Opinion
No. 01-08-00999-CV
Opinion issued February 25, 2010.
On Appeal from the 257th District Court, Harris County, Texas, Trial Court Cause No. 2007-20734.
Panel consists of Justices KEYES, SHARP, and MASSENGALE.
MEMORANDUM OPINION
Appellant, Nancy D. Rutherford, attempts to appeal the trial court's grant of appellee's, Michael G. Rutherford's, motion for partial summary judgment. We dismiss her appeal for want of jurisdiction.
BACKGROUND
This attempted appeal arises out of Nancy's and Michael's pending divorce case. Michael filed a motion for partial summary judgment with respect to the characterization of two financial transactions: (1) a 2004 distribution of inheritance from his grandfather's residuary trust ("2004 Distribution") and (2) a 2005 distribution of inheritance of stock which was also from his grandfather's residuary trust ("2005 Stock Distribution"). On November 3, 2008, the trial court granted Michael's motion as to the 2004 Distribution, but denied Michael's motion with respect to the 2005 Stock Distribution ("November 3, 2008 order"). Nancy filed a request for findings of fact and conclusions of law, which was denied. Nancy also filed a Motion to Modify, Correct, or Reform Judgment to reflect that the November 3, 2008 order was, in fact, an order granting a final summary judgment. The record on appeal reflects no action taken with respect to this motion. Nancy now attempts to appeal the November 3, 2008 order granting Michael's motion for partial summary judgment with respect to the 2004 Distribution.
JURISDICTION
With few exceptions, an appeal may only be taken from a final judgment. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001). An order or judgment is ordinarily 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. Id. at 205; see also Underhill v. Underhill, 614 S.W.2d 178, 181 (Tex. Civ. App.-Houston 1981, writ ref'd n.r.e.). The November 3, 2008 order being appealed granted summary judgment with respect to the 2004 Distribution only; the order did not dispose of, nor did it state that it disposed of, the remaining property issues, including the 2005 Stock Distribution, or any other remaining claims in the underlying divorce case. Thus, the November 3, 2008 order is not a final order for purposes of appeal. See id.
Moreover, although civil litigants may ordinarily ask the trial court to sever unresolved causes of action in order to render an order granting partial summary judgment final and appealable, severance is not available in the present case. See Dawson-Austin v. Austin, 968 S.W.2d 319, 324 (Tex. 1998) (stating claim for division of martial property not severable from rest of divorce proceeding); see also Hollaway v. Hollaway, 792 S.W.2d 168, 170 (Tex. App.-Houston 1990, writ denied) (stating that trial court may not sever property division from divorce action); TEX. FAM. CODE ANN. § 7.001 (Vernon Supp. 2009) ("in a decree of divorce . . . the court shall order a division of the estate of the parties.")
The November 3, 2008 order is a non-appealable, interlocutory order. Appellant does not cite, nor have we found, any statutory basis for our jurisdiction to consider her interlocutory appeal. See TEX. CIV. PRAC. REM. CODE ANN. § 51.014(a) (Vernon Supp. 2009) (listing interlocutory orders from which interlocutory appeal may be taken); Jack B. Anglin Co. v. Tipps, 842 S.W.2d 266, 272 (Tex. 1992) (holding that Texas appellate courts only have appellate jurisdiction over appeals from final orders or judgments, unless statute permits appeal from interlocutory order). Accordingly, we hold that we do not have jurisdiction to consider this appeal. See TEX. R. APP. P. 42.3(c) (allowing involuntary dismissal of appeal for lack of jurisdiction upon party's motion). We grant Michael's motion to dismiss.
CONCLUSION
We dismiss this appeal for want of jurisdiction.