Maley Taylor and Teresa Bennett-Trammell v. Leo B. Smith, Jr. D/B/A Hardcore Construction, Sharon McCowan-Smith, Michael Mitchell and Ernestica Bernice Moss Suell A/K/A Tina Suell

• Court: Court of Appeals of Texas
• Decided: July 3, 2013
• Docket: 06-13-00060-CV
• Status: Published

Opinion

In The Court of Appeals Sixth Appellate District of Texas at Texarkana

No. 06-13-00060-CV

MALEY TAYLOR AND TERESA BENNETT-TRAMMELL, Appellants

V.

LEO B. SMITH, JR. D/B/A HARDCORE CONSTRUCTION, SHARON MCCOWAN-SMITH, MICHAEL MITCHELL AND ERNESTICA BERNICE MOSS SUELL A/K/A TINA SUELL, Appellees

On Appeal from the 71st District Court Harrison County, Texas Trial Court No. 12-0508

Before Morriss, C.J., Carter and Moseley, JJ. Memorandum Opinion by Justice Carter MEMORANDUM OPINION Maley Taylor and Teresa Bennett-Trammell, appellants, have filed an appeal from the

trial court’s April 4, 2013, order granting summary judgment to appellees Leo B. Smith, Jr., and

Sharon McCowan-Smith. The clerk’s record was received by this Court on May 30, 2013.

“[T]he general rule, with a few mostly statutory exceptions, is that an appeal may be

taken only from a final judgment.” Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex.

2001). “A judgment is final for purposes of appeal if it disposes of all pending parties and

claims in the record . . . .” Id. Generally, an interlocutory judgment becomes final when it

merges into the final judgment disposing of the entire case. See Roccaforte v. Jefferson County,

341 S.W.3d 919, 924 (Tex. 2011).

This appeal was taken from the trial court’s April 4, 2013, order granting summary

judgment to appellees, Leo B. Smith, Jr. and Sharon McCowan-Smith. The order being appealed

from, however, does not dispose of two named parties, Michael Mitchell and Ernestica Bernice

Moss Suell, a/k/a Tina Suell, or any claims filed against or made by them, and there is nothing in

the record that establishes disposition of the claims against these two parties. Further, neither the

April 4 order at issue nor the record as a whole suggests that a severance was ever granted.

“[S]everance divides [a] lawsuit into two or more separate and independent [causes of action].”

Hall v. City of Austin, 450 S.W.2d 836, 837–38 (Tex. 1970). “When a trial court grants a

severance, the separated causes of action typically proceed to individual judgments—judgments

that are themselves separately final and appealable.” In re Liu, 290 S.W.3d 515, 520 (Tex.

App.—Texarkana 2009, orig. proceeding) (citing Hall, 450 S.W.2d at 838).

2 By letter dated May 31, 2013, we informed appellants of these defects and directed them

to show this Court how it had jurisdiction over this appeal. We further informed the appellants

that their failure to respond by June 10, 2013, would result in dismissal of the appeal for want of

jurisdiction. We have received nothing from the appellants.

We find that the trial court’s April 4, 2013, order was not final and appealable and that,

consequently, we are without jurisdiction over this appeal. We dismiss the appeal for want of

jurisdiction.

Jack Carter Justice

Date Submitted: July 2, 2013 Date Decided: July 3, 2013