Harold Dutton v. Clay Dugas & Associates ( 2007 )

In The

Court of Appeals

Ninth District of Texas at Beaumont ____________________

NO. 09-06-426 CV ____________________

HAROLD DUTTON, Appellant

V.

CLAY DUGAS & ASSOCIATES, P.C., Appellee

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On Appeal from the 60th District Court Jefferson County, Texas Trial Cause No. B-170,607

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MEMORANDUM OPINION

Harold Dutton appeals an order granting summary judgment to Clay Dugas & Associates, P.C., in a suit for a declaration of lack of privity between Dugas and Patricia Covington. See Covington v. Sisters of Charity of Incarnate Word, 179 S.W.3d 583 (Tex. App.--Amarillo 2005, pet. denied). The summary judgment Dutton appeals did not dispose of all of the claims in controversy in this litigation. Accordingly, we dismiss the appeal for lack of jurisdiction.

Dugas represented Elizabeth Roberts in a suit against Sisters of Charity of the Incarnate Word, Christus Health Southeast Texas d/b/a Christus St. Elizabeth Hospital and Paul D. Wesolow, M.D. Id. at 584. Roberts' brother, Vincent Lazard, died while a patient at St. Elizabeth Hospital. Id. After the health care providers challenged Roberts' capacity to act on behalf of her brother's estate, Roberts filed an amended petition, adding Covington as a plaintiff and alleging her to be the administrator of Lazard's estate. Id. at 585. Covington was Lazard's daughter and had been appointed the independent administrator of his estate before Roberts filed her suit. Id. at 584. Covington's claims would be barred by limitations if Roberts' pleading did not toll the two year limitations' period. Id. The trial court dismissed the suit with prejudice. Id. Reasoning that Roberts was a stranger to the survival action, the Amarillo Court of Appeals held that the amended pleading adding Covington as a party did not relate back to the original filing of Roberts' claims and affirmed the judgment. Id. at 588-89.

Dugas' petition alleged that Covington retained Harold Dutton to prosecute claims on behalf of Lazard's estate, that Dutton associated Dugas to represent Covington, that Dugas did not have a contract with Covington, and that two months after the trial court granted summary judgment Dutton made a claim and a demand against Dugas. Dugas requested a declaration that it did not represent Covington and had no duty to file suit on behalf of Covington at any time prior to August 3, 2002. Dugas also requested attorney's fees. After Covington filed an answer, Dugas moved for summary judgment on the grounds that the undisputed facts establish that no attorney-client relationship existed between Covington and Dugas prior to the expiration of the statute of limitations. Dugas asked for attorney's fees in its motion for summary judgment, but submitted no summary judgment evidence to support that request. The trial court granted the motion for summary judgment and declared that Dugas "owed no duty to Patricia Covington before August 2, 2002." The trial court crossed off a blank line for an award of attorney's fees on the order granting declaratory relief. Dutton filed notice of appeal and in a single issue contends the trial court erred because the lack of privity between Covington and Dugas does not absolve Dugas from all liability for legal malpractice.

Although neither party challenges our jurisdiction, we review sua sponte jurisdictional issues. M.O. Dental Lab v. Rape, 139 S.W.3d 671, 673 (Tex. 2004). The order granting summary judgment does not contain any language that indicates that the trial court intended the order to function as the final, appealable judgment in the case. See Lehmann v. Har-Con Corp., 39 S.W.3d 191, 205-06 (Tex. 2001). Dugas' motion for summary judgment reiterates its request to recover attorney's fees and nothing in the record indicates Dugas subsequently abandoned this claim. The trial court's order neither grants attorney's fees nor rules that Dugas is not entitled to them as a matter of law. A summary judgment that omits a claim for attorney's fees and does not appear final on its face is not an appealable final judgment. See McNally v. Guevara, 52 S.W.3d 195, 196 (Tex. 2001).

We examine the entire record to determine whether an order disposes of all pending claims and parties. Lehmann, 39 S.W.3d at 205-06. The order in this case is not inherently final, does not dispose of Dugas' claim for attorney's fees, and lacks clear and unequivocal language of finality. Because the order is interlocutory, jurisdiction over this case remains with the trial court and we must dismiss the appeal for lack of jurisdiction.

APPEAL DISMISSED.

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STEVE McKEITHEN

Chief Justice

Submitted on March 22, 2007

Opinion Delivered June 21, 2007

Before McKeithen, C.J., Kreger and Horton, JJ.