Opinion
No. 05-08-00912-CV
Opinion Filed March 26, 2010.
On Appeal from the 401st Judicial District Court, Collin County, Texas, Trial Court Cause No. 401-00948-2008.
Before Justices MOSELEY, Fitzgerald, and LANG-MIERS.
MEMORANDUM OPINION
Appellants sued appellee Texas Health Resources (THR); appellants W. Barry Humeniuk and Gina Humeniuk sued both individually and as next friends of their minor son Spenser. The trial court signed a partial summary judgment in favor of THR that dismissed all claims except for the Humeniuks' claims as next friend of Spenser. The partial summary judgment order also contained an order of severance, making the order a final judgment as to the claims that were dismissed. Appellants timely perfected this appeal. Because appellants lack standing to raise their sole issue on appeal, we dismiss the appeal for want of jurisdiction.
I. Background
We draw the facts of the case from the allegations in appellants' live petition. They alleged that appellant W. Barry Humeniuk, M.D., P.A. leased some office space from THR and took possession of the space in April 2000. They alleged that appellants W. Barry Humeniuk and Gina Humeniuk both worked in that office, and that Gina kept their infant son Spenser in the leased space during business hours. They further alleged that the space was contaminated with mold and caused them and Spenser to suffer adverse health symptoms. They eventually vacated the premises.
Appellants sued THR on various theories of liability including breach of contract, negligence, and violations of the deceptive trade practices act. Barry and Gina sued both individually and as next friends of Spenser. In 2007, THR won a partial summary judgment that all claims, "including the claim for medical expenses incurred for treatment of Spenser Humeniuk," that were subject to a two-year statute of limitations were barred by limitations. The order expressly did not affect the P.A.'s claim for breach of contract or "the causes of action brought for the alleged personal injury of Spenser Humeniuk."
In February 2008, THR filed a motion for partial summary judgment based on an alleged mediated settlement agreement. THR argued that the settlement barred all of appellants' claims except for those brought on behalf of Spenser. THR further argued that appellants had refused to acknowledge the enforceability of the settlement agreement and had failed to comply with its terms. Appellants filed a response to the motion.
On April 10, 2008, the trial judge signed an order that granted THR's motion for partial summary judgment, declared that the mediated settlement agreement was "in full force and effect" except as expressly modified by the order, dismissed with prejudice all claims by the P.A. and by Barry and Gina individually, and severed the dismissed claims into a new cause. According to the order, the "next of friend suit on behalf of minor Plaintiff Spenser Humeniuk" remained pending in the original cause. The trial court denied appellants' motion for new trial, and they timely perfected this appeal.
II. Discussion
A.
Issue on appeal
In a single issue, appellants argue that both of the trial court's partial summary judgment orders are erroneous to the extent they affect Spenser's rights because there was a conflict of interest between Barry and Gina on the one hand and Spenser on the other, and because the trial court did not appoint a guardian ad litem for Spenser. With respect to the first order, appellants argue that the order is erroneous to the extent it dismisses "the claim for medical expenses incurred for treatment of Spenser Humeniuk." With respect to the second order, appellants complain that the order infringes Spenser's rights because it declares that the settlement agreement "is in full force and effect" and because the settlement agreement recites that "nothing related to the settlement (including the alleged injuries, damages, and/or claims of the parents and the P.A.) will be mentioned during the trial of Spencer [sic] Humeniuk's case."
B.
Standing
THR argues that appellants lack standing to raise the two complaints that make up their issue on appeal, relying on the principle that "appealing parties may not complain of errors that do not injuriously affect them or that merely affect the rights of others." Tex. Workers' Comp. Ins. Fund v. Mandlbauer, 988 S.W.2d 750, 752 (Tex. 1999) (per curiam); accord Qaddura v. Indo-European Foods, Inc., 141 S.W.3d 882, 893 (Tex. App.-Dallas 2004, pet. denied). THR further argues that the two orders are "part of [Spenser's] severed case" to the extent that those orders affect his claims, and to that extent are "interlocutory orders not subject to appeal at this time." In response, appellants explain that they have appealed "[i]n an abundance of caution, to make sure that Spenser's rights are protected." They ask this Court either to reverse the judgment with respect to the two provisions that seem to affect Spenser's rights or alternatively to opine that those provisions are interlocutory orders that are part of the case that was left pending in the trial court after the severance.
At oral argument, both sides agreed that the remainder of the lawsuit that was left pending in the trial court after severance ended in a nonsuit of the remaining claims. Neither side contends that this should affect our analysis.
We first examine the scope of the final judgment before us. In the April 10 order, the trial court first dismissed with prejudice "all claims and causes of action of W. Barry Humeniuk, M.D., Individually, W. Barry Humeniuk, M.D., P.A., and Gina Humeniuk, Individually." Then it severed those dismissed claims in the following words:
It is further ordered that the suit of Plaintiffs W. Barry Humeniuk, Individually, W. Barry Humeniuk, M.D., P.A., and Gina Humeniuk, Individually, which are [sic] hereby dismissed, are [sic] severed from this cause and assigned new cause number 401-00948-2008, so that this summary judgment is a final judgment as to such severed and dismissed suit.
The next of [sic] friend suit on behalf of minor Plaintiff Spenser Humeniuk remains pending in this original cause.
Thus, the claims asserted by Barry and Gina in their capacities as Spenser's next friend were not severed; they remained pending in the original cause and are not part of the final judgment presently before us for review. Consistent with this reading of the final judgment, the only parties who joined in the notice of appeal were Barry and Gina in their individual capacities and the P.A.
Given this procedural posture, we conclude that appellants do not have standing to raise the only complaints that they have briefed in this appeal. Even assuming those complaints are valid, neither the P.A. nor Barry and Gina in their individual capacities have suffered any legal injury from the alleged errors. Only Spenser's rights are potentially affected by the alleged errors, and neither he nor any party acting in the capacity of a next friend has perfected appeal from the order complained of.
Standing is a matter that goes to a court's subject-matter jurisdiction. Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 445 (Tex. 1993); see also Matbon, Inc. v. Gries, 287 S.W.3d 739, 740 (Tex. App.-Eastland 2009, no pet.) (dismissing appeal for lack of standing because party was attempting to appeal sanction order that sanctioned only party's attorney); Kenseth v. Dallas County, 126 S.W.3d 584, 594-95 (Tex. App.-Dallas 2004, pet. denied) (partially dismissing appeals to the extent appellants lacked standing to attack certain orders); Reynolds v. Reynolds, 860 S.W.2d 568, 570-71 (Tex. App.-Dallas 1993, writ denied) (dismissing appeal from order that did not prejudice appellant). Although appellants were parties to the final judgment now before us on appeal and that judgment ordered them to take nothing by their claims, their sole issue on appeal would benefit only Spenser, who is not a party to this appeal. Accordingly, any resolution of the merits of their complaints would amount to an advisory opinion. See Tex. Ass'n of Bus., 852 S.W.2d at 444 ("An opinion issued in a case brought by a party without standing is advisory because rather than remedying an actual or imminent harm, the judgment addresses only a hypothetical injury."). We are not authorized to render advisory opinions. Phelan v. Phelan, 471 S.W.2d 605, 609 (Tex. Civ. App.-Beaumont 1971, no writ). This case is on all fours with Phelan, in which the appellant was a party to the trial court's judgment but lacked standing to assert the only point of error he raised on appeal. Id. at 608-09. The court of civil appeals dismissed the appeal. Id. at 609. We will do likewise.
III. Conclusion
For the foregoing reasons, we dismiss this appeal for lack of standing.