TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-18-00560-CV
Juan A. Martin-de-Nicolas, Appellant
v.
Mark Octaviano, Joaquin Aguirre, Victorio Tostado, and
Lylia B. Jimenez-Gutierrez, Appellees
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 98TH JUDICIAL DISTRICT
NO. D-1-GN-18-000386, HONORABLE STEPHEN YELENOSKY, JUDGE PRESIDING
M E M O R AN D U M O P I N I O N
Juan A. Martin-de-Nicolas sued Mark Octaviano, Joaquin Aguirre, and Victorio
Tostado alleging causes of action for negligence and negligent entrustment arising out of a motor
vehicle collision. Tostado and Octaviano each filed a motion for summary judgment, both of which
the trial court granted on May 29, 2018. Thereafter, Martin-de-Nicolas filed an amended petition
that added causes of action for negligent entrustment, fraud, and negligent misrepresentation against
Lylia B. Jimenez-Gutierrez.
In August 2018, Martin-de-Nicolas filed a notice of appeal from the summary
judgment orders granted in favor of Tostado and Octaviano. The clerk’s record was filed in this
Court on October 4, 2018. On October 26, 2018, the Clerk of this Court sent Martin-de-Nicolas
a letter informing him that after a review of the clerk’s record it appeared that it did not include a
final judgment. The Clerk noted that the claims against Aguirre and Jimenez-Gutierrez were not
addressed in the summary judgment orders appealed from, nor had Martin-de-Nicolas brought forth
any documentation indicating that the claims against Octaviano and Tostado had been severed from
the claims against Aguirre and Jimenez-Gutierrez. The Clerk cautioned Martin-de-Nicolas that his
failure to inform the Court of the basis for jurisdiction over this appeal could result in dismissal of
the cause for want of jurisdiction. On November 13, 2018, Martin-de-Nicolas filed a response to
the Court’s inquiry in which he stated that a motion for severance had been filed in the district court.
This Court has received no further information from Martin-de-Nicolas.
With exceptions not applicable here, an appeal may only be prosecuted from a final
judgment. North E. Indep. Sch. Dist. v. Aldridge, 400 S.W.2d 893, 895 (Tex. 1966). 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). In reviewing the
record before us, we conclude that the summary judgment orders appealed from did not dispose of
all matters pending in the trial court and were not intended to be a final order. The record before this
Court does not demonstrate that the orders from which Martin-de-Nicolas has given notice of appeal
constitute a final appealable judgment. Accordingly, we dismiss this appeal for want of jurisdiction.
__________________________________________
Thomas J. Baker, Justice
Before Justices Goodwin, Baker, and Triana
Dismissed for Want of Jurisdiction
Filed: February 13, 2019
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