Litterio v. Guzman

Full title: Albert LITTERIO, Appellant v. Raul GUZMAN and Target Corporation, Appellee

Court: Court of Appeals of Texas, Fourth District, San Antonio

Date published: Mar 14, 2007

No. 04-06-00881-CV (Tex. App. Mar. 14, 2007)

Opinion

No. 04-06-00881-CV

Delivered and Filed: March 14, 2007.

Appeal from the 224th Judicial District Court, Bexar County, Texas; Trial Court No. 2004-CI-06471; Honorable Lori Massey, Judge Presiding.

DISMISSED FOR LACK OF JURISDICTION

Sitting: SANDEE BRYAN MARION, Justice, PHYLIS SPEEDLIN, Justice, REBECCA SIMMONS, Justice.

MEMORANDUM OPINION

PER CURIAM.

Appellant/plaintiff below, Albert Litterio, seeks to appeal the trial court's Order Granting Defendant's Motion for Discovery Sanctions signed on September 21, 2006, which prohibited appellant from introducing evidence of an injury to or treatment for his left knee. It appeared, however, that the order is interlocutory because it does not dispose of all claims and the underlying lawsuit remains pending. An order or judgment is final when it disposes of all claims asserted by and against all parties. Martinez v. Humble Sand Gravel, Inc., 875 S.W.2d 311, 312 (Tex. 1994); New York Underwriters Ins. Co. v. Sanchez, 799 S.W.2d 677, 678-79 (Tex. 1990). Accordingly, this court orders appellant to show cause why this appeal should not be dismissed for lack of jurisdiction.

Appellant filed a response asserting the trial court's order was final and appealable because it "disposed of his claim against Defendants. . . ." Appellant characterizes the order as a "death penalty" sanction, a characterization the appellee disputes. On the same date appellant filed his response, he also filed a Motion to Stay Appeal Pending Filing and Disposition of Writ of Mandamus, in which appellant states he "has good cause to believe that a regular appeal is not the proper method for review of a death penalty sanction order." On February 26, 2007, appellant filed a petition for writ of mandamus, complaining of the trial court's September 21, 2006 order. This court granted appellant's motion to transfer the clerk's record from this appeal to the mandamus proceeding.

Because this appeal is interlocutory, the appeal is dismissed for lack of jurisdiction. See Tex. R. App. P. 42.3(a). Appellant's Motion to Stay Appeal is DENIED.