Opinion
11-24-00176-CV
07-11-2024
STEVEN L. CUNNINGHAM AND CONNIE S. MODKINS, Appellants v. ENDEAVOR ENERGY RESOURCES, L P AND BETTY GENE PORTER, Appellees
On Appeal from the 238th District Court Midland County, Texas Trial Court Cause No. CV60396
Panel consists of: Bailey, C.J., Trotter, J., and Williams, J.
ORDER
PER CURIAM
Appellants, Steven L. Cunningham and Connie S. Modkins, filed a notice of appeal from the trial court's order granting Appellee Endeavor Energy Resources, L P 's motion to dismiss pursuant to Rule 91a of the Texas Rules of Civil Procedure. See Tex. R. Civ. P. 91a. After this appeal was docketed, we informed Appellant that it did not appear that the order from which Appellant attempted to appeal was final and appealable, and we requested that Appellant provide this court with a response showing grounds to continue this appeal. See Tex. R. App. P. 42.3(a).
Prior to Appellants' response, Endeavor filed a motion to dismiss this appeal, stating that Appellant's claims against Appellee Betty Gene Porter and counterclaims by Porter remain pending in the case; therefore, the order Appellant attempts to appeal is interlocutory and does not constitute a final judgment that provides us with jurisdiction to proceed. Appellants responded that the order disposes of the claims against Endeavor but otherwise did not address Endeavor's argument regarding Porter. Appellants alternatively argued that "Appellants have sufficient grounds to seek a permissive, interlocutory appeal" pursuant to Section 51.014(d) of the Texas Civil Practice and Remedies Code. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(d) (West Supp. 2023). Endeavor filed a reply, reiterating that the trial court's order is not yet appealable because Appellants still have claims pending against Porter, and stating that Appellants do not meet the requirements for seeking a permissive appeal because Appellants have not obtained an order from the trial court permitting such an appeal. See id. § 51.014(d), (f).
Unless specifically authorized by statute, appeals may be taken only from final judgments. Tex. A & M Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 840-41 (Tex. 2007); Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001). A judgment is final and appealable if it disposes of all parties and all claims in the case. Lehmann, 39 S.W.3d at 195. The order that Appellants attempt to appeal is not a final, appealable order because (1) a party, Appellants' claims against that party, and that party's counterclaims against Appellant are still pending in the proceeding below, and (2) it does not appear from the documents on file in this appeal that Appellants have sought or received a severance of its case against Endeavor from the trial court, which would make such an interlocutory order final. See, e.g., Sealy Emergency Room, L.L.C. v. Free Standing Emergency Room Mgrs. of Am., L.L.C., 685 S.W.3d 816, 820-21 (Tex. 2024). Moreover, in order to seek a permissive appeal, a trial court must permit such an appeal, the appeal must otherwise meet the requirements of Section 51.014(d), and the party seeking the permissive appeal must file a timely petition with this court. Civ. Prac. & Rem. § 51.014(d), (f). It does not appear that Appellants have sought or obtained an order from the trial court that grants them permission to appeal the order at issue; Appellants also have not timely filed their "petition" with this court.
Because the order from which Appellants attempt to appeal is an interlocutory order and because a final, appealable order has not yet been entered in this cause, we have determined that an abatement is appropriate at this time. See Tex. R. App. P. 27.2. Consequently, we deny Endeavor's motion to dismiss and abate this appeal-pursuant to Rule 27.2 of the Texas Rules of Appellate Procedure-to permit the parties to obtain a final, appealable order or judgment. If a final, appealable order or judgment has not been entered by October 1, 2024, we may dismiss this appeal. See Tex. R. App. P. 42.3. If a final judgment is entered before that date, the parties are ordered to notify this court immediately.
This appeal is abated.