celestina-adame-individually-and-as-next-friend-of-erica-adame-a-minor-v ( 2003 )

NUMBER 13-00-781-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

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CELESTINA ADAME, INDIVIDUALLY

AND AS NEXT FRIEND OF ERICA

ADAME, A MINOR, ET AL.

, Appellants, v.

LAW OFFICES OF ALLISON & HUERTA,

A TEXAS GENERAL PARTNERSHIP,

DOUGLAS A. ALLISON, STEVE T. HASTINGS,

ALBERTO R. HUERTA AND JEANETTE CANTU-BAZAR, Appellees.

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  On appeal from the 94th District Court of Nueces County, Texas.

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  MEMORANDUM OPINION

Before Justices Hinojosa, Yañez, and Castillo Opinion by Justice Castillo

Celestina Adame, individually and as next friend of Erica Adame, a minor, and others, appellants, appeal a series of summary judgment orders in favor of the Law Offices of Allison & Huerta, a Texas General Partnership; Douglas A. Allison; Steve T. Hastings; Alberto R. Huerta; and Jeanette Cantu-Bazar, appellees. We dismiss for want of jurisdiction.

I. JURISDICTION

Our initial inquiry is always whether we have jurisdiction over an appeal. Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443 (Tex. 1993); Garcia v. Comm'rs Court of Cameron County, 101 S.W.3d 778, 779 (Tex. App.-Corpus Christi 2003, no pet. h.). We are obligated to determine, sua sponte, our own jurisdiction. N.Y. Underwriters Ins. Co. v. Sanchez, 799 S.W.2d 677, 678 (Tex. 1990) (per curiam); Garcia, 101 S.W.3d at 779. Jurisdiction of a court is never presumed. Garcia, 101 S.W.3d at 783. Our jurisdiction is established exclusively by constitutional and statutory enactments. See, e.g., Tex. Const. art. V, § 6; Tex. Gov't Code Ann. § 22.220 (Vernon 1988). Unless one of the sources of our authority specifically authorizes an interlocutory appeal, we only have jurisdiction over an appeal taken from a final judgment. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001); Garcia, 101 S.W.3d at 784. Absent an express grant of authority, we do not have jurisdiction to review an interlocutory order. Steeple Oil & Gas Corp. v. Amend, 394 S.W.2d 789, 790 (Tex. 1965) (per curiam); see Tex. Civ. Prac. & Rem. Code Ann. § 51.014 (Vernon Supp. 2003). If the record does not affirmatively demonstrate our jurisdiction, we must dismiss the appeal. Garcia, 101 S.W.3d at 786.

II. THE SUMMARY JUDGMENT ORDERS A. The Order from which Appellants Appeal

On December 6, 2000, the trial court signed an "Omnibus Order Regarding Hearing of December 6, 2000" (the "Omnibus Order") that recited:

Because the Court finds that its disposition of the aforesaid Motions disposes of each and every cause of action of each and every Plaintiff herein, is of [sic] the opinion of the Court that it is appropriate for the Court to enter one Omnibus Order, granting to Defendants summary judgment against all Plaintiffs herein on each and every cause of action asserted against Defendants by Plaintiffs.

IT IS, THEREFORE, ORDERED, ADJUDGED and DECREED that summary judgment in favor of Defendants and against Plaintiffs on all causes of action asserted by Plaintiffs herein is GRANTED.

On December 28, 2000, plaintiffs filed a notice of appeal. On January 2, 2001, plaintiffs filed a motion for new trial, which the trial court denied on January 3, 2001.

B. The Modifying Order  

On January 8, 2001, the trial court signed an "Order on Defendants' Motion for Summary Judgment as to Twenty-One Plaintiffs" (the "January 8 Order") that recited:

It is, therefor [sic] ORDERED, ADJUDGED AND DECREED that Defendants Motion for Summary Judgment as to Twenty-One Plaintiffs with respect to Christina Baltierra As Next Friend of Jose Pablo Baltierra, Jr., is with respect to Plaintiff's claims of negligent and fraudulent misrepresentation, GRANTED; and with respect to Plaintiff's claims for deceptive trade practice violations, GRANTED.

