Appeal from the 133rd District Court Harris County, Texas
Trial Court Cause No. 2015-53814-A 
consists of Justices Wise, Zimmerer, and Spain.
Gina Lusk sued a potential homebuyer, a real estate agent,
and the agent's brokers after the buyer failed to
purchase Lusk's home. The brokers (appellees)
counterclaimed for contractual attorney's fees and costs.
The trial court granted the appellees' motion for summary
judgment on all of Lusk's claims, severed the claims
among Lusk and the appellees from the claims among Lusk and
the other defendants, and then held a bench trial on
attorney's fees and costs, awarding them to the
appellees. In five issues on appeal, Lusk challenges the
trial court's summary judgment, severance, and award of
attorney's fees and costs.
dismiss as moot the appeal in Case No. 14-18-00522-CV,
dismiss as moot Lusk's "Motion to Reconsider March
22, 2018 Order Regarding Want of Jurisdiction," and
affirm the trial court's judgment in Case No.
contend that this court lacks jurisdiction over Lusk's
appeals in each cause number. In particular, appellees
contend that there is no final judgment in appellate Case No.
14-17-01011-CV and that Lusk's notice of appeal in Case
No. 14-18-00522-CV is untimely.
an appeal may only be taken from a final judgment that
disposes of all pending claims and parties. See Lehmann
v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001);
see also Tex. Civ. Prac. & Rem. Code §
51.012. But the right to appeal should not be lost by an
overly technical application of the law. Lehmann, 39
S.W.3d at 205. A court of appeals has jurisdiction over an
appeal if the appellant timely files an instrument in a bona
fide attempt to invoke the appellate court's
jurisdiction. In re K.A.F., 160 S.W.3d 923, 927
(Tex. 2005). Accordingly, filing a notice of appeal with an
incorrect cause number does not defeat the jurisdiction of
the court of appeals. City of San Antonio v.
Rodriguez, 828 S.W.2d 417, 418 (Tex. 1992). Furthermore,
a prematurely filed notice of appeal is deemed filed on the
day of, but after, the event that begins the period for
perfecting the appeal. Tex.R.App.P. 27.1(a).
sued the defendants in district court Cause No. 2015-53814.
The appellees answered and filed a counterclaim for
contractual attorney's fees. The appellees moved for a
summary judgment on Lusk's claims and on the
appellees' counterclaim for attorney's fees and
costs. On September 12, 2017, the trial court granted the
appellees' motion, stating in the order that the judgment
resolved all claims between Lusk and the appellees and that
the case would "proceed accordingly with respect to any
remaining claims between [Lusk] and any remaining
parties." The trial court did not specifically dispose
of the appellees' counterclaim for attorney's fees
and costs, so the appellees filed an "unopposed motion
to modify, correct, or reform" the summary judgment. On
October 31, the trial court granted the appellees' motion
to modify the summary judgment and clarified that the summary
judgment did not resolve the appellees' counterclaims
against Lusk, "which shall proceed accordingly."
filed a motion for reconsideration of the partial summary
judgment, and the trial court denied it on November 14. The
appellees filed a motion to sever, and the trial court signed
a severance order on November 28, stating that "any and
all causes of action between [Lusk] and [the appellees] are
hereby severed into a new cause bearing Cause No.
2015-53814-A." The trial court included the following
The Court notes the Summary Judgment granted September 12,
2017, and modified by the Court's October 31, 2017 Order,
in favor of [the appellees] disposes of all claims against
them in this severed case. The [appellees'] counterclaims
against Plaintiff Gina Lusk remain unresolved and shall
proceed accordingly in the severed cause. All relief not
herein granted is denied.
December 28, Lusk filed a notice of appeal in the original
district court Cause No. 2015-53814. In the notice, Lusk
stated her intent to appeal from the summary judgment signed
on September 12 and the denial of the motion for
reconsideration signed on November 14. This court assigned
the appellate Case No. 14-17-01011-CV to the appeal.
March 22, 2018, this court issued an order noting that there
were remaining claims and parties in the litigation after the
trial court's summary judgment order. This court noted
that an incorrect cause number would not defeat appellate
jurisdiction if the instrument was a bona fide attempt to
invoke this court's jurisdiction. This court informed
Lusk that she could file an amended notice of appeal to
remedy the defect. Lusk filed in this court a motion to
reconsider the March 22 order. Lusk argued that the severance
order made the summary judgment final because the order
"disposed of all claims." This court took
Lusk's motion with the case.
in the severed district court Cause No. 2015-53814-A, the
appellees filed a motion for attorney's fees and costs.
On February 20, 2018, the trial court signed a final judgment
awarding attorney's fees and costs to the appellees.
Thirty-one days later, on March 23, Lusk filed a combined
motion for new trial and motion to modify the trial
court's judgment. On June 21, Lusk filed a notice of
appeal. In the notice, she stated her intent to appeal from
the February 20 judgment and her intent to appeal from the
summary judgment signed on September 12 and the denial of the
motion for reconsideration signed on November 14. This court
assigned appellate Case No. 14-18-00522-CV to the appeal and
consolidated both appeals.
September 2018, the appellees moved to dismiss both appeals
for lack of appellate jurisdiction. This court denied the
motion, but appellees raise similar jurisdictional arguments
in their briefs.
notice of appeal that Lusk filed in the original
cause-district court Cause No. 2015-53814 and appellate Case
No. 14-17-01011-CV-Lusk stated her intent to appeal from the
trial court's order that had been severed into the
district court Cause No. 2015-53814-A. Although the notice of
appeal included the incorrect cause number of the original
district court cause, her notice of appeal was a "bona
fide attempt" to appeal the trial court's order that
had been severed into the district court Cause No.
2015-53814-A. See Rodriguez, 828 S.W.2d at 418.
the trial court did not sign a final judgment in the severed
cause until the court finally disposed of all pending claims
among Lusk and the appellees in the February 20, 2018
judgment awarding the appellees attorney's fees and
costs. Lusk's prematurely filed notice of appeal is
deemed filed on the day of but after the trial court's
February 20 final judgment. See Tex. R. App. P.
we hold that Lusk adequately invoked this court's
jurisdiction in the severed cause number-district court Cause
No. 2015-53814-A-by filing the premature notice of appeal
bearing an incorrect cause number. See Espalin v.
Children's Med. Ctr. of Dallas, 27 S.W.3d 675,
681-82 (Tex. App.-Dallas 2000, no pet.) (holding that a
notice of appeal filed prematurely and bearing the incorrect
"parent" cause number was a bona fide attempt to
appeal a partial summary judgment that was later severed with
a different cause number). Her second notice of appeal filed
in the severed cause was unnecessary to perfect the appeal.
See Corcoran v. Atascocita Cmty. Improvement
Ass'n, No. 14-12-00983-CV, 2013 WL 504051, at *1
(Tex. App.-Houston [14th Dist.] Feb. 12, 2013, no pet.) (mem.
op.) (per curiam); Alvarado v. Lexington Ins., 389
S.W.3d 544, 549 n.5 (Tex. App.- Houston [1st Dist.] 2012, no
pet.); Lerma v. Forbes, 144 S.W.3d 18, 20 (Tex.
App.-El Paso 2004, no pet.).
dismiss as moot the appeal generated by Lusk's
unnecessary notice of appeal, Case No. 14-18-00522-CV.
See Corcoran, 2013 WL 504051, at *1. Because the
appeals were consolidated, however, we will consider the
briefing and records filed in both appellate case numbers to
resolve the appeal in Case No. 14-17-01011-CV. Accordingly,