TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-08-00060-CV

Ronald R. Wagner, Appellant v. Roberto D’Lorm and Edward P. Dancause, Appellees

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 200TH JUDICIAL DISTRICT NO. D-1-GN-07-000102, HONORABLE JOHN K. DIETZ, JUDGE PRESIDING

MEMORANDUM OPINION

Appellee Roberto D’Lorm has filed a motion to dismiss this appeal, stating that the order appealed from is not a final judgment. The order at issue, which denies appellant’s motion for summary judgment and grants appellees’ pleas to the jurisdiction, states, “The pleas to the jurisdiction do not address Plaintiff’s claim for slander of title; therefore, that portion of Plaintiff’s claim is not dismissed by this Order. The Court RETAINS Plaintiff’s claim for slander of title at this time.” The order goes on to state, “All relief not granted herein is DENIED.” No motion to sever has been filed in the trial court.

The Texas Supreme Court has held that “the routine inclusion” of a recitation that all relief not expressly granted is denied in an otherwise plainly interlocutory order does not create a final judgment for purposes of appeal. Lehmann v. Har-Con Co., 39 S.W.3d 191, 192 (Tex. 2001).

A judgment is not final unless it 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. Id. at 192-93.

The order appealed from in the present case expressly states that the plaintiff’s claim for slander of title is not dismissed and is retained by the trial court. As a result, the order does not dispose of all claims and parties or clearly state that it is a final judgment as to all claims and parties.

Accordingly, appellee’s motion is granted to the extent this appeal is dismissed without prejudice to refiling after a final judgment has been entered. All other relief requested is denied.

___________________________________________ Diane Henson, Justice Before Justices Patterson, Puryear and Henson Dismissed on Appellee’s Motion Filed: April 30, 2008