Jennifer L and Trent S. Mushtaler and Joshua D. Bezoni v. City of Austin, Texas

• Court: Court of Appeals of Texas
• Decided: January 31, 2023
• Docket: 03-22-00655-CV
• Status: Published

Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-22-00655-CV

Jennifer L. and Trent S. Mushtaler and Joshua D. Bezoni, Appellants

v.

City of Austin, Texas, Appellee

FROM THE 353RD DISTRICT COURT OF TRAVIS COUNTY NO. D-1-GN-21-005274, THE HONORABLE MARIA CANTÚ HEXSEL, JUDGE PRESIDING

MEMORANDUM OPINION

Appellants Jennifer L. and Trent S. Mushtaler and Joshua D. Bezoni sued the City

of Austin seeking, in part, a declaration that the City’s easements on appellants’ properties “have

expired due to expiration, frustration of purpose, and abandonment.” After the trial court denied

appellants’ traditional motion for partial summary judgment on their claim for declaratory relief,

appellants filed this appeal.

This Court’s appellate jurisdiction is generally limited to appeals taken from final

judgments and certain interlocutory orders for which an appeal is authorized by statute.

Lehmann v. Har-Con Corp., 39 S.W.3d 191, 192-93 (Tex. 2001); see Tex. Civ. Prac. & Rem.

Code §§ 51.012, .014. The denial of a motion for summary judgment is not a final judgment and

generally is not reviewable by interlocutory appeal. See Brannon v. Kaur, No. 05-20-00718-CV,

2020 Tex. App. LEXIS 7657, at *1 (Tex. App.—Dallas Sept. 21, 2020, no pet.) (mem. op.)

(citing Cincinnati Life Ins. Co. v. Cates, 927 S.W.2d 623, 625 (Tex. 1996)); McBride v. Texas Bd. of Pardons & Paroles, No. 03-19-00329-CV, 2019 Tex. App. LEXIS 7433, at *2-3 (Tex.

App.—Austin Aug. 22, 2019, pet. denied) (mem. op.) (dismissing appeal for want of jurisdiction

because “the denial of a motion for summary judgment is merely an interlocutory order” and

“the legislature has not authorized an interlocutory appeal for a summary-judgment rulings like

the one at issue in this case”).

The Clerk of this Court sent a letter to the appellants, advising that it appears that

this Court lacks jurisdiction over this matter because the record does not contain a final

judgment or appealable order. In their response, the appellants argue that the trial court’s order

denying their motion for summary judgment is a final judgment “because there are no issues

remaining to be determined by the trial court” and “the denial of Appellants’ claims as to the

invalidity of the easement was necessarily also finally determinative of appellants’ remaining

claims as well.” The trial court’s order, however, does not state that it is final and appealable,

and contrary to the appellants’ assertion, the court’s denial of their motion for summary

judgment did not actually dispose of any claims. See Lehmann, 39 S.W.3d at 192-93 (“[A]

judgment issued without a conventional trial is final for purposes of appeal if and only if it

either actually disposes of all claims and parties then before the court, regardless of its

language, or if it states with unmistakable clarity that it is a final judgment as to all claims and

all parties.”); McBride, 2019 Tex. App. LEXIS 7433, at *2-3 (noting that “an order [denying a

motion for summary judgment] does not finally decide any question before the trial court,”

quoting Hansberger v. EMC Mortg. Corp., No. 04-08-00438-CV, 2009 Tex. App. LEXIS 5792,

at *9 (Tex. App.—San Antonio July 29, 2009, pet. denied) (mem. op.)); Winn v Martin

Homebuilders, Inc., 153 S.W.3d 553, 556 (Tex. App.—Amarillo 2004, pet denied) (“Denial of a

motion for summary judgment is not a final adjudication, but an interlocutory ruling . . . .”).

2 Moreover, the record before us indicates that the appellants’ claims remain pending in the

trial court.

Because no final judgment has been signed and because the trial court’s denial of

appellant’s motion for summary judgment is a non-appealable interlocutory order, we do not

have jurisdiction to consider the merits of this appeal. Accordingly, we dismiss this appeal for

want of jurisdiction. See Tex. R. App. P. 42.3(a).

__________________________________________ Chari L. Kelly, Justice

Before Justices Baker, Kelly, and Smith

Dismissed for Want of Jurisdiction

Filed: January 31, 2023