Gilbert Limon and Martha Limon, Individually and d/b/a Limon Hauling Co. v. J.T.B. Services, Inc.--Appeal from 53rd District Court of Travis County

Opinion filed January 25, 2007

In The

Eleventh Court of Appeals

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   No. 11-05-00354-CV

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GILBERT LIMON AND MARTHA LIMON, INDIVIDUALLY

AND D/B/A LIMON HAULING CO., Appellants

V.

J.T.B. SERVICES, INC., Appellee

On Appeal from the 53rd District Court

Travis County, Texas

Trial Court Cause No. GN0-00466

M E M O R A N D U M O P I N I O N

Gilbert Limon and Martha Limon, individually and d/b/a Limon Hauling Co. attempt to appeal a take-nothing summary judgment rendered in favor of J.T.B. Services, Inc. J.T.B. and other defendants who are not parties to this appeal were sued by the Limons for causes of action related to a demolition and excavation contract with the City of Austin. The Limons asserted breach of contract and fraud causes of action against J.T.B., and J.T.B. counterclaimed for breach of contract, a declaratory judgment, attorney=s fees, and tortious interference. J.T.B. filed a motion for traditional summary judgment with respect to the claims asserted by the Limons against J.T.B. The trial court ultimately granted J.T.B.=s motion. We dismiss the appeal.

Generally, a summary judgment order is not a final judgment for purposes of appeal unless it actually disposes of all claims and all parties. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 205 (Tex. 2001). An order that adjudicates only the plaintiff=s claims against the defendant does not adjudicate a counterclaim. Id.

The record in this case shows that the causes of action asserted by J.T.B. in its counterclaim against the Limons have not been disposed of. Neither party moved for summary judgment on the issues asserted by J.T.B. in its counterclaim. Further, the summary judgment order in this case reflects that the trial court granted summary judgment only as to the causes of action asserted by the Limons against J.T.B. The order specifically reads:

IT IS ORDERED that plaintiffs, Gilbert Limon and Martha Limon, Individually and D/B/A Limon Hauling Co., take nothing against the defendant, J. T. B. Services, Inc., that all claims asserted by plaintiffs against J. T. B. Services, Inc., are denied, and that all costs of court be taxed against plaintiffs.

All relief requested in this case against J. T. B. Services, Inc. is denied.

Because the claims asserted in J.T.B.=s counterclaim against the Limons have not been disposed of, the trial court=s order is not a final, appealable judgment. See McNally v. Guevara, 52 S.W.3d 195 (Tex. 2001); Lehmann, 39 S.W.3d at 205. On December 12, 2006, this court notified the parties of our concern pursuant to Tex. R. App. P. 42.3. We have received a response from the Limons in which they concur that the trial court=s order is not a final order.[1] Because the trial court=s order is not a final, appealable judgment, we have no jurisdiction to consider the appeal.

Accordingly, the appeal is dismissed.

PER CURIAM

January 25, 2007

Panel consists of: McCall, J.,

Strange, J., and McCloud, S.J.[2]

[1]We note that the Limons= Aresponse@ sought a variety of relief and was, therefore, deemed by this court to be a motion. We received, rather than filed, the motion because neither a filing fee nor a certificate of conference has been received by this court.

[2]Austin McCloud, Retired Chief Justice, Court of Appeals, 11th District of Texas at Eastland sitting by assignment.