Hung Tan Phan v. an Dinh Le Tan Ming Cao Thuy Dinh Truong

• Court: Court of Appeals of Texas
• Decided: December 31, 2009
• Docket: 01-09-00592-CV
• Status: Published

Opinion

Opinion issued December 31, 2009

In The

Court of Appeals

For The

First District of Texas

NO. 01-09-00592-CV

HUNG TAN PHAN, Appellant

V.

AN DINH LE, TAN MING CAO, AND THUY DINH TRUONG, Appellees

On Appeal from the 125th District Court

Harris County, Texas

Trial Court Cause No. 2008-61891

MEMORANDUM OPINION We dismiss the appeal for want of jurisdiction.

In response to a notice from the Clerk of the Court questioning the timeliness with which appellant/plaintiff, Hung Tan Phan, filed his notice of appeal, Phan filed a "Letter Brief." The letter brief discloses that Phan sued defendants/appellees, An Dinh Le, Tan Ming Cao, and Thuy Dinh Truong. Cao filed an answer and a counter-claim to Phan's suit. On March 3, 2009, the trial court signed a "Summary Judgment Order," in which it, "ADJUDGED and ORDERED that Defendants' Motion for Partial Summary Judgment is GRANTED," and it dismissed all of Phan's claims. In March 2009, Phan received a post card notice from the District Clerk informing him that on March 3, 2009, the trial court signed the "Order for Interlocutory Summary Judgment."

On June 2, 2009, Phan appeared at what he thought would be a mediation for the whole case. He learned from defense counsel, however, that the mediation was for the counter-suit only. In the docketing statement he filed with this Court, Phan indicates that his appeal is an interlocutory appeal of an appealable order, and he states that the basis on which the interlocutory order is appealable is that "the summary judgment was based on a wrong basis."

On September 21, 2009. the Clerk of the Court, sent Phan a notice of possible dismissal of the appeal for want of jurisdiction, noting that it appears that the March 3, 2009 summary judgment order is an unappealable interlocutory order and that the Court might dismiss Phan's appeal unless he responded to the notice with a legally supported explanation showing how this Court has jurisdiction of the appeal. Phan responded to the notice, explaining that he believed the March 3, 2009 order was the trial court's final order because it dismissed all of his claims. Phan's response does not address the fact that the summary judgment does not dispose of Cao's counter-claim.

An appeal may be taken "from a final judgment" of a district or county court. See Tex. Civ. Prac. & Rem. Code Ann. § 51.012 (Vernon 2008). A "final judgment" in a case is one that disposes of all parties and issues leaving nothing in the action for further decision except as is necessary for enforcement of the judgment. Martinez v. Humber Sand & Gravel, Inc., 875 S.W.2d 311, 313 (Tex. 1994). Here, in the March 3, 2009 summary judgment order that Phan is attempting to appeal, the trial court did not dispose of Cao's counterclaim. In his response, Phan cited no statutes that would make such an order appealable, nor are we aware of any. Thus, we lack jurisdiction to consider Phan's appeal of the March 3, 2009 summary judgment order.

We dismiss the appeal for want of jurisdiction. Any pending motions are dismissed as moot.

PER CURIAM

Panel consists of Justices Justices Jennings, Higley, and Sharp.