Opinion issued April 15, 2010
In The
Court of Appeals
For The
First District of Texas
________________
NO. 01-08-00889-CV
________________
THOMAS PENSON, Appellant
V.
AUTO CARE AMERICA, Appellee
On Appeal from the 268th District Court
Fort Bend County, Texas
Trial Court Cause No. 06-DCV-148234
MEMORANDUM OPINION
Appellant, Thomas Penson, is appealing the trial court’s order granting partial summary judgment in favor of appellee, Auto Care America. We dismiss for want of jurisdiction.
Background
On March 10, 2006, Thomas Penson filed “Plaintiff’s Original Petition” against Auto Care America alleging the following claims: Texas Deceptive Trade Practices Act (DTPA) violations; common law fraud; negligence; negligent misrepresentation; negligent hiring, supervision, and management; agency and respondeat superior. The claims related to services performed between March 7, 2003 and May 17, 2003. Penson’s petition indicates that he had knowledge of the claims no later than June 4, 2003. Auto Care America filed “Defendant’s Motion for Partial Summary Judgment” on July 7, 2008, arguing that Penson’s claims for DTPA violations, negligence, negligent misrepresentation, and negligent hiring, supervision, and management were barred by the applicable two-year statutes of limitations.
On July 16, 2008, Penson filed “Plaintiff’s First Amended Original Petition” alleging claims for breach of contract, breach of implied warranty to perform the services in a good and workmanlike manner, common law fraud, and respondeat superior. On July 17, 2008, Penson filed “Plaintiff’s Second Amended Original Petition” alleging claims for breach of contract, breach of implied warranty to perform the services in a good and workmanlike manner, common law fraud, and respondeat superior.
On July 22, 2008, the court granted Auto Care America’s motion for partial summary judgment. The court signed an order titled “Order Granting Partial Summary Judgment.”
On August 14, 2008, Penson filed a motion for new trial arguing that the trial court erred in granting summary judgment because a four-year limitations period applies to claims for fraud and breach of contract. The court denied the motion for new trial on October 3, 2008.
Jurisdiction
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). When there has been no conventional trial on the merits, an order or judgment is 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.
Here, the July 22, 2008 order being appealed granted Auto Care America’s motion for partial summary judgment. The motion addressed only some of Penson’s claims. The order did not dispose of, nor did it state that it disposed of, the case in its entirety. Auto Care America alleges that it filed and the court heard its “motion to strike Appellee’s [sic] late pleadings and motion to dismiss.” However, there is nothing in the record indicating that those motions were filed or that the court struck Penson’s amended pleadings or dismissed the case. We need not determine which of Penson’s petitions was live at the time of the partial summary judgment because all of the petitions allege common law fraud, a claim that was not addressed by the motion for partial summary judgment.
The order for partial summary judgment contained a clause stating, “All relief not granted is expressly denied.” However, it is well established that the inclusion of this language in an order for partial summary judgment does not make the order a final judgment for the purposes of appeal. Lehmann, 39 S.W.3d at 203–04. There is nothing in the court’s order stating that it disposed of every pending claim or that it was a final and appealable judgment. Similarly, nothing in the record indicates that the court granted more relief than was requested or that the court dismissed the case.
Penson does not argue that the court erred in dismissing the claims that were subject to the two-year limitation period. Rather, he only argues that “the trial court erred in granting summary judgment on the entire case.”
Because we conclude that the trial court did not grant summary judgment on the entire case, the court’s order is interlocutory and we do not have jurisdiction over the case. Lehmann, 39 S.W.3d at 195 (holding that appeal may be taken only from a final judgment, unless statute permits appeal); see also Tex. Civ. Prac. & Rem. Code Ann. § 51.014 (Vernon 2008) (listing interlocutory orders from which interlocutory appeal may be taken). We do not have jurisdiction over the appeal and dismiss the case for want of jurisdiction. See Tex. R. App. P. 42.3(a) (allowing involuntary dismissal of appeal for lack of jurisdiction on court’s initiative).
Conclusion
We dismiss the appeal for lack of jurisdiction.
We dismiss as moot any pending motions.
It is so ORDERED.
George C. Hanks, Jr.
Justice
Panel consists of Justices Jennings, Hanks, and Bland.