Opinion
No. 04-17-00473-CV
10-11-2017
John SCISSONS, Appellant v. Bryan COLLIER, Pamela Thielke, Joni White and Jarvis Anderson, Appellees
MEMORANDUM OPINION
From the 45th Judicial District Court, Bexar County, Texas
Trial Court No. 2017-CI-04414
Honorable Renee A. Yanta, Judge Presiding PER CURIAM Sitting: Sandee Bryan Marion, Chief Justice Luz Elena D. Chapa, Justice Irene Rios, Justice DISMISSED FOR LACK OF JURISDICTION
Joe Scissons and five other plaintiffs filed a petition, naming as defendants the City of San Antonio, Nicholas LaHood, Raymond Angelini, Bryan Collier, Pamela Thielke, Joni White, Jarvis Anderson, Michael Wodkins, Debra K. Reed, Mary Ann Seiracki, and Joe Gonzales. Defendants Collier, Thielke, White, and Anderson filed a motion pursuant to section 101.106(f) of the Texas Civil Practice & Remedies Code, seeking dismissal of the claims against them. On July 17, 2017, the trial court granted the motion and signed an order stating that "all claims asserted against Defendants Collier, Thielke, White and Anderson are DISMISSED with prejudice." Scissons filed a notice of appeal from the July 17, 2017 order.
When there has been no conventional trial on the merits, an order is final for purposes of appeal only if it actually disposes of all parties and claims in the case or if it unequivocally expresses an intent to finally dispose of the case by stating with unmistakable clarity that the order disposes of all claims and parties and is final and appealable. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 200, 206 (Tex. 2001). The trial court's July 17 order does not contain such an unequivocal statement. The order also does not dispose of all parties and claims. The clerk's record reflects that defendants Nicholas LaHood and Joe Gonzales both appeared and answered and that the plaintiffs' claims against them remain pending. Further, the record does not contain an order severing the claims against Collier, Thielke, White, and Anderson.
The clerk's record does not contain an appearance by the four other individual defendants or the City of San Antonio, and does not reflect that any of them have been served with process. See M.O. Dental Lab v. Rape, 139 S.W.3d 671, 674 (Tex. 2004).
This court has jurisdiction to consider an appeal of an interlocutory order only if expressly authorized by statute. Stary v. DeBord, 967 S.W.2d 352, 352 (Tex. 1998); Jack B. Anglin Co., Inc. v. Tipps, 842 S.W.2d 266, 272 (Tex. 1992). Neither Scissons's notice of appeal nor his docketing statement identify a statute that authorizes an appeal from this interlocutory order.
We ordered Scissons to file a response by October 2, 2017, showing why this appeal should not be dismissed for lack of jurisdiction. Scissons has filed a response to our order, asserting this court should exercise jurisdiction pursuant to section 51.014(f) of the Texas Civil Practice and Remedies Code. That section authorizes this court to accept an appeal from an order that is not otherwise appealable under certain circumstances. See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(d), (f). In order for a party to petition for a permissive appeal pursuant to section 51.014(f), the trial court must first have found that "the order to be appealed involves a controlling question of law as to which there is a substantial ground for difference of opinion" and "an immediate appeal from the order may materially advance the ultimate termination of the litigation." Id. The trial court in this case did not make these findings and did not permit an interlocutory appeal.
After reviewing the clerk's record, we conclude that the July 17, 2017 order is neither a final judgment nor an appealable interlocutory order. The July 17, 2017 order may be reviewed in the event a timely appeal is filed after the trial court renders a final judgment in the underlying case.
We dismiss this appeal for lack of jurisdiction.
PER CURIAM