Joslyn Canneus v. Hamidullah Sikander and Fahima Sikander

• Court: Court of Appeals of Texas
• Decided: April 5, 2019
• Docket: 05-18-01455-CV
• Status: Published

Opinion

DISMISS; and Opinion Filed April 5, 2019.

In The Court of Appeals Fifth District of Texas at Dallas No. 05-18-01455-CV

JOSLYN CANNEUS, Appellant V. HAMIDULLAH SIKANDER AND FAHIMA SIKANDER, Appellees

On Appeal from the County Court at Law No. 5 Dallas County, Texas Trial Court Cause No. CC-18-05807-E

MEMORANDUM OPINION Before Justices Whitehill, Molberg, and Reichek Opinion by Justice Molberg We questioned our jurisdiction over this appeal from a partial summary judgment as it

appeared claims remained pending in the trial court. See Lehman v. Har-Con Corp., 39 S.W.3d

191, 195 (Tex. 2001) (subject to few mostly statutory exceptions, appeal may only be taken from

final judgment that disposes of all parties and claims). As reflected in the record, the challenged

judgment disposed of appellees’ counter-claim against appellant for forcible detainer but did not

dispose of appellees’ request for attorney’s fees, appellant’s claims against appellees to quiet title,

or appellant’s claims against a fourth party for wrongful foreclosure.

Two days after the trial court granted the challenged judgment, appellees filed an amended

counterclaim omitting the request for attorney’s fees and a month later, the trial court severed

appellant’s and appellees’ claim against each other from appellant’s claims against the fourth party. Appellees then filed a motion to modify, correct, or reform the partial summary judgment,

noting their amended counterclaim did not seek attorney’s fees, but the record does not reflect the

trial court modified the judgment. The record also does not reflect the trial court has disposed of

appellant’s claims against appellees.

At our request, the parties filed letter briefs addressing our jurisdiction. Appellant asserts

that, because appellees withdrew their claims for attorney’s fees, the partial summary judgment

became final when the trial court severed the claims between appellant and appellees from the

claims between appellant and the fourth party. We disagree.

When unadjudicated claims remain before the trial court, and a party moves to have the

claims nonsuited or removed by severance, the claims are resolved for appellate purposes when

the trial court signs a judgment or order disposing of those claims. See Farmer v. Ben E. Keith Co.,

907 S.W.2d 495, 496 (Tex. 1995) (per curiam) (“appellate timetable runs from the signing date of

whatever order that makes a judgment final and appealable, i.e. whatever order disposes of any

parties or issues remaining before the court.”) (citing Martinez v. Humble Sand & Gravel, Inc.,

875 S.W.2d 311, 313 (Tex. 1994)). While the filing of the amended petition amounted to a nonsuit

of the claim for attorney’s fees, only a trial court order could “finalize” that claim. See id. And

while the severance order removed appellant’s claims against the fourth party, it did not resolve or

even address appellant’s claims against appellees. Accordingly, because claims remain pending,

we lack jurisdiction and dismiss the appeal. See TEX. R. APP. P. 42.3(a).

/Ken Molberg/ KEN MOLBERG JUSTICE

181455F.P05

–2– Court of Appeals Fifth District of Texas at Dallas JUDGMENT

JOSLYN CANNEUS, Appellant On Appeal from the County Court at Law No. 5, Dallas County, Texas No. 05-18-01455-CV V. Trial Court Cause No. CC-18-05807-E. Opinion delivered by Justice Molberg, HAMIDULLAH SIKANDER AND Justices Whitehill and Reichek FAHIMA SIKANDER, Appellees participating.

In accordance with this Court’s opinion of this date, we DISMISS the appeal.

We ORDER appellees Hamidullah Sikander and Fahima Sikander recover their costs, if any, of this appeal from appellant Joslyn Canneus.

Judgment entered this 5th day of April 2019.

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