                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH


                              NOS. 2-09-047-CV
                                   2-09-048-CV


A.J. MORRIS; A.J. MORRIS, M.D.,                                  APPELLANTS
P.A.; MEDICAL ASSOCIATES
CLINICS, PLLC
                                        V.

TEXAS TRUST CREDIT UNION                                            APPELLEE

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           FROM THE 348TH DISTRICT COURT OF TARRANT COUNTY

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                         MEMORANDUM OPINION 1

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                                  Introduction

      Appellee Texas Trust Credit Union seeks dismissal of these two related

appeals brought by appellants A.J. Morris; A.J. Morris, M.D., P.A.; and Medical

Associates Clinics, PLLC. Appellee asserts that we lack jurisdiction over the

appeals because in the first appeal (number 2-09-047-CV), there is no final and



      1
          … See Tex. R. App. P. 47.4.
appealable judgment, and in the second appeal (number 2-09-048-CV), although

there is a final and appealable judgment, appellants failed to timely file their

notice of appeal. We dismiss both appeals for want of jurisdiction.

                               Background Facts

      The trial court’s original, underlying case—trial court cause number 348-

226010-07 (the Original Cause)—involves several parties and multiple claims.

On August 4, 2008, in the Original Cause, the trial court signed three orders

granting appellee’s summary judgment motions as to appellant A.J. Morris’s

claims.

      On October 30, 2008, in that same cause number, the trial court granted

appellee’s motion for summary judgment with respect to claims asserted by

intervenor Unified Life Insurance Company (Unified). 2 The same day, the trial

court granted appellee’s motion to sever from the Original Cause: (1) all claims

asserted by appellant A.J. Morris against appellee; (2) all claims asserted by




      2
       … The October 30, 2008 summary judgment order was titled, “Order
Granting Texas Trust Credit Union’s Motion for Summary Judgment with
Respect to the Intervention Filed by [Unified].” It contained specific decrees
related to a life insurance policy, and then it stated that all relief requested in
Unified’s intervention and in appellee’s counterclaim against Unified that had
not been specifically granted was denied.

                                        2
Unified in its intervention; and (3) all claims asserted by appellee against

Unified.3 The severance order stated,

            IT IS FURTHER ORDERED that such severed claims and
      causes of action proceed to final judgment or other disposition in
      this Court under the style of A.J. Morris, Plaintiff vs. Texas Trust
      Credit Union, Defendant (and [Unified]) . . . .

             IT IS FURTHER ORDERED that separate judgments be entered
      in the pending case and the severed case, 4 each judgment to be
      final and to dispose completely of all of the issues between all of
      the parties in the respective cases.

             IT IS FURTHER ORDERED that the Order Granting Texas
      Trust Credit Union’s Motion for Summary Judgment with Respect
      to the Intervention filed by [Unified], entered on October 30, 2008,
      shall be the Final Judgment in the severed case. [Emphasis added.]

      On December 1, 2008, appellants filed a motion for new trial in the

Severed Cause. On February 13, 2009, appellants filed their notices of appeal

in both trial court cause numbers, stating that they desired to appeal from a

judgment “dated September 10, 2008.” 5         That same day, they also filed


      3
       … The August 4, 2008 summary judgment orders, as combined with the
October 30, 2008 summary judgment order, completely resolved all of the
claims that the trial court severed. Unified has filed a conditional notice of
appeal, which indicates that it desires to appeal the trial court’s orders only if
we determine that we have jurisdiction over these appeals.
      4
     … We will refer to the severed case, trial court cause number 348-
233673-08, as “Severed Cause” in the remainder of this opinion.
      5
       … The record does not contain a judgment dated September 10, 2008.
The trial court’s order granting appellee’s motion for severance indicates that
the severance motion was filed on that date. Appellants later corrected their

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motions to extend time to file their notices of appeal in both appellate cause

numbers. On February 20, 2009, appellee filed its responses to appellants’

motions to extend time, contending that the motions to extend time were filed

too late and that we are therefore without jurisdiction over the appeal from the

Severed Cause. On February 27, 2009, we sent appellants’ counsel two letters

expressing our concerns that (1) in the Original Cause, we did not have

jurisdiction because the trial court had not entered a final, appealable order;

and (2) in the Severed Cause, the notice of appeal was untimely filed. See Tex.

