COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-13-00446-CV
PETER PAYNE, MARY BETH APPELLANTS
PAYNE, DAVID HOWARD,
OKSANA HOWARD, CHRISTINA
CHILDRES, DONNA HARRIS, AND
MELVIN HARRIS
V.
THE CITY OF FRISCO APPELLEE
AND
NO. 02-14-00067-CV
PETER PAYNE, MARY BETH APPELLANTS
PAYNE, DAVID HOWARD,
OKSANA HOWARD, MELVIN
HARRIS, DONNA HARRIS, AND
CHRISTINA CHILDERS
V.
HIGHLAND HOMES, LTD. APPELLEE
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FROM THE 431ST DISTRICT COURT OF DENTON COUNTY
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MEMORANDUM OPINION 1
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These are attempted appeals from the trial court’s orders granting appellee
the City of Frisco’s plea to the jurisdiction and appellee Highland Homes, Ltd.’s
motion for summary judgment. We dismiss the appeals for want of jurisdiction.
A complete recitation of the factual background of these appeals is
necessary. Appellants Peter Payne, Mary Beth Payne, David Howard, and
Oksana Howard (the Payne-Howard plaintiffs) filed suit against Highland Homes,
Ltd. and “other defendants” 2 in June 2011. In November 2011, the Payne-
Howard plaintiffs amended their petition and added as plaintiffs appellants Melvin
Harris, Donna Harris, and Christine Childers (the Harris-Childers plaintiffs). On
March 20, 2012, the trial court granted summary judgment in favor of Highland
Homes as to all claims raised by the Harris-Childers plaintiffs against Highland
Homes and granted a partial summary judgment in favor of Highland Homes as
to several, but not all, of the claims raised by the Payne-Howard plaintiffs against
Highland Homes. That same day, the trial court severed the claims brought by
the Harris-Childers plaintiffs against Highland Homes into a new cause number
1
See Tex. R. App. P. 47.4.
2
We presume these “other defendants” were those listed in subsequent
court filings and orders: J. Baker Corporation; Landstar Homes Dallas, Ltd.; GCS
Trails of Frisco, L.P.; and Sun Den Frisco Investment LP.
2
and stated that the order granting Highland Homes a summary judgment as to
the Harris-Childers plaintiffs’ claims “disposes of all claims by and against those
parties, and is final and appealable.” See generally City of Beaumont v. Guillory,
751 S.W.2d 491, 492 (Tex. 1988) (holding summary judgment is made final if trial
court severs unadjudicated issues and parties). On October 9, 2012, the Payne-
Howard plaintiffs and the Harris-Childers plaintiffs filed an amended petition
against Highland Homes, the parties listed in footnote two, and the City (the
amended petition).
On April 29, 2013, the trial court granted the City’s plea to the jurisdiction
and dismissed with prejudice “the plaintiff’s [sic] claims against defendant City of
Frisco.” On July 26, 2013, the Harris-Childers plaintiffs and the Payne-Howard
plaintiffs filed a notice of accelerated appeal from the trial court’s order granting
the City’s plea to the jurisdiction. See Tex. Civ. Prac. & Rem. Code Ann.
§ 51.014(a)(8) (West Supp. 2013). On September 19, 2013, we dismissed the
attempted accelerated appeal for want of jurisdiction because the notice of
appeal was untimely filed. Payne v. City of Frisco, No. 02-13-00264-CV, 2013
WL 5303584, at *1 (Tex. App.—Fort Worth Sept. 19, 2013, no pet.) (mem. op.);
see Tex. R. App. P. 26.1(b).
On November 25, 2013, the trial court granted Highland Homes a
summary judgment apparently as to all of the claims brought by the Payne-
Howard plaintiffs against Highland Homes. Indeed, Highland Homes states that
the summary-judgment order disposed of “all of the remaining claims against it.”
3
The summary-judgment order contained no language purporting to dispose of all
remaining claims and parties in the case.
On December 13, 2013, the Payne-Howard plaintiffs and the Harris-
Childers plaintiffs again filed a notice of appeal from the trial court’s April 29,
2013 order granting the City’s plea to the jurisdiction (the plea appeal). In the
notice of appeal, they asserted that the interlocutory order on the City’s plea to
the jurisdiction became final on November 25, 2013, when the trial court granted
Highland Homes’ motion for summary judgment as to the claims the Payne-
Howard plaintiffs brought against it. On December 20, 2013, the Payne-Howard
plaintiffs and the Harris-Childers plaintiffs filed a motion for new trial in the trial
court challenging the trial court’s November 25, 2013 order granting Highland
Homes a summary judgment. See Tex. R. Civ. P. 320, 329b(a). The motion
included no argument but merely stated that “Plaintiffs pray for a new trial.” See
Tex. R. Civ. P. 322.
