Carolyn Smoote-Cevallos v. James Burkholder, Linda Lewin, and Benefit Management Administrators, Inc.

• Court: Court of Appeals of Texas
• Decided: January 7, 2004
• Docket: 04-03-00727-CV
• Status: Published

Opinion

MEMORANDUM OPINION No. 04-03-00727 CV Carolyn SMOOTE-CEVALLOS Appellant v. James BURKHOLDER, Linda Lewin, and Benefit Management Administrators, Inc., Appellees From the 150th Judicial District Court, Bexar County, Texas Trial Court No. 2002-CI-12639 Honorable Martha Tanner, Judge Presiding

PER CURIAM

Sitting: Sarah B. Duncan, Justice

Karen Angelini, Justice

Sandee Bryan Marion, Justice

Delivered and Filed: January 7, 2004

DISMISSED FOR LACK OF JURISDICTION

Carolyn Smoote-Cevallos appeals the trial court's August 6, 2003 order that sanctions her, strikes her pleadings, dismisses her claims with prejudice, and grants a default judgment in favor of Benefit Management Administrators, Inc. on its counterclaim against her. However, the order also states:

It is FURTHER ORDERED that because there are unliquidated damages, upon motion by [Benefit Management Administrators, Inc.], the Court will hear evidence of damages and enter a final judgment accordingly.

The clerk's record does not contain any further order disposing of Benefit Management Administrators, Inc.'s claim for damages.

"[W]hen there has not been a conventional trial on the merits, an order or judgment is not final for purposes of appeal unless it actually disposes of every pending claim and party or unless it clearly and unequivocally states that it finally disposes of all claims and all parties." Lehmann v. Har-Con Corp., 39 S.W.3d 191, 205 (Tex. 2001). There has been no conventional trial on the merits in this case and the trial court's August 6, 2003 order expressly leaves a claim open for future determination. In response to our order to show cause why this appeal should not be dismissed for want of jurisdiction, Smoote-Cevallos indicated that she agrees the August 6 order is not final and appealable and this court lacks jurisdiction over the appeal.

We therefore dismiss the appeal for lack of jurisdiction.