Clayton Mountain Development, LLC and Michael Ruff, in His Capacity as Trustee of the MAR Living Trust v. Suzann Ruff ( 2020 )

Order filed April 30, 2020
In The
Eleventh Court of Appeals
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No. 11-20-00101-CV
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CLAYTON MOUNTAIN DEVELOPMENT, LLC AND MICHAEL
RUFF, IN HIS CAPACITY AS TRUSTEE OF THE MAR LIVING
TRUST, Appellants
V.
SUZANN RUFF, Appellee
On Appeal from the 29th District Court
Palo Pinto County, Texas
Trial Court Cause No. C46164-2
ORDER
Suzann Ruff sued her son Michael A. Ruff and numerous entities in which her
son was involved. That lawsuit has already spawned several separate proceedings
in this court. The appeal before us now stems from a September 29, 2019 judgment
against Clayton Mountain Development, LLC. In that judgment, the trial court
declared that Suzann Ruff is now the sole member of Clayton Mountain
Development, LLC, and it also determined that certain deeds and an assignment of
developer’s rights were null and void. The judgment reflects that Clayton Mountain
Development, LLC was a party to one of the deeds and that MAR Living Trust was
a party to all of the voided instruments. The trial court subsequently entered an order
of severance in which it granted Suzann Ruff’s motion to sever and ordered that “all
claims by Suzann Ruff against Clayton Mountain Development LLC are
severed from this action and made the subject of a separation action styled Suzann
Ruff v. Clayton Mountain Development LLC, having docket number C46164-2”
(emphasis added). This appeal was perfected after the order of severance was
entered.
When the appeal was docketed in this court, we sent a letter to the parties to
express this court’s concern that a final judgment had not been entered yet because
it appeared to this court that the trial court had not disposed of all of the claims
between Clayton Mountain Development, LLC and Suzann Ruff. We requested that
Clayton Mountain Development, LLC provide this court with documents that
establish that all claims between it and Suzann Ruff have been finally disposed. We
sent a similar letter when Michael Ruff, in his capacity as trustee of the MAR Living
Trust, filed a notice of appeal.
Appellants have filed a response to this court’s letter. In their response,
Appellants indicate that they filed the notices of appeal out of an abundance of
caution even though they have the same concern as this court does about the finality
of the judgment. Appellants agree that the judgment fails to dispose of all claims
between the parties, but they note that “the express purpose of the motion to sever,
which was ultimately granted by the trial court, was to attempt to make the
[September 29, 2019] judgment final and appealable.” Appellants point to various
pending claims not only between Suzann Ruff and MAR Living Trust but also
between Suzann Ruff and Clayton Mountain Development, LLC.
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Appellants also provided this court with a copy of Suzann Ruff’s motion to
sever. In the motion, Suzann Ruff expressed a desire to have “every aspect of the
litigation resolved as soon as possible” and complained of Mike Ruff’s tactics to
delay the lawsuit. In the motion to sever, Suzann Ruff specifically requested that
“the September 29, 2019 Judgment as to Clayton Mountain Development LLC be
severed such that it is final and appealable at this time. Mike will no doubt appeal.
He always does. Severance will move the process along with greater speed and
minimize the harm to Suzy.” While severance orders often do “move the process
along” and make a previously interlocutory order final and appealable, the severance
order in this cause seems to muddy the waters even further. The order severed out
all claims asserted by Suzann Ruff against Clayton Mountain Development, LLC.
The order did not sever only those claims at issue in the September 29 judgment, nor
did it mention MAR Living Trust.
The September 29, 2019 judgment, in conjunction with the severance order,
is not a final, appealable order. Neither “clearly and unequivocally states that it
finally disposes of all claims” between the parties at issue here. See Bella Palma,
LLC v. Young, No. 19-0204, 2020 WL 1898543, at *2 (Tex. April 17, 2020) (quoting
Lehmann v. Har-Con Corp., 39 S.W.3d 191, 205 (Tex. 2001)). Nor does either
actually dispose of every pending claim between the parties at issue here. See id.
However, because we are uncertain about the intent of the trial court to enter a final
judgment when it granted Suzann Ruff’s motion to sever, we abate this appeal so
that the trial court may clarify its order. See id.; Lehmann, 39 S.W.3d at 206. We
note that Rule 27.2 of the Texas Rules of Appellate Procedure permits the abatement
of an appeal to allow the parties to obtain a final order or judgment.
We abate the appeal and remand the cause to the trial court so that the trial
court may clarify its intent with regard to finality and so that the parties may obtain
orders disposing of the claims between the parties at issue in this appeal. The trial
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court is directed to enter a clarifying order and to have it forwarded to the clerk of
this court on or before June 29, 2020. The parties are ordered to notify this court
immediately if, in the meantime, a final and appealable order is entered.
The appeal is abated. This court will consider an appropriate motion to
reinstate the appeal filed by any of the parties, or this court may reinstate the appeal
on its own motion upon receipt of the trial court’s clarifying order or a final,
appealable order.
PER CURIAM
April 30, 2020
Panel consists of: Bailey, C.J.,
Stretcher, J., and Wright, S.C.J.1
Willson, J., not participating.
1
Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland,
sitting by assignment.
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