Richard J. Gonzales v. Robert Drake Terrell and Heritage Properties, LP

• Court: Court of Appeals of Texas
• Decided: April 14, 2015
• Docket: 01-14-00711-CV
• Status: Published

Opinion

Opinion issued April 14, 2015

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-14-00711-CV ——————————— RICHARD J. GONZALES, Appellant V. ROBERT DRAKE TERRELL AND HERITAGE PROPERTIES, LP, Appellees

On Appeal from the 55th District Court Harris County, Texas Trial Court Case No. 2008-09906A

MEMORANDUM OPINION

Appellant Richard J. Gonzales appeals from a summary judgment order

entered on April 30, 2014. Gonzales contends the trial court’s July 2, 2014

severance order rendered the April 30, 2014 order final and appealable. Our review of the record indicates that the summary-judgment order is interlocutory,

and that we therefore must dismiss this appeal.

Gonzales sued Stanford Development Corporation, Robert Drake Terrell,

Heritage Properties, LP, and others over alleged defects in his condominium.

Terrell and Heritage filed a counterclaim against Gonzales, and moved for

summary judgment on Gonzales’s claims against them. On April 30, 2014, the

trial court granted summary judgment in favor of Heritage and Terrell on

Gonzales’s claims. Heritage and Terrell later moved for severance of the claims

between themselves and Gonzales to a new cause number, purportedly to render

the summary judgment final. Their motion was granted on July 2, 2014.

The July 2, 2014 severance order states that “any and all causes of action”

between Heritage, Terrell, and Gonzales are severed into a new cause. The order

goes on to say: “The Court notes the Summary Judgment granted April 30, 2014 in

favor of Heritage Texas Properties LP and Robert Drake Terrell and disposes of all

claims against Heritage Texas Properties, LP and Robert Drake Terrell in this

severed case. That Judgment is hereby a final appealable judgment. The parties

are hereby responsible for any costs incurred by same. All relief not herein granted

is denied.” Although the severance order severed all causes of action between

Heritage, Terrell, and Gonzales into the new action, it did not dispose of Heritage

and Terrell’s counterclaim against Gonzales.

2 The Texas Supreme Court has held that “the language of an order or

judgment can make it final, even though it should have been interlocutory, if that

language expressly disposes of all claims and all parties.” Lehmann v. Har-Con

Corp., 39 S.W.3d 191, 200 (Tex. 2001). But “[a]n order does not dispose of all

claims and all parties merely because it is entitled ‘final’, or because the word

‘final’ appears elsewhere in the order, or even because it awards costs. Nor does

an order completely dispose of a case merely because it states that it is appealable,

since even interlocutory orders may sometimes be appealable.” See id. at 205.

Moreover, “the inclusion of a Mother Hubbard clause—by which we mean the

statement, ‘all relief not granted is denied’, or essentially those words—does not

indicate that a judgment rendered without a conventional trial is final for purposes

of appeal.” Id. at 203–04. To be final, an order must “actually dispose[] of all

claims and parties then before the court, regardless of its language,” or “state[]

with unmistakable clarity that it is a final judgment as to all claims and all

parties.” Id. at 192–93 (emphasis added).

Here, the April 30, 2014 summary-judgment order was not a final judgment

because it disposed only of Gonzales’s claims against Heritage and Terrell, and did

not address Heritage and Terrell’s counterclaim. And the July 2, 2014 severance

order does not meet the criteria set forth in Lehmann to render the summary-

judgment order final. Although the severance order states that it renders the

3 summary-judgment order “final,” “[i]t is not enough . . . that the order or judgment

merely use the word ‘final.’” See id., 39 S.W.3d at 200. Likewise, the inclusion of

the statement “[a]ll relief not herein granted is denied” in the severance order,

“does not indicate that a judgment rendered without a conventional trial is final for

purposes of appeal.” See id. at 203–04. The severance order does not “actually

dispose” of Heritage and Terrell’s counterclaim, nor does it state that “it is a final

judgment as to all claims and all parties.” See id. at 192–93. Accordingly, the

judgment is not final for purposes of appeal. See id.; see also Hinojosa v.

Hinojosa, 866 S.W.2d 67, 70 (Tex. App.—El Paso 1993) (failure to dispose of

counterclaim results in interlocutory or partial judgment over which appellate court

lacks jurisdiction).

In response to our notice of intent to dismiss for want of jurisdiction,

Gonzales argues that we should treat the summary-judgment order as final because

(1) the order was prepared by the appellees’ attorney and the appellees’ severance

motion asked the trial court to grant severance in order to render the summary-

judgment order final and (2) the language in the severance order renders it final

and appealable.

But we determine finality from the language of the order entered by the trial

court, and not the parties’ intent. See Lehmann, 39 S.W.3d at 204. In support of

his claim that the appellees’ intent in requesting severance can support a

4 conclusion that the judgment is final, Gonzales relies upon a statement, quoted in

Lehmann, from an earlier Texas Supreme Court case, Continental Airlines, Inc. v.

Kiefer, 920 S.W.2d 274 (Tex. 1996). In Kiefer, the Supreme Court stated that

“[f]inality must be resolved by a determination of the intention of the court as

gathered from the language of the decree and the record as a whole, aided on

occasion by the conduct of the parties.” Id. at 277. But Lehmann referred to this

language in Kiefer to show that “our opinions have not been entirely consistent on

whether the inclusion or omission of a Mother Hubbard clause does or does not

indicate that a summary judgment is final for purposes of appeal” and that “[t]his

ambivalence has resulted in considerable confusion in the courts of appeal.”

Lehmann, 39 S.W.3d at 203. Lehmann goes on to say “[m]uch confusion can be

dispelled by holding, as we now do, that the inclusion of a Mother Hubbard

clause—by which we mean the statement, ‘all relief not granted is denied’, or

essentially those words—does not indicate that a judgment rendered without a

conventional trial is final for purposes of appeal.” Id. at 203–04. Thus, Lehmann,

and not Kiefer, guides our determination here.

Gonzales contends that there is finality here because the severance order

states that the summary-judgment order is a “final appealable judgment” and that

“[a]ll relief not herein granted is denied,” and because it awards costs. But under

Lehmann, none of these is sufficient to render the judgment final unless the order

5 “actually dispose[s]” of all parties and claims or states that “it is a final judgment

as to all claims and all parties.” See id. at 192–93. Gonzales relies upon various

cases where orders actually disposed of all parties and claims or stated they were a

final judgment “as to all claims and all parties,” as required by Lehmann, but the

severance order in this case contains no such language.

Because the order in the underlying case is not final, and an interlocutory

appeal of the order is not authorized by statute, we lack jurisdiction over this

appeal. See Bison Bldg. Materials, Ltd. v. Aldridge, 422 S.W.3d 582, 585 (Tex.

2012); Stary v. DeBord, 967 S.W.2d 352, 352-353 (Tex. 1998). Accordingly, we

dismiss the appeal for lack of jurisdiction. See TEX. R. APP. P. 42.3(a). We

dismiss all pending motions as moot.

PER CURIAM

Panel consists of Justices Jennings, Higley, and Huddle.