                                  NO. 07-10-00253-CV

                              IN THE COURT OF APPEALS

                          FOR THE SEVENTH DISTRICT OF TEXAS

                                    AT AMARILLO

                                       PANEL A

                                   AUGUST 12, 2010


                   EVANSTON INSURANCE COMPANY, APPELLANT

                                           v.

                   D & L MASONRY OF LUBBOCK, INC., APPELLEE


         FROM THE COUNTY COURT AT LAW NO 3 OF LUBBOCK COUNTY;

             NO. 2009-564,144; HONORABLE JUDY A. PARKER, JUDGE


Before CAMPBELL and HANCOCK and PIRTLE, JJ.


                                MEMORANDUM OPINION

       Appellant, Evanston Insurance Company, appeals the trial court’s entry of partial

summary judgment in favor of appellee, D&L Masonry of Lubbock, Inc. By its order, the

trial court found that D&L’s insurance policy covered their claim and that Evanston

breached the insurance contract with D&L by denying the claim.          The trial court

awarded D&L $58,113 as liquidated damages suffered by D&L, and also awarded D&L

$12,318.33 as reasonable and necessary attorney’s fees. From this order, Evanston

filed notice of appeal.
       A review of D&L’s live pleading reveals that D&L asserted four separate claims

by its suit against Evanston: (1) breach of contract, (2) unfair settlement practices, (3)

acts and omissions under Texas Insurance Code section 541.151, and (4) breach of the

common law duty of good faith and fair dealing. The trial court’s summary judgment

order only addresses D&L’s claim of breach of contract. However, approximately one

month after the trial court entered its order, D&L filed a “Partial Notice of Non-Suit

Without Prejudice,” wherein D&L sought the dismissal of its remaining claims. The

record does not reflect that the trial court took any action on D&L’s non-suit notice.

Following D&L’s non-suit filing, Evanston filed its notice of appeal.          In its notice,

Evanston concedes that the trial court’s summary judgment order was interlocutory

when entered, but contends that it became final on June 18, 2010, when D&L filed its

notice of non-suit of all claims other than the breach of contract claim.


       We are required to review sua sponte issues affecting jurisdiction. M.O. Dental

Lab. v. Rape, 139 S.W.3d 671, 673 (Tex. 2004) (per curiam).                 Unless a statute

specifically authorizes an interlocutory appeal, appellate courts have jurisdiction over

final judgments only. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001).

When there has not been a conventional trial on the merits, there is no presumption of

finality of a judgment. Crites v. Collins, 284 S.W.3d 839, 840 (Tex. 2009). "[I]f the

record reveals the existence of parties or claims not mentioned in the order, the order is

not final." Lehmann, 39 S.W.3d at 206.


       While a trial court generally has no discretion to refuse to dismiss claims that

have been non-suited by their proponent and its order doing so is ministerial, see Univ.

                                             2
of Tex. Med. Branch at Galveston v. Estate of Blackmon, 195 S.W.3d 98, 100 (Tex.

2006) (per curiam), “[a]ppellate timetables do not run from the date a non[-]suit is filed,

but rather from the date the trial court signs an order of dismissal,” In re Bennett, 960

S.W.2d 35, 38 (Tex. 1997) (orig. proceeding). Because the trial court has not signed an

order dismissing D&L’s non-suited claims, the record does not contain a final,

appealable judgment. See id.; Farmer v. Ben E. Keith Co., 907 S.W.2d 495, 496 (Tex.

1995) (“The appellate timetable does not commence to run other than by a signed,

written order, even when the signing of such an order is purely ministerial.”).


       Because the trial court has not ruled on D&L’s claims other than its breach of

contract claim and nothing in its summary judgment order evinces the trial court’s intent

to dispose of these claims, Evanston’s notice of appeal is premature. See Lehmann, 39

S.W.3d at 195. Additionally, the record reflects that all parties to the current suit were

aware that the trial court’s summary judgment order was interlocutory and that the

dismissal or final resolution of D&L’s remaining claims would have to occur before the

summary judgment order would be appealable. Because the trial court has not signed

an order dismissing D&L’s non-suited claims, there is no final, appealable order in the

record, and this Court is without jurisdiction and has no authority to do anything other

than to dismiss the appeal.1



       1
         We are aware that Texas Rule of Appellate Procedure 27.2 and Lehmann
authorize appellate courts to abate the appeal and remand the case to the trial court for
modification of the order or clarification of the trial court’s intent to enter a final
judgment. However, such procedure is available only when the appellate court is
“uncertain” whether the trial court intended to enter a final judgment. Lehmann, 39
S.W.3d at 206. In the present case, the trial court’s complete failure to address D&L’s
claims other than the breach of contract claim make it clear that the trial court did not
                                             3
      Accordingly, this appeal is dismissed for want of jurisdiction.




                                                       Mackey K. Hancock
                                                            Justice




intend to enter a final appealable order. While some of our sister courts have employed
the abatement and remand procedure in circumstances like the one present in the
present appeal, we are in complete agreement with Chief Justice Gray in his dissent in
Mullins v. Ortiz, No. 10-08-00225-CV, 2009 Tex.App. LEXIS 3578 (Tex.App.—Waco
April 29, 2009) (Gray, C.J., dissenting).
                                            4
