Duane Parkhurst and Charlotte Parkhurst v. Javier Guitterez, Eric Smith and Miscrianti, Inc. ( 2020 )

NO. 12-20-00161-CV
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
DUANE PARKHURST AND § APPEAL FROM THE 354TH
CHARLOTTE PARKHURST,
APPELLANTS
§ JUDICIAL DISTRICT COURT
V.
JAVIER GUTIERREZ, § RAINS COUNTY, TEXAS
APPELLEE
MEMORANDUM OPINION
PER CURIAM
Duane and Charlotte Parkhurst, acting pro se, sued Javier Gutierrez, Eric Smith, and
Miscrianti, Inc. for damages related to an explosion. The Parkhursts filed a notice of appeal
from an order, dated June 23, 2020, in which the trial court dismissed their lawsuit against
Gutierrez. On September 1, Gutierrez filed a motion to dismiss with this Court, arguing that the
judgment is not final because it fails to dispose of all pending clams and parties and contains no
language of finality. The Parkhursts did not file a response to Gutierrez’s motion.
On any party’s motion, or on its own initiative after giving ten days’ notice to all parties,
the appellate court may dismiss the appeal if it is subject to dismissal for want of jurisdiction.
TEX. R. APP. P. 42.3(a); see TEX. R. APP. P. 10.3(a) (court should not hear or determine motion
until ten days after motion’s filing). When “there has not been a conventional trial on the merits,
an order or 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.” Lehmann v. Har-Con Corp., 39 S.W.3d 191, 205 (Tex. 2001). “An
order that disposes of claims by only one of multiple plaintiffs or against one of multiple
defendants does not adjudicate claims by or against other parties.” Id. “Language that the
plaintiff take nothing by his claims in the case, or that the case is dismissed, shows finality if
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there are no other claims by other parties; but language that ‘plaintiff take nothing by his claims
against X’ when there is more than one defendant or other parties in the case does not indicate
finality.” Id. (emphasis added).
The order granting Gutierrez’s motion to dismiss does not dispose of the Parkhursts’
claims against Smith and Miscrianti. And nothing in the clerk’s record demonstrates that those
claims have been otherwise disposed. Accordingly, the order is not a final judgment. See id.
Nor is the order appealable as interlocutory. See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014
(West Supp. 2020) (appeal from interlocutory order). Because the order of dismissal is neither a
final judgment nor an appealable interlocutory order, we grant the motion to dismiss and we
dismiss the appeal for want of jurisdiction.
Opinion delivered October 7, 2020.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
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COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
OCTOBER 7, 2020
NO. 12-20-00161-CV
DUANE PARKHURST AND CHARLOTTE PARKHURST,
Appellants
V.
JAVIER GUTIERREZ,
Appellee
Appeal from the 354th District Court
of Rains County, Texas (Tr.Ct.No. 10777)
THIS CAUSE came on to be heard on the motion of the Appellee to dismiss
the appeal herein, and the same being considered, it is hereby ORDERED, ADJUDGED and
DECREED by this Court that the motion to dismiss be granted and the appeal be dismissed for
want of jurisdiction, and that the decision be certified to the court below for observance.
By per curiam opinion.
Panel consisted of Worthen, C.J., Hoyle, J. and Neeley, J.
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