Henry Lewis v. Charles Baker and Wife, Shirley Baker ( 2004 )

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

______________________________

No. 06-04-00073-CV

______________________________

HENRY LEWIS, Appellant

V.

CHARLES BAKER AND WIFE, SHIRLEY BAKER, Appellees

---

On Appeal from the 294th Judicial District Court

Van Zandt County, Texas

Trial Court No. 02-00546

---

Before Morriss, C.J., Ross and Carter, JJ.

Memorandum Opinion by Chief Justice Morriss

MEMORANDUM OPINION

            Henry Lewis appeals from a summary judgment rendered in favor of Charles and Shirley Baker. Lewis had filed a petition seeking a declaratory judgment. The Bakers counterclaimed, also seeking a declaratory judgment and requesting relief on a number of other grounds. The Bakers also filed third-party contract claims against Donald and Jerry Foster. The Bakers sought and were granted a summary judgment against Lewis' petition for declaratory judgment.

            The general rule is that an appeal may be taken only from a final judgment. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001). That category also includes concluded matters that are severed, because those matters are then final. See Baker v. Monsanto Co., 111 S.W.3d 158, 159 (Tex. 2003). There has been no severance in this case.

            All parties and all issues before the trial court must be disposed of before a summary judgment becomes final and appealable. See Mafrige v. Ross, 866 S.W.2d 590, 591 (Tex. 1993). Lewis concedes a counterclaim remains pending that has not been adjudicated. Further, the summary judgment in this case did not dispose of the claims against the Fosters and contained no "Mother Hubbard" clause. Thus, it was not a final, appealable order. See id. at 590–91.

            The Bakers have also asked this Court, in a single phrase of their motion to dismiss, to levy sanctions against Lewis for pursuing a frivolous appeal. Although it is clear we have no jurisdiction over this appeal, we do recognize that counsel feared that certain language in the judgment might be deemed sufficient to make the cause final. We find that explanation sufficient, under these circumstances, to prevent imposition of sanctions. The Bakers' counsel also made no attempt to support his request by showing injury or providing information about any costs incurred in defending the appeal. The request for imposition of sanctions is denied.

            We dismiss the appeal for want of jurisdiction.

                                                                                    Josh R. Morriss, III

                                                                                    Chief Justice

Date Submitted:          August 24, 2004

Date Decided:             August 25, 2004

Do Not Publish