Jack Permison v. Carrie Morris & Dave Ward ( 2019 )

COURT OF APPEALS FOR THE
FIRST DISTRICT OF TEXAS AT HOUSTON
MEMORANDUM ORDER
Appellate case name: Jack Permison v. Carrie Morris & Dave Ward
Appellate case number: 01-18-00392-CV
Trial court case number: 15-DCV-225441
Trial court: 400th District Court of Fort Bend County
A question about this Court’s jurisdiction has arisen from our review of the record.
Before trial, the court granted two motions for summary judgment dismissing Permison’s claims
against Dave Ward. On appeal, Permison challenges the two summary judgment orders
dismissing his claims against Ward as well as the trial court’s directed verdicts in favor of Carrie
Morris. The final judgment from which this appeal arises was signed by the trial court on
December 8, 2017, and it states: “The claims made by Plaintiff JACK PERMISON against
Defendant DAVE WARD were severed from the case at the beginning of trial.”
Ordinarily, an interlocutory summary judgment becomes final when it merges with the
final judgment. See Webb v. Jorns, 488 S.W.2d 407, 409 (Tex. 1972); CenterPoint Energy
Houston Elec. LLC v. Bluebonnet Drive, Ltd., 264 S.W.3d 381, 387 (Tex. App.—Houston [1st
Dist.] 2008, pet. denied). But when the trial court severs an interlocutory judgment into a
separate cause, it becomes final immediately. See Doe v. Pilgrim Rest Baptist Church, 218
S.W.3d 81, 82 (Tex. 2007); Farmer v. Ben E. Keith Co., 907 S.W.2d 495, 496 (Tex. 1995) (per
curiam). Such severance must occur “before submission to the trier of fact.” Long v. Castle
Texas Prod. Ltd. P’ship, 426 S.W.3d 73, 82 (Tex. 2014) (citing TEX. R. CIV. P. 41); State Dep’t
of Highways & Pub. Transp. v. Cotner, 845 S.W.2d 818, 819 (Tex. 1993).
The appellate record does not include an order severing claims made by Permison against
Ward, but it suggests that one exists. The existence of such an order would affect our jurisdiction
over Permison’s appeal of Ward’s take-nothing summary judgments. “Appellate courts must
determine, even sua sponte, the question of jurisdiction, and the lack of jurisdiction may not be
ignored simply because the parties do not raise the issue.” Walker Sand, Inc. v. Baytown Asphalt
Materials, Ltd., 95 S.W.3d 511, 514 (Tex. App.—Houston [1st Dist.] 2002, no pet.) (citing
McCauley v. Consol. Underwriters, 157 Tex. 475, 304 S.W.2d 265, 266 (1957).
The parties are ordered to file a response to this order indicating whether a severance
order was signed by the trial court, when it was signed, and whether this Court has jurisdiction
over Permison’s appeal of the summary judgments dismissing his claims against Ward. If a
severance order was signed, the parties are further ordered to file a supplemental clerk’s record
including the order of severance. The parties’ responses and any supplemental clerk’s record
must be filed no later than July 8, 2019.
It is so ORDERED.
Judge’s signature: ____/s/ Peter Kelly____
 Acting for the Court
Panel consists of Justices Keyes, Kelly, and Goodman
Date: _June 27, 2019____