A.J. Morris A.J. Morris, M.D., P.A. and Medical Associates Clinics, PLLC v. Texas Trust Credit Union ( 2009 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NOS. 2-09-047-CV
2-09-048-CV
A.J. MORRIS; A.J. MORRIS, M.D., APPELLANTS
P.A.; MEDICAL ASSOCIATES
CLINICS, PLLC
V.
TEXAS TRUST CREDIT UNION APPELLEE
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FROM THE 348TH DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION 1
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Introduction
Appellee Texas Trust Credit Union seeks dismissal of these two related
appeals brought by appellants A.J. Morris; A.J. Morris, M.D., P.A.; and Medical
Associates Clinics, PLLC. Appellee asserts that we lack jurisdiction over the
appeals because in the first appeal (number 2-09-047-CV), there is no final and
1
… See Tex. R. App. P. 47.4.
appealable judgment, and in the second appeal (number 2-09-048-CV), although
there is a final and appealable judgment, appellants failed to timely file their
notice of appeal. We dismiss both appeals for want of jurisdiction.
Background Facts
The trial court’s original, underlying case—trial court cause number 348-
226010-07 (the Original Cause)—involves several parties and multiple claims.
On August 4, 2008, in the Original Cause, the trial court signed three orders
granting appellee’s summary judgment motions as to appellant A.J. Morris’s
claims.
On October 30, 2008, in that same cause number, the trial court granted
appellee’s motion for summary judgment with respect to claims asserted by
intervenor Unified Life Insurance Company (Unified). 2 The same day, the trial
court granted appellee’s motion to sever from the Original Cause: (1) all claims
asserted by appellant A.J. Morris against appellee; (2) all claims asserted by
2
… The October 30, 2008 summary judgment order was titled, “Order
Granting Texas Trust Credit Union’s Motion for Summary Judgment with
Respect to the Intervention Filed by [Unified].” It contained specific decrees
related to a life insurance policy, and then it stated that all relief requested in
Unified’s intervention and in appellee’s counterclaim against Unified that had
not been specifically granted was denied.
2
Unified in its intervention; and (3) all claims asserted by appellee against
Unified.3 The severance order stated,
IT IS FURTHER ORDERED that such severed claims and
causes of action proceed to final judgment or other disposition in
this Court under the style of A.J. Morris, Plaintiff vs. Texas Trust
Credit Union, Defendant (and [Unified]) . . . .
IT IS FURTHER ORDERED that separate judgments be entered
in the pending case and the severed case, 4 each judgment to be
final and to dispose completely of all of the issues between all of
the parties in the respective cases.
IT IS FURTHER ORDERED that the Order Granting Texas
Trust Credit Union’s Motion for Summary Judgment with Respect
to the Intervention filed by [Unified], entered on October 30, 2008,
shall be the Final Judgment in the severed case. [Emphasis added.]
On December 1, 2008, appellants filed a motion for new trial in the
Severed Cause. On February 13, 2009, appellants filed their notices of appeal
in both trial court cause numbers, stating that they desired to appeal from a
judgment “dated September 10, 2008.” 5 That same day, they also filed
3
… The August 4, 2008 summary judgment orders, as combined with the
October 30, 2008 summary judgment order, completely resolved all of the
claims that the trial court severed. Unified has filed a conditional notice of
appeal, which indicates that it desires to appeal the trial court’s orders only if
we determine that we have jurisdiction over these appeals.
4
… We will refer to the severed case, trial court cause number 348-
233673-08, as “Severed Cause” in the remainder of this opinion.
5
… The record does not contain a judgment dated September 10, 2008.
The trial court’s order granting appellee’s motion for severance indicates that
the severance motion was filed on that date. Appellants later corrected their
3
motions to extend time to file their notices of appeal in both appellate cause
numbers. On February 20, 2009, appellee filed its responses to appellants’
motions to extend time, contending that the motions to extend time were filed
too late and that we are therefore without jurisdiction over the appeal from the
Severed Cause. On February 27, 2009, we sent appellants’ counsel two letters
expressing our concerns that (1) in the Original Cause, we did not have
jurisdiction because the trial court had not entered a final, appealable order;
and (2) in the Severed Cause, the notice of appeal was untimely filed. See Tex.
