Opinion
Nos. 01-05-00642-CV, 01-04-00096-CV
Opinion issued August 4, 2005.
On Appeal from the 152nd District Court, Harris County, Texas, Trial Court Cause No. 2001-54025.
Panel consists of Justices NUCHIA, KEYES, and BLAND.
MEMORANDUM OPINION
Appellants Chandra White, Linda Ruth Williams, and John Hodnett and appellee Velma Carr, as heir at law and representative of the estate of Raymond Carr, deceased, have filed an agreed motion to (1) sever White's, Williams's, and Hodnett's appeal from case number 01-04-00096-CV and (2) render a take-nothing judgment in the severed appeal.
Texas Rule of Appellate Procedure 42.1 allows this Court to set aside the trial court's judgment, without regard to the merits, and render judgment in accordance with the agreement of the parties. TEX. R. APP. P. 42.1(a)(2). In addition, Rule 42.1 expressly allows for a severance on appeal to dispose of a severable portion of the proceeding if a severance will not prejudice the remaining parties. TEX. R. APP. P. 42.1(b). Appellants (1) Heritage Housing Development, Inc., f/k/a Heritage Geriatric Housing Development, Inc., and (2) Heritage Geriatric Housing Development VIII, Inc., do not oppose the motion and thus will not suffer prejudice by a severance.
We sever the portion of the appeal between (1) appellants Chandra White, Linda Ruth Williams, and John Hodnett and (2) appellee Velma Carr, as heir at law and representative of the estate of Raymond Carr, deceased. The Clerk of this Court is instructed to assign case number 01-05-00642-CV to the severed case and to file the clerk's record and the motion to dismiss in both case numbers 01-04-00096-CV and 01-05-00642-CV. The Clerk shall leave the original clerk's record in the file for case number 01-04-00096-CV and place a certified copy of the notice of appeal in the file for case number 01-05-00642-CV. The reporter's record in case number 01-04-00096-CV shall remain filed only in case number 01-04-00096-CV.
In case number 01-05-00642-CV, we set aside the portion of the trial court's judgment as to Chandra White, Linda Ruth Williams, John Hodnett, and Velma Carr, as heir at law and representative of the estate of Raymond Carr, deceased, without regard to the merits, and render judgment that Velma Carr, as heir at law and representative of the estate of Raymond Carr, deceased, take nothing from Chandra White, Linda Ruth Williams, and John Hodnett. See TEX. R. APP. P. 42.1(a)(2)(A).
We tax the costs of the appeal in case number 01-05-00642-CV against appellants. See TEX. R. APP. P. 42.1(d) ("Absent agreement of the parties, the court will tax costs against the appellant."). The Clerk shall not collect another $125.00 filing fee in case number 01-05-00642-CV. Although it is necessary for the Clerk of this Court to assign a new case number for a judgment to be rendered and a mandate issued in the severed appeal, we hold that the creation of a new case number for the severed appeal does not create a new case for the purpose of collecting the statutory filing fee. See TEX. GOV'T CODE ANN. §§ 51.207, .941(a) (Vernon 2005) (clerk of court of appeals shall collect $125 filing fee for each case appealed to and filed in court of appeals).
In case number 01-04-00096-CV, the Clerk is instructed to change the style to Heritage Housing Development, Inc., f/k/a Heritage Geriatric Housing Development, Inc., and Heritage Geriatric Housing Development VIII, Inc. v. Velma Carr, as Heir at Law and Representative of the Estate of Raymond Carr, Deceased. As restyled, the appeal in case number 01-04-00096-CV remains pending before this Court.