womco-inc-patricia-marquess-independent-of-the-estate-of-w-o ( 2006 )

                                                NO. 12-05-00253-CV

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

WOMCO, INC., PATRICIA MARQUESS, §                      APPEAL FROM THE 294TH

INDEPENDENT EXECUTRIX OF THE

ESTATE OF W.O. MARQUESS, DECEASED,

C.L. AND DORIS HALL, LORI CLAXTON,

DOUGLAS WAYNE HALL, NE-TEX AG

TRANSPORTATION CORPORATION AND

MILLER GROVE FARM SUPPLY,

APPELLANTS          §                      JUDICIAL DISTRICT COURT OF

V.

NAVISTAR INTERNATIONAL

TRANSPORTATION CORPORATION,

PRICE INTERNATIONAL, INC., AND

MAHANAY INTERNATIONAL, INC.,

APPELLEES §                      VAN ZANDT COUNTY, TEXAS

MEMORANDUM OPINION

            Douglas Hall and Lori Claxton (collectively “Appellants”) appeal the trial court’s order dismissing their claims against Appellees, Navistar International Transportation Corporation, Price International, Inc., and Mahanay International, Inc.  Appellants raise three issues on appeal.  We dismiss for want of jurisdiction.

Background

            This is the second time this matter has been before us on direct appeal.  Previously, these Appellants and others appealed a take nothing summary judgment entered in favor of Appellees.  We held that claims related to thirty-seven trucks were barred by limitations.¹ The trucks purchased by Douglas Hall and Lori Claxton were among the claims filed outside the statute of limitations.  We affirmed the trial court’s judgment as to those and other claims, but reversed and remanded in part with regard to claims not barred by limitations that were asserted by other plaintiffs.²

            On remand, Hall and Claxton sought to file an amended petition, therein raising new claims for breach of implied warranty relating to Appellees’ servicing of their trucks.  On April 20, 2005, Appellees filed a partial motion to dismiss Hall and Claxton’s claims arguing that they were previously disposed of as parties by the trial court’s take nothing summary judgment.  Hall and Claxton responded.  On July 26, 2005, the trial court granted Appellees’ motion and dismissed Hall’s and Claxton’s respective claims with prejudice.  This appeal followed.

Appeal of an Interlocutory Order

            Apart from exceptions not applicable to the instant case, an appeal may be taken only from a final judgment.  See Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001); Lentino v. Frost Nat’l Bank,  159 S.W.3d 651, 653 (Tex. App.–Houston [14th Dist.] 2003, no pet.).  A judgment that finally disposes of all remaining parties and claims, based on the record in the case, is final.  Lehmann,  39 S.W.3d at 200.  Thus, if a trial court dismisses all underlying claims in a case except one, there is not a final judgment until the trial court subsequently enters an order that determines the last claim.  See id. An order that does not dispose of all parties and claims, absent a severance, is interlocutory.  See, e.g., Cessna Aircraft Co. v. Hotten Aviation Co., 620 S.W.2d 231, 232 (Tex. App.–Eastland 1981, writ ref’d n.r.e.).

            In the instant case, the trial court’s order of dismissal did not dispose of all parties and their respective claims.  The record before us does not contain an order or judgment disposing of all remaining parties and claims, nor is there any indication that Appellants’ claims were severed.  Therefore, the trial court’s order of dismissal is interlocutory.  As the trial court’s interlocutory order does not meet the criteria set forth in Texas Civil Practice and Remedies Code, sections 15.003 and 51.014,  or other applicable statute, we lack jurisdiction to consider this appeal. 

Disposition

            Appellants have improperly sought to appeal an interlocutory order.  We dismiss Appellants’ appeal for want of jurisdiction.

                                                                                                    SAM GRIFFITH   

                                                                                                               Justice

Opinion delivered July 19, 2006.

Panel consisted of Worthen, C.J. and Griffith, J.

(PUBLISH)

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¹ See Womco, Inc. v. Navistar Int’l Corp., 84 S.W.3d 272, 278 (Tex. App.–Tyler 2002, no pet.).

² Id. at 281.