Opinion
NUMBER 13-15-00052-CV
02-18-2016
ALBERTO R. GARZA AND LETICIA I. GARZA, Appellants, v. BURCH CONSTRUCTION, INC., Appellee.
On appeal from the 92nd District Court of Hidalgo County, Texas.
Memorandum Opinion
Before Justices Garza, Perkes and Longoria
Memorandum OpinionPer Curiam
I. BACKGROUND
On November 18, 1998, the Garzas purchased the home that is the basis of this suit. According to Mr. Garza's testimony, he noticed flooding on the property as early as 1999 or 2000. On April 22, 2008, the Garzas filed suit against Melden & Hunt, Inc.; Gary Burch Construction, Inc.; and Gary Burch in his individual capacity, alleging various causes of action. Burch moved for summary judgment on all of the Garzas' claims, arguing that they were barred by both the two-year and four-year statutes of limitations. See TEX. CIV. PRAC. & REM. CODE ANN. §§ 16.003, 16.004 (West, Westlaw through 2015 R.S.).
On April 15, 2014, Burch also filed a counterclaim for attorney's fees. See id. § 38.001 (West, Westlaw through 2015 R.S.). On May 16, 2014, the trial court granted the motion for summary judgment, effectively disposing of all of the Garzas' claims against Burch. On November 25, 2014, the trial court granted Burch's motion to sever the Garzas' claims and Burch's respective counterclaim for attorney's fees from the Garzas' claims against the other defendants. This appeal followed.
On appeal, the Garzas claimed that the trial court erred in granting the motion for summary judgment. Burch argued that the appeal should be dismissed due to lack of jurisdiction: because the issue of Burch's counterclaim for attorney's fees was still pending and not addressed by the summary judgment, there was no final judgment for this Court to review on appeal. By order dated September 1, 2015, this Court abated the appeal so that the trial court could either clarify its order to indicate that it intended the summary judgment to dispose of all claims or, if it did not intend to dispose of all issues, resolve the remaining issue of attorney's fees. In response, the trial court issued an order in which it made it explicitly clear that it did not intend to dispose of Burch's counterclaim for attorney's fees by granting Burch's motion summary judgment. Furthermore, the trial court declared that the issue of attorney's fees will be tried before a jury.
II. JURISDICTION
We now address whether we possess jurisdiction over this appeal.
A. Applicable Law
Texas courts may consider their own jurisdiction for the first time on appeal and may do so sua sponte. Garcia v. State Farm Lloyds, 287 S.W.3d 809, 812 (Tex. App.—Corpus Christi 2009, pet. denied). We review our own jurisdiction de novo as a question of law because jurisdiction is never presumed. Parks v. DeWitt County Elec. Co-op., Inc., 112 S.W.3d 157, 160 (Tex. App.—Corpus Christi 2003, no pet.). If the record does not affirmatively demonstrate our jurisdiction, we have no option but to dismiss the appeal. Id.
Unless a statute authorizes an interlocutory appeal, appellate courts generally have jurisdiction only over final judgments. CMH Homes v. Perez, 340 S.W.3d 444, 447 (Tex. 2011); Parks, 112 S.W.3d at 161. A judgment that is not issued after a conventional trial is final for purposes of appeal if it either: (1) "actually disposes of all claims and parties then before the court, regardless of its language"; or (2) states with "unmistakable clarity" that it is intended as a final judgment as to all claims and all parties. Farm Bureau County Mut. Ins. Co. v. Rogers, 455 S.W.3d 161, 163 (Tex. 2015) (per curiam) (citing Lehmann v. Har-Con Corp., 39 S.W.3d 191, 192-93 (Tex. 2001)). We determine whether a decree is a final judgment from the language and record of the case. Parks, 112 S.W.3d at 161.
B. Is there a Final Order?
The trial court in the present case has now unequivocally indicated that the summary judgment order it issued did not dispose of all claims between the parties in the severed case. Therefore, there is no final order because Burch's counterclaim for attorney's fees remains pending. See McNally v. Guevara, 52 S.W.3d 195, 196 (Tex. 2001) (holding that a summary judgment that did not dispose of a defendant's counterclaim for attorney's fees was not a final, appealable judgment). Accordingly, we conclude that we lack jurisdiction over this appeal from the summary judgment because it is not a final judgment for purposes of appeal. See CMH Homes, 340 S.W.3d at 447.
This Court has said in the past that we will abate an interlocutory order if "determination of perfunctory issues which can be procedurally cured by the trial court entering a clarifying or similar order" is all that is necessary to make an order final and appealable. Garcia v. Commissioners Court of Cameron Cty., 101 S.W.3d 778, 786 (Tex. App.—Corpus Christi 2003, no pet.). We have concluded that abatement is not appropriate when more significant issues, such as those that might require an evidentiary hearing, remain for the trial court to address. See id. The reason is that it is the role of the trial court to address the merits of that claim in the first instance. See Law Offices of Windle Turley, P.C. v. French, 109 S.W.3d 599, 602 (Tex. App.—Dallas 2003, no pet.) (holding that a judgment did not purport to dispose of all claims and all parties when it did not address a counterclaim for filing a frivolous lawsuit and the opposing party did not specially except to the counterclaim).
Burch's counterclaim for attorney's fees remains pending and will not be resolved until a jury trial has been held on the issue. Resolution of that counterclaim is now more than a perfunctory issue that can be resolved by a clarifying order. See Sw. Invs. Diversified, Inc. v. Estate of Mieszkuc, 171 S.W.3d 461, 469 (Tex. App.—Houston [14th Dist.] 2005, no pet.) ("Unaddressed claims and parties properly before the court are not matters we can construe as merely perfunctory or ministerial."); French, 109 S.W.3d at 602. We conclude that abating this appeal for the trial court to address the remaining counterclaim is no longer appropriate. See Parks, 112 S.W.3d at 163-64; Garcia, 101 S.W.3d at 786.
Without addressing the merits, we REINSTATE this appeal and DISMISS for lack of jurisdiction.
IT IS SO ORDERED.
PER CURIAM Delivered and filed the 18th day of February, 2016.