Full Opinion

In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________ No. 02-25-00415-CV ___________________________ ERIC RIOJA, Appellant V. STONEVILLE, INC. AND NORMA LEAL, Appellees On Appeal from the 348th District Court Tarrant County, Texas Trial Court No. 348-366513-25 Before Birdwell, Bassel, and Walker, JJ. Memorandum Opinion by Justice Walker MEMORANDUM OPINION Appellant Eric Rioja challenges the trial court’s grant of a no-evidence motion for summary judgment in favor of Stoneville, Inc. and Norma Leal (collectively, Appellees). Rioja raises two jurisdictional complaints and, alternatively, claims that he provided more than a scintilla of evidence to overcome Appellees’ no-evidence motion. We hold that we have jurisdiction over this appeal and that the trial court did not err by granting Appellees’ no-evidence motion for summary judgment. I. PROCEDURAL HISTORY1 As relevant to this appeal, Rioja filed his “Amended Original Petition,” alleging six causes of action against Appellees and three other parties.2 Appellees then filed a “Traditional and No-Evidence Motion for Summary Judgment,” later amending the motion (Amended Motion).3 Rioja filed a response to Appellees’ Amended Motion. Appellees then filed a motion to strike Rioja’s response, objecting to its timeliness. 1 The specific details of this dispute are not necessary for the disposition of this appeal. We therefore restrict our discussion of the background to those matters directly related to the disposition of the issues raised. See Tex. R. App. P. 47.1. 2 Empire Prime Capital Investments, Inc. (Empire) is also listed as a plaintiff in this action. However, in his appellate brief, Rioja represented that he was submitting the brief in his individual capacity only and not on behalf of Empire. Additionally, the “Amended Original Petition” names three other parties as defendants, but as we will explain, Appellees were severed from the original lawsuit. Thus, because neither Empire nor the other defendants are parties to this appeal, for ease of understanding, we discuss only the trial court’s actions and procedural history as it relates to Rioja and Appellees. See id. 3 Appellees’ Amended Motion is not included in the appellate record. 2 The trial court sustained the objection—ruling that Rioja’s response was not timely filed4—and granted both the motion to strike Rioja’s response and Appellees’ Amended Motion. Rioja then filed a motion to modify, correct, or reform the trial court’s order granting Appellees’ Amended Motion. In this motion, Rioja recited the trial court’s reasons for granting Appellees’ Amended Motion on no-evidence grounds: (1) “[N]o response was timely and properly filed,” and (2) Rioja “produced no evidence . . . to support [his] claims.” Rioja did not dispute that his response was untimely but explained that he had trouble with the electronic-filing service. He then argued that his response contained enough evidence to defeat the no-evidence claim. Sometime later, Appellees filed a motion for severance, and the trial court granted the motion, see supra note 3. In its order, the trial court severed the claims between Rioja5 and Appellees “into a new cause, including all pleadings and orders” before the trial court. The trial court ordered that a new cause number be assigned and further ordered that “the interlocutory summary judgment previously granted . . . in favor of [Appellees] is now a final judgment in this new cause, disposes of all parties and all claims in the new cause[,] and is appealable.” The order granting 4 The trial court found that “no response or objection was timely and properly filed” and that “no summary[-]judgment evidence supporting [the] claims against [Appellees]” had been produced. 5 Empire was included as a plaintiff in the severance order. 3 the severance and disposing of all parties and claims was signed on July 10, 2025, and the electronic-service certification states that the parties were notified on July 11, 2025. On August 14, 2025, Rioja filed a “Motion for New Trial; In the Alternative, Motion to Vacate or Modify Summary-Judgment Order and For Leave to File Late Response and Evidence”6 in the trial court and a “Notice of Appeal”7 in this court. II. DISCUSSION Rioja raises three issues.8 Two of Rioja’s issues are purportedly related to this court’s jurisdiction over the appeal: first, whether the order was final and appealable and second, whether the trial court was required to sign an order pursuant to Texas Rioja filed his motion after the statutory deadline. See Tex. R. Civ. P. 329b(a) 6 (“A motion for new trial, if filed, shall be filed prior to or within thirty days after the judgment or other order complained of is signed.”), (g) (“A motion to modify, correct, or reform a judgment . . . if filed, shall be filed and determined within the time prescribed by this rule for a motion for new trial.”). There is nothing in the record to suggest that the trial court made any ruling related to this motion. 