Larry Collumns, et al. v. H. B. Fuller Company, et al.--Appeal from 319th District Court of Nueces County

NUMBER 13-05-502-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

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  LARRY COLLUMNS, ET AL., Appellants,

v.

H. B. FULLER COMPANY, ET AL., Appellees.

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On appeal from the 319th District Court

of Nueces County, Texas.

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MEMORANDUM OPINION

Before Justices Hinojosa, Ya ez, and Garza

Memorandum Opinion Per Curiam

This is an appeal from the trial court=s AOrder Granting Defendants= Unopposed Motion to Dismiss All Cross Actions.@ We dismiss the appeal for want of jurisdiction.

Unless otherwise statutorily authorized, an appeal may be taken only from a final judgment or order. Tex. Civ. Prac. & Rem. Code Ann. '' 51.012, 51.014 (Vernon 1997 & Supp. 2004 05). A judgment or order is final for purposes of appeal if it disposes of all parties and all issues in the record so that no further action is required by the trial court, except as necessary to carry out the decree. Lehmann v. Har Con Corp., 39 S.W.3d 191, 195 (Tex. 2001). Absent a conventional trial on the merits, a judgment is final Aif and only if either it actually disposes of all claims and parties then before the court, regardless of its language, or it states with unmistakable clarity that it is a final judgment as to all claims and all parties." Id. at 192 93. The law does not require that a final judgment be in any particular form. Id. at 195. The language of an order or judgment can make it final, even though it should have been interlocutory, if that language expressly disposes of all claims and all parties. Id. at 200. If the intent to finally dispose of the case is clear, "then the order is final and appealable, even though the record does not provide an adequate basis for rendition of judgment." Id. In determining whether an order disposes of all pending claims and parties, an appellate court may also look to the record from the court below. Id. at 205 06. Therefore, whether an order or decree is a final judgment must be determined from its language and the record in the case. Id. at 195; Dick Poe Motors, Inc. v. DaimlerChrysler Corp., 169 S.W.3d 507, 510 (Tex. App.BEl Paso 2005, no pet.).

The order at issue in the instant case neither disposes of all parties and all issues in the case, nor does it state with unmistakable clarity that it is a final judgment. Lehmann, 39 S.W.3d at 192-93. The order at issue merely grants defendant Saint-Gobain=s unopposed motion to dismiss all cross-actions filed against it and relating to the claims of the plaintiffs and orders these cross-actions to be dismissed without prejudice. On its face, it is not a final appealable order because it did not adjudicate all the claims before the trial court. Id.

On March 9, 2006, the Clerk of this Court notified appellants that the judgment appeared interlocutory and that the appeal would be dismissed if the defects were not corrected. To date, appellants have failed to respond to this Court=s notice.

Pursuant to TEX. R. APP. P. 43.2, on its own motion, this Court dismisses this appeal.

PER CURIAM

Memorandum Opinion delivered and filed this

the 6th day of April, 2006.