Opinion issued March 3, 2011

In The

Court of Appeals

For The

First District of Texas

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NO. 01-09-00820-CV

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Cleveland Johnson, Appellant

V.

Sonya Pierre, Appellee

On Appeal from the 400th District Court

Fort Bend County, Texas

MEMORANDUM OPINION

Appellant Cleveland Johnson appeals from a summary judgment order entered in favor of appellee Sonya Pierre, who is Johnson’s daughter.  We conclude that the summary judgment does not dispose of all of Johnson’s claims and, therefore, is not a final and appealable judgment.  We dismiss this appeal for lack of jurisdiction. See Tex. R. App. P. 42.3(a).

Background

The focus of the dispute between Johnson and Pierre is ownership of a home in which Johnson resided.  Johnson brought suit against Pierre alleging claims for suit to quiet title, fraud, breach of fiduciary duty, breach of contract, “unclean hands,” and promissory estoppel and seeking declaratory judgment that the warranty deed given to Pierre conveyed only a security interest in the property.[1]  Pierre filed a motion for summary judgment combining both traditional and no-evidence grounds for summary judgment.  The no-evidence portion of Pierre’s motion challenged Johnson’s claims for suit to quiet title, fraud, breach of fiduciary duty, breach of contract, unclean hands, and promissory estoppel, but Pierre did not bring a no-evidence challenge to Johnson’s declaratory judgment action.  Pierre did seek traditional summary judgment on Johnson’s declaratory judgment action, as well as certain affirmative defenses.

On June 15, 2009, the trial court entered an order on Pierre’s motion for summary judgment.   The summary judgment order addressed Pierre’s no-evidence motion for summary judgment separately from Pierre’s motion for traditional summary judgment.  The trial court checked the portion of the order that ordered that Johnson “take nothing for his claims pursuant to Defendant Sonya Pierre’s Texas Rule of Civil Procedure 166a(i) No-Evidence Motion for Summary Judgment.”  The trial court did not check the portion of the order that would have ordered that Johnson take nothing for his claims pursuant to Pierre’s motion for traditional summary judgment.        

Thirty days later, Johnson filed a motion for new trial.  In the motion for new trial, Johnson pointed out that Pierre’s no-evidence summary judgment motion did not challenge his declaratory judgment action and, therefore, his declaratory judgment action was still alive and pending before the trial court.  The trial court denied Johnson’s motion for new trial on August 17, 2009.  Thirty days after the denial of his motion for new trial, Johnson filed a notice of appeal.

On February 1, 2011, the Clerk of this Court sent the parties notice of possible dismissal for want of jurisdiction.  The notice observed that the trial court’s June 15, 2009 order granting defendant’s no-evidence motion for summary judgment does not dispose of plaintiff’s declaratory judgment action and that the record does not show that plaintiff’s declaratory judgment action was otherwise resolved.  The parties were given until February 11, 2011 to file a written response to show that the Court has jurisdiction over this appeal.  See Tex. R. App. P. 42.3.  Johnson filed a response in which he agreed that the trial court’s order was not a final judgment and that this Court lacks jurisdiction over this appeal.  Appellee did not file a response. 

Jurisdiction

With the exception of certain statutory interlocutory jurisdiction not at issue here, this Court has jurisdiction to hear appeals only from final judgments.  Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001); see also Tex. Civ. Prac. & Rem. Code § 51.014 (West 2008) (granting jurisdiction over certain interlocutory orders).  We may not presume finality with respect to a summary judgment entered prior to a conventional trial.  See Lehmann, 39 S.W.3d at 199–200; In re Burlington Coat Factory Warehouse of McAllen, Inc., 167 S.W. 3d 827, 829 (Tex. 2005).  Because the trial court granted only Pierre’s no-evidence summary judgment, and because Pierre’s no-evidence summary judgment does not address Johnson’s declaratory judgment, we conclude that the summary judgment order does not dispose of Johnson’s declaratory judgment cause of action.  A summary judgment that does not dispose of all parties and causes of action is not final and appealable absent a severance.  Parker v. Waller Cnty., No. 01-95-01010-CV, 1996 WL 609434, at *1 (Tex. App.—Houston [1st Dist.] Oct. 24, 1996, no writ) (citing Mafrige v. Ross, 866 S.W.2d 590, 591 (Tex. 1993)); Murray v. E.I. Dupont de Nemours & Co., Inc., No. 01-93-0325-CV, 1994 WL 22339, at *1 (Tex. App.—Houston [1st Dist.] Jan. 26, 1994, writ denied) (not designated for publication) (per curiam) (citing Teer v. Duddlestein, 664 S.W.2d 702, 704 (Tex. 1984)).

We recognize that a summary judgment order may grant summary judgment on all claims in an action even if the summary judgment movant did not request summary judgment on all claims; in such instance, the summary judgment order is erroneous but final.  Lehmann, 39 S.W.3d at 199–200.  Here, however, the trial court’s judgment does not purport to grant summary judgment on claims not addressed in Pierre’s no-evidence summary judgment.  Additionally, the trial court’s summary judgment order contains no other indication that the trial court intended the order to be final and appealable despite not addressing Johnson’s declaratory judgment action.  Cf. Lehmann, 39 S.W.3d at 200–204 (declaring that judgment that does not dispose of all parties and claims may be made final only by the inclusion of express and unequivocal language of finality); In re Daredia, 317 S.W. 3d 247, 248 (Tex. 2010) (same).  The only additional language in the trial court’s order is a statement that “[a]ny other matters not expressly stated herein are denied.”  The Texas Supreme Court has held that such clauses, often called “Mother Hubbard clauses,” do not establish finality in a judgment rendered without the benefit of a conventional trial on the merits.  Lehmann, 39 S.W.3d at 203–204. 

Thus, we conclude that the trial court’s summary judgment order is not a final judgment.  Because the trial court’s summary judgment order is not final, this Court lacks jurisdiction over this appeal.  Cf. Yahweh v. Abbott, No. 01-09-00584-CV, 2010 WL 3928511, at *1 (Tex. App.—Houston [1st Dist.] Oct. 7, 2010, no pet.) (mem. op.) (dismissing for want of jurisdiction where summary judgment order did not dispose of all parties and claims). 

Conclusion

We dismiss this appeal for want of jurisdiction.  See Tex. R. App. P. 42.3(a).

Per Curium

Panel consists of Chief Justice Radack and Justices Alcala and Bland.