Maximino R. Aleman, et al. v. Marsh USA, Inc. (Delaware) and Marsh USA, Inc. (Texas)--Appeal from 319th District Court of Nueces County

NUMBER 13-04-084-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

_______________________________________________________

MAXIMINO R. ALEMAN, ET AL., Appellants,

v.

MARSH USA, INC. (DELAWARE) AND MARSH USA,

INC. (TEXAS), Appellees.

_______________________________________________________

On appeal from the 319th District Court

of Nueces County, Texas.

_______________________________________________________

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Hinojosa and Ya ez

Memorandum Opinion Per Curiam

This is an asbestos case. Appellants, Maximino R. Aleman, et al., brought suit against multiple asbestos defendants and various insurers, including appellees Marsh USA, Inc. (Delaware) and Marsh USA, Inc. (Texas), who are general lines insurance brokers. Appellees filed special exceptions to appellants= several amended petitions alleging that they possessed no duty to the appellants. The trial court agreed, and on October 30, 2003, granted appellees= special exceptions and dismissed appellants= claims with prejudice. The order granting special exceptions also severed these claims into a separate cause. The order stated that the separate action "shall proceed to final judgment in the Court [under a new style and cause number]." On February 12, 2005, appellants filed a notice of appeal and a motion for extension of time to file their notice of appeal. According to appellants, the notice of appeal was not timely filed because of confusion resulting from the multiplicity of orders and motions for new trial filed in the various consolidated cases, and appellants were not certain if all necessary matters for the appeal had been resolved.

Appellees moved to dismiss the appeal on grounds that it was not perfected on time. Appellants sought and received an extension of time to file their reply to the motion to dismiss until thirty days following the filing of the clerk=s record. The clerk=s record was received on August 22, 2005; however, appellants have to date failed to file any response to the motion to dismiss.

As a rule, the severance of an interlocutory judgment into a separate cause makes it final. Farmer v. Ben E. Keith Co., 907 S.W.2d 495, 496 (Tex. 1995) (per curiam). But here, the severance order expressly stated that the severed claims would "proceed to final judgment in the Court." Thus, the severance order clearly cannot be construed as a final judgment in the severed action until a later judgment is signed. See Diversified Fin. Sys. v. Hill, Heard, O'Neal, Gilstrap & Goetz, P.C., 63 S.W.3d 795 (Tex. 2001) (holding that severance order stating that separate action should "proceed as such to final judgment or other disposition in this Court [under a new style and cause number]" was not subject to appeal). The record currently before the Court neither contains any further document that would constitute a final judgment, nor for that matter, does it contain any post-judgment motions.

Because the order of severance did not result in a final judgment in the severed action, we conclude that the action is still pending and is not yet subject to appeal. See id. Accordingly, this appeal is dismissed for lack of jurisdiction. Any pending motions are denied as moot.

PER CURIAM

Memorandum Opinion delivered and

filed this the 26th day of January, 2006.