R. App. P. 42.3(a), 44.3.

      On March 17, 2009, appellants filed their amended notices of appeal;

they also filed responses to our jurisdictional letters.      Those responses

contended that the trial court’s severance order unclearly designated which

causes of action had been finally adjudicated and that the severance order

required further action before any judgment became final in the Severed Cause.

      Later in March, we received appellants’ amended responses to our

jurisdictional letters, which appellants filed in both appellate cause numbers. 6

We also received appellants’ second amended notices of appeal, which they


notices of appeal to designate October 30, 2008 as the date of the trial court’s
judgment.
      6
      … The amended responses were almost identical to the original
responses.

                                       4
filed in both trial court cause numbers. Appellee filed replies to appellants’

jurisdictional responses; these replies asserted that we lack jurisdiction over

both appeals because there is no final judgment in the Original Cause and

because there was no timely notice of appeal in the Severed Cause.7

                     Our Jurisdiction Over These Appeals

Jurisdictional standards

      Issues related to our jurisdiction over an appeal may be raised by the

parties or on our own motion at any time. See Hartford Underwriters Ins. v.

Mills, 110 S.W.3d 588, 590 n.1 (Tex. App.—Fort Worth 2003, no pet.);

Flowers v. Diamond Oaks Terrace Apartments, 669 S.W.2d 432, 433 (Tex.

App.—Fort Worth 1984, no writ). When we determine that we do not have

jurisdiction over an appeal, we must dismiss the appeal.        See New York

Underwriters Ins. Co. v. Sanchez, 799 S.W.2d 677, 679 (Tex. 1990); Hartford

Underwriters Ins., 110 S.W.3d at 591; see also Reger v. State, 222 S.W.3d

510, 512–13 (Tex. App.—Fort Worth 2007, pet. ref’d) (describing our

jurisdiction as “fundamental” and explaining that when there is no jurisdiction,

“we have no power to dispose of the purported appeal in any manner other



      7
       … Our correspondence to the parties relates that the first of these
appeals, Cause No. 2-09-047-CV, concerns the trial court’s Original Cause, and
that the second appeal, Cause No. 2-09-048-CV, concerns the trial court’s
Severed Cause.

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than to dismiss it for want of jurisdiction”), cert. denied, 128 S. Ct. 917

(2008).

Our jurisdiction of appellants’ appeal from the Severed Cause based on the
timeliness of appellants’ notices of appeal

      Times for filing a notice of appeal are mandatory and jurisdictional, and

absent a timely filed notice of appeal or a timely extension request, we must

dismiss the appeal.    See Tex. R. App. P. 25.1(b), 26.1, 26.3; Verburgt v.

Dorner, 959 S.W.2d 615, 617 (Tex. 1997).           In civil cases, when a timely

motion for new trial is filed, the notice of appeal must be filed within ninety

days after the appealable judgment is signed, and any motion for an extension

to that deadline must be filed not more than fifteen days later. See Tex. R.

App. P. 26.1(a), 26.3; Howlett v. Tarrant County, No. 02-07-00373-CV, 2008

WL 4052932, at *1 (Tex. App.—Fort Worth Aug. 29, 2008, no pet. h.); Bixby

v. Bice, 992 S.W.2d 615, 616 (Tex. App.—Waco 1999, no pet.).

      Here, the trial court signed the final judgment in the Severed Cause on

October 30, 2008, as is indicated by our record, as is expressly recited by the

language of the trial court’s severance order (signed that same day), and as is

quoted above.8 Appellants timely filed their motion for new trial in that cause



      8
        … In Appellants’ response to our jurisdictional letters, they noted that the
trial court’s severance order, although signed on October 30, 2008, was not
filed until the next day, and it was not served on appellants until November 4,

                                         6
on December 1, 2008, within thirty days after the judgment was signed. See

Tex. R. Civ. P. 4, 329b(a); In re D.W., 249 S.W.3d 625, 643 (Tex. App.—Fort

Worth), pet. denied, 260 S.W.3d 462 (Tex. 2008). Therefore, their notice of

appeal was due by January 28, 2009, ninety days after the judgment was

signed. See Tex. R. App. P. 26.1(a). Thus, any extension request was due by

February 12, 2009, fifteen days later. See Tex. R. App. P. 26.3.

