Court of Appeals of Texas, Ninth District, Beaumont
Submitted on May 16, 2018
Appeal from the 60th District Court Jefferson County, Texas
Trial Cause No. B-198, 020, consolidated with No. E-198, 085
McKeithen, C.J., Kreger and Johnson, JJ.
CHARLES KREGER, Justice
trial court signed a summary judgment order on December 18,
2017. Tyler Bennett Cox filed a notice of appeal on April 4,
2018. We questioned whether the notice of appeal was timely
filed and the parties filed responses. Cox argues the
December 18, 2017 order granting summary judgment was not
final because it did not dispose of his claims against Foster
Enterprises. Alternatively, Cox argues the time for
perfecting an appeal runs from the date on which the trial
court signed orders denying Cox's motion for
reconsideration and motion to sever.
O'Neil Foster and Jessica Foster filed a motion for
summary judgment on Cox's claims of negligence and gross
negligence. When the trial court granted the motion for
summary judgment, Cox's live pleading alleged that at the
time of the incident that gave rise to the litigation, Casey
Foster operated Foster Enterprises as a sole
proprietorship. Cox alleged that Foster Enterprises was
vicariously liable for the acts that occurred in its
principal place of business, the Fosters's residence,
because Casey Foster was acting within the course and scope
of his agency relationship with Foster Enterprises. The order
granting the Fosters's motion for summary judgment
stated, "Plaintiff Tyler Bennett Cox's claims
against Defendants Casey O'Neil Foster and Jessica Foster
are hereby dismissed with prejudice."
judgment that finally disposes of all remaining parties and
claims, based on the record in the case, is final, regardless
of its language." Lehmann v. Har-Con Corp., 39
S.W.3d 191, 200 (Tex. 2001). Cox argues that his claim
against Foster Enterprises was not disposed of in the order
granting the Fosters's motion for summary judgment.
However, it was undisputed that Casey Foster was doing
business as Foster Enterprises. "[A] sole proprietorship
has a legal existence only in the identity of the sole
proprietor." Ideal Lease Serv., Inc. v. Amoco Prod.
Co., 662 S.W.2d 951, 952 (Tex. 1983). By filing a
pleading naming as a defendant "Casey Foster d/b/a
Foster Enterprise, " Cox effectively substituted Casey
Foster as the true name of the party. See Tex. R.
Civ. P. 28. Because Casey Foster is Foster Enterprises, the
order granting the Fosters's motion for summary judgment
disposed of all of Cox's claims against the only
defendants before the court. See id. The dismissal
was effective even if it included claims on which the Fosters
had not sought summary judgment. See generally In re
Daredia, 317 S.W.3d 247, 249-50 (Tex. 2010);
Lehmann, 39 S.W.3d at 206 (stating that if the trial
court's intent is clear from the order, then the order is
final and appealable, even though the record does not provide
an adequate basis for rendition of judgment).
contends the time to perfect his appeal commenced on March
14, 2018. On that date, the trial court signed two orders.
On this day came to be heard Plaintiff's Motion for
Reconsideration and Motion to Sever. Upon consideration of
Plaintiff's Motion, the Court is of the opinion that it
should in all things be DENIED.
IT IS THEREFORE ORDERED that Plaintiffs Motion for
Reconsideration and motion to Sever is in all things DENIED.
The other order provided as follows:
Came on to be heard by the Court, Plaintiff, Tyler Cox's
Motion to Sever. After reviewing said Motion, responses filed
by the parties, and oral arguments, if any, the Court finds
that Plaintiff's Motion to Sever should be, and is
It is therefore ORDERED that the December 18, 2017 Order
Granting Defendants Casey O'Neil Foster and Jessica
Foster's No-Evidence and Traditional Motion for Summary
Judgment, dismissing Plaintiff's claims against Casey
O'Neil Foster and Jessica Foster with prejudice is final
and appealable as it dismissed all claims against all
trial court signs a new judgment while it retains plenary
power over the case, the time to perfect appeal runs from the
date of the second judgment. See Tex. R. Civ. P.
329b(h). In this case, however, neither order signed on March
14, 2018, modified, ...