Opinion
No. 10-05-00339-CV
Opinion delivered and filed November 30, 2005.
Appeal fromthe 278th District Court, Madison County, Texas, Trial Court No. 01-9649-278-10.
Appeal dismissed.
Before Cheif Justice GRAY, Justice VANCE, and, Justice REYNA (Chief Justice GRAY concurring)
MEMORANDUM OPINION
Appellant Theron Belton, a state prison inmate, sued ConAgra Poultry Company (ConAgra) and the Texas Department of Criminal Justice, Institutional Division (TDCJ). Belton alleges that he was injured when he bit into a piece of chicken that contained a piece of metal. The trial court granted ConAgra's motion for summary judgment, and Belton filed a notice of appeal.
Because of a related mandamus proceeding, we are familiar with Belton's claims. See in re Belton, No. 10-05-00285-CV, 2005 WL 2300366 (Tex.App.-Waco Sept. 21, 2005, orig. proceeding).
We sent a letter to Belton, advising him that his appeal was subject to dismissal for want of jurisdiction (because he appeared to be appealing a non-appealable interlocutory order) and that the Court may dismiss his appeal unless, within 20 days from the date of the letter, a response was filed showing grounds for continuing the appeal. It is clear from Belton's response and from his related mandamus proceeding that his claims against TDCJ remain in the trial court and that ConAgra's summary judgment order has not been severed so as to make it final.
As a general rule, an appeal may be taken only from a final judgment. See Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001). This court has jurisdiction over an interlocutory appeal only when expressly provided by statute. Stary v. DeBord, 967 S.W.2d 352, 352-53 (Tex. 1998). Here, the summary judgment order complained of is interlocutory because it does not dispose of all parties and claims asserted in the cause below. See Lehmann, 39 S.W.3d at 205 (an order or judgment is final when it disposes of all parties and claims).
An appealable judgment traditionally is one that disposes of all parties and issues in a case. See id. A severance is generally required to obtain appellate review of a judgment that does not dispose of all parties or issues. In re T.L.S., 143 S.W.3d 284, 287-88 (Tex.App.-Waco 2004, no pet.); see Diversified Fin. Sys., Inc. v. Hill, Heard, O'Neal, Gilstrap Goetz, 63 S.W.3d 795, 795 (Tex. 2001) ("As a rule, the severance of an interlocutory judgment into a separate cause makes it final."). In the absence of a severance, the parties to a summary judgment order that does not dispose of all claims and parties generally must await a final judgment before that order can be appealed.
The concurring opinion misstates our action in this case and its effect on our precedent. In this case, no party contends that the trial court intended to dispose of the whole case by granting ConAgra's summary judgment motion. Further, there has been no severance that would make the summary judgment final and appealable. No uncertainty exists in this case. Rather, this interlocutory appeal of a non-appealable order appears to have occurred because the district clerk, in a letter transmitting the summary judgment to the parties, mistakenly stated that the summary judgment was a "final Judgment" and that "no other action will be taken on this case by this Court." In an appropriate case, abating an appeal to allow the trial court to clarify its intent or to make a judgment final and appealable remains a proper procedure. See Lehmann, 39 S.W.3d at 206; see, e.g., Harrison v. TDCJ-ID, 134 S.W.3d 490, 491-92 (Tex.App.-Waco 2004, order).
We conclude that we have no jurisdiction over this interlocutory appeal, and we dismiss it for lack of jurisdiction.
CONCURRING OPINION
I concur in the dismissal of this appeal. Based upon the record before us in this appeal, there is not a final judgment. But the Court's disposition is inconsistent with this Court's prior procedure abating an appeal when the trial court's intent may have been to dispose of an entire case, but may not have done so. In the past, we have abated proceedings to allow the trial court to sever claims or grant relief that would make the judgment final, after which we would reinstate the appeal. Davidoff v. GX Tech. Corp., 134 S.W.3d 514, 516 (Tex.App.-Waco 2004, order); United States Fire Ins. Co. v. Gnade, 134 S.W.3d 511 (Tex.App.-Waco 2004, order); Harrison v. TDCJ-ID, 134 S.W.3d 490 (Tex.App.-Waco 2004, order). I expressed then, and restate now, that we should evaluate our jurisdiction based only on what we have in front of us and not try to obtain jurisdiction where none exists. But, if I were to go outside the record in this appeal, as the majority has done, I would feel compelled to apply our prior precedent and abate the appeal.