      Appellants did not file their notices of appeal or their extension motion

until February 13, 2009. Thus, they failed to timely invoke our jurisdiction over

an appeal from the Severed Cause. See Tex. R. App. P. 25.1(b), 26.1(a), 26.3;

Verburgt, 959 S.W.2d at 617 (stating that “once the period for granting a

motion for extension of time . . . has passed, a party can no longer invoke the

appellate court’s jurisdiction”). Accordingly, we deny appellants’ extension

motion, and we dismiss their appeal, number 2-09-048-CV, from the Severed



2008. However, it is the trial court’s signing of a severance order, not the date
of the order’s filing or its serving, that makes an otherwise interlocutory
summary judgment become final, thus triggering our jurisdictional deadlines.
See Martinez v. Humble Sand & Gravel, Inc., 875 S.W.2d 311, 313 (Tex.
1994); Canada v. Wells Fargo Bank, N.A., No. 02-07-00437-CV, 2009 WL
279379, at *1–2 (Tex. App.—Fort Worth Feb. 5, 2009, no pet.) (mem. op.).
Also, contrary to appellants’ implications in their jurisdictional responses that
it is unclear whether the Severed Cause contains a final judgment, the trial
court’s severance order, as quoted above, clearly expresses the finality of the
October 30, 2008 summary judgment order in the Severed Cause, and
Appellants’ Second Amended Notice of Appeal recites that they “desire[d] to
appeal the Judgment . . . dated October 30, 2008.”

                                       7
Cause. See In re T.L.S., 143 S.W.3d 284, 290 (Tex. App.—Waco 2004, no

pet.) (denying an untimely extension motion).

Our jurisdiction of appellants’ appeal from the Original Cause based on the
general requirement of appealing from a final judgment

      A party may appeal only from a final judgment or an interlocutory order

specifically made appealable by statute or rule. See Lehmann v. Har-Con Corp.,

39 S.W.3d 191, 195 (Tex. 2001); Sanders v. City of Grapevine, 218 S.W.3d

772, 776 (Tex. App.—Fort Worth 2007, pet. denied). A judgment is final “for

purposes of appeal if it disposes of all pending parties and claims in the record.”

Lehmann, 39 S.W.3d at 195.

      Appellee has represented that there are unresolved claims remaining in

the Original Cause and that such claims are scheduled for resolution at trial.

The trial court signed an order on January 27, 2009 that set a trial date in the

Original Cause.    On April 2, 2009, the Tarrant County District Clerk sent

appellee’s attorney a notice confirming that trial setting. Also, the style of

documents that were filed in the Original Cause references parties in the trial

court that have not been designated as parties to this appeal. 9




      9
      … For instance, the documents indicate that Blue Cross and Blue Shield
of Texas, Humana Insurance Company, and Aetna Health and Life Insurance
Company are third-party defendants in the Original Cause.

                                        8
      Because it appeared that there were unresolved claims and parties in the

Original Cause, we sent appellants a letter expressing our concern that there

was no final or appealable judgment in that cause. Appellants have not filed a

response that establishes any such judgment exists in that cause; rather, their

responses to our letters refer only to the October 30, 2008 order that the trial

court designated as the final judgment in the Severed Cause. Finally, appellants

have not directed us to any judgment filed in the Original Cause that is made

appealable by statute or rule.

      Because appellants have not responded to our jurisdictional inquiry by

establishing that they are appealing from an appealable judgment in the Original

Cause, we do not have jurisdiction to consider the appeal, number 2-09-047-

CV, from that cause. See Lehmann, 39 S.W.3d at 195; In re S.A.A., No.

02-08-00080-CV, 2008 WL 2002744, at *1 (Tex. App.—Fort Worth May 8,

2008, no pet.) (mem. op.) (dismissing an appeal because after we sent a letter

concerning our jurisdiction, neither party presented us with an appealable

judgment); Betts v. Gilbert, No. 02-04-00107-CV, 2004 WL 1176640, at *1

(Tex. App.—Fort Worth May 27, 2004, no pet.) (mem. op.) (same).




                                       9
                                 Conclusion

      Because we conclude that we do not have jurisdiction to consider either

of these appeals, we deny appellants’ motions to extend time to file their

notices of appeal, and we dismiss the appeals. See Tex. R. App. P. 42.3(a),

43.2(f).


                                          TERRIE LIVINGSTON
                                          JUSTICE


PANEL: LIVINGSTON, DAUPHINOT, and GARDNER, JJ.

DATED: May 28, 2009




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