                                COURT OF APPEALS FOR THE
                           FIRST DISTRICT OF TEXAS AT HOUSTON

                                    ORDER OF ABATEMENT

Appellate case name:      Tory House, et al. v. The O’Quinn Law Firm, John H. O’Quinn &
                          Associates, LLP, and T. Gerald Treece, as Independent Executor of the
                          Estate of John M. O’Quinn, deceased

                          Rolando Acevedo, et al. v. The O’Quinn Law Firm, John H. O’Quinn
                          & Associates, LLP, and T. Gerald Treece, as Independent Executor of
                          the Estate of John M. O’Quinn, deceased

Appellate case number:    01-14-00027-CV, 01-14-00138

Trial court case number: 392,247-404, 392,247-414

Trial court:              Probate Court No. 2 of Harris County

        Appellees, The O’Quinn Law Firm, John H. O’Quinn & Associates, LLP, and T. Gerald
Treece, as Independent Executor of the Estate of John M. O’Quinn, deceased, were sued by
numerous parties, including the 263 plaintiffs (“Plaintiffs”) and the 50 intervenors
(“Intervenors”) in these appeals, in trial court cause number 392,247-404.1 Appellees filed
individual partial motions for summary judgment against each of the Plaintiffs and individual
partial motions for summary judgment against each of the Intervenors. On November 5, 2013,
the trial court signed an order granting appellees’ “No Evidence Motions for Partial Summary
Judgment as to Plaintiffs.”2 That same day, the trial court also signed a separate order in trial
court cause number 392,247-404 granting appellees’ “No Evidence Motions for Partial Summary
Judgment as to Intervenors.”3
       On December 18, 2013, the trial court signed two separate orders of severance, making
each summary judgment order final and appealable. See City of Beaumont v. Guillory, 751

