Opinion
No. 07-11-00154-CV
April 26, 2011.
Appealed from the 146th District Court of Bell County; No. 247,955-B; Honorable Rick Morris, Judge.
Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
ORDER OF ABATEMENT
Appellant Bank of America, N.A., filed a motion to extend the time for filing its notice of appeal. Tex. R. App. P. 26.3. Before taking up the motion, we sua sponte question our jurisdiction. See Jones v. Morales, 318 S.W.3d 419, 422 (Tex.App.-Amarillo 2010, pet. denied) (court addressed possible jurisdictional issue on its own motion).
The clerk's record has been filed. It indicates on January 28, 2011, the trial court granted appellee Linda Lilly's no-evidence motion for summary judgment against Bank of America and signed an order severing Bank of America's claim against her into a separate proceeding bearing trial court cause number 247,955-B. According to the severance order, "[t]he severed case shall proceed to final judgment separate and apart from those claims by [Bank of America] against Defendant Lilly Holmes, Inc., which remain pending. . . ." The record contains no document identified as a final judgment in cause number 247,955-B.
A court of appeals has no appellate jurisdiction over an interlocutory order unless expressly authorized by statute. New York Underwriters Ins. Co. v. Sanchez, 799 S.W.2d 677, 679 (Tex. 1990) (per curiam). The parties do not assert and the record does not indicate this is an interlocutory appeal authorized by statute or agreement and court order. See, e.g., Tex. Civ. Prac. Rem. Code Ann. § 51.014(a) (identifying certain immediately appealable interlocutory orders), § 51.014(d) (otherwise unappealable interlocutory order may be made appealable by agreements of parties and order of court) (West 2008). "As a rule, the severance of an interlocutory judgment into a separate cause makes it final." Diversified Fin. Sys., Inc. v. Hill, Heard, O'Neal, Gilstrap Goetz, P.C., 63 S.W.3d 795, 795 (Tex. 2001) (per curiam) (citing Farmer v. Ben E. Keith Co., 907 S.W.2d 495, 496 (Tex. 1995) (per curiam)). But where, as here, a severance order expressly contemplates the severed claims will "proceed to final judgment," a final judgment is precluded until a later judgment is signed. In re S.A.A., No. 02-08-0080-CV, 2008 Tex. App. Lexis 3428, at *3 (Tex.App.-Fort Worth May 8, 2008, no pet.) (per curiam, mem. op.) (citing Diversified Fin. Sys., 63 S.W.3d at 795).
Accordingly, we abate this appeal to allow Bank of America time to obtain a signed final judgment in cause number 247,955-B. See In re S.A.A., 2008 Tex. App. Lexis 3428, at *3 (when severance order contemplated further action, appellate court granted parties opportunity to obtain final judgment); Iacono v. Lyons, 6 S.W.3d 715, 717 (Tex.App.-Houston [1st Dist.] 1999, no pet.) (court applied appellate rule 27.2 to allow party to cure jurisdictional defect by obtaining order creating finality). Bank of America shall cause the signed final judgment to be included in a supplemental clerk's record filed in this court within thirty days of this order. Failure to comply with this order will result in dismissal of this appeal for want of jurisdiction. Tex. R. App. P. 42.3(a); In re S.A.A. at *2, *3-*4; Lyons at 717. Bank of America's motion for extension of time to file its notice of appeal remains pending.
It is so ordered.