Tyrell L. Higgins v. Kevin L. Veteto ( 2024 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-24-00353-CV
Tyrell L. Higgins, Appellant
v.
Kevin L. Veteto, Appellee
FROM THE 419TH DISTRICT COURT OF TRAVIS COUNTY
NO. D-1-GN-22-005951, THE HONORABLE AMY CLARK MEACHUM, JUDGE PRESIDING
MEMORANDUM OPINION
Tyrell L. Higgins filed a notice of appeal from the trial court’s April 30, 2024
“Order Denying Defendant’s Motion to Set Aside Default Judgement.” Upon initial review, the
Clerk of this Court sent Higgins a letter informing him that this Court appears to lack jurisdiction
over the appeal because neither the trial court’s April 30, 2024 Order nor the March 21, 2024
“Order Granting Plaintiff’s Motion for Traditional Summary Judgment” that Higgins sought to
set aside appear to be a final and appealable judgment, and our jurisdiction is limited to appeals
in which there exists a final or appealable judgment or order. See Tex. Civ. Prac. & Rem. Code
§ 51.012; Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001) (explaining that appeal
generally may only be taken from final judgment that disposes of all pending parties and claims
in record unless statute provides for interlocutory appeal).
The Clerk requested a response on or before July 25, 2024, informing this Court
of any basis that exists for jurisdiction. To date, no response has been filed.
In this case, the trial court’s March 21, 2024 “Order Granting Plaintiff’s Motion
for Traditional Summary Judgment” grants appellee Kevin L. Veteto’s motion for summary
judgment and awards damages, but it specifically states that the amount of attorneys’ fees
awarded is “to be determined by the Court at a later date.” Similarly, the April 30, 2024 order
denying Higgins’s motion to set aside default judgment does not award attorneys’ fees in
connection with the summary judgment; instead, it awards additional attorneys’ fees to Veteto
incurred in responding to Higgins’s motion to set aside but leaves unresolved the amount of fees
awarded. An order granting a partial summary judgment that does not resolve all claims is not
an appealable interlocutory order. Stary v. DeBord, 967 S.W.2d 352, 352-53 (Tex. 1998)
(“Appellate courts have jurisdiction to consider immediate appeals of interlocutory orders only if
a statute explicitly provides appellate jurisdiction.”); see also Tex. Civ. Prac. & Rem. Code
§ 51.014 (specifically permitting appeal of various interlocutory orders but not permitting appeal
from grant of partial summary judgment).
There are a few ways for a trial court’s order to become a final judgment without
a trial. See Sealy Emergency Room, L.L.C. v. Free Standing Emergency Room Managers of Am.,
L.L.C., 685 S.W.3d 816, 820 (Tex. 2024). A trial court’s order is final if it (1) actually disposes
of all remaining parties and claims then before the court (regardless of whether it includes
unequivocal finality language), or (2) includes unequivocal finality language that expressly
disposes of all claims and parties. Id. (citing Lehmann, 39 S.W.3d at 200); see also In re
Burlington Coat Factory Warehouse of McAllen, Inc., 167 S.W.3d 827, 830 (Tex. 2005) (orig.
proceeding) (concluding default judgment that did not purport to dispose of all parties and all
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claims, did not actually dispose of punitive-damages claim, and lacked unequivocal finality
language was not final and appealable judgment); McNally v. Guevara, 52 S.W.3d 195, 196
(Tex. 2001) (per curiam) (“Because the judgment does not appear final on its face, and because it
did not dispose of the defendants’ claim for attorney fees, it was not an appealable judgment.”).
In addition, “[a]s a rule, the severance of an interlocutory judgment into a separate cause makes
it final.” Sealy Emergency Room, 685 S.W.3d at 820 (quoting Diversified Fin. Sys., Inc. v. Hill,
Heard, O’Neal, Gilstrap & Goetz, P.C., 63 S.W.3d 795, 795 (Tex. 2001)). None of those
circumstances are present here, and accordingly, the partial summary judgment is not yet final
and appealable. See Bonsmara Nat. Beef Co., LLC v. Hart of Tex. Cattle Feeders, LLC,
603 S.W.3d 385, 390 (Tex. 2020) (“When a trial court renders a final judgment, the court’s
interlocutory orders merge into the judgment and may be challenged by appealing
that judgment.”).
For the reasons explained above, we dismiss the appeal for want of jurisdiction.
See Tex. R. App. P. 42.3(a).
__________________________________________
Gisela D. Triana, Justice
Before Chief Justice Byrne, Justices Triana and Theofanis
Dismissed for Want of Jurisdiction
Filed: July 31, 2024
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