Marshall P. Smith, Jr. v. Northbrook Life Insurance Co. Pacific Corinthian Life Insurance Co. Manhattan Life Insurance Co. The Travelers Insurance Co. Southwestern Life Insurance Co. Jefferson Pilot Life Insurance Company

• Court: Court of Appeals of Texas
• Decided: June 5, 1996
• Docket: 03-96-00110-CV
• Status: Published

Opinion

CV6-110

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-96-00110-CV

Marshall P. Smith, Jr., Appellant

v.

Northbrook Life Insurance Co.; Pacific Corinthian Life Insurance Co.; Manhattan Life

Insurance Co.; The Travelers Insurance Co.; Southwestern Life Insurance Co.;

Jefferson Pilot Life Insurance Company; James I. Staley, II, Individually and as

Independent Executor of the Estate of James Irven Staley, Jr., Deceased, Appellees

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 126TH JUDICIAL DISTRICT

NO. 95-09113, HONORABLE MARY PEARL WILLIAMS, JUDGE PRESIDING

PER CURIAM

Appellant Marshall P. Smith timely tendered a transcript and statement of facts which were filed in March 1996. Because the Court has concluded that no final judgment exists in this cause, we will dismiss the appeal for lack of jurisdiction. See North E. Indep. Sch. Dist. v. Aldridge, 400 S.W.2d 893, 895 (Tex. 1966); Tex. Civ. Prac. & Rem. Code Ann. § 51.012 (West 1986); Tex. R. App. P. 60(a)(2).

Smith sued appellee insurance companies and James I. Staley, II, in both his individual capacity and as independent executor of the estate of James Irven Staley. Smith brought several causes of action, all arising out of Staley's exercise of a general power of attorney to change beneficiary designations on annuity and life insurance policies issued by the insurance companies. As counterclaims, the insurance companies brought interpleader actions against Staley and Smith.

Staley filed a plea to the jurisdiction asking that Smith's claims against him be dismissed. His plea did not address Smith's claims against the insurance companies nor the interpleader actions. The court signed an order specifically granting Staley's plea. From that order, Smith perfected an appeal.

Because the order was not entered following proceedings in a case regularly set for trial on the merits, no inference of disposition of the other claims may be made. See Aldridge, 400 S.W.2d at 895; Etter's Welding, Inc. v. Gainesville Nat'l Bank, 687 S.W.2d 531, 522 (Tex. App.--Fort Worth 1985, no writ). There is no "Mother Hubbard" clause in the judgment. Cf. Mafrige v. Ross, 866 S.W.2d 590, 592 (Tex. 1993) (otherwise unappealable order made final by addition of "Mother Hubbard" clause or equivalent). By letter, the Clerk of this Court questioned whether a final judgment in the cause existed. In a letter response, appellant seemed to agree that the judgment was not final, but has not moved to dismiss the appeal. No orders of severance or orders dealing with the interpleader actions have been tendered.

Because we have no final judgment in the cause, we dismiss the appeal for want of jurisdiction.

Before Justices Powers, Jones and B. A. Smith

Dismissed for Want of Jurisdiction

Filed: June 5, 1996

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