TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-06-00394-CV

Bonnie Carter, individually, and on behalf of J. C., a minor; Scott Carter, individually, and on behalf of J. C., a minor; Eleanor Draughn; Andrew Draughn and Susan Draughn, Appellants v. Dustin McManus, Ramzi Abbyad, Jason Nuckolls, Travis McLemore, and Tyler Hunkin, Appellees

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 98TH JUDICIAL DISTRICT NO. D-1-GN-04-003460, HONORABLE STEPHEN YELENOSKY, JUDGE PRESIDING

NO. 03-07-00251-CV

Bonnie Carter, Scott Carter, Jennifer Carter, Andrew Draughn, Eleanor Draughn and Susan Draughn, Appellants v. Ramzi Abbyad, Jason Nuckolls, and Travis McLemore, Appellees

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 98TH JUDICIAL DISTRICT NO. D-1-GN-07-000795, HONORABLE MARGARET A. COOPER, JUDGE PRESIDING

MEMORANDUM OPINION

Appellants sought to appeal from the Order on Defendants’ Motions to Dismiss in trial court cause number D-1-GN-04-003460. That order, signed by Judge Stephen Yelenosky, granted motions to dismiss filed by Ramzi Abbyad, Jason Nuckolls, and Travis McLemore. One notice of appeal was filed by Bonnie Carter, individually, and on behalf of J. C., a minor; Scott Carter, individually, and on behalf of J. C., a minor (“the Carters”). Another notice of appeal was filed by Eleanor Draughn, Andrew Draughn, and Susan Draughn (“the Draughns”). These notices prompted the creation of an appellate cause, Carter v. McManus, No. 03-06-00394. Because other claims in this case remained pending in the trial court, the order of dismissal was not final and appealable.

The notices of appeal were, thus, premature.

The Carters and the Draughns filed a motion to sever the claims against Abbyad, Nuckolls, and McLemore which had been dismissed from the remaining claims pending in the trial court. Judge Margaret A. Cooper signed an Order Granting Motion to Sever on March 19, 2007.

The severance order put the severed claims into trial court cause number D-1-GN-07-000795. The severance made the Order on Defendants’ Motions to Dismiss final and appealable. The severance also caused the prematurely filed notices of appeal to be effective and deemed filed as of March 19, 2007. See Tex. R. App. P. 27.1(a).

On April 13, 2007, the Carters filed a new notice of appeal. That notice prompted the creation of another appellate cause, Carter v. McManus, No. 03-07-00251. By virtue of having their claims against appellees severed along with the Carters’ claims against appellees, the Draughns’ previous notice of appeal is part of the severed cause of action.

The Carters have filed a motion to consolidate the two appellate causes. We grant the motion to consolidate. The issues, records and documents filed in appellate cause number 03-06- 00394-CV are consolidated into appellate cause number 03-07-00251-CV. The consolidated causes

will proceed under the style of cause number 03-07-00251-CV. Appellate cause number 03-06- 00394-CV is dismissed.

G. Alan Waldrop, Justice Before Chief Justice Law, Justices Waldrop and Henson Dismissed Filed: August 31, 2007