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Thompson v. Beyer11/26/2002
Appellant Lloyd G. Thompson, M.D., sued Chester W. Beyer, M.D., and others for medical malpractice. Beyer filed a motion to dismiss and to award costs and attorneys' fees. On January 26, 2001, the trial court granted Beyer's motion and ordered that Thompson's claims against Beyer be dismissed with prejudice. The dismissal order also expressly awarded Beyer his attorneys' fees, but was silent as to costs. Beyer filed a motion to sever "so that he may have finality" of the claim. On April 24, 2001, the trial court signed a severance order, severing Thompson's claims against Beyer into this cause. Almost four months later, on August 17, 2001, the trial court signed a document entitled "final judgment" purporting to enter a take-nothing judgment against Thompson and to award attorneys' fees and costs to Beyer. On September 17, 2001, Thompson filed a notice of appeal.
In his brief, Beyer contends this Court lacks jurisdiction because Thompson's notice of appeal was untimely. Specifically, Beyer contends the severance order resulted in a final judgment and Thompson was required to timely appeal from that order.
A judgment is final if it either actually disposes of all claims and parties before the court or states with "unmistakable clarity" that it is a final judgment. Guajardo v. Conwell, 46 S.W.3d 862, 864 (Tex. 2001); Lehmann v. Har-Con Corp., 39 S.W.3d 191, 192 (Tex. 2001). 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. Tanner v. Karnavas, 86 S.W.3d 737, 743 (Tex. App.-Dallas 2002, pet. filed); see also Diversified Fin. Sys., Inc. v. Hill, Heard, O'Neal, Gilstrap & Goetz, P.C., 63 S.W.3d 795, 795 (Tex. 2001) (per curiam). The appellate timetable runs from the signing date of whatever order makes the severed judgment final and appealable. Farmer v. Ben E. Keith Co., 907 S.W.2d 495, 496 (Tex. 1995) (per curiam); Tanner, 86 S.W.3d at 743.
In this case, the trial court's dismissal order expressly disposed of all affirmative claims between Thompson and Beyer. Specifically, it dismissed Thompson's suit against Beyer and awarded Beyer his attorneys' fees. However, because Thompson's claims against other defendants were still pending, Beyer filed a motion to sever. On April 24, 2001, the trial court granted the motion and severed Thompson's suit against Beyer. The severance order did not contain any language suggesting further proceedings were to be had in the severed action. See Tanner, 86 S.W.3d at 743. Consequently, the dismissal order became final and appealable as of the date of severance. However, Thompson did not file a notice of appeal until September 17, 2001, long after expiration of the appellate timetables. Therefore, Thompson's appeal is untimely and we have no jurisdiction over this appeal.
In reaching this conclusion, we reject Thompson's assertion that the trial court's dismissal order did not dispose of all claims between Beyer and Thompson because the trial court did not expressly dispose of Beyer's "claim" against Thompson for costs.
In City of West Lake Hills v. State, the Texas Supreme Court assumed, without discussion, that a trial court's failure to assess costs did not affect the finality of its judgment. In that case, the trial court rendered a "Judgment" on January 9 and a "Corrected Final Judgment" on February 5. City of West Lake Hills v. State, 466 S.W.2d 722, 727 (Tex. 1971). The difference between the first judgment and the corrected judgment was that the corrected judgment provided for the payment of costs, but the first judg
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