Joslyn Canneus v. Hamidullah Sikander and Fahima Sikander ( 2019 )

DISMISS; and Opinion Filed April 5, 2019.
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-18-01455-CV
JOSLYN CANNEUS, Appellant
V.
HAMIDULLAH SIKANDER AND FAHIMA SIKANDER, Appellees
On Appeal from the County Court at Law No. 5
Dallas County, Texas
Trial Court Cause No. CC-18-05807-E
MEMORANDUM OPINION
Before Justices Whitehill, Molberg, and Reichek
Opinion by Justice Molberg
We questioned our jurisdiction over this appeal from a partial summary judgment as it
appeared claims remained pending in the trial court. See Lehman v. Har-Con Corp., 39 S.W.3d
191, 195 (Tex. 2001) (subject to few mostly statutory exceptions, appeal may only be taken from
final judgment that disposes of all parties and claims). As reflected in the record, the challenged
judgment disposed of appellees’ counter-claim against appellant for forcible detainer but did not
dispose of appellees’ request for attorney’s fees, appellant’s claims against appellees to quiet title,
or appellant’s claims against a fourth party for wrongful foreclosure.
Two days after the trial court granted the challenged judgment, appellees filed an amended
counterclaim omitting the request for attorney’s fees and a month later, the trial court severed
appellant’s and appellees’ claim against each other from appellant’s claims against the fourth
party. Appellees then filed a motion to modify, correct, or reform the partial summary judgment,
noting their amended counterclaim did not seek attorney’s fees, but the record does not reflect the
trial court modified the judgment. The record also does not reflect the trial court has disposed of
appellant’s claims against appellees.
At our request, the parties filed letter briefs addressing our jurisdiction. Appellant asserts
that, because appellees withdrew their claims for attorney’s fees, the partial summary judgment
became final when the trial court severed the claims between appellant and appellees from the
claims between appellant and the fourth party. We disagree.
When unadjudicated claims remain before the trial court, and a party moves to have the
claims nonsuited or removed by severance, the claims are resolved for appellate purposes when
the trial court signs a judgment or order disposing of those claims. See Farmer v. Ben E. Keith Co.,
907 S.W.2d 495, 496 (Tex. 1995) (per curiam) (“appellate timetable runs from the signing date of
whatever order that makes a judgment final and appealable, i.e. whatever order disposes of any
parties or issues remaining before the court.”) (citing Martinez v. Humble Sand & Gravel, Inc.,
875 S.W.2d 311, 313 (Tex. 1994)). While the filing of the amended petition amounted to a nonsuit
of the claim for attorney’s fees, only a trial court order could “finalize” that claim. See id. And
while the severance order removed appellant’s claims against the fourth party, it did not resolve or
even address appellant’s claims against appellees. Accordingly, because claims remain pending,
we lack jurisdiction and dismiss the appeal. See TEX. R. APP. P. 42.3(a).
/Ken Molberg/
KEN MOLBERG
JUSTICE
181455F.P05
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
JOSLYN CANNEUS, Appellant On Appeal from the County Court at Law
No. 5, Dallas County, Texas
No. 05-18-01455-CV V. Trial Court Cause No. CC-18-05807-E.
Opinion delivered by Justice Molberg,
HAMIDULLAH SIKANDER AND Justices Whitehill and Reichek
FAHIMA SIKANDER, Appellees participating.
In accordance with this Court’s opinion of this date, we DISMISS the appeal.
We ORDER appellees Hamidullah Sikander and Fahima Sikander recover their costs, if
any, of this appeal from appellant Joslyn Canneus.
Judgment entered this 5th day of April 2019.
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