Opinion
No. 04-03-00547-CV.
Delivered and Filed: February 11, 2004.
Appeal from the 216th Judicial District Court, Gillespie County, Texas, Trial Court No. 9472-a, Honorable Stephen B. Ables, Judge Presiding.
Dismissed for Lack of Jurisdiction.
Sitting: Alma L. LÓPEZ, Chief Justice, Sandee Bryan MARION, Justice and Phylis J. SPEEDLIN, Justice.
OPINION
This appeal arises from a larger suit filed by plaintiffs, Willowbrook Foods Inc., Promised Land Foods, Inc., and Sunday House Foods, Inc., against several defendants, including Emerson Electric Company. Plaintiffs sued Emerson to hold it liable for the malfunction of a component part of a control panel on a commercial turkey fryer. Panatrol Corporation manufactured the control panel and consequently Emerson joined Panatrol as a third-party contribution defendant based on its independent fault for plaintiffs' injuries. Panatrol counterclaimed against Emerson for indemnification.
Over a period of several months, the trial court signed several orders disposing of certain parties and claims, and severing those parties and claims into a separate cause number. Panatrol has appealed a summary judgment rendered against it in favor of Emerson. Subsequently, Emerson filed a motion to dismiss this appeal for lack of jurisdiction on the grounds that Panatrol did not file a timely notice of appeal. Following are the dates pertinent to the issue of whether Panatrol timely filed its notice of appeal:
DATE ACTION
------------------------------------------------------------------------------------------------------------| | | | |-----------|------------------------------------------------------------------------------------------------| | March | plaintiffs prematurely filed a motion for reconsideration asserting, in part, that summary | | 28, 2003 | judgment on all of their claims against Farm Credit Leasing ("FCL") was improper | | | because FCL's motion for summary judgment did not address plaintiffs' strict liability | | | claims | |-----------|------------------------------------------------------------------------------------------------| | March | trial court rendered a take-nothing summary judgment in favor of Emerson on all of | | 31, 2003 | plaintiffs' claims against Emerson | |-----------|------------------------------------------------------------------------------------------------| | | trial court rendered a take-nothing summary judgment in favor of another defendant, FCL, | | | on all of plaintiffs' claims against FCL | | |------------------------------------------------------------------------------------------------| | | trial court rendered a take-nothing summary judgment in favor of Panatrol on Emerson's | | | contribution claim against Panatrol | |-----------|------------------------------------------------------------------------------------------------| | April 28, | trial court rendered a take-nothing summary judgment in favor of Emerson on Panatrol's | | 2003 | indemnification claim, severed Panatrol's indemnification claim from the main action, and | | | assigned the claim to cause number 9472-A | |-----------|------------------------------------------------------------------------------------------------| | | trial court denied plaintiffs' motion for reconsideration | |-----------|------------------------------------------------------------------------------------------------| | May 14, | trial court severed plaintiffs' claims against Emerson and FCL from the main action and | | 2003 | assigned those claims to cause number 9472-A | |-----------|------------------------------------------------------------------------------------------------| | | trial court severed Emerson's contribution claim against Panatrol from the main action and | | | assigned it to cause number 9472-A | |-----------|------------------------------------------------------------------------------------------------| | May 15, | FCL filed a motion for summary judgment on plaintiffs' remainingproducts liability | | 2003 | claims | |-----------|------------------------------------------------------------------------------------------------| | June 5, | trial court dismissed plaintiffs' claims against other defendants | | 2003 | | |-----------|------------------------------------------------------------------------------------------------| | | trial court severed plaintiffs' claims against other defendants and consolidated those claims | | | with the other severed parties | |-----------|------------------------------------------------------------------------------------------------| | July 7, | Panatrol filed its notice of appeal complaining of the trial court's April 28th judgment in | | 2003 | favor of Emerson | |-----------|------------------------------------------------------------------------------------------------| | August | trial court rendered summary judgment in favor of FCL on plaintiffs' remaining product | | 18, 2003 | liability claims | ------------------------------------------------------------------------------------------------------------ Emerson asserts Panatrol's notice of appeal was due thirty days from April 28th. Panatrol asserts its notice of appeal was timely because the April 28th summary judgment did not become a final appealable order until one of three alternative dates. We agree with Emerson, and dismiss the appeal for lack of jurisdiction.DISCUSSION
This court does not have jurisdiction over an appeal in the absence of a final judgment or an appealable interlocutory order. See Houston Health Clubs, Inc. v. First Court of Appeals, 722 S.W.2d 692, 693 (Tex. 1986); Northeast Indep. Sch. Dist. v. Aldridge, 400 S.W.2d 893, 895 (Tex. 1966). Appellate timetables are calculated from the signing of a final judgment in a case. See Farmer v. Ben E. Keith Co., 907 S.W.2d 495, 496 (Tex. 1995). The finality requirement "was born out of a need to ensure clarity and eliminate uncertainty and ambiguity in calculating the time for perfecting an appeal." Quanaim v. Frasco Rest. Catering, 17 S.W.3d 30, 37 (Tex. App.-Houston [14th Dist.] 2000, pet. denied). A judgment is final, and therefore appealable, when "it actually disposes of every pending claim and party or . . . it clearly and unequivocally states that it finally disposes of all claims and all parties." Lehmann v. Har-Con Corp., 39 S.W.3d 191, 205 (Tex. 2001). Generally, an otherwise interlocutory summary judgment becomes final and appealable when the trial court signs an order severing into a separate case the parties and claims addressed in the judgment. See Diversified Fin. Sys., Inc. v. Hill, Heard, O'Neal, Gilstrap Goetz, P.C., 63 S.W.3d 795, 795 (Tex. 2001); Farmer, 907 S.W.2d at 496. An order of severance is effective when signed. Farmer, 907 S.W.2d at 496; McRoberts v. Ryals, 863 S.W.2d 450, 452-53 (Tex. 1993). Thus, a separate file and a different cause number are not prerequisites to the finality of a severance order and judgment. See McRoberts, 863 S.W.2d at 453 n. 4.
