Court of Appeals of Texas, Third District, Austin
THE DISTRICT COURT OF BELL COUNTY, 169TH DISTRICT NO. 291,
731-C, HONORABLE GORDON G. ADAMS, JUDGE PRESIDING
Chief Justice Rose, Justices Goodwin and Field.
Melissa Goodwin, Justice.
Bean and Alison Bean appeal from the trial court's order
granting the motion for summary judgment of Temple Windmill
Farms Homeowners Association, Inc. (the Association), and
denying the Beans' motion for partial summary judgment.
In response to a letter from this Court questioning our
jurisdiction over this appeal, the Association filed a
response and a motion to dismiss for lack of jurisdiction,
contending that the trial court's order was not final and
appealable. The Beans filed a response and oppose the motion.
Because we conclude that the order granting summary judgment
in favor of the Association is not a final appealable order,
we grant the Association's motion and dismiss this appeal
for want of jurisdiction.
underlying proceeding, the Association sued the Beans,
alleging that the Beans had breached applicable restrictive
covenants. The Association sought injunctive relief and an
award of damages, attorney's fees, and court costs. The
Beans filed an answer, generally denying the
Association filed a motion for summary judgment seeking a
ruling that the Beans had violated the restrictive covenants
and injunctive relief requiring the Beans to comply with the
restrictive covenants. The Beans filed a response and a
competing motion for partial summary judgment, arguing that
the Association had waived its pleaded causes of action. The
Beans also filed an amended answer, counterclaims, and third
party claims, seeking declaratory and injunctive relief. The
Beans' causes of action included breach of fiduciary
duty, fraud, and abuse of position.
the trial court signed the order granting the
Association's motion for summary judgment and denying the
Beans' motion for partial summary judgment, the Beans
filed a motion for interlocutory appeal and stay pending
appeal. After the Association filed a response to this
motion, opposing it, the Beans filed a notice of non-suit
without prejudice of their counterclaims and third-party
claims and then filed their notice of appeal in this
general rule, with a few mostly statutory exceptions, is that
an appeal may be taken only from a final judgment. A judgment
is final for purposes of appeal if it disposes of all pending
parties and claims in the record, except as necessary to
carry out the decree." Lehmann v. Har-Con
Corp., 39 S.W.3d 191, 195 (Tex. 2001) (footnote
omitted). "Because the law does not require that a final
judgment be in any particular form, whether a judicial decree
is a final judgment must be determined from its language and
the record in the case." Id. When making this
determination, "[a] judgment 'must be read in light
of the importance of preserving a party's right to
appeal'; if we imply finality from anything less than an
unequivocal expression, a party's right to appeal may be
jeopardized." In re Burlington Coat Factory
Warehouse, 167 S.W.3d 827, 830 (Tex. 2005) (quoting
Lehmann, 39 S.W.3d at 195, 206); see Tex.
R. App. P. 26.1 (setting deadlines for perfecting appeal from
date judgment is signed); Farmer v. Ben E. Keith
Co., 907 S.W.2d 495, 496 (Tex. 1995) (per curiam)
("The appellate timetable does not commence to
run other than by signed, written order, even when the
signing of such an order is purely ministerial."
(emphasis in original)).
language of the trial court's order and the record in
this case make clear that the order is not final. See
Lehmann, 39 S.W.3d at 195 (determining whether judicial
decree is final from "its language and the record in the
case"). For example, the order does not contain language
stating that it disposes of all parties and claims or that it
is a final appealable order. And the record reflects that the
Association's claims for damages and attorney's fees
remain pending. Further, although the Beans filed a notice
of non-suit of their counterclaims and third party claims,
the record does not include a corresponding order. See
Park Place Hosp. v. Estate of Milo, 909 S.W.2d 508, 510
(Tex. 1995) ("All parties and all issues before the
trial court must be disposed of before a summary judgment
becomes final and appealable. . . . Although the plaintiffs
had filed notice to nonsuit [pending party], the appellate
timetable could not be triggered until a signed, written
order of the court dismissed him."); Yi v. Ko,
No. 05-15-00644-CV, 2015 Tex.App. LEXIS 10123, at *1-2 (Tex.
App.-Dallas Sept. 29, 2015, no pet.) (mem. op.) (dismissing
appeal because judgment and order that was appealed did not
dispose of claims against two other parties and rejecting
argument that "parties and claims were disposed by the
combination of the default judgment, notice of nonsuit, and
trial court's closure of the case"; notice of
nonsuit of other parties was filed after judgment and order
that was appealed and "the trial court did not sign an
order of nonsuit"); see also Crites v. Collins,
284 S.W.3d 839, 840-41 (Tex. 2009) (per curiam) (noting that,
if other claims such as motion for sanctions remain in case
after judgment dismissing all of plaintiff's claims,
order determining last claim is final appealable order).
record, we conclude that the summary judgment order is
interlocutory and not among the types of interlocutory orders
that are appealable. See Tex. Civ. Prac. & Rem.
Code § 51.014 (addressing appeals from interlocutory
orders). Thus, we conclude that this Court does not have
jurisdiction over this appeal.
the record before this Court does not contain an appealable
judgment or order, we grant the Association's motion and
dismiss this appeal for ...