R. App. P. 42.3(a), 44.3.
On March 17, 2009, appellants filed their amended notices of appeal;
they also filed responses to our jurisdictional letters. Those responses
contended that the trial court’s severance order unclearly designated which
causes of action had been finally adjudicated and that the severance order
required further action before any judgment became final in the Severed Cause.
Later in March, we received appellants’ amended responses to our
jurisdictional letters, which appellants filed in both appellate cause numbers. 6
We also received appellants’ second amended notices of appeal, which they
notices of appeal to designate October 30, 2008 as the date of the trial court’s
judgment.
6
… The amended responses were almost identical to the original
responses.
4
filed in both trial court cause numbers. Appellee filed replies to appellants’
jurisdictional responses; these replies asserted that we lack jurisdiction over
both appeals because there is no final judgment in the Original Cause and
because there was no timely notice of appeal in the Severed Cause.7
Our Jurisdiction Over These Appeals
Jurisdictional standards
Issues related to our jurisdiction over an appeal may be raised by the
parties or on our own motion at any time. See Hartford Underwriters Ins. v.
Mills, 110 S.W.3d 588, 590 n.1 (Tex. App.—Fort Worth 2003, no pet.);
Flowers v. Diamond Oaks Terrace Apartments, 669 S.W.2d 432, 433 (Tex.
App.—Fort Worth 1984, no writ). When we determine that we do not have
jurisdiction over an appeal, we must dismiss the appeal. See New York
Underwriters Ins. Co. v. Sanchez, 799 S.W.2d 677, 679 (Tex. 1990); Hartford
Underwriters Ins., 110 S.W.3d at 591; see also Reger v. State, 222 S.W.3d
510, 512–13 (Tex. App.—Fort Worth 2007, pet. ref’d) (describing our
jurisdiction as “fundamental” and explaining that when there is no jurisdiction,
“we have no power to dispose of the purported appeal in any manner other
7
… Our correspondence to the parties relates that the first of these
appeals, Cause No. 2-09-047-CV, concerns the trial court’s Original Cause, and
that the second appeal, Cause No. 2-09-048-CV, concerns the trial court’s
Severed Cause.
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than to dismiss it for want of jurisdiction”), cert. denied, 128 S. Ct. 917
(2008).
Our jurisdiction of appellants’ appeal from the Severed Cause based on the
timeliness of appellants’ notices of appeal
Times for filing a notice of appeal are mandatory and jurisdictional, and
absent a timely filed notice of appeal or a timely extension request, we must
dismiss the appeal. See Tex. R. App. P. 25.1(b), 26.1, 26.3; Verburgt v.
Dorner, 959 S.W.2d 615, 617 (Tex. 1997). In civil cases, when a timely
motion for new trial is filed, the notice of appeal must be filed within ninety
days after the appealable judgment is signed, and any motion for an extension
to that deadline must be filed not more than fifteen days later. See Tex. R.
App. P. 26.1(a), 26.3; Howlett v. Tarrant County, No. 02-07-00373-CV, 2008
WL 4052932, at *1 (Tex. App.—Fort Worth Aug. 29, 2008, no pet. h.); Bixby
v. Bice, 992 S.W.2d 615, 616 (Tex. App.—Waco 1999, no pet.).
Here, the trial court signed the final judgment in the Severed Cause on
October 30, 2008, as is indicated by our record, as is expressly recited by the
language of the trial court’s severance order (signed that same day), and as is
quoted above.8 Appellants timely filed their motion for new trial in that cause
8
… In Appellants’ response to our jurisdictional letters, they noted that the
trial court’s severance order, although signed on October 30, 2008, was not
filed until the next day, and it was not served on appellants until November 4,
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on December 1, 2008, within thirty days after the judgment was signed. See
Tex. R. Civ. P. 4, 329b(a); In re D.W., 249 S.W.3d 625, 643 (Tex. App.—Fort
Worth), pet. denied, 260 S.W.3d 462 (Tex. 2008). Therefore, their notice of
appeal was due by January 28, 2009, ninety days after the judgment was
signed. See Tex. R. App. P. 26.1(a). Thus, any extension request was due by
February 12, 2009, fifteen days later. See Tex. R. App. P. 26.3.