III. DISCUSSION A. The Finality Rule

A judgment is not final unless it disposes of all pending parties and claims in the record. Guajardo v. Conwell, 46 S.W.3d 862, 863-64 (Tex. 2001) (per curiam); Garcia, 101 S.W.3d at 784. Notwithstanding the straightforward formulation of this rule, Texas appellate courts have struggled in determining the finality of judgments. See, e.g., Lehmann, 39 S.W.3d at 195-203 (surveying Texas cases on the subject dating from 1849 through the twentieth century). In Lehmann, the supreme court addressed this problem by forging a dynamic rule of inquiry that looks at both the language of the court's decree and the record of the case in determining whether a judgment is final. See id. at 195, 205-06. Specifically, the Lehmann court held that "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 parties." Id. at 205. Further, the supreme court also stated in Lehmann that "[b]ecause the law does not require that a final judgment be in any particular form, whether a judicial decree is a final judgment must be determined from its language and the record in the case." Id. at 195.

We conclude that Lehmann requires that we first look to the language of a summary judgment order to determine its finality. Id. at 205. If the language of the order "clearly and unequivocally" indicates finality on its face, it is final and appealable. Id. If the order does not "clearly and unequivocally" indicate finality on its face, we then determine if the order actually disposes of every pending claim and party. Id. In determining if the order disposes of every pending claim and party, we look to the record and examine the pleadings of the parties and the summary judgment proceedings to determine the claims and parties involved in the suit as well as the claims and parties raised by summary judgment motion. Id. at 205-06.

If every pending claim and party has been disposed of by the time the trial court signs a summary judgment order, despite the fact that the order does not "clearly and unequivocally" indicate finality on its face, it is final and appealable. Id. at 204. On the other hand, if the order does not dispose of every pending claim and party but is "clearly and unequivocally" final on its face, it "is not interlocutory merely because the record does not afford a legal basis for the adjudication." Id. at 206. "In those circumstances, the order must be appealed and reversed." Id. Similarly, "[g]ranting more relief than the movant is entitled to makes the order reversible, but not interlocutory." Id. at 204.

If, however, the order is not "clearly and unequivocally" final on its face and "the record reveals the existence of claims or parties not mentioned in the order, the order is not final." Id. at 206. "The record may help illumine whether an order is made final by its own language, so that an order that all parties appear to have treated as final may be final despite some vagueness in the order itself, while an order that some party should not reasonably have regarded as final may not be final despite language that might indicate otherwise." Id.; see First Nat'l Bank v. Villagomez, 54 S.W.3d 345, 348 (Tex. App.-Corpus Christi, pet. denied) (dismissing for want of jurisdiction appeal from summary judgment order entitled "Final Judgment" where claims remained unaddressed and trial court treated order as interlocutory in signing order granting motion for new trial more than thirty days later).

B. The Record

The trial court signed the January 8 Order after appellants appealed the Omnibus Order. Procedurally, therefore, after the case was appealed, the trial court modified the Omnibus Order with the January 8 Order. In these circumstances, rule 27.3 provides:

After an order or judgment in a civil case has been appealed, if the trial court modifies the order or judgment, or if the trial court vacates the order or judgment and replaces it with another appealable order or judgment, the appellate court must treat the appeal as from the subsequent order or judgment and may treat actions relating to the appeal of the first order or judgment as relating to the appeal of the subsequent order or judgment. The subsequent order or judgment and actions relating to it may be included in the original or supplemental record. Any party may nonetheless appeal from the subsequent order or judgment.

Tex. R. App. P. 27.3 (emphasis added). Accordingly, we treat this appeal as from the January 8 Order, as we must. Id. Lehmann demands, therefore, that we first examine the January 8 Order for finality.

1. The January 8 Order

In Lehmann, the supreme court stated that "[a] statement like, 'This judgment finally disposes of all parties and all claims and is appealable', would leave no doubt about the court's intention." Id. The January 8 Order contains no such indication of the trial court's intent. Further, by its own terms the January 8 Order addresses a summary judgment motion filed by the defendants "as to Twenty-One Plaintiffs" but disposes of only one plaintiff's causes of action. Accordingly, we find that the January 8 Order does not "clearly and unequivocally" indicate on its face that it was final. See id. at 205. Therefore, we turn to the record to determine if every pending claim and party had been addressed by the trial court at the time it signed the January 8 Order. See id.

2. The Pleadings

We have examined the parties listed and the claims asserted in Plaintiffs' Sixth Amended Original Petition filed May 9, 2000, which was plaintiffs' live pleading at the time the trial court signed the January 8 Order. Included as parties in the Sixth Amended Petition are plaintiffs Jeannette Castillo (originally by next friend), Maria L. Contreras (originally by next friend), and Jesse Hernandez, Jr. ⁽¹⁾ Further, pleading in the alternative, on page 16 of the Sixth Amended Petition, plaintiffs alleged:

that Defendants acted maliciously and negligently in failing to advise Plaintiffs that Defendants were not acting as their counsel in making statements of fact to Plaintiffs concerning settlement, if Defendants, in fact, were not counsel to Plaintiffs at such time.

