Donna Clift and Kimberly Peel v. Frederic James Rodgers, III, Bobby S. Leach, Mazzio`s Pizza, and Sandra Edmonson Day ( 2005 )

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

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No. 06-05-00082-CV

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DONNA CLIFT AND KIMBERLY PEEL, Appellants

V.

FREDERIC JAMES RODGERS, III, BOBBY S. LEACH,

MAZZIO'S PIZZA, AND SANDRA EDMONDSON DAY, Appellees

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On Appeal from the County Court at Law No. 2

Gregg County, Texas

Trial Court No. 2004-1054-CCL2

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Before Morriss, C.J., Ross and Carter, JJ.

Memorandum Opinion by Justice Carter

MEMORANDUM OPINION

            Donna Clift and Kimberly Peel (collectively "the plaintiffs") sued Frederic James Rodgers, III, Bobby S. Leach, Mazzio's Pizza, and Sandra Edmondson Day, for injuries the plaintiffs received from a traffic accident with a Mazzio's Pizza delivery vehicle in Longview, Texas. Mazzio's moved for summary judgment under both traditional grounds and no-evidence grounds. See Tex. R. Civ. P. 166a(c), (i). Mazzio's also filed a motion for severance. The trial court granted the motion for summary judgment on both traditional and no-evidence grounds. The trial court's order did not, however, grant the motion for severance, inasmuch as the paragraph that would otherwise sever the plaintiffs' claims against Mazzio's from the rest of the case has been crossed through and initialed "AC" by the trial judge.

            Texas appellate courts have jurisdiction only over final judgments. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001). A judgment is final for purposes of appellate jurisdiction if it disposes of all issues and parties in a case and no further action is required to determine the controversy. Id.; Houston Health Clubs, Inc. v. First Court of Appeals, 722 S.W.2d 692, 693 (Tex. 1986). A judgment that fails to dispose of all issues and all parties before the trial court is neither final nor, with certain exceptions, appealable. Park Place Hosp. v. Estate of Milo, 909 S.W.2d 508, 510 (Tex. 1995).

            In the case now on appeal, the trial court's order granting summary judgment pertains only to the claims against Mazzio's. The trial court's order does not address the remaining defendants or the claims against those persons. Thus, it is not a final, appealable order. Cf. id.

            On August 11, 2005, we sent the parties a letter warning them of this possible defect in our jurisdiction. We gave the plaintiffs until September 1, 2005, to show how, in accordance with the record of this case, this Court has jurisdiction over this appeal. Almost three weeks have passed since that deadline, and we have received no response from the plaintiffs. Accordingly, we assume the plaintiffs' silence indicates they have conceded that this appeal is interlocutory and that we lack jurisdiction over it.

            For the reasons stated, we dismiss the appeal for want of jurisdiction.

                                                                        Jack Carter

                                                                        Justice

Date Submitted:          September 22, 2005

Date Decided:             September 23, 2005