1
       The names of the 263 plaintiffs and the 50 intervenors are delineated in the trial court’s
       November 5, 2013 orders.
2
       The order granted summary judgment in favor of appellees against each of the 263
       plaintiffs in these appeals.
3
       The order granted summary judgment in favor of appellees against each of the 50
       intervenors in these appeals.
S.W.2d 491, 492 (Tex. 1992) (“A summary judgment that fails to dispose expressly of all parties
and issues in the pending suit is interlocutory and not appealable unless a severance of that phase
of the case is ordered by the trial court.”); Wickers v. Am. Sw. Ins. Managers, Inc., No. 14-12-
01055-CV, 2013 WL 1499585, at *1 (Tex. App.—Houston [14th Dist.] Apr. 11, 2013, no pet.)
(“In this case, the trial court severed appellee from the main case number; thus, the partial
summary judgment was final for purposes of appeal.”). The first “Order of Severance,” relating
to Plaintiffs, states:
                      On this day, the Court considered severance of the Order
               granting partial summary judgment as to the 263 Plaintiffs the
               subject of the No Evidence Motions for Partial Summary
               Judgment. After considering the merits of severance, and
               argument of counsel, this Court is of the opinion that severance is
               proper and should be GRANTED.
                       It is therefore, ORDERED that the parties and all issues
               raised by the No Evidence Motions for Partial Summary Judgment,
               and Order granting same, be and are hereby severed regarding the
               263 Plaintiffs listed . . . .
                       It is further ORDERED [that] the clerk of the court assign a
               separate cause number of next available sub number to the severed
               action, and the clerk of the court is directed to make non-certified
               copies of: (1) the docket sheet; (2) a copy of this Order; and (3) the
               documents listed as Exhibit A and include them in the file of the
               severed case.
The second “Order of Severance,” relating to Intervenors, states:
                      On this day, the Court considered severance of the Order
               granting partial summary judgment as to the fifty (50) Intervenors
               the subject of the No Evidence Motions for Partial Summary
               Judgment. After considering the merits of severance, and
               argument of counsel, this Court is of the opinion that severance is
               proper and should be GRANTED.
                      It is therefore, ORDERED that the parties and issues raised
               by the No Evidence Motions for Partial Summary Judgment, and
               Order granting same, be and are hereby severed regarding the 50
               Intervenors listed . . . .
                       It is further ORDERED that the clerk of the court assign a
               separate cause number of next available sub number to the severed
               action, and the clerk of the court is directed to make non-certified
               copies of: (1) the docket sheet; (2) a copy of this Order; and (3) the
               documents listed as Exhibit A and include them in the file of the
               severed case.
       A reading of the trial court’s two “Order[s] of Severance” indicates that the trial court
intended to create two separate severed cases, one for Plaintiffs’ claims and one for Intervenors’
claims, each with its own “separate cause number of next available sub number,” and each
distinct from the original trial court cause number 392,247-404.
        The trial court instructed the trial court clerk to assign cause numbers to these two
severed cases, separately. It does not appear from the record, however, that the trial court clerk
ever assigned a “separate cause number” to either Plaintiffs’ severed case or Intervenors’ severed
case.4 See generally TEX. R. CIV. P. 23 (duty of clerk to assign cause number).
       On January 7, 2014, Plaintiffs filed their notice of appeal challenging the trial court’s
November 5, 2013 order granting appellees’ “No Evidence Motions For Partial Summary
Judgment as to Plaintiffs.” Listed on Plaintiffs’ notice of appeal was the original trial court
cause no. 392,247-404.
        On January 13, 2014, Intervenors filed their notice of appeal challenging the trial court’s
November 5, 2013 order granting appellees’ “No Evidence Motions For Partial Summary
Judgment as to Intervenors.” Also listed on Intervenors’ notice of appeal was the original trial
court cause no. 392,247-404.
        Thus, in January 2014, the Clerk of this Court received two notices of appeal containing
the same trial court cause number. This resulted in both Plaintiffs’ severed case and Intervenors’
severed case being docketed under the same appellate cause number, 01-14-00027-CV, despite
the fact that Plaintiffs and Intervenors appealed from two separate orders in two separately
severed cases. See TEX. R. APP. P. 12.2(c) (“All notices of appeal filed in the same case must be
given the same docket number.”).
       Subsequently, on January 29, 2014, the trial court signed a “Second Amended Order of
Severance,” in trial court cause number 392,247-404, in which the trial court states:
                      On this day, the Court considered severance of the Order
               granting partial summary judgment as to the 263 Plaintiffs and 50
               Intervenors, the subject of the No Evidence Motions for Partial
               Summary Judgment. After considering the merits of severance,
               and argument of counsel, this Court is of the opinion that
               severance is proper and should be granted.
                       It is therefore, ORDERED that the parties and all issues
               raised by the No Evidence Motions for Partial Summary Judgment,
               and Order granting same, be and are hereby severed regarding the
               263 Plaintiffs and 50 Intervenors listed below.

