James T. Fielder and Alyse Fielder v. Lewisville Imports, Ltd. D/B/A Bankston Honda ( 2007 )

COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 2-07-092-CV

JAMES T. FIELDER AND APPELLANTS

ALYSE FIELDER

V.

LEWISVILLE IMPORTS, LTD.  APPELLEE

D/B/A BANKSTON HONDA

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FROM COUNTY COURT AT LAW NO. 1 OF TARRANT COUNTY

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MEMORANDUM OPINION ^{(footnote: 1)}

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Appellants attempt to appeal from a trial court order granting summary judgment in favor of Appellee, which has filed a motion to dismiss this appeal.  Appellee asserts that this court does not have jurisdiction over this appeal because the order granting summary judgment is only a partial summary judgment that does not dispose of all parties in the case, and is not a final appealable interlocutory order.  We agree and dismiss the appeal for want of jurisdiction.

On September 9, 2005, Appellants filed suit against Appellee.  On May 30, 2006, Appellants filed their first amended petition adding a second defendant, AutoNation, Inc.  On September 26, 2006, Appellee filed a motion for summary judgment.  AutoNation, Inc. filed its original answer on November 1, 2006, but did not file a motion for summary judgment.  On February 28, 2007, the trial court granted Appellee’s motion for summary judgment and ordered that Appellants take nothing against Appellee.

The trial court’s order states that “this is a final judgment inasmuch as it disposes of all parties and issues in this matter.”  However, the order does not address or purport to dispose of Appellants’ claims against AutoNation, Inc. ^{(footnote: 2)} Further, the trial court has not signed a severance order.  Where, as here, there has not been a conventional trial on the merits, an order or judgment is not final for purposes of appeal unless it actually disposes of every pending claim and party or clearly and unequivocally states that it finally disposes of all claims and parties. See Lehmann v. Har-Con Corp., 39 S.W.3d 191, 205 (Tex. 2001).  Notwithstanding the quoted language from the trial court’s order, the record does not reflect that the court disposed of Appellants’ claims against AutoNation, Inc., and Appellants acknowledge that AutoNation, Inc. never filed a motion for summary judgment and that the trial court did not render any further order disposing of Appellants’ claims against AutoNation, Inc.  Accordingly, the trial court’s order is not final for purposes of appeal.

Because there is no final judgment or appealable interlocutory order, we grant Appellee’s motion and dismiss this case for want of jurisdiction.   See Tex. R. App. P. 42.3(a), 43.2(f).

PER CURIAM

PANEL D:  HOLMAN, GARDNER, and WALKER, JJ.

DELIVERED:  August 2, 2007

FOOTNOTES

1:

See Tex. R. App. P. 47.4.

2:

AutoNation, Inc. is not mentioned in the style or the text of the trial court’s order.