Opinion
NO. 01-15-01081-CV
08-09-2016
JACQUE PASSINO AND LONE PINE PROPERTIES, LTD.; MARAVILLA OWNERS' ASSOCIATION, INC., CATHLEE COMEAUX BACH, JOHN KUBIS, LLOYD RINDERER, AND LYSSA M. GRAHAM REYNOLDS; AHMED GHALAMDANCHI AND SHARON GHALAMDANCHI, Appellants/Cross-Appellees v. DAVID C. RUCH, GALVESTONVIEWS LLC, ENTRUST OF COLORADO, INC. D/B/A ENTRUST NEW DIRECTION IRA, INC. D/B/A END-IRA, INC. F/B/O DAVID C. RUCH, IRA, IDLE TIME INVESTMENTS, LLC, ROBERT F. ZANT, SUE F. ZANT, RUTHANN CASSIDY, MARI VAN DE VEN, HADFIELD COMMUNICATIONS, INC., MAUREEN ZAMBO, REED A. SKIRPAN, ROBERT C. CARLSON, LYNDA M. CARLSON, BARBARA SHERMAN AND RICHARD SHERMAN; WILLIAM ETHEREDGE, III, INDIVIDUALLY AND D/B/A ETHEREDGE REAL ESTATE; AND TED W. ALLEN & ASSOCIATES, INC., Appellees/Cross-Appellants
On Appeal from the 10th District Court Galveston County, Texas
Trial Court Case No. 11-CV-0697
MEMORANDUM ORDER
Most of the above remaining parties have filed a "Joint Unopposed Motion of Plaintiffs and Settling Defendants to Sever Because of Settlement," to comply with this Court's July 19, 2016 Order. See TEX. R. APP. P. 42.1(b). The Plaintiffs and Settling Defendants filed this joint motion to sever the claims and cause of actions between them, creating a new appellate cause number, from the remaining appellees, who are not settling and who will remain in the current appellate cause number.
The "Plaintiffs" refer to the following parties: David C. Ruch, Galvestonviews LLC, Entrust of Colorado, Inc. d/b/a Entrust New Direction Ira, Inc. d/b/a End-Ira, Inc. f/b/o David C. Ruch, IRA, Idle Time Investments, LLC, Robert F. Zant, Sue F. Zant, Ruthann Cassidy, Mari van de Ven, Hadfield Communications, Inc., Maureen Zambo, Reed A. Skirpan, Robert C. Carlson, Lynda M. Carlson, Barbara Sherman, and Richard Sherman ("Plaintiffs").
The "Settling Defendants" refer to the following parties: Maravilla Owners' Association, Inc., Jacque Passino, Lyssa M. Graham Reynolds, Cathleen Comeaux Bach, John Kubis, Lloyd Rinderer, Lone Pine Properties, Ltd., and Green Light Investments, LLC ("Settling Defendants").
The following defendants have not settled with Plaintiffs: Ted. W. Allen & Associates, Inc., William Etheredge, III, individually and d/b/a Etheredge Real Estate & Property Management and d/b/a Etheredge Real Estate ("Non-Settling Appellees"). --------
The Plaintiffs and Settling Defendants request severance of the portion of the appeal that pertains to them. Once a new appellate cause number has been assigned, that will enable the Plaintiffs and Settling Defendants to move to set aside the trial court's judgment without regards to the merits and move for remand for immediate entry of a final judgment under the terms of their settlement. See TEX. R. APP. P. 42.1(a)(2)(B). The joint unopposed motion to sever is signed by counsel for all of the Plaintiffs and Settling Defendants and contains a certificate of conference stating that the counsel for the Non-Settling Appellees are unopposed to this motion. See TEX. R. APP. P. 10.1(a)(5), 10.3(a)(2). No other party has filed a notice of appeal and no opinion has issued. See id. 42.1(a)(1), (c).
Accordingly, we grant the motion to sever the Plaintiffs and Settling Defendants, including all their claims against each other, from the claims by the Plaintiffs against the Non-Settling Appellees in appellate cause number 01-15-01081-CV. See, e.g., Lakota Res., Inc. v. Pathex Petroleum, Inc., No. 01-09-00955-CV, 2009 WL 3931697, at *1 (Tex. App.—Houston [1st Dist.] Nov. 19, 2009, no pet.) (per curiam) (mem. op.) (noting that Court had "issued an order granting the motion to sever Lakota's claims from those of the Wilsteins and creating the new appellate cause No." for purposes of setting "aside the judgment between Lakota and the appellees, and to remand the cause with regard to the portion of the appeal concerning Lakota.").
The Court directs the Clerk of this Court to assign new appellate cause number 01-16-00623-CV to the severed case involving the Plaintiffs and Settling Defendants, and to file a copy of the clerk's record, joint motion to sever, and latest notice of appeal in the severed appellate cause number.
Finally, the Clerk of this Court shall leave the original clerk's record in the file for appellate case number 01-15-01081-CV because the remainder of the claims between the Plaintiffs against the Non-Settling Appellees will remain pending in 01-15-01081-CV. We dismiss any other pending motions as moot.
PER CURIAM Panel consists of Chief Justice Radack and Justices Higley and Huddle.