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Lusk v. Osorio

Court of Appeals of Texas, Fourteenth District

August 20, 2019

GINA LUSK, Appellant
v.
IGNACIO OSORIO, ADRIANA OSORIO, AND CHAMPIONS REAL ESTATE GROUP, LLC, Appellees

          On Appeal from the 133rd District Court Harris County, Texas Trial Court Cause No. 2015-53814-A [1]

          Panel consists of Justices Wise, Zimmerer, and Spain.

          MEMORANDUM OPINION

          Ken Wise Justice

         Appellant 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.

         We 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. 14-17-01011-CV.

         I. Appellate Jurisdiction

         Appellees 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.

         A. Legal Principles

         Generally, 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).

         B. Background

         Lusk 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."

         Lusk 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 paragraph:

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.

         On 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.

         On 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.

         Meanwhile, 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.

         In 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.

         C. Analysis

         In the 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.

         However, 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. 27.1(a).

         Accordingly, 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.).

         We 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, ...


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