ray-m-bowen-william-kibler-john-koldus-iii-j-malon-southerland ( 2005 )

IN THE

TENTH COURT OF APPEALS

 

No. 10-05-00139-CV

Texas A&M University,

                                                                      Appellant

 v.

Ryan Bading, Javier Garza, Aaron Horn,

Joe Jackson, Andrew McDow, Michael Rusek,

Ty Sorell, Scott-Macon, Ltd., Texas Aggie

Bonfire Committee, Trevor Jon Saari, H.B.

Zachry Company, Zachry Construction Corporation,

Harry Eugene Couch, Jr., H.B. (Bartell) Zachry, Jr.,

Joe Collins, Kirby Smith and Hector Sandoval,

                                                                      Appellees

And

No. 10-05-00295-CV

Texas A&M University, Ray M. Bowen, William

Kibler, John Koldus, III, J. Malon Southerland,

Russell W. Thompson,Zack Coapland, Magor

General M.T. Hopgood, Jr., Kevin Jackson,

Donald Johnson, Michael David Krenz, James

Reynolds, Robert Harry Stiteler, Jr.,

                                                                      Appellants

 v.

John Andrew Comstock, Dixie Ann Comstock,

Jacquelynn Kay Self, Individually and as

Administratrix of the Estate of Jerry Self, Deceased,

Andrea Heard, Individually, Kathy McClain,

Individually and as Administratrix of the Estate

of Bryan McClain, Deceased, Phil R. McCain,

Individually, Dominic Braus, Nancy Braus,

Matthew Robbins, and Gregory Anthony Powell,

Individually and as Administrator of the Estate

of Chad A. Powell, Deceased, and Jill Powell,

Individually,

                                                                      Appellees

From the 361st District Court

Brazos County, Texas

Trial Court No. 03-001246-CV361

SEVERANCE ORDER

          The underlying cause of action involves the bonfire tragedy at Texas A & M University in the fall of 1999. 

          On February 8, 2005, the trial court signed five separate interlocutory orders denying Texas A & M University’s plea to the jurisdiction and motion to dismiss and sever the third party petitions of five groups of third parties.  The University appealed each of those five orders.  We docketed each of those five appeals as cause number 10-05-00139-CV.  Over two months later, on April 13, 2005, the trial court signed two more interlocutory orders denying certain University administration defendants’ supplemental plea to the jurisdiction and motion to dismiss and sever, and in the alternative, motion for summary judgment as to the causes of action of two groups of plaintiffs.  The administration defendants appealed each order.  We also docketed those two appeals as cause number 10-05-00139-CV.  See Tex. R. App. P. 12.2(c) (“All notices of appeal filed in the same case must be given the same docket number.”).

          Because of the size and complexity of this cause, the Court notified all parties of its consideration of the use of Rule 2 to suspend the operation of Rule 12.2(c) and file each notice of appeal under a separate docket number.  See Tex. R. App. P. 2.  The Court requested briefing and written argument upon the benefit or detriment of such a procedure.  Of primary interest to the Court was whether the same issue or issues would be presented and whether the Court’s decision would be based upon the same record of pleadings and evidence, if any, with regard to each notice of appeal.  If all parties agreed that one procedure or the other would be preferable on appeal, great weight would be given to that procedure.

          The majority of the responses requested that these notices of appeal should be grouped and docketed in two separate cause numbers.  We agree. 

          The first five notices of appeal involve claims by other defendants in the action below and sovereign immunity will be the primary issue presented on appeal.  Therefore, the first five notices of appeal which were filed with the Brazos County District Clerk on February 28, 2005, are ordered to remain docketed in cause number 10-05-00139-CV.  Because the record in this cause has already been filed, the ordinary briefing schedule will apply.

          The remaining two notices of appeal involve claims brought by the plaintiffs in the action below against University officials, not the University itself, and the issues presented will relate to the capacity of the individual defendants to be sued.  Accordingly, the sixth and seventh notices of appeal filed with the Brazos County District Clerk on May 3, 2005, are severed from cause number 10-05-00139-CV and are ordered to be docketed, together, as cause number 10-05-00295-CV.  The Clerk’s Record and Reporter’s Record are due August 26, 2005.  The ordinary briefing schedule will run from the date of the filing of the record in the severed appeal.

                                                                   PER CURIAM

Before Chief Justice Gray,

          Justice Vance, and

          Justice Reyna

Appeal severed

Order issued and filed July 27, 2005

[CV06]