Ronald J. Merriweather, as Trustee for the Estate of Claude Johnson v. Lille King, Individually and as Executrix of the Estate of Velma Stewart--Appeal from 269th District Court of Harris County

Dismissed and Memorandum Opinion filed September 28, 2006

Dismissed and Memorandum Opinion filed September 28, 2006.

In The

Fourteenth Court of Appeals

____________

NO. 14-05-00834-CV

____________

RONALD J. MERRIWEATHER, as Trustee for the Estate of CLAUDE JOHNSON, Appellant

V.

LILLIE KING, Individually and as Executrix of THE ESTATE OF VELMA STEWART, Appellee

On Appeal from the 269th District Court

Harris County, Texas

Trial Court Cause No. 2004-25897

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

Ronald J. Merriweather appeals the trial court=s grant of summary judgment in favor of Lillie King in her capacity as executor of Velma Stewart=s estate. In two issues, he argues the trial court erred by granting summary judgment and by denying his motion for new trial. We dismiss.

Merriweather was Beatrice Turner= s landlord. Turner was judicially evicted, and Merriweather sued Turner for unpaid rent.[1] Merriweather included Turner=s sister, Lillie King in her capacity as executor of Velma Stewart=s estate,[2] in this lawsuit. Merriweather did not explain in his original petition why he named King in her capacity as executor as a defendant. His only reference to her, other than to identify her as executor, was a claim that she and Turner defrauded him by selling land owned by Edward Whitfield, that Velma Stewart was Whitfield=s heir, and that Turner, an heir of Stewart=s, never paid her debt.

King, acting in her capacity as executor, filed a no-evidence motion for summary judgment arguing Merriweather failed to state a cause of action against her.[3] Merriweather filed an amended petition nonsuiting Turner and adding King in her individual capacity. In this new petition, Merriweather alleged King promised to pay Turner=s debt from the sale of estate property, but that she sold the property without paying him. Merriweather also produced, in his response to the no-evidence summary judgment motion, what he alleged was King=s written contract to repay Turner=s debt.

The trial court held a hearing on King=s motion without creating a record. On May 4, 2005, the trial judge signed an AOrder on Defendant=s No Evidence Motion for Summary Judgment.@ No severance was issued. The order contained the following language:

After considering the pleadings, the motion, the response, if any, and other evidence on file, the Court:

GRANTS Defendant, LILLIE KING, EXECUTRIX OF THE ESTATE OF VELMA STEWART=s No Evidence Motion for Summary Judgment as to Plaintiff.

IT IS THEREFORE, ORDERED, ADJUDGED, AND DECREED by the Court that the Plaintiff take nothing on his claim against LILLIE KING, EXECUTRIX OF THE ESTATE OF VELMA STEWART.

All costs of court on Plaintiff=s claims are taxed against the Plaintiff.

All other relief not expressly granted herein is denied.

On May 16, 2005, Merriweather filed a motion for new trial on grounds the trial court granted summary judgment based upon a Adead pleading,@ and that the court Aignored@ the document he produced which he alleged created triable fact issues. The trial court denied his motion on July 8, 2005. Although Merriweather filed a late notice of appeal, this court granted his motion to extend the time to file that notice.

We must begin with a sua sponte inquiry into our jurisdiction to consider this appeal. Sw. Invs. Diversified, Inc. v. Estate of Mieszkuc, 171 S.W.3d 461, 467 (Tex. App.CHouston [14th Dist.] 2005, no pet.). Unless a statute specifically authorizes an interlocutory appeal, appellate courts only have jurisdiction over final judgments. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001);Cherokee Water Co. v. Ross, 698 S.W.2d 363, 365 (Tex. 1985). A judgment is final for purposes of appeal if it disposes of all parties and claims pending on the record in the case, or if it states with Aunmistakable clarity@ that it is a final judgment as to all claims and parties. M.O. Dental Lab v. Rape, 139 S.W.3d 671, 673B75 (Tex. 2004); Lehmann, 39 S.W.3d at 192B93. To determine whether an order actually disposes of all pending claims and parties, we may look to the record in the case. Lehmann, 39 S.W.3d at 205B06. If the record does not affirmatively demonstrate our jurisdiction, the appeal must be dismissed. Garcia v. Comm=rs Court of Cameron County, 101 S.W.3d 778, 784 (Tex. App.CCorpus Christi 2003, no pet.). No presumption of finality attaches to a motion for summary judgment. In re Burlington Coat Factory Warehouse of McAllen, Inc., 167 S.W.3d 827, 829 (Tex. 2005).

The trial court=s order of summary judgment clearly granted judgment in favor of Lillie King in her capacity as executor of Stewart=s estate. It made no mention of Lillie King in her individual capacity. This order, therefore, did not dismiss all parties to the case. The inclusion of a Mother Hubbard clause (the statement that all relief not granted is denied) does not overcome this order=s plainly interlocutory character. Lehmann, 93 S.W.3d at 203B04.

An interlocutory appeal is allowed only in specific circumstances, as outlined in the Texas Civil Practice and Remedies Code. See Tex. Civ. Prac. & Rem. Code Ann. ' 51.014 (Vernon Supp. 2005) (allowing, inter alia, for interlocutory appeal from denials of summary judgment motions in particular cases). None of these exceptions apply to this case.

After fully reviewing the record, we find we lack jurisdiction over all issues raised in this appeal.[4] Accordingly, we dismiss the appeal for want of jurisdiction.

/s/ J. Harvey Hudson

Justice

Judgment rendered and Memorandum Opinion filed September 28, 2006.

Panel consists of Justices Hudson, Fowler, and Seymore.

[1] Although Merriweather filed suit in his capacity as trustee for the estate of Claude Johnson, nowhere does he explain that capacity=s relation to this case.

[2] Velma Stewart was Turner and King=s mother.

[3] We note here that the better practice is to file a special exception to the pleading; a summary judgment can only be granted on the pleadings in very few circumstances, such as where the facts alleged establish the absence of a claim, or show an Ainsuperable barrier to recovery.@ Swilley v. Hughes, 488 S.W.2d 64, 67 (Tex. 1972); see also Natividad v. Alexsis, Inc., 875 S.W.2d 695, 699 (Tex. 1994) (stating summary judgment based on pleading deficiency is proper if party has opportunity by special exception to amend and fails to do so, or files further defective pleadings).

[4] Merriweather=s motion for new trial raised grounds that the trial court erred by ordering summary judgment based on a Adead pleading,@ and that the court erred in granting summary judgment because the Acontract@produced by Merriweather created triable fact issues. The trial court was limited to ruling solely upon those issues presented in Merriweather=s motion. That motion attacked only the trial court=s summary judgment order. As the summary judgment order did not dispose of all parties and therefore was not a final, appealable judgment, the order on Merriweather=s motion for new trial cannot be a final, appealable judgment.