Detco, Inc. v. Mark S. Connell--Appeal from 146th District Court of Bell County

DetCo, Inc. v. Connell IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,
AT AUSTIN
NO. 3-93-376-CV
DETCO, INC.,

APPELLANT

 
vs.
MARK S. CONNELL,

APPELLEE

 
FROM THE DISTRICT COURT OF BELL COUNTY, 146TH JUDICIAL DISTRICT
NO. 138,347-B, HONORABLE DON V. HAMMOND, JUDGE PRESIDING

PER CURIAM

This appeal and the appeal in DetCo, Inc. v. Tryharder, Inc., No. 3-93-385-CV (Tex. App.--Austin) arise out of an underlying dispute in which there currently is no final, appealable judgment. (1) The district court severed two causes from the underlying dispute, this appeal and the appeal in cause number 3-93-385-CV, but the record does not reflect that the two severed causes were assigned new cause numbers as the district court ordered. Appellant DetCo, Inc., attempted to perfect an appeal in both this appeal and the appeal in cause number 3-93-385-CV by filing a single cost bond and transcript.

On July 27, 1993, the Clerk of this Court wrote DetCo and informed it that the Court considered the filing of the single cost bond to be a bona fide attempt to perfect both appeals. The Clerk directed DetCo to file in his office by August 26, 1993, two supplemental transcripts, one containing an amended cost bond in this appeal and one containing an amended cost bond in cause number 3-93-385-CV. The Clerk informed DetCo that each amended cost bond should reflect the properly severed district-court cause number. DetCo's brief was due on August 20, 1993; to date no brief or motion for extension of time has been filed.

DetCo wrote the Clerk of this Court on September 13, 1993, and admitted that neither of the two severed causes contain final appealable judgments because the issue of attorney's fees has not been resolved. DetCo asks that we allow this appeal to pend until DetCo can schedule a hearing on attorney's fees and obtain an order from the trial court that would convert the partial summary judgment into an appealable final judgment. While Texas Rule of Appellate Procedure 58(b) does allow supplementation of the record to cure a premature appeal, the purpose of the rule is to allow an appellant to take steps such as filing a nonsuit against someone who is not a party to the trial court's judgment. An appellant should not use Rule 58(b) to "abate" an appeal during trial-court hearings on the merits of the underlying case.

The appeal is dismissed for want of jurisdiction.

 

Before Chief Justice Carroll, Justices Aboussie and B. A. Smith

Appeal Dismissed for Want of Jurisdiction

Filed: October 6, 1993

Do Not Publish

1. Detco, Inc. v. Ted C.Connell; Margaret D. Connell; Ace M. Connell; The Silver Quail Co.; The Wildflower Co.; M.S. & C. Realty, Inc.; Friendly Travel Services of Killeen, Inc.; Kwik Used Cars, Inc.; Connell Chevrolet, Inc.; Connell Chrysler Plymouth, Inc.; Prestige Pontiac, Oldsmobile, Cadillac, GMC Truck, Inc.; Dodge Country, Inc.; Rio Grande Valley Land Development Co., Inc.; Patsy Barnes; A.W. Smith; Killeen Aero, Inc.; Centroplex Communications, Inc.; Gaylon Christie; Rio Grande Land Development Company; Grand Chevrolet Company; Dean Adamson; Alton Heiner; Jay C. Evans; Carroll N. Sullivan, Jr.; Dwight Ramey; Paul Goode; Jack Barnes; Glinda Lennox; Randall Noe; T C & E Realty, Inc.; Ted C. Connell as Trustee of the Margaret D. Connell 1988 Trust; Mark S. Connell 1988 Trust; Carol Juanette Bressler 1988 Trust; April Connell 1988 Trust; Chad Connell 1988 Trust; Bradley Bressler 1988 Trust; Brian Bressler 1988 Trust; Sue Jane Connell 1988 Trust; and Stephen Bressler 1988 Trust, No. 138,347-B (146th Dist. Ct., Bell County, Tex.).