Opinion
No. 04-17-00255-CV
09-20-2017
Marcus SOLOMAN, Appellant v. Jeromy MCCORMICK and Whataburger Restaurants, LLC, Appellees
From the 73rd Judicial District Court, Bexar County, Texas
Trial Court No. 2015CI02073
Honorable Michael E. Mery, Judge Presiding
ORDER
Appellee has filed a motion to dismiss this appeal for lack of jurisdiction. After the trial court rendered a take-nothing partial summary judgment in favor of appellee, the trial court severed the claim to render a final appealable judgment and assigned the severed case a new cause number. The severance order, which made the take-nothing summary judgment a final appealable judgment, was filed in the original cause. Appellant timely filed a motion for new trial expressly challenging the summary judgment, but the motion for new trial was filed in the original cause number. Appellee then filed a timely notice of appeal in the severed cause. Both parties have represented to this court that on the notice of appeal, the trial court clerk crossed off the severed cause number and filed appellant's notice of appeal in the original cause. Having reviewed the record and the parties' filings, we conclude we have jurisdiction over this appeal. See Mueller v. Saravia, 826 S.W.2d 608, 609 (Tex. 1992) (per curiam) (noting all that is required is that the motion for new trial must be filed in the same cause as the judgment the motion assails); see also City of San Antonio v. Rodriguez, 828 S.W.2d 417, 418 (Tex. 1992) (per curiam) (holding court of appeals had jurisdiction when appellant made a bona fide attempt to invoke the court's appellate jurisdiction and there was no confusion about which judgment was being challenged). Appellee's motion is denied.
/s/_________
Luz Elena D. Chapa, Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said court on this 20th day of September, 2017.
/s/_________
KEITH E. HOTTLE,
Clerk of Court