On January 2, 2014, we notified the parties in the plea appeal that we did
not believe we had jurisdiction “because it [the April 29, 2013 order] does not
appear to be a final judgment or an appealable interlocutory order.” See Tex. R.
App. P. 42.3. On February 14, 2014, the Payne-Howard plaintiffs and the Harris-
Childers plaintiffs responded that our jurisdiction attached because, although an
interlocutory appeal from an order granting or denying a plea to the jurisdiction
may be immediately appealed, an immediate appeal is not mandatory; thus, they
could wait to appeal the trial court’s grant of the City’s plea to the jurisdiction until
4
after a final order—here, the November 25, 2013 summary-judgment order as to
the Payne-Howard plaintiffs’ claims brought against Highland Homes—was
entered.
On February 21, 2014, the Payne-Howard plaintiffs and the Harris-Childers
plaintiffs filed a notice of appeal from the trial court’s November 25, 2013
summary-judgment order (the summary-judgment appeal). In the notice, they
stated that the Harris-Childers plaintiffs joined in the notice because of “the
uncertainty as to whether all of their claims were transferred into the cause of
action that was previously severed from this cause of action” on March 20,
2012. 3 On February 27, 2014, we again informed the parties in the plea appeal
that we questioned our jurisdiction because the November 25, 2013 summary-
judgment order did not dispose of all claims raised in the amended petition. See
Tex. R. App. P. 42.3. That same day, we notified the parties in the summary-
judgment appeal that we questioned our jurisdiction because “there are
remaining claims asserted in the . . . petition, filed October 9, 2012, that are still
pending.” See id. On March 10, 2014, two documents were filed in the
summary-judgment appeal: (1) Highland Homes filed a motion to dismiss the
appeal and argued that the motion for new trial was ineffective to extend the
appellate timetable, which rendered the February 21, 2014 notice of appeal from
3
The Harris-Childers plaintiffs did not appeal the March 20, 2012 order
disposing of their claims that were then pending against Highland Homes and
that were severed on March 20, 2012.
5
the November 25, 2013 summary-judgment order untimely and (2) the Payne-
Howard plaintiffs and the Harris-Childers plaintiffs responded to our February 27,
2014 jurisdiction letter and stated that they “agree that the above referenced
matter [the November 25, 2013 summary-judgment order] is not final.”
We do not have jurisdiction over either the plea appeal or the summary-
judgment appeal. Even if the motion for new trial was effective to extend the
appellate timetable and even if any appeal of the trial court’s order granting the
City’s plea to the jurisdiction could be delayed until after a final judgment had
been entered, no judgment or other order disposing of all issues and parties in
the suit as alleged in the amended petition has been entered by the trial court.
See Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001) (“A judgment is
final for purposes of appeal if it disposes of all pending parties and claims in the
record . . . .”); Jack B. Anglin Co. v. Tipps, 842 S.W.2d 266, 272 (Tex. 1992) (“A
final judgment is one which disposes of all legal issues between all parties.”).
The April 29, 2013 order granting the City’s plea to the jurisdiction solely
addressed the claims raised against the City by the Payne-Howard plaintiffs and
the Harris-Childers plaintiffs in the amended petition. The November 25, 2013
summary-judgment order only addressed the claims brought against Highland
Homes by the Payne-Howard plaintiffs in the amended petition. None of the
claims brought against the parties named in footnote two have been disposed of,
and it appears that the Harris-Childers plaintiffs again raised claims against
Highland Homes in the amended petition, which was filed after the trial court
6
granted Highland Homes a summary judgment as to the claims originally brought
against it by the Harris-Childers plaintiffs and after the trial court severed those
claims. 4 See Tex. R. Civ. P. 62, 65. Thus, we do not have jurisdiction over
either appeal and we dismiss the appeals for want of jurisdiction. 5 See Tex. R.
App. P. 43.2(f).
/s/ Lee Gabriel
LEE GABRIEL
JUSTICE
PANEL: LIVINGSTON, C.J.; DAUPHINOT and GABRIEL, JJ.
DELIVERED: April 10, 2014
4
We recognize that the amended petition may not have operated to re-
allege or newly allege claims against Highland Homes by the Harris-Childers
plaintiffs if the trial court did not grant them leave to file such claims after
summary judgment was granted and a severance ordered. See Mensa-Wilmot v.
Smith Int’l, Inc., 312 S.W.3d 771, 780 (Tex. App.—Houston [1st Dist.] 2009, no
pet.). But because other claims and parties in the amended petition remain
pending, this issue is not determinative of our jurisdictional question.
5
We deny Highland Homes’ motion to dismiss because it asserts our lack
of jurisdiction on a different ground than on the basis we dismiss today.
7