Fourth Court of Appeals

San Antonio, Texas

MEMORANDUM OPINION

No. 04-12-00708-CV

John SCHELLENBERG and Lisa Schellenberg,

Appellants

v.

FIRST STATE BANK CENTRAL TEXAS and Roger D. Rheinheimer,

Appellees

From the 53rd District Court, Travis County, Texas

Trial Court No. D-1-GN-10-001013

The Honorable Gisela D. Triana-Doyal, Judge Presiding

PER CURIAM

Sitting: Marialyn Barnard, Justice

Rebeca C. Martinez, Justice

Patricia O. Alvarez, Justice

Delivered and Filed: January 9, 2013

DISMISSED FOR WANT OF JURISDICTION

Appellants John Schellenberg and Lisa Schellenberg filed suit against First State Bank 

Central Texas, Mortgage Acceptance Corp., Philip Laing, Wiley K. Fuller, and Roger D. 

Rheinheimer. First State Bank Central Texas and Roger D. Rheinheimer filed separate motions 

for summary judgment. On April 26, 2012, the trial court rendered two orders, granting 

summary judgment in favor of First State Bank Central Texas and Roger D. Rheinheimer. In the 

last paragraph of each order, the trial court specifically stated that the order disposes of those 

issues and claims between the Schellenbergs, First State Bank Central Texas, and Roger D. 
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Rheinheimer. Importantly, the order stated it did not dispose of the Schellenbergs claims against 

the other parties. 

Thereafter, on June 12, 2012, the Schellenbergs filed a notice of nonsuit as to Philip 

Laing and Wiley K. Fuller. Then, on September 18, 2012, they filed a notice of nonsuit as to 

Mortgage Acceptance Corp. However, the trial court never signed an order granting the nonsuits 

or dismissing the Schellenbergs suit against Philip Laing, Wiley K. Fuller, and Mortgage 

Acceptance Corp. 

On September 18, 2012, the Schellenbergs filed their notice of appeal from the summary 

judgment orders relating to First State Bank Central Texas and Roger D. Rheinheimer. In the 

notice of appeal, the Schellenbergs reference the nonsuits. When the clerk’s record was filed in 

this court on November 1, 2012, we discovered that neither the notice of nonsuits referenced by 

the Schellenbergs or any orders granting the nonsuits and dismissing the Schellenbergs claims 

against Philip Laing, Wiley K. Fuller, and Mortgage Acceptance Corp. were in the record. 

Accordingly, we asked the Travis County District Clerk to file a supplemental clerk’s record 

containing the notices of nonsuit and any orders relating thereto. On December 2, 2012, a 

supplemental clerk’s record was filed in this court containing the notices of nonsuits as to Philip 

Laing, Wiley K. Fuller, and Mortgage Acceptance Corp. However, the district clerk advised this 

court there were no orders relating to the non-suits, nor were there any orders dismissing the 

Schellenbergs’ claims against Philip Laing, Wiley K. Fuller, and Mortgage Acceptance Corp. 

In Park Place Hosp. v. Estate of Milo, a summary judgment failed to dispose of claims 

against a defendant who had been non-suited by the plaintiff. 909 S.W.2d 508, 510 (Tex. 1995). 

No order dismissing the non-suited defendant was signed, and the summary judgment order did 

not contain a “Mother Hubbard” clause or other finality language. Id. The supreme court held 

the appellate timetables were not triggered until a signed, written order was rendered dismissing 
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the non-suited defendant. Id. Until the trial court rendered an order of dismissal or a severance 

as to the non-suited defendant, the summary judgment was not final and appealable. Id. 

The procedural facts of this case are nearly identical to those in Milo, a case in which the 

supreme court held the summary judgment was not final and appealable. Here, a summary 

judgment order lacking language of finality was rendered against two of five defendants. The 

Schellenbergs non-suited the remaining three defendants, but the trial court never entered an 

order of dismissal or order of severance as to these three defendants. See id. 

Based on the foregoing, on December 7, 2012, we ordered appellants to show cause in 

writing on or before December 17, 2012, why this case should not be dismissed for want of 

jurisdiction. We advised appellants that if they failed to satisfactorily respond within the time 

provided, the appeal would be dismissed. See TEX. R. APP. P. 42.3(c). Appellants have not filed 

a response to this court’s December 7, 2012 show cause order. 

Accordingly, we dismiss this appeal for want of jurisdiction. We order that appellees, 

First State Bank Central Texas and Roger D. Rheinheimer, recover their costs of this appeal from 

appellants.

PER CURIAM