United States Fire Insurance Company v. Coy Gnade , 134 S.W.3d 511 ( 2004 )

    IN THE

TENTH COURT OF APPEALS

No. 10-03-00289-CV

No. 10-04-00075-CV

     UNITED STATES FIRE INSURANCE COMPANY'S

     AND NATIONAL UNION INSURANCE COMPANY OF

     PITTSBURGH, PENNSYLVANIA,

                                                                         Appellants

     v.

     COY GNADE, ET AL.,

                                                                         Appellees

From the 249th District Court

Johnson County, Texas

Trial Court # C-2001-00430

DISSENTING OPINION

      Here we go again, as I knew we would in Harrison. See Harrison v. TDCJ-ID, No. 10-02-00247-CV (Tex. App.—Waco March 24, 2004, order).

      Until we have jurisdiction of an appeal, unless we are entering an order for the purposes of assisting us in determining our jurisdiction, any order we render is void. Thus, the severance order is void. Likewise, our orders to the trial court and to the trial court clerk are void.

      I will not repeat here what the proper procedure is when we have been able to fully determine our lack of jurisdiction based upon the record before us. I have exhaustively discussed that in the dissenting opinion in Harrison. Harrison v. TDCJ-ID, No. 10-02-00247-CV (Tex. App.—Waco March 24, 2004, order)(Gray, C.J., dissenting). But until the precedential value of that opinion is determined, I must continue to note my dissent. I will note that we put these parties in a state of uncertainty by following this procedure, especially since we attempt to split their case into two parts when they apparently have attempted to settle it as one.

      But I also write to stress the confusion that is created by the Court’s failure to follow its own precedent. Before the ink is dry on one opinion, we render a totally contradictory opinion. See Elias v. Woods, No. 10-03-00245-CV (Tex. App.—Waco March 17, 2004, no pet. h.). Upon receiving the notice described in Harrison, and the same notice sent to the parties in this appeal, Elias moved the court to sever the unadjudicated claim from those that were dismissed. Elias wanted to continue the appeal as to what he believed was the erroneous dismissal of claims.

      In response to Elias’s motion to sever, this Court stated:

This is not an interlocutory appeal authorized by statute. Accordingly, the jurisdiction of this Court cannot be properly invoked until a final, appealable judgment has been signed by the trial court. Only the trial court can sign a severance order to make the dismissal order in Elias’s case an appealable judgment.

The trial court has not signed a severance order. Accordingly, the appeal is dismissed for want of jurisdiction.

Id. slip op. at 2 (citations omitted)(emphasis in original).

      I cannot provide an explanation why we refuse to follow the same analysis here as we did in Elias.

      There is one aspect in which this case is different from Elias. And as I discussed in Harrison, we should apply the analysis used by the Corpus Christi Court of Appeals in Parks to determine whether to abate or dismiss appeals in which we have determined we have no jurisdiction. Parks v. DeWitt County Elec. Co-op., Inc., 112 S.W.3d 157, 163-164 (Tex. App.—Corpus Christi 2003, no pet.). When that analysis is used on Elias, dismissal is the proper result. If that analysis is applied to this case, abatement to allow a final judgment is the proper result.

      In this case, we should use Iacono as a model because it properly deals with the lack of jurisdiction, the allocation of costs to obtain a final appealable judgment, and the result in the event a final appealable judgment is not rendered by the time specified. See Iacono v. Lyons, 6 S.W.3d 715 (Tex. App.—Houston [1st Dist.] 1999, order).  

      Alternatively, an outright dismissal of this appeal would be an equally acceptable procedure. Because the court takes neither of these actions, I respectfully dissent.

                                                                   TOM GRAY

                                                                   Chief Justice

Dissenting opinion delivered and filed March 31, 2004

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