Opinion
No. 01-08-00945-CV
Opinion issued February 19, 2009.
On Appeal from the 189th District Court, Harris County, Texas, Trial Court Cause No. 2006-76122.
Panel consists of Justices JENNINGS, KEYES, and HIGLEY.
MEMORANDUM OPINION
Following an automobile accident, Elizabeth Kilpatrick sued Santiago Vasquez, Victor Martinez, and Sonitrol Corporation. Vasquez filed a no-evidence motion for summary judgment, which the trial court granted on October 24, 2008. On November 17, 2008, Kilpatrick filed a notice of appeal reflecting that she was appealing the October 24 summary judgment order.
Vasquez has filed a motion to dismiss Kilpatrick's appeal contending that this Court lacks jurisdiction. Vasquez asserts that the October 24 order is not a final, appealable judgment because it does not dispose of all pending claims and parties. Kilpatrick has not responded to Vasquez's motion to dismiss.
Unless a statute specifically authorizes an interlocutory appeal, appellate courts have jurisdiction over final judgments only. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001). A judgment is final for purposes of appeal if it disposes of all parties and all claims pending in the case, or if it states with "unmistakable clarity" that it is a final judgment as to all claims and all parties. M.O. Dental Lab v. Rape, 139 S.W.3d 671, 673-75 (Tex. 2004); Lehmann, 39 S.W.3d at 192-93. To determine whether an order actually disposes of all pending claims and parties, we may look to the record in the case. Lehmann, 39 S.W.3d at 205-06. No presumption of finality attaches to a motion for summary judgment. In re Burlington Coat Factory Warehouse of McAllen, Inc., 167 S.W.3d 827, 829 (Tex. 2005).
An interlocutory appeal is allowed only in specific circumstances, as outlined in theTexas Civil Practice and Remedies Code. See, e.g., Tex. Civ. Prac. Rem CodeAnn. § 51.014 (Vernon 2008) (permitting, inter alia, appeal from interlocutory denial of summary judgment motions in particular cases). None of these exceptions applyto this case.
On its face, the October 24 summary judgment order does not state with "unmistakable clarity" that it is a final judgment or that the trial court intended to dispose of all parties and all claims. See Lehmann, 39 S.W.3d at 192-93. To the contrary, the order disposes only of Kilpatrick's claims against Vasquez. It does not dispose of Kilpatrick's claims against Martinez and Sonitrol. The record contains no other orders disposing of Kilpatrick's claims against these two defendants. And no severance order appears in the record to transform the October 24 summary judgment order into a final judgment.
In his motion to dismiss, Vasquez contends that Kilpatrick filed her fifth amendedpetition on November 23, 2008 in which she alleged additional, new claims againsthim. Vasquez offers this as further support to show that the October 24, 2008summary judgment order was not a final, appealable judgment. The fifth amendedpetition is attached to Vasquez's motion to dismiss, but is not in the clerk's record. We also note that, once summary judgment has been rendered, a pleading may not beamended, even with leave of court. See Automaker, Inc. v. C.C.R.T. Co., 976 S.W.2d 744, 746 (Tex.App.-Houston [1st Dist.] 1998, no pet.).
Vasquez asserts that Kilpatrick has settled her claims against Sonitrol. Suchsettlement is not reflected in the record. In any event, the record reflects thatKilpatrick's claims remain against Martinez.
After fully reviewing the record, we conclude that we lack jurisdiction over Kilpatrick's appeal from the October 24 summary judgment order. We grant Vasquez's motion to dismiss. We dismiss the appeal for lack of jurisdiction.