Although not separately labeled as a cause of action, this allegation asserted a tort cause of action distinct from the other claims brought by the plaintiffs in the Sixth Amended Petition, which were claims under the Texas Deceptive Trade Practices - Consumer Protection Act (the "DTPA") and for negligence, negligence per se, negligent misrepresentation, fraudulent misrepresentation, and breach of fiduciary duty. ⁽²⁾ See Parker v. Carnahan, 772 S.W.2d 151, 157 (Tex. App.-Texarkana 1989, writ denied). Carnahan established the affirmative tort duty in Texas owed by an attorney to inform a person of the attorney's non-representation in a matter if the attorney knew or should have known that circumstances would have led a reasonable person to believe that the attorney was providing the representation. Id.

Moreover, under a separate cause of action entitled "Independent Law Firm Negligence" on page 29 of the Sixth Amended Petition, plaintiffs alleged that:

Additionally, the Law Firm Defendant, acting by and through all of its other members, negligently failed to supervise the Lawyer Defendants and their agents, servants and employees contacting Plaintiffs, and/or adequately prepare a system that would have independently warned Plaintiffs about the impropriety and wrongful conduct of the Lawyer Defendants and their agents, servants and employees contacting Plaintiffs, and/or any member of the firm doing what the Lawyer Defendants and their agents, servants and employees contacting Plaintiffs did to Plaintiffs. Thus, independent of the conduct of the Lawyer Defendants and their agents, servants and employees contacting Plaintiffs, the Law Firm Defendant was negligent, and grossly negligent, to the same extent as the individual Defendants and for the same reasons.

This allegation asserted a negligence cause of action against the Law Offices of Allison & Huerta distinct from the Carnahan tort asserted by the plaintiffs against the individual attorneys as well as distinct from the plaintiffs' claims under the DTPA and for negligence, negligence per se, negligent misrepresentation, fraudulent misrepresentation, and breach of fiduciary duty. See Cook v. Brundidge, Fountain, Elliott & Churchill, 533 S.W.2d 751, 757 (Tex. 1976) (discussing "compelling and unique considerations with respect to partners engaged in the practice of law" and finding that "[t]he fiducial obligations of a law partnership set it apart from commercial partnerships").

3. The Motions for Summary Judgment

We also have reviewed the parties and claims addressed by the motions for partial summary judgment listed in and considered by the Omnibus Order (a total of twenty-four motions, including "Defendants' Motion for Summary Judgment as to Twenty-One Plaintiffs" also addressed by the January 8 Order) as well as all supplements and amendments to those motions. The defendants did not move for summary judgment on the claims brought by plaintiffs Jeannette Castillo, Maria L. Contreras, and Jesse Hernandez, Jr. under the DTPA, for fraudulent misrepresentation, and for negligent misrepresentation. Further, the defendants did not move for summary judgment on either the Carnahan or law-firm supervisory negligence claims alleged by all of the plaintiffs. Similarly, none of these claims were raised by the "Defendants' Motion for Summary Judgment as to Twenty-One Plaintiffs" addressed by both the Omnibus Order and the January 8 Order.

We also have reviewed the entire thirty-six volume clerk's record. The trial court did not nonsuit, sever, strike, or dismiss the DTPA, fraudulent misrepresentation, or negligent misrepresentation claims of plaintiffs Jeannette Castillo, Maria L. Contreras, or Jesse Hernandez, Jr. Nor did the trial court nonsuit, sever, strike, or dismiss either the Carnahan or law-firm supervisory negligence claims alleged by all of the plaintiffs.

4. The Omnibus Order

The Omnibus Order recited the trial court's intent to grant summary judgment to the defendants on all claims by all plaintiffs. However, the trial court's intent was derived from its finding that "its disposition of the aforesaid motions disposes of each and every cause of action of each and every Plaintiff herein." In addition to the absence of a clear and unequivocal indication of finality in the January 8 Order, we find that the record reflects claims and parties that remained unaddressed after the Omnibus Order and even after the January 8 Order. We find that the trial court's expression of intent in the Omnibus Order to dispose of all claims by all plaintiffs against all defendants is undermined by the January 8 Order as well as by the rest of the record, which reflects that parties and claims remained unaddressed after the January 8 Order.

