Marlonia Ivy v. Victor Garcia and Wanda Garcia ( 2020 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-20-00113-CV
Marlonia Ivy, Appellant
v.
Victor Garcia and Wanda Garcia, Appellees
FROM COUNTY COURT AT LAW NO. 4 OF WILLIAMSON COUNTY
NO. 17-1299-CC2-4, THE HONORABLE JOHN MCMASTER, JUDGE PRESIDING
MEMORANDUM OPINION
Appellees Victor Garcia and Wanda Garcia have filed a motion to dismiss this
appeal. Appellant Marlonia Ivy filed a notice of appeal on February 11, 2020. Although the
initial notice of appeal states that Ivy appeals “from the final judgment rendered on January 16,
2020,” the trial court’s order, titled “Partial Summary Judgment,” reflects that the trial court signed
it on January 30, 2020, after hearing the Garcias’ summary-judgment motion on January 3, 2020,
and January 16, 2020.1 In their motion to dismiss, the Garcias assert that we lack jurisdiction
over the appeal because the January 30, 2020 order is not a final judgment. In addition to being
titled “Partial Summary Judgment,” the order explicitly states that “the Court is not ruling on
Defendants’ request for additional attorney’s fees at this time, without prejudice to Defendants’
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Ivy subsequently amended her notice of appeal. Her latest-filed notice of appeal indicates that
she desires to appeal “from the summary judgment, court denial of a duplicate unaltered timestamp
master copy of the reporter’s audio recording of all hearings/trials rendered on January 16, 2020,
ability to later urge that request.” Accordingly, the Garcias’ request for attorneys’ fees remains
outstanding. Furthermore, the order on its face unequivocally states that it does not finally dispose
of all claims. See In re Elizondo, 544 S.W.3d 824, 827-828 (2018) (per curiam) (analyzing
Lehmann v. Har-Con Corp., 39 S.W.3d 191, 205-06 (Tex. 2001), and holding that judgment
containing unambiguous finality phrase, which stated that judgment was final and appealable and
disposed of all claims and parties, operated as final judgment, and finality phrase must be taken
at face value even if all claims are not actually disposed of).
There is no indication that a final judgment is imminent. As a general rule, a party
may only appeal from a final judgment. Lehmann, 39 S.W.3d at 195. Accordingly, we grant the
Garcias’ motion and dismiss the appeal without prejudice to refiling after the trial court issues an
order disposing of the remaining claim for attorneys’ fees. See Tex. R. App. P. 42.3(a).
__________________________________________
Chari L. Kelly, Justice
Before Justices Goodwin, Kelly, and Smith
Dismissed for Want of Jurisdiction
Filed: April 24, 2020
by the County Courts for Williamson County, Texas, in Cause No. 17-1299-CC2-4: Styled
Marlonia Ivy v. Victor Garcia and Wanda Garcia.”
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