Maria Del Rosario v. Garcia Lee Ann v. Martinez, Ruben Villarreal, Jr., Julissa v. Garcia, Rebecca Villarreal, and Raquel v. Juarez v. Chesapeake Zapata, L.P. ( 2024 )

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
§
MARIA DEL ROSARIO V. GARCIA, LEE
ANN V. MARTINEZ, RUBEN §
VILLARREAL, JR., JULISSA V. GARCIA,
REBECCA VILLARREAL, and RAQUEL V. §
JUAREZ,
§ No. 08-23-00117-CV
Appellants,
§ Appeal from the
v.
§ 49th Judicial District Court
JAVIER RAMIREZ as Co-Trustee of the
RAMIREZ MINERAL TRUST; SONIA § of Zapata County, Texas
RODRIGUEZ as Co-Trustee of the
RAMIREZ MINERAL TRUST; VICTOR M. § (TC# 5,937-C)
RAMIREZ as Co-Trustee of the RAMIREZ
MINERAL TRUST; SANTIAGO RAMIREZ, §
JR. as Co-Trustee of the RAMIREZ
MINERAL TRUST; VICTOR M. RAMIREZ, §
an Individual; SANTIAGO RAMIREZ, JR.,
an Individual; SYLVIA R. RAMIREZ, an §
Individual; DAHLIA R. LOPEZ, an
Individual; SONIA GARZA RODRIGUEZ, §
an Individual; JAVIER RAMIREZ, an
Individual; SOTERO RAMIREZ, JR.. an §
Individual; AMADO RAMIREZ, JR., AN
INDIVIDUAL; PRISCILLA GARZA §
LOZANO, an Individual; BLAS GARZA III,
an Individual; SONIA RODRIGUEZ as Heir §
and Co-Executor to the Estate of BLAS
GARZA, JR.; BLAS GARZA III, as Heir and §
Co-Executor to the Estate of BLAS GARZA,
JR.; PRISCILLA GARZA LOZANO as Heir §
and Co-Executor to the Estate of BLAS
GARZA, JR., §
Appellees. §
CONCURRING AND DISSENTING OPINION
I agree with the majority to the limited extent it concludes this Court lacks jurisdiction over
the appeal. I part ways with the Court, however, to the extent it determines that both the July 2014
order and the September 2022 order are interlocutory in nature. Instead, I would conclude the
July 2014 order was a final and appealable order when rendered, as it contained clear and
unequivocal finality language that triggered the timetable for perfecting a timely appeal. And
because that order was final, the trial court’s plenary power long ago expired, well before
September 2022. As a result, I would also conclude the trial court’s severance order rendered in
September 2022, which purportedly severed the July 2014 order into a separate cause, was
rendered outside the court’s plenary power. Unlike the majority, I would conclude the severance
order was void, not interlocutory. For the reasons that follow, I would grant Appellees’ motion to
dismiss the appeal for lack of jurisdiction.
I.
Whether an appellate court has jurisdiction to determine the merits of an appeal is a
question of law reviewed de novo. Bonsmara Nat. Beef Co., LLC v. Hart of Texas Cattle Feeders,
LLC, 603 S.W.3d 385, 390 (Tex. 2020). The timely filing of a notice of appeal by any of the parties
“invokes the appellate court’s jurisdiction over all parties to the trial court’s judgment or order
appealed from.” Tex. R. App. P. 25.1(b). “[T]he general rule, with a few mostly statutory
exceptions, is that an appeal may be taken only from a final judgment.” Lehmann v. Har-Con
Corp., 39 S.W.3d 191, 195 (Tex. 2001). In those cases, in particular—where only one final
judgment can be rendered—Lehmann distinguishes between judgments issued after a conventional
trial on the merits and judgments rendered without one. Id. at 199–200.These types of judgments
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include default judgments, summary judgments, and dismissals either by nonsuit or by plea to the
jurisdiction. Id.As to judgments rendered without a conventional trial, Lehmann addressed the lingering
uncertainty about their finality and appealability. Id. at 195. There, the Supreme Court described:
“[w]hat has vexed courts in this State and elsewhere is this: must a final judgment dispose of all
parties and claims specifically, or may it do so by general language or even by inference?” Id.
