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Duke v. American Western Steel, LLC

Court of Appeals of Texas, First District

July 20, 2017

KATHRYN AND JEFF DUKE, Appellants
v.
AMERICAN WESTERN STEEL, LLC D/B/A W. WILSON CONSTRUCTION CO. AND MICHAEL VIVIAN, Appellees

         On Appeal from the 149th District Court Brazoria County, Texas Trial Court Case No. 88385-CV

          Panel consists of Justices Higley, Bland, and Brown.

          OPINION

          Harvey Brown Justice

         Kathryn and Jeff Duke appeal from the trial court's partial summary judgment dismissing their claims for violations of the Construction Trust Funds Act.[1] Although the Dukes have asserted other claims that were not resolved by the summary-judgment dismissal, they argue that the partial summary judgment is final and appealable because the trial court has severed their CTFA claims into a separate cause. We disagree.

         Although the trial court's severance order severed the Dukes' CTFA claims into a separate cause, it did not dispose of the Dukes' other claims against the same parties, and it does not contain finality language or any other clear indication that the trial court intended the order to completely dispose of all parties and all claims. We therefore hold that the trial court's severed partial summary judgment is not final and appealable. Accordingly, we dismiss the appeal for lack of jurisdiction.

         Background

         Kathryn and Jeff Duke hired American Western Steel, LLC d/b/a W. Wilson Construction Co. to build a house on their property. The house was never completed, and the Dukes filed suit against AWS; its president, Michael Vivian; and an HVAC subcontractor, Jeremy Wilson d/b/a Cool Rite.

         The Dukes asserted a variety of claims against AWS and Vivian, including claims for negligence, violations of the Deceptive Trade Practices-Consumer Protection Act, [2] violations of the Debt Collection Act, [3] and violations of the

         Construction Trust Funds Act.[4] The Dukes asserted a claim for negligence against Wilson.

         AWS and Vivian moved for partial summary judgment on the Dukes' CTFA claims. The trial court granted AWS and Vivian's motion, entered partial summary judgment dismissing the Dukes' CTFA claims, and then severed the CTFA claims into a separate cause. The trial court's severance order states that its partial summary judgment dismissing the Dukes' CTFA claims is a "final judgment on that issue." Neither the partial summary judgment nor the severance order purports to dispose of the Dukes' other claims against AWS, Vivian, and Wilson.

         Lack of Jurisdiction

         Absent a statute allowing an interlocutory appeal, a party may only appeal from a final judgment. Tex. Civ. Prac. & Rem. Code §§ 51.012, .014; Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001). When, as here, "there has not been a conventional trial on the merits, an order or judgment is not final for purposes of appeal unless it actually disposes of every pending claim and party or unless it clearly and unequivocally states that it finally disposes of all claims and all parties." Lehmann, 39 S.W.3d at 205.

         Severance does not make an interlocutory judgment final and appealable if the judgment merely disposes of a subset of the claims between the parties. See Harris Cty. Flood Control Dist. v. Adam, 66 S.W.3d 265, 266 (Tex. 2001) (per curiam) (judgment in severed cause that disposed of all claims between parties to appeal was final and appealable); Waite v. Woodard, Hall & Primm, P.C., 137 S.W.3d 277, 279-80 (Tex. App.-Houston [1st Dist.] 2004, no pet.) (judgment in severed cause that left "no remaining issues to be disposed of" between parties to appeal was final and appealable).

         If a party appeals from a summary judgment that disposes of some but not all claims between the parties, the appellate court must dismiss the appeal for lack of jurisdiction, even if the trial court severed the disposed claims into a new cause. See, e.g., Alaniz v. O'Quinn Law Firm, No. 01-1400027-CV, 2015 WL 6755614, at *3-4 (Tex. App.-Houston [1st Dist.] Nov. 5, 2015, no pet.) (mem. op.) (severance after partial summary judgment did not make judgment final and appealable because judgment did not dispose of all plaintiffs' claims); Gonzales v. Terrell, No. 01-14-00711-CV, 2015 WL 1735370, at *1 (Tex. App.-Houston [1st Dist.] Apr. 14, 2015, no pet.) (mem. op.) (per curiam) (severance after partial summary judgment did not make it final and appealable because judgment did not dispose of defendant's counterclaim); Cryogenic Vessel Alternatives, Inc. v. Lily & Yvette Constr., LLC, No. 01-13-00737-CV, 2015 WL ...


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