 (Tex.App.— Fort Worth 2000, orig. proceeding). On application for writ of error, the Texas Supreme Court did not address expressly whether the dismissal order was void. However, in reversing the court of appeals’ judgment and affirming that of the trial court, the court stated an appeal of the dismissal order was untimely:
If the [plaintiffs] are appealing the dismissal order ..., their appeal is not timely. No timely appeal bond was filed within 30 days after the dismissal order was signed as is required under Tex. R.App. P. 41(a)(1). Thus, the court of appeals lacked jurisdiction to hear an appeal of the dismissal order.
Shadowbrook Apts., 783 S.W.2d at 211.
We believe and hold the necessary import of the supreme court’s holding in Shadowbrook Apts, is that the dismissal order involved in that case was not void. If it had been, the order would not have disposed of all claims and parties in the suit and thus would not have been a final judgment from which an appeal would lie. Therefore, the plaintiffs’ appeal, rather than being too late, would have been premature. Because the supreme court expressly held an appeal of the dismissal order was too late, rather than too early, it necessarily follows the dismissal order was not void. So it is in this case.3 We therefore decline to hold the nonsuit order in Cause Number 2001-CI-00831 is void.
Conclusion
Because all of the claims of the 155 appellants against the nine appellees referenced in the nonsuit arid dismissal orders in Cause Number 2001-CI-00831 were nonsuited, severed, and dismissed in that cause, this court is without jurisdiction to consider these claims or orders in this appeal. We therefore dismiss this appeal to the extent it involves these claims. We also sever that part of this appeal that involves the claims of these 155 appellants against the nine appellees referenced in these orders so that the appellants may immediately seek review in the supreme court. We express no opinion as to whether these 155 appellants are entitled to relief through nunc pro tunc proceedings or mandamus. See Shadowbrook Apts., 783 S.W.2d at 211; In re Bridges, 28 S.W.3d at 196.
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Cite This Page — Counsel Stack
75 S.W.3d 15, 2001 Tex. App. LEXIS 6762, 2001 WL 1195696, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-roc-pretrial-texapp-2001.