Appellants did not file their notices of appeal or their extension motion
until February 13, 2009. Thus, they failed to timely invoke our jurisdiction over
an appeal from the Severed Cause. See Tex. R. App. P. 25.1(b), 26.1(a), 26.3;
Verburgt, 959 S.W.2d at 617 (stating that “once the period for granting a
motion for extension of time . . . has passed, a party can no longer invoke the
appellate court’s jurisdiction”). Accordingly, we deny appellants’ extension
motion, and we dismiss their appeal, number 2-09-048-CV, from the Severed
2008. However, it is the trial court’s signing of a severance order, not the date
of the order’s filing or its serving, that makes an otherwise interlocutory
summary judgment become final, thus triggering our jurisdictional deadlines.
See Martinez v. Humble Sand & Gravel, Inc., 875 S.W.2d 311, 313 (Tex.
1994); Canada v. Wells Fargo Bank, N.A., No. 02-07-00437-CV, 2009 WL
279379, at *1–2 (Tex. App.—Fort Worth Feb. 5, 2009, no pet.) (mem. op.).
Also, contrary to appellants’ implications in their jurisdictional responses that
it is unclear whether the Severed Cause contains a final judgment, the trial
court’s severance order, as quoted above, clearly expresses the finality of the
October 30, 2008 summary judgment order in the Severed Cause, and
Appellants’ Second Amended Notice of Appeal recites that they “desire[d] to
appeal the Judgment . . . dated October 30, 2008.”
7
Cause. See In re T.L.S., 143 S.W.3d 284, 290 (Tex. App.—Waco 2004, no
pet.) (denying an untimely extension motion).
Our jurisdiction of appellants’ appeal from the Original Cause based on the
general requirement of appealing from a final judgment
A party may appeal only from a final judgment or an interlocutory order
specifically made appealable by statute or rule. See Lehmann v. Har-Con Corp.,
39 S.W.3d 191, 195 (Tex. 2001); Sanders v. City of Grapevine, 218 S.W.3d
772, 776 (Tex. App.—Fort Worth 2007, pet. denied). A judgment is final “for
purposes of appeal if it disposes of all pending parties and claims in the record.”
Lehmann, 39 S.W.3d at 195.
Appellee has represented that there are unresolved claims remaining in
the Original Cause and that such claims are scheduled for resolution at trial.
The trial court signed an order on January 27, 2009 that set a trial date in the
Original Cause. On April 2, 2009, the Tarrant County District Clerk sent
appellee’s attorney a notice confirming that trial setting. Also, the style of
documents that were filed in the Original Cause references parties in the trial
court that have not been designated as parties to this appeal. 9
9
… For instance, the documents indicate that Blue Cross and Blue Shield
of Texas, Humana Insurance Company, and Aetna Health and Life Insurance
Company are third-party defendants in the Original Cause.
8
Because it appeared that there were unresolved claims and parties in the
Original Cause, we sent appellants a letter expressing our concern that there
was no final or appealable judgment in that cause. Appellants have not filed a
response that establishes any such judgment exists in that cause; rather, their
responses to our letters refer only to the October 30, 2008 order that the trial
court designated as the final judgment in the Severed Cause. Finally, appellants
have not directed us to any judgment filed in the Original Cause that is made
appealable by statute or rule.
Because appellants have not responded to our jurisdictional inquiry by
establishing that they are appealing from an appealable judgment in the Original
Cause, we do not have jurisdiction to consider the appeal, number 2-09-047-
CV, from that cause. See Lehmann, 39 S.W.3d at 195; In re S.A.A., No.
02-08-00080-CV, 2008 WL 2002744, at *1 (Tex. App.—Fort Worth May 8,
2008, no pet.) (mem. op.) (dismissing an appeal because after we sent a letter
concerning our jurisdiction, neither party presented us with an appealable
judgment); Betts v. Gilbert, No. 02-04-00107-CV, 2004 WL 1176640, at *1
(Tex. App.—Fort Worth May 27, 2004, no pet.) (mem. op.) (same).
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Conclusion
Because we conclude that we do not have jurisdiction to consider either
of these appeals, we deny appellants’ motions to extend time to file their
notices of appeal, and we dismiss the appeals. See Tex. R. App. P. 42.3(a),
43.2(f).
TERRIE LIVINGSTON
JUSTICE
PANEL: LIVINGSTON, DAUPHINOT, and GARDNER, JJ.
DATED: May 28, 2009
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