Shawna Mercer, Individually and as Representative of the Estate of Bennie Mercer, and as Natural Mother and Next Friend of Melissa Mercer, a Minor Child v. Richard Scheriger

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH

NO. 02-08-487-CV

SHAWNA MERCER, INDIVIDUALLY APPELLANT
AND AS REPRESENTATIVE OF THE
ESTATE OF BENNIE MERCER,
DECEASED, AND AS NATURAL
MOTHER AND NEXT FRIEND
OF MELISSA MERCER, A
MINOR CHILD

V.

RICHARD SCHERIGER APPELLEE

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FROM THE 90TH DISTRICT COURT OF YOUNG COUNTY

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MEMORANDUM OPINION 1

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Appellant Shawna Mercer attempts to appeal from an order severing her

vicarious liability claim from her main cause of action against Appellee Richard

Scheriger. We dismiss for want of jurisdiction.

1
… See Tex. R. App. P. 47.4.
 Scheriger filed a motion to sever a claim for vicarious liability that Mercer

added to her original tort claims in trial court cause number 30188. The trial

court severed Mercer’s vicarious liability claim into trial court cause number

30188-A, and “ORDERED that all discovery in the severed Cause No. 30188-A

shall be, and remain, ABATED until final adjudication of all claims in the present

Cause No. 30188.” Mercer filed a document indicating her desire to appeal this

order.

On December 19, 2008, we notified the parties that it appeared that this

court lacked jurisdiction because there might not be a final appealable order in

cause number 30188-A. Our letter also informed the parties that unless they

filed a response showing grounds for continuing the appeal by Monday,

December 29, 2008, this attempted appeal would be dismissed for want of

jurisdiction. See Tex. R. App. P. 42.3(a). Mercer filed a response on December

29, 2008, but she failed to show grounds for continuing the appeal.

Appellate courts have jurisdiction over appeals from final judgments and

from specific types of interlocutory orders designated by the legislature as

appealable. Lehmann v. Har-Con Corp., 39 S.W .3d 191, 195 (Tex. 2001);

see, e.g., Tex. Civ. Prac. & Rem. Code Ann. § 51.014 (Vernon Supp. 2007).

A judgment is final and appealable if it disposes of all parties and all issues.

Lehmann, 39 S.W.3d at 195. An order that does not dispose of all parties and

2
all issues in the case must be classified, for purposes of appeal, as an

unappealable interlocutory order. Ruiz v. Ruiz, 946 S.W.2d 123, 124 (Tex.

App.—El Paso 1997, no pet.). Without affirmative statutory authority to hear

an interlocutory appeal, this court is without jurisdiction. Id.; see also Kiefer v.

Kiefer, 132 S.W.3d 601, 602 (Tex. App.—Fort Worth 2004, no pet.) (holding

that protective order rendered during the pendency of a divorce was not a final,

appealable order). Where, as here, the severance order expressly contemplates

future action in the new severed cause number and bases this future action on

future events in the original cause number, there can be no final judgment or

appealable order. See, e.g., Thompson v. Beyer, 91 S.W.3d 902, 904 (Tex.

App.—Dallas 2002, no pet.) (“As a rule, a severance of an interlocutory

judgment into a severed action makes it final if all claims in the severed action

have been disposed of, unless the order of severance indicates further

proceedings are to be had in the severed action.” (emphasis added)).

The language of the order from which Mercer attempts to appeal directly

contemplates future action, clearly stating that all discovery in the severed

cause of action, cause number 30188-A, “shall be . . . ABATED until final

adjudication of all claims in the present Cause No. 30188.” [Emphasis added.]

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Because the order is not final and appealable, we must dismiss this appeal for

want of jurisdiction.2 See Tex. R. App. P. 42.3(a), 43.2(f).

PER CURIAM

PANEL: MCCOY, J.; CAYCE, C.J.; and MEIER, J.

DELIVERED: January 22, 2009

2
… However, this dismissal should not be construed to prevent Mercer
from later pursuing a timely appeal from an actual final judgment in trial court
cause number 30188-A.

4