Summary
construing document as motion to substitute party and granting motion
Summary of this case from Onabajo v. Wilmington Sav. Fund Soc'yOpinion
No. 01-07-00652-CV
Opinion issued March 6, 2008.
On Appeal from the 268th District Court Fort Bend County, Texas, Trial Court Cause No. 06-CV-148937.
Panel consists of Justices TAFT, KEYES, and ALCALA.
MEMORANDUM OPINION
The Court today considered the parties' joint motion to reverse the trial court's judgment and to remand the cause, which motion was filed on January 7, 2008.
Before the Court may address the parties' January 7 motion, however, it must address a preliminary matter. The appellees in this cause are Ty Miller and Tonia Miller ("the Millers"). On October 1, 2007, the Millers, along with Finley Resources, Inc., filed a document entitled "Appellees" Designation of Lead Counsel" ("the Designation"). The Designation recited that, since they had perfected their appeal, the Millers had assigned their rights, title, and interest to this appeal to Finley Resources, Inc. From that point forward, Finley Resources, Inc. has acted as if it were appellee in this matter, filing an appellee's brief and attaching to that brief a copy of the assignment agreement between it and the Millers. However, no motion to substitute Finley Resources, Inc. for the Millers as appellee in this cause has been filed, and no ruling on same has thus been rendered. See TEX. R. APP. P. 7.1(b) ("If substitution of a party in the appellate court is necessary for a reason other than death, the appellate court may order substitution on any party's motion at any time.").
The Court rules as follows. The Court construes the Designation, filed October 1, 2007, as a motion to substitute Finley Resources, Inc. for the Millers as appellee in this cause. As so construed, the motion to substitute Finley Resources, Inc. as appellee in this cause is granted. The Court orders that Finley Resources, Inc., as assignee of the Millers, be substituted for the Millers as appellee in this cause. See id. The style of the cause has been altered to reflect this ruling.
The Court now turns to the parties' joint motion to reverse the judgment and to remand the cause. The motion to reverse and to remand is granted as follows:
1. The trial court's summary judgment of November 6, 2006, which was rendered against the Millers and which also was rendered final by three subsequent orders of non-suit dated February 1, 2007, is reversed. Only the November 6, 2006 summary-judgment order is reversed. The three subsequent orders of non-suit dated February 1, 2007 are not reversed.
2. The case is remanded to the trial court.
3. Any pending motions not expressly addressed in this memorandum opinion are overruled as moot.
4. The Clerk of this Court is directed to issue mandate 10 days after the date of this opinion. See TEX. R. APP. P. 18.1.