Lehmann considered whether strict requirements would lead to better results; recognizing, of
course, that some orders or judgments would likely fall short of an exacting standard. In those
circumstances, the Court noted the uncertainty that would surely result: “[i]f a specific disposition
of each party and claim is strictly required, a judgment apparently intended by the parties and the
trial court to be final and appealable may not be.” Id. at 195–96 (emphasis added). In that case,
“[a]n appeal from such a judgment must be dismissed or at least abated, resulting in delay and a
waste of the courts’ and the parties’ resources.” Id. at 196. The Supreme Court thus determined
that, despite the finality question persisting for many years, the imposition of strict requirements
could lead to greater instability, not less. Id. (“[I]f a judgment intended to be final did not meet the
strict requirements, then the case would remain open, allowing the possibility of further
proceedings and appeal years later.”).
On the other hand, the Court also found that for judgments of this type, standards that were
too loose would likely introduce its own set of problems. The Court noted, “if a judgment may
dispose of all parties and claims by general language or inference, a party or trial court may think
that a judgment is interlocutory, only to be told later by the appellate court after the time for appeal
has passed that the judgment was final.” Id. As to this problem, the Court warned, “[a] party who
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is uncertain whether a judgment is final must err on the side of appealing or risk losing the right to
appeal.” Id.
Against this enduring backdrop, the Court declared that “[s]implicity and certainty in
appellate procedure are nowhere more important than in determining the time for perfecting
appeal.” Id. at 205. Honoring that principle, Lehmann thus confirmed distinct pathways for an
order to become final and appealable. Id. at 192–93. Specifically, the Court held that a judgment
issued without a conventional trial is final if and only if it either: (1) “states with unmistakable
clarity it is a final judgment as to all claims and all parties[;]” or (2) “it actually disposes of all
claims and parties then before the court, regardless of its language.” Id.; see also In re Elizondo,
544 S.W.3d 824, 826 (Tex. 2018); Sealy Emergency Room, L.L.C. v. Free Standing Emergency
Room Managers of Am., L.L.C., 685 S.W.3d 816, 820 (Tex. 2024). Beyond those two
circumstances, and relevant here, the Court has also recognized by other decisions that an
interlocutory judgment becomes final if it is severed into a separate cause. Sealy Emergency Room,
685 S.W.3d at 820 (“[A]s a rule, the severance of an interlocutory judgment into a separate cause
makes it final.” (quoting Diversified Fin. Sys., Inc. v. Hill, Heard, O’Neil, Gilstrap & Goetz, P.C.,
63 S.W.3d 795, 795 (Tex. 2001))).
Focusing on the first path to finality, Lehmann explained, “the language of an order or
judgment can make it final, even though it should have been interlocutory, if that language
expressly disposes of all claims and all parties.” Lehmann, 39 S.W.3d at 200. For facial finality to
apply, the intent to finally dispose of the case must be unequivocally expressed in the words of the
order or judgment. Id. When such language is present, Lehmann instructs that it must be given
effect despite any other indications that one or more parties did not intend for the judgment to be
final. Id. at 206.
4
For example, when a defendant moves for summary judgment on only some of multiple
claims asserted, and the trial court grants the motion (without stating the grounds), therein ordering
the plaintiff to take nothing, the resulting judgment is erroneous, but final. See Jacobs v.
Satterwhite, 65 S.W.3d 653, 655–56 (Tex. 2001). Simply put, the order “must be appealed and
reversed,” for, even in that event, it is treated as “final—erroneous, but final.” Lehmann, 39 S.W.3d
at 200; see also Estate of Cougot, No. 08-22-00007-CV, 2022 WL 2866012, at *6 (Tex. App.—
El Paso July 21, 2022, pet. denied) (mem. op.) (addressing a timely appeal of an order that was
erroneously final and reversing the ruling and remanding the case to the trial court to address
remaining claims and parties). Courts are instructed that—even if the record were to otherwise
show that a judgment did not dispose of some claims and defenses—the trial court’s inclusion of
qualifying, finality language must be given its full legal effect. Lehmann, 39 S.W.3d. at 200.
More recently, the Supreme Court reaffirmed this facial finality test and further clarified
that courts are prohibited from performing a record review when “a finality phrase” is included.
In re Elizondo, 544 S.W.3d 824, 828 (Tex. 2018) (orig. proceeding) (per curiam). (“[A] reviewing
court confronting an order that includes a finality phrase cannot look at the record. Instead, it must
take the order at face value.”). This prohibition is easily understood when qualifying language is
present on the face of a judgment. The Court explained:
If it were otherwise, finality phrases would serve no purpose. That is, if both of
Lehmann’s tests allow a reviewing court to look at the record, then a reviewing
court may always look at the record. That would distill Lehmann’s joint tests into
a simple rule: when there has not been a conventional trial on the merits, a court
must look to the record to determine whether the judgment is final. That is not
Lehmann’s rule. Had it lacked the finality phrase, the original order in this case
would not have disposed of all claims and parties. However, since the original order
included a finality phrase, it was clear and unequivocal.
