Kevin O'Neill and Marilyn O'Neill v. Paul Kelley and Catherine Kelley

• Court: Court of Appeals of Texas
• Decided: December 21, 2005
• Docket: 04-05-00702-CV
• Status: Published

Opinion

MEMORANDUM OPINION

No. 04-05-00702-CV

Kevin O’NEILL and Marilyn O’Neill,

Appellants

v.

Paul KELLEY and Catherine Kelley,

Appellees

From the 216th Judicial District Court, Kendall County, Texas

Trial Court No. 04-048

Honorable Stephen B. Ables, Judge Presiding

PER CURIAM

Sitting:            Alma L. López, Chief Justice

Catherine Stone, Justice

Sarah B. Duncan, Justice

Delivered and Filed:   December 21, 2005

DISMISSED FOR LACK OF JURISDICTION

            In plaintiffs’ fourth amended petition, the plaintiffs/appellants name the following defendants: (1) Paul and Catherine Kelley; (2) Texas Home Check; (3) Phyllis Browning Company; (4) Century Homes; (5) Century Construction, Inc.; (6) Gene Burzynski, Inc.; and (7) Airtron, Inc. In addition to the plaintiffs’ claims, Paul and Catherine Kelley filed a third party petition against Mary Ann Heller Nations and a counterclaim against the plaintiffs. On October 21, 2005, the trial court granted no-evidence summary judgments in favor of Phyllis Browning Company, Mary Ann Heller Nations, and Paul and Catherine Kelley. On October 28, 2005, the plaintiffs/appellants filed a notice of appeal.

            The summary judgments are interlocutory, and no severance order has been entered. The plaintiffs/appellants acknowledge in their notice of appeal that their appeal is an appeal of interlocutory orders; however, the plaintiffs/appellants fail to explain under what authority they are entitled to appeal an interlocutory no-evidence summary judgment. A summary judgment that does not dispose of all parties and causes of action is not final and appealable. City of Beaumont v. Guillory, 751 S.W.2d 491, 492 (Tex. 1988).

            On November 21, 2005, we ordered the appellants to show cause in writing why this appeal should not be dismissed for lack of jurisdiction. On December 6, 2005, appellants responded; however, none of the authority cited by appellants persuades this court that we have jurisdiction to consider an interlocutory appeal of a no-evidence summary judgment that does not dispose of all parties and causes of action. Id. Accordingly, this appeal is dismissed for lack of jurisdiction. Costs of the appeal are taxed against appellants.