Rebecca Hernandez v. the City of Lubbock and Blake Littlejohn ( 2005 )

NO. 07-05-0308-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL D

DECEMBER 14, 2005 ______________________________

REBECCA HERNANDEZ,

Appellant

v.

CITY of LUBBOCK and BLAKE LITTLEJOHN,

Appellees

_________________________________

FROM THE 237^TH DISTRICT COURT OF LUBBOCK COUNTY;

NO. 2005-529,164; HON. SAM MEDINA, PRESIDING _______________________________

Order of Dismissal _______________________________

Before QUINN, C.J., and REAVIS and CAMPBELL, JJ.

Pending before the court is a motion to dismiss this appeal, filed by appellee Blake Littlejohn. ⁽¹⁾ Therein, Littlejohn contends that we have no jurisdiction over the cause since the appeal is interlocutory. Furthermore, it allegedly is interlocutory because no final order disposing of all claims against all parties was executed by the trial court. In particular, the trial court's order of dismissal did not include the City of Lubbock (Lubbock). The record before us supports the contention of Littlejohn.

Hernandez sued both Lubbock and Littlejohn for damages. In response, Littlejohn filed a motion to dismiss the suit against him. The trial court granted his motion and entered an order "dismiss[ing] with prejudice" the claims against Littlejohn. Nothing was said about the claims asserted against Lubbock.

Save for a few instances, courts of appeal have appellate jurisdiction only over final orders and judgments. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001). Additionally, a judgment is final only when it disposes of all claims asserted by or against all parties. M. O. Dental Lab v. Rape, 139 S.W.3d 671, 676 (Tex.2004); Lehmann v. Har-Con Corp., 39 S.W.3d at 195. Here, the order from which appeal was taken did not dispose of all claims against all parties. Nor does the record contain evidence evincing that Hernandez' claims against Lubbock were disposed of via any other order.

Accordingly, we dismiss this appeal for want of jurisdiction.

Per Curiam

1. Though appellant has had ten days to reply to the motion, no reply has been filed to date.

ntract); Sanroc Co. v. Roadrunner Transp., Inc., 596 S.W.2d 320, 322 (Tex. App.-Houston [1^st Dist.] 1980, no writ) (holding the same). So, to the extent that everyone at bar agreed (through the stipulation) that McDonald acted as agent for Clear Lake when the contract was executed, the contract vested Clear Lake with contractual rights. Having such rights, Clear Lake was entitled to enforce them. And, the suit from which this appeal arose was simply an attempt by Clear Lake to do so by seeking damages from John for breach of the accord. ⁽¹⁾

Accordingly, we overrule the contentions uttered by John and affirm the judgment entered below.

Brian Quinn

Justice

Do not publish.

1. The stipulation executed by the parties served to illustrate the legal and factual relationship between Clear Lake, McDonald, and J. Robert Searcy, M.D. That its effect was to also illustrate that Clear Lake had an enforceable right in the contract does not mean that it was an impermissible attempt to manufacture jurisdiction where none existed. If this were not so, then most any stipulation of relevant fact that served to aid one in prosecuting a cause of action could be considered as an attempt to impermissibly create jurisdiction. For instance, if the parties were to stipulate that the amount of damages were of a certain sum, and that sum fell within the court's jurisdictional limits, one could then later say that the stipulation created jurisdiction. This result is untenable.