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Id. Consequently, when finality language is present, the language itself cannot be ignored or
deemed superfluous as the wording itself serves a distinct purpose in accord with Lehmann’s and
Elizondo’s holdings. See id.II.
Turning to the case at hand, in July 2014, the trial court considered competing, traditional
and no-evidence motions for summary judgment filed in cause number 5937-A. More specifically,
on July 28, 2014, the trial court signed an “Order on Summary Judgments,” granting the motions
filed by Appellees and other defendants, while denying the motions filed by Appellants. Also, in
a penultimate paragraph, the order further decreed that the causes of action asserted by certain
plaintiff-intervenors (generally known as the Lilia Group represented by the Ellis firm), were
severed from the cause, and their causes were ordered to proceed under new cause number 5937-
B.1 And finally, in a last paragraph appearing immediately above the date, the order included the
following language:
These judgments dispose of all claims and defenses between the parties made the
subject of the above-referenced summary judgments; it is a final judgment; and it
is appealable.
Following Lehmann’s and Elizondo’s instructions, I would first consider whether the
July 2014 order included a finality phrase, and in doing so, I would not look at the record of the
case. Lehmann, 39 S.W.3d at 192–93; Elizondo, 544 S.W.3d at 828. Here, after detailing its rulings
on the parties’ various motions, the July 2014 order explicitly states, “these judgments dispose of
all claims and defenses between the parties made the subject of the above-referenced summary
1
The intervenors are listed on the order as: Lilia V. Mendoza (a/ka Lilia Villarreal); Raquel Rodriguez (a/k/a Raquel
Villarreal and Raquel V. Rodriguez); Amanda Garza (a/k/a Amanda V. Garza), Anibal Villareal as Agent for Amanda
Garza, and Anibal Villareal as Agent for Raquel Villarreal. Essentially, this group of intervenor-plaintiffs amount to
the three clients sued for breach of contract by the Ellis firm, that is, Amanda Garza, Lilia Villareal, and Raquel
Villareal, who are collectively referred as the Lilia Group.
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judgments; it is a final judgment; and it is appealable.” Under Lehmann’s finality-language rule, I
would conclude the order’s language shows a clear and unequivocal intention to render an express
adjudication of all parties and claims. See Lehmann, 39 S.W.3d. at 206. (“A statement like, ‘[t]his
judgment finally disposes of all parties and all claims and is appealable,’ would leave no doubt
about the court’s intention.”). Structurally, as another indicia of finality, the judgment also severed
causes of action asserted by certain parties into a separate and distinct cause.2 In my view, the
finality language and severance, together and as a whole, reflected an intent by the trial court to
render a final, appealable judgment on the stated date. Thus, I would grant Appellees’ motion to
dismiss the appeal. 3
Even if the July 2014 order did not actually dispose of some claims and defenses, Lehmann
nonetheless has instructed that “[a]n express adjudication of all parties and claims in a case is not
2
The order decreed the causes of action asserted by plaintiffs known as the Lilia Group, who were represented for a
time by the Ellis firm, were severed from the cause, and those claims were ordered to proceed under new cause number
5937-B. That group included the following: Lilia V. Mendoza (a/ka Lilia Villarreal); Raquel Rodriguez (a/k/a Raquel
Villarreal and Raquel V. Rodriguez); Amanda Garza (a/k/a Amanda V. Garza), Anibal Villareal as Agent for Amanda
Garza, and Anibal Villareal as Agent for Raquel Villarreal. Essentially, this group of intervenor-plaintiffs amount to
the three clients sued for breach of contract by the Ellis firm, that is, Amanda Garza, Lilia Villareal, and Raquel
Villareal, who are collectively referred as the Lilia Group.
