Opinion
NO. 01-15-00459-CV
05-10-2016
DOV K. AVNI, Appellant v. DOSOHS I, LTD., Appellee
On Appeal from the 157th District Court Harris County, Texas
Trial Court Case No. 2012-07323
MEMORANDUM OPINION
Appellant, Dov K. Avni, attempts to appeal from an order signed January 26, 2015. Because we find the notice of appeal was untimely filed, we dismiss for want of jurisdiction.
Background
This appeal arises from a tax suit by a number of taxing agencies against Charley Reado and other defendants with an alleged interest in certain real property. One of these defendants, Dosohs I, Ltd., filed an answer as the lienholder of the real property. Defendants, Tamar and Lior Avni, filed a cross-action against Reado, claiming ownership of the property. Tamar and Lior Avni subsequently filed a motion for partial summary judgment on the issue of ownership of the property, and the trial court granted the motion in January 2006, adjudicating Tamar and Lior Avni the owners of the real property. The taxing agencies' remaining claims in the tax suit were subsequently dismissed.
In August 2012, Dosohs filed a petition for bill of review, challenging the tax suit judgment on the ground it had received no notice of the motion for summary judgment, hearing, or the order granting summary judgment to Tamar and Lior Avni. Dov Avni, one of several defendants in the bill of review case, filed counterclaims against Dosohs. On September 25, 2012, the trial court granted Dosohs' bill of review as to the claims of Tamar and Lior Avni, and in July 2013, the trial court signed an order severing Dosohs' claims against Tamar and Lior Avni into cause number 2012-07323A. Dosohs filed notices of nonsuit as to its claims against all remaining defendants other than Dov Avni.
Dov Avni asserted as counterclaims trespass to real property, tortious interference, conversion, waste, and nuisance.
Dosohs subsequently filed a motion for summary judgment on Dov Avni's counterclaims and on October 3, 2014, the trial court signed an order granting summary judgment, dismissing Dov Avni's counterclaims against Dosohs. On October 31, 2014, Dosohs nonsuited its remaining claim against Dov Avni. On November 25, 2014, the trial court signed a severance order, severing all claims between Dosohs and Dov Avni into cause number 2012-07323-B.
On January 26, 2015, the trial court signed an order in the original cause dismissing all remaining parties for want of prosecution. Following this order, Dov Avni filed a post-judgment motion to reinstate, a motion for findings of fact and conclusions of law, and a notice of appeal, all in the original cause number.
Finality
Generally, an appeal may be taken only from a final judgment. See Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001); North East Indep. Sch. Dist. v. Aldridge, 400 S.W.2d 893, 895 (Tex. 1966). "[A]n 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. A statement such as, "This judgment finally disposes of all parties and all claims and is appealable," would leave no doubt that the court intended to render a final judgment. Id. at 206. An order that unequivocally indicates an intent to render a final judgment is final even if it grants more relief than it should. See id. at 204. A court may make an otherwise interlocutory order that disposes of all claims against a party final for purposes of appeal by severing the cause and parties disposed of by the order into a different cause. See Martinez v. Humble Sand & Gravel, Inc., 875 S.W.2d 311, 312 (Tex. 1994).
Analysis
October 3, 2014 Order
The October 3, 2014 order granting summary judgment to Dosohs on Dov Avni's counterclaims states that it "finally disposes of all parties and claims and is appealable." This language unequivocally indicates an intent to render a final judgment as it is a word-for-word quote of a statement the Texas Supreme Court held would leave no doubt as to the trial court's intent to render a final judgment. See Lehmann, 39 S.W.3d at 206. Because the October 3 summary judgment order contained unequivocal language of finality, this order was final for purposes of appeal. See id. at 200; Greatwood Community Ass'n, Inc. v. Ofor, No. 01-11-00509-CV, 2012 WL 5989425, at *2 (Tex. App.—Houston [1st Dist.] Nov. 29, 2012, no pet.) (holding trial court order final and appealable based on inclusion of word "final" in title coupled with language in order stating it "finally disposes of all claims and all parties and is appealable").
November 25, 2014 Order
On November 25, 2014, the trial court signed an order severing the claims and counterclaims between Dosohs and Dov Avni into a separate cause of action with a separate cause number, 2012-07323-B. This order stated that it "renders the Summary Judgment issued by this Court on October 3, 2014 final as to all parties to, and all claims raised, in the severed cause of action, which summary judgment is a final judgment for purposes of appeal."
As a general rule, a severance of an interlocutory order disposing of claims against a party into a separate cause makes it final. See Diversified Fin. Sys., Inc. v. Hill, Heard, O'Neal, Gilstrap & Goetz, P.C., 63 S.W.3d 795, 795 (Tex. 2001). The trial court's order includes finality language making it clear that this was a final judgment. When a severance order is signed, the appellate timetables run from the signing date of the severance order that made the interlocutory judgment final and appealable. See Martinez, 875 S.W.2d at 313.
Even if the October 3 summary judgment order with finality language was not a final, appealable judgment, the November 25 severance order made the summary judgment order final for purposes of appeal. See id. If the October 3 summary judgment order was a final appealable judgment, the notice of appeal would have been due on November 2, 2014. See TEX. R. APP. P. 26.1. If the November 25 severance order was the final judgment, the notice of appeal would have been due on December 27, 2014. See id. The October 3 summary judgment order contained unequivocal finality language and was therefore, final and appealable. But, even if we determined the November 25 severance order was the final judgment as to claims between Dosohs and Dov Avni, we would nevertheless find that Dov Avni's notice of appeal was not timely filed. Dov Avni did not file his notice of appeal until May 8, 2015. No timely post-judgment motions were filed that would have extended the time to file his notice of appeal.See TEX. R. APP. P. 26.1; TEX. R. CIV. P. 329b(a), (g).
Before the severance order was entered, Dov Avni filed objections to the granting of Dosohs' motion for severance. After the severance order was signed, Dov Avni filed a notice of submission of a motion for leave to file objections to "PROPOSED 11-24-14 ORDER BY PLAINTIFF DOSOHS I, LTD." This motion for leave does not include any actual motion challenging the "proposed order" of severance and it was denied by the trial judge on December 9, 2014. On December 29, 2014, Dov Avni filed a motion to set aside the interlocutory default summary judgment of October 3, 2014, and a motion to modify the summary judgment order and severance order. These motions, filed on December 29, were filed more than 30 days after the signing of the October 3 summary judgment order and the November 25 severance order, and were therefore, untimely. See TEX. R. CIV. P. 329b(a), (g). --------
Additionally, Dov Avni filed this notice of appeal in the main cause number, not the severed cause number. Dov Avni's filing of his notice of appeal in a cause in which he is no longer a party (2012-07323) is ineffective. See New HampshireIns. Co. v. Tobias, 80 S.W.3d 146, 148 (Tex. App.—Austin 2002, no pet.) (finding appellant could not appeal from trial court cause to which it was no longer a party).
We notified Dov Avni of our intent to dismiss for lack of jurisdiction. He filed two responses, neither of which presented authority for concluding that the May 8, 2015 notice of appeal was timely filed. Because this Court has no jurisdiction over this appeal, we dismiss. Any pending motions are also dismissed.
PER CURIAM Panel consists of Justices Bland, Brown, and Lloyd.