Panatrol first contends the trial court's severance order of April 28th created a new action that included several parties (Emerson, FCL, and itself) and several claims. Therefore, according to Panatrol, all orders remained interlocutory until August 18th when the court finally disposed of the last remaining claims of these parties. Panatrol's argument is premised, not on the substance of the April 28th order, but on the style of the severed cause, which includes the plaintiffs and FCL, along with Emerson and Panatrol. Panatrol concedes the April 28th severance does not expressly sever the causes of action between plaintiffs and FCL; instead, Panatrol contends the order does so by implication by naming those entities as parties in the style. Therefore, Panatrol argues that when the trial court finally disposed of all claims in favor of FCL on August 18th, all other orders in cause number 9472-A became final as well.
Panatrol argues that the April 28th severance order included plaintiffs' unresolved products liability claim against FCL.
Panatrol provides no authority for its argument that the style of a case dictates the substance of an order or judgment in the case. Although the April 28th order named plaintiffs, Panatrol, Emerson, and FCL as parties in the style of cause number 9472-A, it is the substance of an order that controls the legal effect of a lawsuit, not its form or style. See Lehmann, 39 S.W.3d at 195 (we must determine trial court's intent using language of decree and record as a whole when determining finality of trial court's order); cf. State Bar of Tex. v. Heard, 603 S.W.2d 829, 833 (Tex. 1980) (orig. proceeding) (substance of pleading controls). Therefore, while the style of a case may be a factor to consider in determining the trial court's intent, it is not a controlling factor. We therefore look beyond the mere style of the case to discern the trial court's intent.
Panatrol's argument here is somewhat inconsistent with the trial court's June 5th order that severed plaintiffs' claims against other defendants into cause number 9472-A. None of these other defendants are named in the style of cause number 9472-A.
Panatrol contends the parties' understanding further supports its argument that the April 28th judgment did not become final until August 18th. The August 18th order concluded by stating, "This judgment finally disposes of the last pending claim and cause of action between any of the parties in Cause No. 9472-A and [sic] now final and appealable." We agree that the record supports Panatrol's contention that the March 31st summary judgment in favor of FCL did not resolve all of plaintiffs' claims against FCL. We also agree that the August 18th judgment actually did resolve the last of plaintiffs' remaining claims against FCL. However, we do not agree this supports the contention that the April 28th judgment in favor of Emerson on Panatrol's indemnification claim remained interlocutory until August 18th.
The April 28th judgment contains only two decretal paragraphs: (1) the first rendering a take-nothing summary judgment in favor of Emerson on Panatrol's claims and (2) the second stating as follows: "the cause of action asserted by Third-Party Defendant Panatrol Corporation against Defendant Emerson Electric is severed from this action. . . ." Despite the parties named in the style, the substance of the April 28th judgment does not indicate further proceedings are to be had in the severed cause. In Martinez v. Humble Sand Gravel, Inc., 875 S.W.2d 311, 313 (Tex. 1994), the trial court's severance order allowed additional defendants, after the date of the order, to file late summary judgment motions and become severed into the appealable judgment. The Supreme Court concluded that because all the parties disposed of in the order were not specified as of the date the order was signed, the order was interlocutory as to the defendants originally moving for summary judgment. Id. at 313-14. The Court held "that such an order necessarily contemplates a later `final' order unambiguously designating all parties encompassed by the order as of the date it is signed." Id. at 314. Similarly, in Diversified Financial Systems, the severance order expressly indicated "that the severed claims would `proceed as such to final judgment or other disposition in this Court.'" 63 S.W.3d at 795. The Supreme Court held that the severance order "clearly precluded a final judgment in the severed action until the later judgment was signed. . . ." Id.
