Appeal from the 300th District Court Brazoria County, Texas
Trial Court Case No. 84260-F
Michelle Lynne Kuzmiak, is attempting to appeal from the
trial court's July 12, 2017 order granting the
no-evidence summary judgment of appellee, Jason William
Kuzmiak. We dismiss the appeal for want of jurisdiction.
and Appellee were divorced on March 24, 2016, and the trial
court issued an amended agreed final decree of divorce on
April 4, 2016. On December l, 2016, appellant filed a motion
for amendment of judgment nunc pro tunc based on alleged
clerical error in the court's April decree. The trial
court determined that the requested change was substantive,
not clerical, and denied appellant's motion for judgment
nunc pro tunc on December 8, 2016.
her motion for judgment nunc pro tunc was denied, appellant
filed a separate suit against appellee on December 16, 2016,
asserting causes of action for fraud, breach of contract,
promissory estoppel, and unjust enrichment. On January 17,
2017, appellee filed a petition for the return of his
separate property. At the parties' request, the trial
court signed an order on January 25, 2017, consolidating
appellant's civil suit and the divorce proceeding.
April 4, 2017, appellee filed a no-evidence summary judgment
on appellant's breach of contract, promissory estoppel,
unjust enrichment and common law fraud claims in the
consolidated case and set a hearing on his motion for April
27, 2017. After appellant did not file a response to the
motion or appear for the hearing, the trial court granted
appellee's no-evidence summary judgment motion and
dismissed all of appellant's causes of action on April
timely filed a motion for reconsideration, asking the court
to set aside its default summary judgment and grant appellant
a new trial. Appellant's motion included her response to
appellee's no-evidence summary judgment motion and she
attached her affidavit.
a hearing on appellant's motion, the trial court set
aside its default summary judgment and granted appellant a
new trial. The court then immediately granted appellee's
no-evidence motion. The trial court signed orders on July 12,
2017, memorializing its rulings.
17, 2017, appellant filed a notice of appeal from the trial
court's July 12, 2017 order granting summary judgment.
April 18, 2018, the Clerk of this Court notified appellant
that the record on appeal indicated that the trial
court's summary judgment order did not dispose of all
parties and claims, specifically appellee's
"Petition for Return of Separate Property." The
Clerk further notified the parties that the Court might
dismiss the appeal unless appellant filed a supplemental
clerk's record showing that all claims had been resolved
or a response demonstrating that the Court has jurisdiction
over this appeal. Appellant has not responded.
appellate courts have jurisdiction only over appeals from
final judgments. See Lehmann v. Har-Con Corp., 39
S.W.3d 191, 195 (Tex. 2001); N.E. Indep. Sch. Dist. v.
Aldridge, 400 S.W.2d 893, 895 (Tex. 1966). To be final,
a judgment must dispose of all issues and parties in a case.
Aldridge, 400 S.W.2d at 895. And, when there has
been no traditional trial on the merits, no presumption
arises regarding the finality of a judgment. Crites v.
Collins, 284 S.W.3d 839, 840 (Tex. 2009) (citing
Lehmann, 39 S.W.3d at 199-200). A summary judgment
order is final for purposes of appeal only if the order
"actually disposes of all claims and parties then before
the court . . . or it states with unmistakable clarity that
it is a final judgment as to all claims and all
parties." Lehmann, 39 S.W.3d at 192-93; see
Duke v. Am. W. Steel, LLC, 526 S.W.3d 814, 816 (Tex.
App.-Houston [1st Dist.] 2017, no pet.).
the July 12, 2017 summary judgment order specifically only
disposes of appellee's motion for summary judgment. The
order "does not unequivocally express an intent to
dispose of all claims and all parties." Crites,
284 S.W.3d 841. Because the November 21, 2016 order does not
dispose of all parties and all claims in the trial court
proceeding, we conclude that the order is not final and
appealable. We dismiss the appeal for want of jurisdiction.
See Tex. R. App. P. 42.3(a), 43.2(f).
consists of Justices ...