3
I agree with Appellees’ analysis and reasoning in support of their motion to dismiss. Appellants argue the July 2014
order “still has not become final,” yet they neither assert a statutory ground for bringing an interlocutory appeal, nor
assert a basis for this Court to exercise jurisdiction. Citing to Jack B. Anglin Co., Inc. v. Tipps, 842 S.W.2d 266, 272
(Tex. 1992), Appellants rely on a pre-Lehmann decision, contending “[a] judgment is final if it disposes of all pending
parties and claims in the record.” Focusing on the record, they advance several grounds in asserting the July 2014
order lacked finality. First, they contend certain parties, i.e., the Ramirez Defendants, were not in fact movants to any
of the motions for summary judgment; and, thus, they argue the July 2014 order did not (and could not) dispose of
Appellants’ pending claims against those defendants. Second, they urge that, because the Ramirez Defendants had not
joined in the summary judgment motions, “the trial court lacked authority to grant summary judgment in favor of the
Ramirez Defendants.”3 Third, they contend the Chesapeake Defendants’ counterclaim was not addressed in any of
the motions for summary judgment nor adjudicated by the trial court. Based on these grounds, they conclude that the
July 2014 order failed to resolve all claims against all parties. Notably, none of these grounds were brought in
Appellants’ motion for new trial, filed in 2014, nor in their motion to sever filed in 2022. I would conclude the
arguments are unavailing. The trial court’s order explicitly lists the Ramirez Defendants as having filed motions for
summary judgment. Based on Lehmann’s finality principles, I would conclude that Appellants’ claim asserting the
Ramirez Defendants were not included as parties to any of the adjudicated motions, and their secondary claim asserting
the Ellis plea remained unresolved, would simply mean the order was reversible due to error, but not interlocutory.
See Lehmann, 39 S.W.3d at 204 (providing that an order that grants more relief that the movant is entitled to “makes
the order reversible, but not interlocutory.”).
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interlocutory merely because the record does not afford a legal basis for the adjudication.” Id. at
206. As the Supreme Court explained, “the language . . . must be given effect despite any other
indications that one or more parties did not intend for the judgment to be final.” Id. In such a case,
the order “must be appealed and reversed,” for it is treated as “final—erroneous, but final.” Id. at
200; see also Estate of Cougot, 2022 WL 2866012, at *6 (addressing a timely appeal of an order
that was erroneously final and reversing the ruling and remanding the case to the trial court to
address remaining claims and parties).
In the majority’s view, however, the particular phrase, “[t]hese judgments dispose of all
claims and defenses between the parties made the subject of the above-referenced summary
judgments,” neither asserted nor expressed any of Lehmann’s approved language of finality; and
instead, the phrasing created an ambiguity that demanded a full review of the record of the cause.
From there, the majority then concludes that, because certain parties and claims were not
mentioned, the judgment was in fact interlocutory. Although the trial court thereafter severed the
order into a separate cause number, the majority concludes here, after a long dormancy of many
years’ duration, that the judgment still remains interlocutory, not final.
I disagree with this reasoning on two grounds. First, in analyzing the language of the final
judgment, the majority concludes it is unclear about which claims the summary judgment had
disposed. To reach this result, the majority cites a Texas Supreme Court case interpreting a
bankruptcy court’s order that conditionally terminated an automatic stay. See Kourosh Hemyari v.
Stephens, 355 S.W.3d 623, 626 (Tex. 2011) (acknowledging that an order’s terms are ambiguous
if they are “susceptible of more than one reasonable interpretation”). But, even there, the Court
acknowledged that an unambiguous order requires a court to look at it “as a whole.” Id. In doing
so, courts “construe an order in a way that gives each provision meaning.” Id. And, the Court
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reiterated that, under general rules of construction, “we avoid strictly construing an instrument’s
language if it would lead to absurd results.” Id.But here, the majority casts aside these general principles, parsing the judgment’s language
into individual parts that are untethered to the whole of the language used. In doing so, the majority
fails to heed Lehmann’s warning about imposing strict requirements. As Lehmann explained, in
doing so, cases would likely remain open, thereby “allowing the possibility of further proceedings
and appeal years later.” Lehmann, 39 S.W.3d at 196. When read as a whole, and without too strict
of a standard, the July 2014 order described it was disposing of “all claims and defenses between
the parties made the subject of the above-referenced summary judgments.” Adding clarity to that
statement, the order next declares, “it is a final judgment; and it is appealable.” The entire sentence
is formed by the use of a semicolon, which links independent and closely related clauses.
