Rutherford v. Rutherford (pdf) (Tex.App.- Houston [1st Dist.] Feb. 25, 2010)(Jenning)(no final
order, involuntary dismissal for want of jurisdiction)(non-appealable, interlocutory order granting partial
summary judgment)(no statutory basis for appellate jurisdiction to consider interlocutory appeal)
DISMISS APPEAL: Opinion by Justice Sharp
Before Justices Keyes, Sharp and Massengale
01-08-00999-CV Nancy D. Rutherford v. Michael G. Rutherford
Appeal from 257th District Court of Harris County
Trial Court Judge: The Honorable Judy L. Warne
Appellant, Nancy D. Rutherford, attempts to appeal the trial court’s grant of appellee’s, Michael G.
Rutherford’s, motion for partial summary judgment.
We dismiss her appeal for want of jurisdiction.
This attempted appeal arises out of Nancy’s and Michael’s pending divorce case. Michael filed a
motion for partial summary judgment with respect to the characterization of two financial
transactions: (1) a 2004 distribution of inheritance from his grandfather’s residuary trust (“2004
Distribution”) and (2) a 2005 distribution of inheritance of stock which was also from his grandfather’
s residuary trust (“2005 Stock Distribution”). On November 3, 2008, the trial court granted Michael’s
motion as to the 2004 Distribution, but denied Michael’s motion with respect to the 2005 Stock
Distribution (“November 3, 2008 order”). Marsha filed a request for findings of fact and conclusions
of law, which was denied. Marsha also filed a Motion to Modify, Correct, or Reform Judgment to
reflect that the November 3, 2008 order was, in fact, an order granting a final summary judgment.
The record on appeal reflects no action taken with respect to this motion. Marsha now attempts to
appeal the November 3, 2008 order granting Michael’s motion for partial summary judgment with
respect to the 2004 Distribution.
With few exceptions, an appeal may only be taken from a final judgment. Lehmann v. Har-Con
Corp., 39 S.W.3d 191, 195 (Tex. 2001). An order or judgment is ordinarily not final for purposes of
appeal unless it actually disposes of every pending claim and party or clearly and unequivocally
states that it finally disposes of all claims and parties. Id. at 205; see also Underhill v. Underhill, 614
S.W.2d 178, 181 (Tex. Civ. App.—Houston [14th Dist.] 1981, writ ref’d n.r.e.).
The November 3, 2008 order being appealed granted summary judgment with respect to the 2004
Distribution only; the order did not dispose of, nor did it state that it disposed of, the remaining
property issues, including the 2005 Stock Distribution, or any other remaining claims in the
underlying divorce case. Thus, the November 3, 2008 order is not a final order for purposes of
appeal. See id.
Moreover, although civil litigants may ordinarily ask the trial court to sever unresolved causes of
action in order to render an order granting partial summary judgment final and appealable,
severance is not available in the present case. See Dawson-Austin v. Austin, 968 S.W.2d 319, 324
(Tex. 1998) (stating claim for division of martial property not severable from rest of divorce
proceeding); see also Hollaway v. Hollaway, 792 S.W.2d 168, 170 (Tex. App.—Houston [1st Dist.]
1990, writ denied) (stating that trial court may not sever property division from divorce action); Tex.
Fam. Code Ann. § 7.001 (Vernon Supp. 2009) (“in a decree of divorce . . . the court shall order a
division of the estate of the parties.”)
The November 3, 2008 order is a non-appealable, interlocutory order. Appellant does not cite, nor
have we found, any statutory basis for our jurisdiction to consider her interlocutory appeal. See Tex.
Civ. Prac. & Rem. Code Ann. § 51.014(a) (Vernon Supp. 2009) (listing interlocutory orders from
which interlocutory appeal may be taken); Jack B. Anglin Co. v. Tipps, 842 S.W.2d 266, 272 (Tex.
1992) (holding that Texas appellate courts only have appellate jurisdiction over appeals from final
orders or judgments, unless statute permits appeal from interlocutory order). Accordingly, we hold
that we do not have jurisdiction to consider this appeal. See Tex. R. App. P. 42.3(c) (allowing
involuntary dismissal of appeal for lack of jurisdiction upon party’s motion).
We grant Michael’s motion to dismiss.
We dismiss this appeal for want of jurisdiction.
Panel consists of Justices Keyes, Sharp, and Massengale.