Clotilde Eaker v. John Mangiameli, Joseph L. Mangiameli, James H. Stilwell, Martin, Earl & Stilwell LLP, and the Jole P. Eaker Irrevocable Trust

• Court: Court of Appeals of Texas
• Decided: March 28, 2019
• Docket: 09-19-00036-CV
• Status: Published

Opinion

In The

Court of Appeals Ninth District of Texas at Beaumont ____________________

NO. 09-19-00036-CV ____________________

CLOTILDE EAKER, Appellant

V.

JOHN MANGIAMELI, JOSEPH L. MANGIAMELI, JAMES H. STILWELL, MARTIN, EARL & STILWELL, LLP, AND THE JOLE P. EAKER IRREVOCABLE TRUST, Appellees __________________________________________________________________

On Appeal from the County Court at Law No. 2 Montgomery County, Texas Trial Cause No. 17-30341 __________________________________________________________________

MEMORANDUM OPINION

Appellant Clotilde Eaker filed a notice of appeal from three orders ruling on

appellees’ two motions for partial summary judgment, Eaker’s cross-motion for

summary judgment, and appellees’ motion for summary judgment as to Eaker’s

cause of action for declaratory judgment. The appellees filed a motion to dismiss

Eaker’s appeal, arguing that the appeal is premature because it relates to

interlocutory orders. According to appellees’ motion, Eaker’s cause of action for

1 declaratory relief related to a mediated settlement agreement and “allegations of

breach of fiduciary duty and gross negligence.” Appellees asserted that they obtained

a dismissal of the claims against James H. Stilwell and Martin, Earl, & Stilwell, LLP,

pursuant to Rule 91a and they contend that they also sought a recovery of their

attorney’s fees. See Tex. R. Civ. P. 91a. According to appellees, Eaker’s appeal is

premature because it pertains to three “interlocutory partial summary judgment

orders.” In addition, appellees asserted that the motions for partial summary

judgment “only tackled a single part of the case[,]” and that none of the appellees’

motions sought summary judgment as to the claim for attorney’s fees, which remains

pending.

Eaker then filed a motion to abate the appeal, in which she states that the trial

court’s “series of judgments” constitutes a “substantive” disposition of the case.

Eaker concedes that the motions were captioned as partial motions for summary

judgment, but she points out that a pleading’s effect rather than how it is captioned

is controlling. Appellees filed a response to Eaker’s motion to abate, in which it

reasserts its position that the orders at issue are not appealable because none of the

orders address appellees’ claim for attorney’s fees.

Generally, appellate courts review only final judgments and interlocutory

orders specifically made appealable by statute. Lehmann v. Har-Con Corp., 39

2 S.W.3d 191, 195 (Tex. 2001). The trial court has not authorized a permissive appeal

in this matter and there is no indication in the record that a final judgment is

imminent. See N.Y. Underwriters Ins. Co. v. Sanchez, 799 S.W.2d 677, 678-79 (Tex.

1990) (concluding that the Court of Appeals erred by assuming jurisdiction over an

appeal in which the defendant’s counterclaim for attorney’s fees remained pending).

Eaker also has not demonstrated that the judgments are appealable because they

ended a discrete phase of a probate proceeding. See In re Guardianship of Murphy,

1 S.W.3d 171, 172-73 (Tex. App.—Fort Worth 1999, no pet.) (explaining that when

an order ends a discrete phase of a probate proceeding, it is a final and appealable

order). We conclude that the three orders ruling on appellees’ two motions for partial

summary judgment, Eaker’s cross-motion for summary judgment, and appellees’

motion for summary judgment as to Eaker’s cause of action for declaratory judgment

are interlocutory and are not final appealable orders. Accordingly, we dismiss the

appeal for lack of jurisdiction. See Tex. R. App. P. 43.2(f).

APPEAL DISMISSED.

_____________________________ LEANNE JOHNSON Justice

Submitted on March 27, 2019 Opinion Delivered March 28, 2019

Before McKeithen, C.J., Kreger and Johnson, JJ. 3