Opinion
No. 05-10-00611-CV
Opinion Filed January 19, 2011.
On Appeal from the 296th Judicial District Court, Collin County, Texas, Trial Court Cause No. 296-04897-2009.
Before Justices MOSELEY, BRIDGES, and O'NEILL.
MEMORANDUM OPINION
Anthony Balistreri and his daughter Darlene Balistreri-Amrhein, appearing pro se, jointly sued appellees for breach of contract, fraud, and other causes of action stemming from the purchase of a house. The trial court severed Balistreri's claims from his daughter's claims but did not finally dispose of the claims. Balistreri appealed. Because a severance order that does not dispose of the parties and claims is a non-appealable interlocutory order, see Diversified Fin. Sys., Inc. v. Hill, Heard, O'Neal, Gilstrap Goetz, P.C., 63 S.W.3d 795, 795 (Tex. 2001) (per curiam), we directed the parties to file a letter brief addressing our jurisdiction over the appeal. Balistreri responded and questions our jurisdiction. Appellees Republic Title of Texas, First American Title Insurance Company, and Newland Communities (collectively, "Republic Title") also responded but argue we have jurisdiction. In making this argument, Republic Title relies on a subsequent order striking Balistreri's pleadings. This subsequent order struck the pleadings "subject to . . . Balistreri[] retaining counsel and his counsel re-filing his pleading within fifteen (15) days." This order further provided that if Balistreri "fail[ed] or refuse[d]" to comply then his claims would "be automatically dismissed with prejudice." Balistreri did not retain counsel, but no dismissal order was signed. Republic Title argues the claims were nevertheless "dismissed with prejudice" pursuant to the order striking the pleadings. Because a dismissal disposing of all claims and parties is final and appealable, Republic Title maintains this order conferred jurisdiction over the appeal on this Court. See Lehmann v. Har-Con Corp., 39 S.W.3d 191, 200 (Tex. 2001) (judgment that disposes of all pending parties and claims is final and appealable).
An order that strikes a party's pleading, allows the party to amend, and provides for dismissal if no amendment is filed, however, is not a final, appealable order. See Andrews v. Richardson, 21 Tex. 287, 295 (1858) (order stating that case would be dismissed if plaintiff failed to amend his petition by a date certain did not operate to dismiss case when plaintiff failed to timely amend; final judgment required); see also 58 Tex. Jur. 3d Pleadings § 302 (citing Austin v. Ottinger, 299 S.W. 349 (Tex. Civ. App.-Austin 1927, no writ); McCoy v. Tex. Power Light Co., 239 S.W. 1105 (Tex. Comm'n App. 1922)). Such an order merely provides notice of the trial court's intent to dismiss but does not define the parties' rights nor provide the means by which to determine those rights; additional facts-whether the amendment was filed-are necessary. See Stewart v. USA Custom Paint Body Shop, Inc., 870 S.W.2d 18, 20 (Tex. 1994) (judgment must sufficiently define and protect the rights of all litigants or provide definite means of ascertaining such rights so that ministerial officers can carry the judgment into execution without ascertainment of facts not contained in judgment); see also Foster v. Little Motor Kar Co., 290 S.W. 228, 230 (Tex. Civ. App.-Dallas 1926, no writ) ("To constitute a final judgment from which an appeal will lie, the court must, at the time of the order and as a part thereof, finally determine and adjudicate the rights of the parties. There is no such thing in our procedure as an automatic judgment."). Because the severance order did not dispose of Balistreri's claims and no other order was signed disposing of the claims, we conclude we lack jurisdiction over the appeal and dismiss it.