Appeal from the 149th District Court Brazoria County, Texas
Trial Court Case No. 88385-CV
consists of Justices Higley, Bland, and Brown.
and Jeff Duke appeal from the trial court's partial
summary judgment dismissing their claims for violations of
the Construction Trust Funds Act. 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
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.
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.
Dukes asserted a variety of claims against AWS and Vivian,
including claims for negligence, violations of the Deceptive
Trade Practices-Consumer Protection Act,  violations of the
Debt Collection Act,  and violations of the
Trust Funds Act. The Dukes asserted a claim for negligence
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.
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.
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).
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 ...