Elizabeth Gutierrez v. Zurich American Insurance Company as Subrogee of Hunter Industries, Inc. and Johnnie Hill

NO. 07-07-0056-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

MAY 2, 2007
______________________________

ELIZABETH GUTIERREZ, APPELLANT

V.

ZURICH AMERICAN INSURANCE COMPANY AS SUBROGEE OF
HUNTER INDUSTRIES, INC. AND JOHNNIE HILL, APPELLEES
_________________________________

FROM THE 274TH DISTRICT COURT OF HAYS COUNTY;

NO. 03-1179-A; HONORABLE BILL HENRY, JUDGE
_______________________________

Before CAMPBELL and HANCOCK and PIRTLE, JJ.

MEMORANDUM OPINION

Appellant Elizabeth Gutierrez attempts to appeal after the trial court issued an order

granting summary judgment against her. However, the trial court’s order does not dispose

of all issues before the court. Since the judgment is not final, this court does not have

subject matter jurisdiction. We dismiss for want of jurisdiction.
 Background

On August 20, 2003, Zurich filed an action against Gutierrez and Miguel Gomez

seeking damages arising from a car accident. Additionally, in its original petition, Zurich

requested pre- and post-judgment interests, court costs, and attorney fees. On July 12,

2006, Zurich filed a Motion to Sever requesting the trial court sever the judgment against

Gomez into a separate proceeding since all causes of action asserted against Gomez had

been disposed. On the same date, Zurich also moved for summary judgment against

Gutierrez. On August 8, the trial court granted Zurich’s Motion to Sever and signed a

prepared severance order; however, the trial court exchanged Gutierrez’s name for

Gomez’s name through most of the prepared order, but not all instances. The resulting

order created a new cause number, 03-1179A and stated that “all causes of action pled

by Plaintiff against Defendant Gomez be severed into a new cause of action with the

following cause number and style: Cause No. 03-1179A; Zurich American Insurance

Company . . . v. Elizabeth Gutierrez . . . .” Additionally, the trial court granted Zurich’s

motion on summary judgment against Gutierrez and signed an order awarding Zurich

damages as well as pre- and post-judgment interest. However, the order did not mention

court costs or attorney fees. Gutierrez then filed a motion for new trial on September 7,

and notice of appeal on December 13.

Law and Analysis

Subject matter jurisdiction is essential to the authority of a court to decide a case.

Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443 (Tex.1993). Subject

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matter jurisdiction is never presumed and cannot be waived. Id. at 443-44. Subject matter

jurisdiction may be raised for the first time on appeal. Id. at 445. The issue may be raised

sua sponte by a court, and is a legal question subject to de novo review. See Mayhew v.

Sunnyvale, 964 S.W.2d 922, 928 (Tex.1998).

Only in certain instances authorized by statute may appeal be taken from

interlocutory orders. See Jack B. Anglin Co. v. Tipps, 842 S.W.2d 266, 272 (Tex. 1992);

see, e.g., TEX . CIV. PRAC . & REM . CODE ANN . § 51.014 (Vernon Supp. 2006). An appellate

court without statutory authority to review an interlocutory judgment has jurisdiction only

to determine its jurisdiction and to dismiss the appeal. See Steeple Oil and Gas Corp. v.

Amend, 394 S.W.2d 789, 790 (Tex. 1965).

To be a final judgment from which an appeal may be taken, the judgment must

dispose of all parties and all issues in the case. See Lehmann v. Har-Con Corp., 39

S.W.3d 191, 205 (Tex. 2001). To determine whether an order disposes of all pending

claims and parties, it may be necessary for the appellate court to look to the record in the

case. Id.

In reviewing the record, we conclude that the order entered did not dispose of all

matters and was not intended to be a final order. We conclude that the order from which

appellant has given notice of appeal is not a final judgment and is not appealable.

Therefore, we must and do dismiss the appeal for want of jurisdiction.

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 Conclusion

For the foregoing reasons, we dismiss for want of jurisdiction.

Mackey K. Hancock
Justice

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