Estate of Evans John Karpenko ( 2011 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-11-00194-CV
ESTATE OF EVANS JOHN
KARPENKO
----------
FROM PROBATE COURT NO. 2 OF TARRANT COUNTY
----------
MEMORANDUM OPINION1
----------
Appellants Sharon Karpenko, individually and as independent executrix of
the estate of Evans John Karpenko, deceased, and Bill H. Yarborough attempt to
appeal from a May 17, 2011 order granting a motion for partial summary
judgment in favor of Appellees Joseph Y. Karpenko and J. Mark Karpenko, co-
trustees of the Frances Karpenko Trust. On June 7, 2011, we notified Appellants
of our concern that the court lacks jurisdiction over this appeal because the May
17, 2011 order does not appear to be a final judgment or an appealable
1
See Tex. R. App. P. 47.4.
interlocutory order. We also notified Appellants that the appeal may be
dismissed for want of jurisdiction unless Appellants or any party desiring to
continue the appeal filed with the court on or before June 17, 2011, a response
showing grounds for continuing the appeal. We received responses, but they do
not show grounds for continuing the appeal; the interlocutory order does not
dispose of all parties or issues in a particular phase of the proceedings. See
Crowson v. Wakeham, 897 S.W.2d 779, 783 (Tex. 1995) (“[I]f there is a
proceeding of which the order in question may logically be considered a part, but
one or more pleadings also part of that proceeding raise issues or parties not
disposed of, then the probate order is interlocutory.”); see also De Ayala v.
Mackie, 193 S.W.3d 575, 578 (Tex. 2006) (discussing interlocutory probate
appeals).
Absent an interlocutory appeal that is specifically authorized by the
constitution or statute, an order or judgment is not final for purposes of appeal
unless it actually disposes of every pending claim and party or clearly and
unequivocally states that it finally disposes of all claims and parties. Lehmann v.
Har-Con Corp., 39 S.W.3d 191, 205 (Tex. 2001). The May 17, 2011 order
reflects that the trial court granted a partial summary judgment for Appellees on
their claims against Appellants seeking a declaratory judgment and for breach of
fiduciary duty only. The order did not dispose of Appellees’ remaining claims for
unjust enrichment and damages and Appellants’ breach of fiduciary duty
counterclaim. Appellants do not direct us to any authority permitting an
2
interlocutory appeal, and the trial court denied Appellants’ motion for severance.
Accordingly, because the May 17, 2011 partial summary judgment order is
neither a final judgment nor an appealable interlocutory order, we dismiss this
appeal for want of jurisdiction. See Tex. R. App. P. 42.3(a), 43.2(f).
PER CURIAM
PANEL: MEIER, J.; LIVINGSTON, C.J.; and GABRIEL, J.
DELIVERED: August 11, 2011
3