Sam C. Tamborello v. Town of Highland Park, Texas

Opinion

DISMISS and Opinion Filed April 20, 2021

S In The Court of Appeals Fifth District of Texas at Dallas No. 05-20-00755-CV

SAM C. TAMBORELLO, Appellant V. TOWN OF HIGHLAND PARK, TEXAS, Appellee

On Appeal from the 160th Judicial District Court Dallas County, Texas Trial Court Cause No. DC-19-06613

MEMORANDUM OPINION Before Chief Justice Burns, Justice Goldstein, and Justice Smith Opinion by Chief Justice Burns

Under Texas law, an appeal may be taken from a final judgment that disposes

of all parties and claims or an interlocutory order as permitted by statute. See Jack

B. Anglin Co., Inc. v. Tipps, 842 S.W.2d 266, 272 (Tex. 1992). The appeal here

challenges the trial court’s order denying appellant’s motion to reconsider the

dismissal of his claims against appellee. As reflected in the record, the underlying

suit was filed by appellant against appellee and several other parties. The claims

against appellee were dismissed pursuant to Texas Rule of Civil Procedure 91a, but

they were not severed from the remaining claims. See TEX. R. CIV. P. 91a (authorizing dismissal of baseless causes of action); Aviation Composite Techs., Inc.

v. CLB Corp., 131 S.W3d 181, 187 n.5 (Tex. App.—Fort Worth 2004, no pet.) (“[A]

trial court may sever dismissed claims from remaining claims in order to render an

otherwise interlocutory judgment final and appealable.”).

Because the appealed order did not dispose of all parties and claims and no

statute authorizes an appeal from an interlocutory order granting a rule 91a motion

to dismiss, we questioned our jurisdiction over the appeal. See In re Farmers Tex.

Cty. Mut. Ins. Co., 604 S.W.3d 421, 429 (Tex. App.—San Antonio 2019, orig.

proceeding). Although we directed appellant to file a letter brief addressing our

concern and cautioned that failure to do so by March 5, 2021 could result in dismissal

of the appeal without further notice, appellant failed to comply. Accordingly, as the

record before us does not demonstrate our jurisdiction, we dismiss the appeal. See

TEX. R. APP. P. 42.3(a).

/Robert D. Burns, III/ ROBERT D. BURNS, III CHIEF JUSTICE

200755F.P05

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

SAM C. TAMBORELLO, Appellant On Appeal from the 160th Judicial District Court, Dallas County, Texas No. 05-20-00755-CV V. Trial Court Cause No. DC-19-06613. Opinion delivered by Chief Justice TOWN OF HIGHLAND PARK, Burns, Justices Goldstein and Smith TEXAS, Appellee participating.

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

We ORDER that appellee Town of Highland Park, Texas recover its costs, if any, of this appeal from appellant Sam C. Tamborello.

Judgment entered April 20, 2021.

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