Sharon Appleton v. Consolidated Crane and Rigging, LLC ( 2021 )

In The
Court of Appeals
Ninth District of Texas at Beaumont
__________________
NO. 09-21-00247-CV
__________________
SHARON APPLETON, Appellant
V.
CONSOLIDATED CRANE AND RIGGING, LLC, Appellee
__________________________________________________________________
On Appeal from the 457th District Court
Montgomery County, Texas
Trial Cause No. 21-07-10414-CV
__________________________________________________________________
ORDER
Appellee Consolidated Crane and Rigging, LLC (“CCR”), filed a motion to
dismiss because Sharon Appleton, appellant, filed her notice of appeal from the trial
court’s June 29, 2021 order on August 16, 2021, a date that is outside the time for
which an extension may be granted to perfect an appeal. In response, Appleton
argues the trial court’s June 29, 2021 order is not a final judgment because it lacks
essential decretal language that disposes of her claims against CCR.
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Appleton sued Becky Mixon, Melvin Mixon and CCR for the wrongful death
of her husband, Alfred Appleton. Appleton alleged that CCR was liable on a theory
of respondeat superior, negligent hiring, negligent training, and negligent
supervision of its employee, Melvin Mixon. CCR filed a motion for traditional and
no-evidence summary judgment. CCR argued Mixon was not acting in the course
and scope of his employment when the accident occurred and CCR owed no duty to
Alfred Appleton. CCR asked the trial court to sever Appleton’s claims against CCR
so that the summary judgment order would be a final disposition as to CCR.
Appleton filed her summary judgment response on June 18, 2021.
On June 29, 2021, the trial court signed an order granting CCR’s traditional
and no-evidence motion for summary judgment. The text of the order stated:
Came on for consideration Defendant Consolidated Crane &
Rigging, LLC’s (“CCR”) Traditional and No-Evidence Motion for
Summary Judgment. The Court, having reviewed the pleadings and
heard arguments of counsel, is of the opinion that it should be
GRANTED.
IT IS HEREBY ORDERED, ADJUDGED, AND DECREED
that CCR’s Traditional Motion for Summary Judgment is GRANTED.
IT IS HEREBY ORDERED, ADJUDGED, AND DECREED
that CCR’s No-Evidence Motion for Summary Judgment is
GRANTED.
IT IS HEREBY ORDERED, ADJUDGED, AND DECREED
that CCR’s Motion for Severance is GRANTED. Plaintiff’s claims
against CCR are hereby severed into the separate cause number of 20-
01-00858-B and a copy of the following documents shall be included
in that file:
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1. Plaintiff’s Second Amended Petition (08/28/20);
2. CCR’s First Amended Answer (04/19/21);
3. CCR’s Traditional and No-Evidence Motion for Summary
Judgment (05/14/21);
4. All documents filed in this Cause after 05/14/21;
5. A copy of the docket sheet; and
[6]. A copy of this order.
However, nowhere in this order did the trial court include essential decretal language
that disposed of the claims against CCR or stated that the severance was so that the
summary judgment order would be a final disposition as to CCR.
In addition to the above, on May 28, 2021, CCR filed a motion for sanctions
against Appleton for making what CCR claimed were patently false statements in
her Plaintiff’s Second Amended Petition. See generally Tex. Civ. Prac. & Rem.
Code Ann. § 10.001; see also Tex. R. Civ. P. 215. On June 21, 2021, Appleton filed
a motion to compel the deposition of CCR’s corporate representative and requested
sanctions against CCR for failing to produce key documents regarding Appleton’s
negligent supervision and training claims. See Tex. R. Civ. P. 215. On July 6, 2021,
the trial court signed an order (bearing trial cause number 20-01-00858-B) setting
CCR’s motion for sanctions for oral hearing on July 9, 2021. However, no hearing
or order on the motion for sanctions appears in the record. This action subsequent to
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the June 29, 2021 order also brings into question whether or not the trial court
intended its June 29, 2021 order to in fact be a final order.
A notice from the District Clerk dated July 28, 2021, informed CCR’s counsel
that her office had completed the severance and assigned an entirely new case
number, 21-07-10414-CV, to the severed cause. The District Clerk’s letter indicates
a copy was sent to Appleton’s attorney. A new lawyer for Appleton filed a notice of
appearance in the severed cause on August 16, 2021. Appleton filed a notice of
appeal on August 16, 2021.
