Julia Cornejo, Individually, and as Trustee and Trustor of the Gilbert T. Cornejo, Jr. and Julia H. Cornejo Revocable Living Trust v. Robert Cornejo

• Court: Court of Appeals of Texas
• Decided: July 28, 2010
• Docket: 04-10-00250-CV
• Status: Published

Opinion

MEMORANDUM OPINION No. 04-10-00250-CV

Julia CORNEJO, Individually, and as Trustee and Trustor of the Gilbert T. Cornejo, Jr. and Julia H. Cornejo Revocable Living Trust, Appellant

v.

Robert CORNEJO, Appellee

From the 57th Judicial District Court, Bexar County, Texas Trial Court No. 2009-CI-07055 Honorable Antonia Arteaga, Judge Presiding

PER CURIAM

Sitting: Karen Angelini, Justice Sandee Bryan Marion, Justice Phylis J. Speedlin, Justice

Delivered and Filed: July 28, 2010

DISMISSED FOR LACK OF JURISDICTION

Appellee Robert Cornejo (“Cornejo”) has filed a motion to dismiss this appeal for lack of

jurisdiction, arguing that the trial court’s order granting summary judgment is a non-appealable

interlocutory order. Appellant has not filed a response to Cornejo’s motion to dismiss. 04-10-00250-CV

In his third amended petition, Cornejo, plaintiff in the underlying cause, included causes

of action against appellant for both trespass to try title as well as breach of fiduciary duty. 1

Cornejo then filed a first amended motion for summary judgment on his trespass to try title

claim. The trial court granted his first amended motion for summary judgment on his trespass to

try title claim. Appellant then filed a notice of appeal, seeking to appeal the trial court’s grant of

summary judgment with regard to Cornejo’s trespass to try title claim. However, as pointed out

by Cornejo in his motion to dismiss, his breach of fiduciary duty claim is still pending in the trial

court. Thus, Cornejo argues that the trial court’s order is interlocutory, and we do not have

jurisdiction over this appeal. We agree.

A judgment or order is final for purposes of appeal if it actually disposes of all pending

parties and claims before the court. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex.

2001). Here, the trial court’s order granting Cornejo’s motion for summary judgment is

interlocutory because it does not dispose of all parties and causes of action. Thus, it is not a final

and appealable order. Interlocutory orders may be appealed only if a specific statute authorizes

such an interlocutory appeal. For example, section 51.014 of the Texas Civil Practice and

Remedies Code lists circumstances under which a person may appeal from an interlocutory order

of a district court, county court at law, or county court. See TEX. CIV. PRAC. & REM. CODE ANN.

§ 51.014. We cannot, however, find any statutory authority that allows appellant to appeal from

the trial court’s interlocutory order in this case.

We, therefore, grant Cornejo’s motion to dismiss and dismiss this appeal for lack of

jurisdiction. We note that in his motion to dismiss, Cornejo also requests that we award him

1 The clerk’s record, by request of appellant, did not include Cornejo’s third amended petition, but only included his original petition, which alleged a trespass to try title action. Noting that the clerk’s record did not include his third amended petition, which added his claim for breach of fiduciary duty, Cornejo requested that the trial court clerk file a supplemental clerk’s record.

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damages under Texas Rule of Appellate Procedure 45, arguing that appellant filed a frivolous

appeal. We, however, are not inclined to grant Cornejo’s request for damages.

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