Here, the April 28th judgment disposed of Panatrol's claims against Emerson, and it severed only that cause of action. The order does not contemplate "a later final order," nor does it contain language indicating that the trial court was precluding judgment until a later judgment was signed. To the contrary, the April 28th judgment disposed of Panatrol's claims against Emerson in their entirety and severed the claims into a separate cause without reserving the right to enter final judgment at a later time. Therefore, nothing in the substance of the April 28th judgment supports Panatrol's argument that this judgment remained interlocutory until plaintiffs' pending claims against FCL were resolved on August 18th.
Accordingly, we hold the April 28th summary judgment in favor of Emerson became final when the trial court severed Panatrol's cause of action against Emerson on that same date.
Panatrol next asserts that even if the April 28th judgment became final when it was severed from the main action, the appellate timetable was restarted on May 14th and again on June 5th. Panatrol argues that the trial court's addition of parties and claims to severed cause number 9472-A on these dates acted as clarifications or modifications of the April 28th judgment, and, pursuant to Texas Rule of Civil Procedure 329b(h), the appellate timetable began anew.
Rule 329b(h) provides, "[i]f a judgment is modified, corrected or reformed in any respect, the time for appeal shall run from the time the modified, corrected, or reformed judgment is signed. . . ." Tex. R. Civ. P. 329b(h). Subsection (h) applies to any change, material or substantial, made to a judgment while the trial court retains plenary power. Lane Bank Equip. Co. v. Smith S. Equip., Inc., 10 S.W.3d 308, 313 (Tex. 2000); Check v. Mitchell, 758 S.W.2d 755, 756 (Tex. 1988).
The May 14th order states as follows:
all causes of action asserted by Plaintiffs . . . against Defendants Emerson Electric Co. and Farm Credit Leasing Services Corporation relating to the fire on August 31, 1999 . . . and the cause of action brought by Defendant Emerson Electric Co. against Third-Party Defendant Panatrol Corporation are severed from this action and made the subject of a separate action . . . having docket number 9472-A.
The June 5th order did not grant any relief other than to sever from the main cause plaintiffs' claims against other defendants. We do not agree that these orders modified, corrected, or reformed the April 28th judgment. Nothing in the April 28th judgment was conditioned upon the happening of a future event. The May 14th and June 5th orders do not reference the April 28th judgment (or any other order), change the relief granted in that judgment, or add or delete any decretal language in the judgment. Because the May 14th and June 5th orders left the April 28th summary judgment and severance order undisturbed, Rule 329b(h) did not operate to extend the appellate deadlines. See Naaman v. Grider, No. 02-0784, 2003 WL 22495753, * 1 (Tex. Oct. 31, 2003) (order denying motion for new trial and granting motion for judgment did not change judgment).
Finally, Panatrol asserts plaintiffs' motion for reconsideration extended the time to file the notice of appeal pursuant to Texas Rule of Appellate Procedure 26.1(a). On March 28th, plaintiffs prematurely filed a motion to reconsider the trial court's March 31st summary judgment in favor of Emerson and FCL. Panatrol contends the consolidation of plaintiffs' claims against FCL in the severed action, whether by order of April 28th or May 14th, necessarily included the motion for reconsideration.
We disagree with Panatrol's argument for two reasons. First, as discussed above, the May 14th order did not affect the finality of the April 28th judgment. Second, the purpose of a motion for new trial, or as here a motion for reconsideration, is to allow the trial court to modify, correct, or reform the judgment assailed. See Tex. R. Civ. P. 329b. Here, the plaintiffs did not ask for reconsideration of the April 28th summary judgment, a judgment to which they were not parties and which did not affect them. Therefore, neither Rule 26.1(a) nor Rule 329b operated to extend the appellate deadlines.
CONCLUSION
The trial court granted Emerson's motion for summary judgment as to Panatrol's counterclaim on April 28, 2003. The summary judgment became final and appealable on that same date when the trial court severed Panatrol's counterclaim from the main action. Therefore, Panatrol's notice of appeal was due on May 28, 2003. See Tex.R.App.P. 26.1. Because Panatrol did not file its notice of appeal, or a timely motion to extend, until July 3, 2003, we are without jurisdiction to consider the merits of this appeal. Accordingly, we dismiss this appeal for lack of jurisdiction.