Ricardo G. Del Villar, M.D. v. Hector Garcia ( 2003 )

NUMBER 13-03-005-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

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RICARDO G. DEL VILLAR, M.D. AND

VALLEY UROLOGICAL CLINIC, Appellants,

v.

HECTOR GARCIA AND HIS WIFE, HILDA GARCIA,

INDIVIDUALLY AND AS NEXT FRIENDS OF

RYAN GARCIA, A MINOR, Appellees.

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On appeal from the 370th District Court of Hidalgo County, Texas.

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MEMORANDUM OPINION Before Justices Rodriguez, Castillo, and Garza

Opinion Per Curiam

In the underlying case, Hector Garcia and Hilda Garcia, individually and as next friends of Ryan Garcia, a minor, brought suit against Ricardo G. Del Villar, M.D., Valley Urological Clinic (the "Clinic"), Monzer H. Yazji, M.D., Monzer H. Yazji, M.D. and Associates, Rebecca Carter, M.D., and Lone Star State Emergency Physicians, P.L.L.C. for medical malpractice. The plaintiffs subsequently filed a notice of nonsuit without prejudice against Del Villar and the Clinic. Appellants Del Villar and the Clinic seek to appeal the trial court's denial of their motion for dismissal with prejudice and for the award of attorney's fees and costs under the Medical Liability and Insurance Improvement Act. See Tex. Rev. Civ. Stat. Ann. art. 4590i, § 13.01(b) (Vernon Supp. 2003). We dismiss this appeal for want of jurisdiction.

The order denying appellants' motion for dismissal and sanctions recited that the trial court was "of the opinion that it no longer has plenary power to rule," and "The Court denied all relief sought on August 22, 2002 and declared the motion set at that hearing moot." The record currently before this Court fails to include any documentation regarding the trial court's actions of August 22, 2002.

On January 22, 2003, the Clerk of this Court notified appellants that the order subject to appeal did not appear to be a final, appealable order, and requested correction of this defect. In response to this notice, appellants argued that the order at issue is final and appealable:

While several Defendants filed motions to dismiss and for sanctions, pursuant to Article 4590i §13.01, such Defendants were later nonsuited and abandoned their dismissal motions. However, since this case involves a minor, and since Plaintiffs could again refile this case on behalf of Ryan Garcia, Appellants insist on obtaining the dismissal with prejudice which the legislature has mandated they are entitled to receive. Appellants are also entitled to recover the attorney's fees and costs they have incurred.

We have no jurisdiction to hear an appeal from a judgment that is not final. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001). A judgment is final if 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). In cases in which only one final and appealable judgment can be rendered, a judgment issued without a conventional trial is final for purposes of appeal if and only if either it actually disposes of all claims and parties then before the court, regardless of its language, or it states with unmistakable clarity that it is a final judgment. Lehmann, 39 S.W.3d at 204; Parks v. Dewitt County Elec. Coop., Inc., 112 S.W.3d 157, 161 (Tex. App.-Corpus Christi 2003, no pet.). The law does not require that a final judgment be in any particular form. Lehmann, 39 S.W.3d at 195. Therefore, whether a decree is a final judgment must be determined from its language and the record in the case. Id.

The order subject to appeal bears no indicia of finality. Lehmann, 39 S.W.3d at 195; Parks, 112 S.W.3d at 161. It neither purports to dispose of all pending parties and claims nor contains any language indicating that it is intended as a final judgment subject to appeal. See Lehmann, 39 S.W.3d at 195; Parks, 112 S.W.3d at 161.

Moreover, the clerk's record fails to indicate that all claims against all parties have been resolved. The record does not contain any orders granting nonsuits against the various defendants or a final judgment explicitly memorializing the nonsuits. See Iacono v. Lyons, 6 S.W.3d 715, 716 (Tex. App-Houston [1st Dist.] 1999, no pet.) (per curiam) (judgment interlocutory until order signed granting nonsuit). Further, although the record includes motions for sanctions filed by various defendants, the record does not include any orders or other pleadings indicating that these motions for sanctions have been resolved. A nonsuit has no effect on pending motions for sanctions. See, e.g., In re Bennett, 960 S.W.2d 35, 38 (Tex. 1997); Scott & White Mem'l Hosp. v. Schexnider, 940 S.W.2d 594, 5996 (Tex. 1996). While appellants argue that they and other defendants have "waived" their claims for affirmative relief, the appellate record fails to so indicate.

We conclude that the order at issue is interlocutory. Moreover, given the apparent procedural posture of this case, we have no authority to abate this matter. Parks, 112 S.W.3d at 163-64. Accordingly, we dismiss this appeal for want of jurisdiction.

   PER CURIAM

Opinion delivered and filed this

the 26^th day of November, 2003.