michael-j-allein-dawn-m-allein-and-in-the-interest-of-kyle-allein-and ( 2006 )

NUMBER 13-05-514-CV

                         COURT OF APPEALS

               THIRTEENTH DISTRICT OF TEXAS

                  CORPUS CHRISTI - EDINBURG

_______________________________________________________

MICHAEL J. ALLEIN, ET AL.,                                    Appellants,

                                           v.

ROBERT SANDERS, ET AL.,                                       Appellees.

________________________________________________________

                  On appeal from the 105th District Court

                           of Nueces County, Texas.

_______________________________________________________

                     MEMORANDUM OPINION

      Before Chief Justice Valdez and Justices Yañez and Garza

                       Memorandum Opinion Per Curiam

Michael J. Allein, Dawn M. Allein, and minors, Kyle Allein and Misao Wise (the AAllein family@), brought suit against Robert Sanders, Jim Trusty, RE/MAX Metro Properties, Inc., and Matthew Dylan Yoakum for deceptive trade practices, breach of contract, fraud, negligence, and breach of warranties in association with the Allein family=s purchase of a home.  The trial court granted two summary judgments in favor of Robert Sanders on June 8, 2005.  By one order, the trial court granted summary judgment against the Allein family on all of their claims against Sanders.  By a separate order, the trial court granted summary judgment in favor of Sanders on his counterclaims against Michael J. Allein and Dawn M. Allein.  On July 8, 2005, Michael J. Allein and Dawn Allein filed a notice of appeal attacking these two orders. We dismiss the appeal for lack of jurisdiction.

An appellate court reviews whether it has jurisdiction over an appeal de novo because jurisdiction is a legal question.  See Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998); Parks v. DeWitt County Elec. Coop., Inc., 112 S.W.3d 157, 160 (Tex. App.BCorpus Christi 2003, no pet.)  If the record does not affirmatively demonstrate the appellate court's jurisdiction, the appeal must be dismissed. See Parks, 112 S.W.3d at 160.

Absent a statutory or constitutional source of authority for review of an interlocutory order, our appellate jurisdiction is limited to final judgments.   Lehmann v. Har‑Con Corp., 39 S.W.3d 191, 195 (Tex. 2001); Southwest Invs. Diversified, Inc. v. Estate of Mieszkuc, 171 S.W.3d 461, 467 (Tex. App.BHouston [14th Dist.] 2005, no pet.); Garcia v. Comm'rs Court, 101 S.W.3d 778, 779 (Tex. App.BCorpus Christi 2003, no pet.).  A judgment is final for purposes of appeal if it disposes of all parties and claims pending on the record in the case, or if it states with "unmistakable clarity" that it is a final judgment as to all claims and parties.  Lehmann, 39 S.W.3d at 192‑93; Southwest Invs. Diversified, Inc., 171 S.W.3d at 467.  To determine whether an order actually disposes of all pending claims and parties, we may look to the record in the case.  Lehmann, 39 S.W.3d at 205‑06; Garcia, 101 S.W.3d at 784.  If the record does not affirmatively demonstrate our jurisdiction, the appeal must be dismissed.  Southwest Invs. Diversified, Inc., 171 S.W.3d at 467; Garcia, 101 S.W.3d at 784.  Further, there is no presumption that a motion for summary judgment addresses all of the movant's claims, and a claim is not waived merely because a movant=s motion fails to expressly address it.  McNally v. Guevara, 52 S.W.3d 195, 196 (Tex. 2001); Parks, 112 S.W.3d at 161.

Although the trial court=s orders addressed all issues pending between Michael J. Allein, Dawn M. Allein, and Robert Sanders, the orders do not encompass all of the Allein family=s claims against the remaining defendants in the case, that is, Jim Trusty, RE/MAX Metro Properties, Inc., and Matthew Dylan Yoakum. Moreover, a trial court cannot grant summary judgment in favor of parties who have not moved for summary judgment.  See Tex. R. Civ. P. 166a; Teer v. Duddlesten, 664 S.W.2d 702, 703 (Tex. 1984); Southwest Invs. Diversified, Inc., 171 S.W.3d at 468.  According to the record before the court, these remaining defendants have not moved for summary judgment.

An appellate court may not dismiss an appeal for formal defects or procedural irregularities without allowing a reasonable time to correct or amend those matters.  See Tex. R. App. P. 44.3.  Further, an appellate court may not dismiss an appeal if a trial court's erroneous action or inaction prevents the proper presentation of an appeal and can be corrected.  See Tex. R. App. P. 44.4.  Moreover, an appellate court may allow an appealed order that is not final to be modified so as to be made final.  See Tex. R. App. P. 27.2.

In this case, however, the record does not affirmatively reflect that a final judgment was rendered in the case disposing of all claims and parties. Lehmann, 39 S.W.3d at 205 (judgment is not final for purposes of appeal unless it actually disposes of every pending claim and party or unless it clearly and unequivocally states that it finally disposes of all claims and all parties).  Unaddressed claims and parties properly before the court are not matters we can construe as merely perfunctory or ministerial.  Southwest Invs. Diversified, Inc., 171 S.W.3d at 468. Rather, these matters require substantive determination by the trial court.  Therefore, we lack authority to abate the appeal.  Parks, 112 S.W.3d at 136-64.  In conclusion, we hold that there is no final, appealable judgment before the Court.  See Lehmann, 39 S.W.3d at 205. Accordingly, the appeal is dismissed for want of jurisdiction.

PER CURIAM

Memorandum Opinion delivered and

filed this the 26th day of January, 2006.