4
       Although it is better practice for the trial court to assign a new cause number in its
       severance order, an order granting severance is effective when signed. McRoberts v.
       Ryals, 863 S.W.2d 450, 452–53 (Tex. 1993). Thus, the two severance orders signed by
       the trial court on December 18, 2013 were effective and created two separate severed
       actions (one for Plaintiffs and one for Intervenors), even without the trial court clerk’s
       creation of separate severed case files with different cause numbers. Id. at 452–53 &
       nn.3–4; see also Zurovec v. Miller, No. 04-96-00470-CV, 1196 WL 425993, at *1 (Tex.
       App.—San Antonio July 31, 1996, no writ) (severance effective on date order was
       signed because, although order contained provision for assignment of new cause number,
       order in no way conditioned effectiveness of severance on that assignment).
                       ...
                       It is ORDERED that the clerk of the court assign a separate
               cause number of next available sub number to the severed action,
               and the clerk of the court is directed to make non-certified copies
               of: (1) the docket sheet; (2) a copy of this Order; and (3) the
               documents listed on Exhibit A and include them in the file of the
               severed case, and to move the documents listed on Exhibit B to the
               new severed case file.
         A reading of this amended severance order indicates that the trial court now intends to
create only one severed case, one for both Plaintiffs’ claims and Intervenors’ claims. However,
the trial court never withdrew or vacated its December 18, 2013 “Order[s] of Severance,” which
previously severed Plaintiffs and Intervenors cases separately.
        In its amended order of severance, the trial court instructed the trial court clerk to assign
“a separate cause number of next available sub number to the severed action,” with which the
clerk appears to have complied. This severed action, which includes both Plaintiffs’ claims and
Intervenors’ claims together in a single severed case, was assigned trial court cause number
392,247-414.
        On February 11, 2014, Plaintiffs filed a second notice of appeal again challenging the
trial court’s November 5, 2013 order granting appellees’ “No Evidence Motions For Partial
Summary Judgment as to Plaintiffs.” This notice, however, was filed in the newly-severed case,
trial court cause number 392,247-414.
        On February 12, 2014, Intervenors also filed a second notice of appeal again challenging
the trial court’s November 5, 2013 order granting appellees’ “No Evidence Motions For Partial
Summary Judgment as to Intervenors.” Similarly, Intervenors’ notice was filed in the newly-
severed case, trial court cause number 392,247-414.
       Because both Plaintiffs’ and Intervenors’ second notices of appeal were filed under trial
court cause number 392,247-414, they were assigned a new appellate cause number, 01-14-
00138-CV, by the Clerk of this Court. Cf. TEX. R. APP. P. 12.1, 12.2(b), (c).
       Thus, there are now two appeals pending before this Court, both of which include a
notice of appeal challenging each of the trial court’s November 5, 2013 partial summary
judgment orders. It is not readily apparent to the Court, however, whether the trial court
intended to create two separate severed cases, one for Plaintiffs’ claims and one for Intervenors’
claims, pursuant to its December 18, 2013 “Order[s] of Severance,” or whether the trial court
intended to include Plaintiffs’ claims and Intervenors’ claims in the same severed action,
pursuant to its January 29, 2014 “Second Amended Order of Severance.”
       We therefore abate both appeals and remand for the trial court to immediately conduct a
hearing. The trial court is directed to:
       (1) determine whether it is appropriate for Plaintiffs and Intervenors to proceed in two
           separate severed cases, one for Plaintiffs’ claims and one for Intervenors’ claims;
       (2) if the court determines that two separate severed cases are appropriate:
               a. order the trial court clerk to assign trial court cause number 392,274-414 to
                   Plaintiffs’ severed action and order the trial court clerk to assign a separate
                   and distinct cause number to Intervenors’ severed action;
               b. determine which documents should be filed in each of the severed cases and
                   direct the trial court clerk to compile the documents accordingly in each
                   severed case file; and
               c. withdraw or vacate the “Second Amended Order of Severance” and any other
                   severance order which conflicts with the December 18, 2013 “Order[s] of
                   Severance”;
       (3) if the court determines that two separate severed cases, one for Plaintiffs and one for
           Intervenors, are not appropriate:
               a. withdraw or vacate the two December 18, 2013 “Order[s] of Severance” and
                   any other severance order which conflicts with the January 29, 2014 “Second
                   Amended Order of Severance”;
               b. determine which documents should be filed in the severed case, cause number
                   392,274-414, and direct the trial court clerk to compile the documents
                   accordingly in the severed case file;
       (4) make any other findings and recommendations the trial court deems appropriate; and
       (5) enter written findings of fact, conclusions of law, and recommendations as to these
           issues, separate and apart from any docket sheet notations.
        The trial court shall have a court reporter record the hearing and file the reporter’s record
with this Court within 25 days of the date of this order. The trial court clerk is directed to file a
supplemental clerk’s record containing the trial court’s findings and recommendations with this
Court within 25 days of the date of this order. If the hearing is conducted by video
teleconference, a certified video recording of the hearing shall also be filed in this Court within
25 days of the date of this order. The reporter’s record, supplemental clerk’s record, and
certified video recording, if any, shall reflect that they are being filed in both appellate cause
numbers, 01-14-00027-CV and 01-14-00138-CV.
        These appeals are abated, treated as closed cases, and removed from this Court’s active
docket. The appeals will be reinstated on this Court’s active docket when a supplemental clerk’s
record and the reporter’s record of the hearing are filed in this Court. The court coordinator of
the trial court shall set a hearing date and notify the parties and the Clerk of this Court of such
date.
       It is so ORDERED.


Judge’s signature: /s/ Evelyn V. Keyes
                    Acting individually       Acting for the Court

Date: April 8, 2014