C. Conclusion

With our analysis illumined by the record as a whole, we find that the clear and unequivocal indication of finality demanded by Lehmann is not present. See id. at 192; see also Villagomez, 54 S.W.3d at 348. We hold that the record does not affirmatively show the finality necessary to confer jurisdiction in this Court over this appeal. See Garcia, 101 S.W.3d at 784.

IV. DISPOSITION

In Lehmann, the supreme court stated that if an appellate court is uncertain about the intent of a summary judgment order, it may abate the appeal to permit clarification by the trial court. Lehmann, 39 S.W.3d at 196; see Iacono v. Lyons, 6 S.W.3d 715, 716 (Tex. App.-Houston [1st Dist.] 1999, no pet.) (per curiam) (abating for clarification). Also, the supreme court has remanded summary judgment cases to the court of appeals for determination of whether to dismiss the appeal for want of jurisdiction or abate for clarification of the trial court's intent. See, e.g., McNally v. Guevara, 52 S.W.3d 195, 196 (Tex. 2001). In determining whether to abate or dismiss, we note that we must not affirm or reverse a judgment or dismiss an appeal for formal defects or irregularities in appellate procedure without allowing a reasonable time to correct or amend the defects or irregularities. Tex. R. App. P. 44.3. We also are prohibited from affirming or reversing a judgment or dismissing an appeal if the trial court's erroneous action or inaction prevents the proper presentation of an appeal and can be corrected by the trial court. Tex. R. App. P. 44.4(a). Further, rule 27.2 provides that "[t]he appellate court may allow an appealed order that is not final to be modified so as to be made final and may allow the modified order and all proceedings relating to it to be included in a supplemental record." Tex. R. App. P. 27.2.

Abatement pursuant to rule 27.2 occurred in Lyons. Lyons, 6 S.W.3d at 716. In that case, the trial court signed a partial take-nothing summary judgment, and the next day the plaintiff nonsuited the other defendant. Id. The trial court did not enter an order of nonsuit. Id. The court of appeals noted that ordinarily, no order of nonsuit is required because a party is entitled to nonsuit on filing. Id. However, the court went on to hold that when a nonsuit is filed after a partial summary judgment has been signed, the judgment is not final on its face and does not become final until the trial court either signs an order of nonsuit or a final judgment explicitly memorializing the nonsuit. Id. Because the trial court's action in signing an order or final judgment was ministerial, the appellate court abated the appeal and remanded to the trial court to cure the jurisdictional defect, which if not accomplished would result in dismissal for lack of jurisdiction. Id.

Here, however, we find that determination of the issues associated with finalizing a judgment in this case requires more than the disposition of perfunctory issues that can be procedurally cured by the trial court entering a clarifying or similar order. See Garcia, 101 S.W.3d at 786; see also Villagomez, 54 S.W.3d at 348. We do not construe rules 27.2, 44.3, or 44.4(a) as conferring authority on an appellate court to abate an appeal while there are significant issues yet to be decided by the trial court. See Garcia, 101 S.W.3d at 786. We have no authority to abate. See id.

Accordingly, we hold there is no final, appealable judgment before this Court over which we have jurisdiction, nor can we merely abate the appeal until a final order is before us. See id.; see also Villagomez, 54 S.W.3d at 348. This Court is without power to review the orders granting summary judgment. The record does not affirmatively demonstrate our jurisdiction. See Garcia, 101 S.W.3d at 786. The appeal must be, and hereby is, dismissed for want of jurisdiction.

ERRLINDA CASTILLO

Justice

Opinion delivered and filed

this 21st day of August, 2003.

1. We note that each is named as an appellant in this appeal.

2. We note that breach of contract, breach of fiduciary duty, and other professional liability claims may be subsumed in a legal malpractice claim and may not necessarily constitute separate causes of action. Compare Deutsch v. Hoover, Bax, & Slovacek, L.L.P., 97 S.W.3d 179, 189 (Tex. App.-Houston [14th Dist.] 2002, no pet.) and Haas v. George, 71 S.W.3d 904, 910 (Tex. App.--Texarkana 2002, no pet.) with Estate of Degley v. Vega, 797 S.W.2d 299, 302-03 (Tex. App.--Corpus Christi 1990, no writ) and Sledge v. Alsup, 759 S.W.2d 1, 2-3 (Tex. App.--Corpus Christi 1988, no writ).