7 The notice of appeal was likewise untimely. See Tex. R. App. P. 26.1. We notified Rioja of this possible defect and directed him to file with us “a response showing a reasonable explanation for the late filing of the notice of appeal.” See Tex. R. App. P. 10.5(b). Rioja filed a response with a reasonable explanation for the late filing, and we accepted the notice of appeal he had filed on August 14, 2025. See Tex. R. App. P. 26.3. None of these arguments are properly supported with legal analysis or specific 8 references to the record. See Tex. R. App. P. 38.1(i), 38.9. However, we construe appellate briefs liberally—reaching the merits wherever possible—so that the right to appellate review is not lost by waiver. See Perry v. Cohen, 272 S.W.3d 585, 587 (Tex. 2008) (first citing El Paso Nat. Gas v. Minco Oil & Gas, Inc., 8 S.W.3d 309, 316 (Tex. 1999); and then citing Verburgt v. Dorner, 959 S.W.2d 615, 616 (Tex. 1997)). 4 Rule of Civil Procedure 306a to permit his out-of-time appeal in this court. In his final issue, Rioja argues that, should we have jurisdiction, the trial court erred by granting Appellees’ Amended Motion on no-evidence grounds, as he provided more than a scintilla of evidence to support his claims. Because we will hold that the order was final and appealable, we have the power to accept an untimely notice of appeal, and the trial court did not err by granting Appellees’ Amended Motion, we will affirm the trial court’s judgment. A. FINALITY OF JUDGMENT Rioja alleges that the trial court’s severance order is not final and appealable because it does not dispose of all claims and because it “attempt[s] to manufacture finality.” Rioja argues that when “claims remain interwoven, a severance cannot create finality.” Following this assertion, Rioja lists several cases—with no accompanying analysis—and generally points this court to the trial court’s initial order granting Appellees’ amended no-evidence motion for summary judgment and the severance order, claiming that both orders “concern the same property/chain of title, confirming interwoven issues.” Generally, appeals may be taken only from final judgments or interlocutory orders authorized by statute. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195, 200 (Tex. 2001). Absent a conventional trial on the merits, a judgment is final if it either (1) states with unmistakable clarity that it is a final judgment as to all claims and all parties or (2) actually disposes of all claims and parties then before the court, 5 regardless of its language. Id. at 192–93. In determining whether an order is a final judgment, we should first examine the language of the order itself. In re Elizondo, 544 S.W.3d 824, 827–28 (Tex. 2018) (orig. proceeding) (citing Lehmann, 39 S.W.3d at 195, 205–06); In re M & O Homebuilders, Inc., 516 S.W.3d 101, 106 (Tex. App.—Houston [1st Dist.] 2017, orig. proceeding). If the order does not clearly and unequivocally indicate finality, we then look at the record to determine finality. Elizondo, 544 S.W.3d at 827–28; M & O Homebuilders, 516 S.W.3d at 106. Although no “magic language” renders a judgment final, “a trial court may express its intent to render a final judgment by describing its action as (1) final, (2) a disposition of all claims and parties, and (3) appealable.” Bella Palma, LLC v. Young, 601 S.W.3d 799, 801 (Tex. 2020). Examples of clear and unequivocal finality language include: “This judgment finally disposes of all parties and all claims and is appealable,” Lehmann, 39 S.W.3d at 206, and “This judgment is final, disposes of all claims and all parties, and is appealable,” Elizondo, 544 S.W.3d at 825. Here, the trial court’s order contains finality language and disposes of all parties and claims in that cause number,9 giving this court jurisdiction over this appeal. See 9 The order states, “the interlocutory summary judgment previously granted in this cause in favor of [Appellees] is now a final judgment in this new cause, disposes of all parties and all claims in the new cause and is appealable, and all other relief requested between these parties is denied.” See