Richard J. Gonzales v. Robert Drake Terrell and Heritage Properties, LP ( 2015 )

Opinion issued April 14, 2015
In The
Court of Appeals
For The
First District of Texas
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NO. 01-14-00711-CV
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RICHARD J. GONZALES, Appellant
V.
ROBERT DRAKE TERRELL AND HERITAGE PROPERTIES, LP,
Appellees
On Appeal from the 55th District Court
Harris County, Texas
Trial Court Case No. 2008-09906A
MEMORANDUM OPINION
Appellant Richard J. Gonzales appeals from a summary judgment order
entered on April 30, 2014. Gonzales contends the trial court’s July 2, 2014
severance order rendered the April 30, 2014 order final and appealable. Our
review of the record indicates that the summary-judgment order is interlocutory,
and that we therefore must dismiss this appeal.
Gonzales sued Stanford Development Corporation, Robert Drake Terrell,
Heritage Properties, LP, and others over alleged defects in his condominium.
Terrell and Heritage filed a counterclaim against Gonzales, and moved for
summary judgment on Gonzales’s claims against them. On April 30, 2014, the
trial court granted summary judgment in favor of Heritage and Terrell on
Gonzales’s claims. Heritage and Terrell later moved for severance of the claims
between themselves and Gonzales to a new cause number, purportedly to render
the summary judgment final. Their motion was granted on July 2, 2014.
The July 2, 2014 severance order states that “any and all causes of action”
between Heritage, Terrell, and Gonzales are severed into a new cause. The order
goes on to say: “The Court notes the Summary Judgment granted April 30, 2014 in
favor of Heritage Texas Properties LP and Robert Drake Terrell and disposes of all
claims against Heritage Texas Properties, LP and Robert Drake Terrell in this
severed case. That Judgment is hereby a final appealable judgment. The parties
are hereby responsible for any costs incurred by same. All relief not herein granted
is denied.” Although the severance order severed all causes of action between
Heritage, Terrell, and Gonzales into the new action, it did not dispose of Heritage
and Terrell’s counterclaim against Gonzales.
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The Texas Supreme Court has held that “the language of an order or
judgment can make it final, even though it should have been interlocutory, if that
language expressly disposes of all claims and all parties.” Lehmann v. Har-Con
Corp., 39 S.W.3d 191, 200 (Tex. 2001). But “[a]n order does not dispose of all
claims and all parties merely because it is entitled ‘final’, or because the word
‘final’ appears elsewhere in the order, or even because it awards costs. Nor does
an order completely dispose of a case merely because it states that it is appealable,
since even interlocutory orders may sometimes be appealable.” See id. at 205.
Moreover, “the inclusion of a Mother Hubbard clause—by which we mean the
statement, ‘all relief not granted is denied’, or essentially those words—does not
indicate that a judgment rendered without a conventional trial is final for purposes
of appeal.” Id. at 203–04. To be final, an order must “actually dispose[] of all
claims and parties then before the court, regardless of its language,” or “state[]
with unmistakable clarity that it is a final judgment as to all claims and all
parties.” Id. at 192–93 (emphasis added).
Here, the April 30, 2014 summary-judgment order was not a final judgment
because it disposed only of Gonzales’s claims against Heritage and Terrell, and did
not address Heritage and Terrell’s counterclaim. And the July 2, 2014 severance
order does not meet the criteria set forth in Lehmann to render the summary-
judgment order final. Although the severance order states that it renders the
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summary-judgment order “final,” “[i]t is not enough . . . that the order or judgment
merely use the word ‘final.’” See id., 39 S.W.3d at 200. Likewise, the inclusion of
the statement “[a]ll relief not herein granted is denied” in the severance order,
“does not indicate that a judgment rendered without a conventional trial is final for
purposes of appeal.” See id. at 203–04. The severance order does not “actually
dispose” of Heritage and Terrell’s counterclaim, nor does it state that “it is a final
judgment as to all claims and all parties.” See id. at 192–93. Accordingly, the
judgment is not final for purposes of appeal. See id.; see also Hinojosa v.
Hinojosa, 866 S.W.2d 67, 70 (Tex. App.—El Paso 1993) (failure to dispose of
counterclaim results in interlocutory or partial judgment over which appellate court
lacks jurisdiction).
In response to our notice of intent to dismiss for want of jurisdiction,
Gonzales argues that we should treat the summary-judgment order as final because
(1) the order was prepared by the appellees’ attorney and the appellees’ severance
motion asked the trial court to grant severance in order to render the summary-
judgment order final and (2) the language in the severance order renders it final
and appealable.
But we determine finality from the language of the order entered by the trial
court, and not the parties’ intent. See Lehmann, 39 S.W.3d at 204. In support of
his claim that the appellees’ intent in requesting severance can support a
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conclusion that the judgment is final, Gonzales relies upon a statement, quoted in
Lehmann, from an earlier Texas Supreme Court case, Continental Airlines, Inc. v.
Kiefer, 920 S.W.2d 274 (Tex. 1996). In Kiefer, the Supreme Court stated that
“[f]inality must be resolved by a determination of the intention of the court as
gathered from the language of the decree and the record as a whole, aided on
occasion by the conduct of the parties.” Id. at 277. But Lehmann referred to this
language in Kiefer to show that “our opinions have not been entirely consistent on
whether the inclusion or omission of a Mother Hubbard clause does or does not
indicate that a summary judgment is final for purposes of appeal” and that “[t]his
ambivalence has resulted in considerable confusion in the courts of appeal.”
Lehmann, 39 S.W.3d at 203. Lehmann goes on to say “[m]uch confusion can be
dispelled by holding, as we now do, that the inclusion of a Mother Hubbard
clause—by which we mean the statement, ‘all relief not granted is denied’, or
essentially those words—does not indicate that a judgment rendered without a
conventional trial is final for purposes of appeal.” Id. at 203–04. Thus, Lehmann,
and not Kiefer, guides our determination here.
Gonzales contends that there is finality here because the severance order
states that the summary-judgment order is a “final appealable judgment” and that
“[a]ll relief not herein granted is denied,” and because it awards costs. But under
Lehmann, none of these is sufficient to render the judgment final unless the order
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“actually dispose[s]” of all parties and claims or states that “it is a final judgment
as to all claims and all parties.” See id. at 192–93. Gonzales relies upon various
cases where orders actually disposed of all parties and claims or stated they were a
final judgment “as to all claims and all parties,” as required by Lehmann, but the
severance order in this case contains no such language.
Because the order in the underlying case is not final, and an interlocutory
appeal of the order is not authorized by statute, we lack jurisdiction over this
appeal. See Bison Bldg. Materials, Ltd. v. Aldridge, 422 S.W.3d 582, 585 (Tex.
2012); Stary v. DeBord, 967 S.W.2d 352, 352-353 (Tex. 1998). Accordingly, we
dismiss the appeal for lack of jurisdiction. See TEX. R. APP. P. 42.3(a). We
dismiss all pending motions as moot.
PER CURIAM
Panel consists of Justices Jennings, Higley, and Huddle.
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