Deconstructing the sentence, however, the majority declares “a summary-judgment order
is not final merely because it states it is ‘final’ or ‘appealable.’” That result, however, gives no
meaning whatsoever to the words actually included on the face of the judgment. But, as the
Supreme Court explained, we must take the order at face value and give effect to all of its finality
phrasing. Elizondo, 544 S.W.3d at 828. The entire phrase, “these judgments dispose of all claims
and defenses between the parties made the subject of the above-referenced summary judgments[,]”
is descriptive of the claims and defenses raised by the competing summary judgment motions listed
in the opening paragraphs of the judgment. But, of course, that phrase does not stand alone. Rather,
it is followed by the trial court’s declaration that it is not only “a final judgment[,]” but one that
“is appealable.” Unlike the majority, I would conclude that the declarative statement, “it is a final
judgment; and it is appealable,” leaves little doubt about the trial court’s intention. See Lehmann,
39 S.W.3d. at 206. To be sure, Lehmann instructed, “[a] statement like, ‘[t]his judgment finally
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disposes of all parties and all claims and is appealable,’ would leave no doubt about the court’s
intention.” Id.
Second, in addition to finding the July 2014 order was not a final judgment, the majority
also concludes that the September 2022 severance order “did not eliminate the ambiguity in the
July 2014 order.” The majority determines that the September 2022 order did not contain
unqualified “all claims and all parties” language. But that critique only addresses Lehmann’s
finality language test without also looking at the record of the severed cause number, or cause
number 5937-C. Moreover, the majority’s conclusion as to the severance order disregards Supreme
Court precedent holding that “[a]s a rule, the severance of an interlocutory judgment into a separate
cause makes it final.” Sealy Emergency Room, 685 S.W.3d at 820. There, the Court explained that
“the lack of orders disposing of all claims and parties in an original action does not undermine the
finality of orders disposing of all claims and parties in a severed one.” Id. at 821. For the sake of
argument here, even if the July 2014 order was not final (which I disagree with), it would thereafter
become final due to the effect of the severance order as that was clearly the intention for severing
the parties’ claims into a new, distinct cause.4
Overall, I stand apart from the majority as I would conclude the July 2014 order was final
when rendered due it its language and structure as a whole. It follows from that conclusion, then,
that Appellants failed to bring a timely appeal. See Patel v. Nations Renovations, LLC, 661 S.W.3d
151 (Tex. 2023) (“[A] final judgment starts the clock for when a trial court loses its plenary
power—its jurisdiction to revise its judgment or, with some exceptions . . . to take any other actions
in the case.”). Had Appellants acted promptly in appealing the trial court’s denial of their motion
4
In February 2023, Appellants’ nonsuit of the Chesapeake Defendants from cause number 5937-C would have
thereafter removed the remaining barrier, if any, to this appeal.
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for new trial—wherein they claimed that all claims of all parties had been adjudicated by the
July 2014 judgment—they could have established on direct appeal that the July 2014 order was
erroneous for leaving some claims unresolved.5 See Lehmann, 39 S.W.3d at 204 (providing that
an order that grants more relief than the movant is entitled to “makes the order reversible, but not
interlocutory.”). As a result, the time for perfecting an appeal has long expired years ago, as the
challenged order was final and appealable at the time it was rendered. Because Appellants did not
file their notice of appeal challenging the July 2014 order within the required timetable, the appeal
was not timely perfected from that ruling. See Tex. R. App. P. 26.1(a)(1) (providing that a notice
of appeal must be filed within 90 days after the challenged order is signed if a party timely filed a
motion for new trial); Mitschke v. Borromeo, 645 S.W.3d 251, 260 (Tex. 2022) (“[T]he absence
of a timely notice of appeal prevents the appellate court from ever exercising jurisdiction in the
first place.”). And, in September 2022, because the trial court lacked plenary power over the case,
its severance order then rendered was void as a matter of law. There is no basis for invoking this
Court’s jurisdiction. For these reasons, I concur in the judgment of dismissal, but I dissent from
the Court’s reasoning and, as well, from the implication of its decision.6
GINA M. PALAFOX, Justice
May 31, 2024
Before Alley, C.J., Palafox and Soto, JJ.
5
Though timely filed, the motion for new trial was filed prematurely on July 21, 2014. It was filed by Appellants and
plaintiff Magdalena Villareal. No party contests its timeliness. After 75 days, the motion was overruled by operation
of law. See Tex. R. Civ. P. 329b(c).
6
Appellees additionally moved for dismissal by arguing that Appellants abandoned their suit by taking no action in
the trial court to protect or enforce their rights for an unreasonable period after the court rendered the July 2014 order.
They contend there is no dispute that, after the July 2014 order was signed, Appellants waited until 2022 to file a
motion to sever. They urge the more than eight-year delay raised a conclusive presumption of abandonment of the
suit. Because I would conclude that Appellants failed to timely perfect their appeal, there would be no need to reach
Appellees’ alternative argument. See Tex. R. App. P. 47.1.
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