Martinez v. Humble Sand & Gravel, Inc., 875 S.W.2d 311, 312 (Tex. 1994) (“When the problem is that an otherwise final judgment fails to dispose of all parties, the [trial] court may make the judgment final for purposes of appeal by severing the causes and parties disposed of by the judgment into a different cause.”); see also, e.g., Butler v. Whitten, No. 02-13-00306-CV, 6 Bella Palma, 601 S.W.3d at 801; Elizondo, 544 S.W.3d at 825; Lehmann, 39 S.W.3d at 192–93. We overrule Rioja’s first issue. B. REQUEST TO ABATE Rioja argues that we must abate this appeal because, pursuant to his Rule 306a motion,10 the trial court failed to sign the required written order finding when he first received notice of the trial court’s judgment, thus extending his post-judgment deadlines. See Tex. R. Civ. P. 306a; see also Tex. R. App. P. 4.2. Because we have already accepted Rioja’s explanation for his late filing, see supra note 8, and have otherwise determined that we have jurisdiction over this appeal, Rioja’s request that we abate for a determination of appellate deadlines is moot. See Heckman v. Williamson Cnty., 369 S.W.3d 137, 162 (Tex. 2012) (“Put simply, a case is moot when the court’s action on the merits cannot affect the parties’ rights or interests.”); Watson v. City of Southlake, 594 S.W.3d 506, 519 (Tex. App.—Fort Worth 2019, pet. denied) (holding that “a case is not rendered moot simply because some of the issues become moot 2014 WL 24232, at *1 (Tex. App.—Fort Worth Jan. 2, 2014, pet. denied) (holding interlocutory order disposing of claims against some, but not all parties, became final when the trial court severed the disposed-of claims into a new cause number). 10 Although Rioja claims that he filed a Rule 306a motion with the trial court, there is no such motion in the appellate record. However, Appellees concede on appeal that a Rule 306a motion was filed. 7 during the appellate process” as long as there are still other claims or issues that are not moot) (citing State ex rel. Best v. Harper, 562 S.W.3d 1, 6 (Tex. 2018) (op. on reh’g)). We overrule Rioja’s second issue. C. NO-EVIDENCE SUMMARY JUDGMENT In his final issue, Rioja argues that there are genuine disputes of material fact in this case and asks that we reverse the trial court’s grant of no-evidence summary judgment. Rioja fails to provide any evidence from the record to support his claim, nor does he cite any relevant legal support. See Tex. R. App. P. 38.1(i) (requiring that an appellant’s brief “contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record”). To the extent that Rioja has not waived this issue due to inadequate briefing, see Tex. R. App. P. 38.9, the no-evidence summary judgment was proper in this case. Rioja claims that there are genuine issues of material fact but, “[a]bsent a timely response, a trial court must grant a no-evidence motion for summary judgment that meets the requirements of Rule 166a(i).”11 Landers v. State Farm Lloyds, 257 S.W.3d 11 The Texas Supreme Court amended Rule 166a, effective March 1, 2026. See Sup. Ct. of Tex., Final Approval of Amendments to Rule 166a of the Texas Rules of Civil Procedure, Misc. Docket No. 26-9012 (Feb. 27, 2026). But the “amendments apply only to a motion for summary judgment filed on or after March 1, 2026,” id., so they are inapplicable here. All citations to Rule 166a reference the prior version of the Rule, which continues to govern motions for summary judgment filed before March 1, 2026. 8 740, 746 (Tex. App.—Houston [1st Dist.] 2008, no pet.) (citing Tex. R. Civ. P. 166a(i)). Here, the trial court sustained Appellees’ objection to Rioja’s untimely response to Appellees’ Amended Motion12 and granted the motion to strike the response. As a result, Rioja presented no evidence for the trial court to review. Accordingly, we hold the trial court did not err by granting Appellees’ Amended Motion on no-evidence grounds. We overrule Rioja’s third issue. III. CONCLUSION Having overruled all three of Rioja’s issues, we affirm the trial court’s summary-judgment order. /s/ Brian Walker Brian Walker Justice Delivered: August 27, 2026 12 Although we cannot review Appellees’ Amended Motion, as it is not part of the appellate record, omitted portions of the record are presumed to support the trial court’s judgment. See Cantu v. Seeman, No. 01-09-00545-CV, 2012 WL 1564536, at *5 (Tex. App.—Houston [1st Dist.] May 3, 2012, pets. denied). Accordingly, we presume that Appellees’ Amended Motion complied with the requirements of Rule 166a(i). See Landers, 257 S.W.3d at 746. 9