Generally, a notice of appeal must be filed within thirty days after the
judgment is signed. See Tex. R. App. P. 26.1. The appellate court may extend the
time for filing a notice of appeal if the notice is filed within fifteen days of the
deadline. See Tex. R. App. P. 26.3. If the June 29, 2021 order functioned as the final
judgment in trial cause number 21-07-10414-CV, notice of appeal was due July 29,
2021, and the period for an extension expired August 13, 2021. However, in this
case, the notice of appeal was not filed until August 16, 2021.
To be final, a judgment must dispose of all issues and parties in a case. N.E.
Indep. Sch. Dist. v. Aldridge, 400 S.W.2d 893, 895 (Tex. 1966). No presumption of
finality arises when a judgment is signed without a traditional trial on the merits.
Crites v. Collins, 284 S.W.3d 839, 841 (Tex. 2009). To determine whether such an
order is final, we examine the express language of the order and whether the order
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actually disposes of all claims against all parties. Id. “A judgment that finally
disposes of all remaining parties and claims, based on the record in the case, is final,
regardless of its language.” Lehmann v. Har–Con Corp., 39 S.W.3d 191, 200 (Tex.
2001). “Thus, if a court has dismissed all of the claims in a case but one, an order
determining the last claim is final.” Id.A judgment is final either if “it actually disposes of every pending claim and
party” or “it clearly and unequivocally states that it finally disposes of all claims and
all parties.” Id. at 205. When unmistakable language of finality is missing, the record
resolves the issue. Bella Palma, LLC v. Young, 601 S.W.3d 799, 801 (Tex. 2020).
Appleton argues the trial court’s June 29, 2021 order is not a final judgment
because it lacks essential decretal language. We agree. The decretal portion of a
judgment grants or denies the remedy sought. Matter of Guardianship of Jones, No.
20-0439, 2021 WL 4228048, at *3 (Tex. Sept. 17, 2021). “An order that merely
grants a motion for judgment is in no sense a judgment itself. It adjudicates nothing.”
Naaman v. Grider, 126 S.W.3d 73, 74 (Tex. 2003). But finality requires no particular
phraseology so long as the judgment is expressed in language which is significant in
common understanding and parlance. Jones, 2021 WL 4228048, at *3.
“An order that merely grants a motion for summary judgment without any
decretal language actually disposing of a claim is not a judgment on any claim.”
Frausto v. RC Indus. LLC, 605 S.W.3d 54, 56 (Tex. App.—San Antonio 2020, no
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pet.); see also Shetewy v. Mediation Institute of N. Tex., LLC, 624 S.W.3d 285, 287
(Tex. App.—Fort Worth 2021, no pet.) (order granting motion to dismiss with
prejudice lacked necessary decretal language); In re Wilmington Trust, N.A., 524
S.W.3d 790, 792 (Tex. App.—Houston [14th Dist.] 2017, orig. proceeding) (order
granting objections to venue and motion to dismiss without decretal language
disposing of the action); Disco Mach. of Liberal Co. v. Payton, 900 S.W.2d 71, 73
(Tex. App.—Amarillo 1995, no writ) (an order that grants motion for summary
judgment with no decretal language is not a final judgment).
In Jones, the trial court signed an order that granted the defendant’s motion
for summary judgment. 2021 WL 4228048, at *3. Although the order failed to order
that the plaintiff take nothing, the order did state, “This order is a final order.” Id. at
*1. However, in this case, the trial court’s June 29, 2021 order does not state that it
is a final order.
“The appellate court may allow an appealed order that is not final to be
modified so as to be made final and may allow the modified order and all
proceedings relating to it to be included in a supplemental record.” Tex. R. App. P.
27.2. Accordingly, we abate the appeal and remand the cause to the trial court. See
id. Upon remand, the trial court may issue such further orders or judgments
necessary to create a final, appealable order in this cause. Unless a final, appealable
order or judgment is included in a supplemental clerk’s record and filed with the
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clerk of this Court on or before November 29, 2021, the appeal will be reinstated
and dismissed for want of jurisdiction.
ORDER ENTERED October 26, 2021.
PER CURIAM
Before Golemon, C.J., Kreger and Johnson, JJ.
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