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                                              OPINION

                                         No. 04-09-00088-CV

                       LAW OFFICE OF HENRY GATES STEEN JR., P.C.,
                                       Appellant

                                                 v.

                       EAGLE PASS INDEPENDENT SCHOOL DISTRICT,
                                        Appellee

                   From the 365th Judicial District Court, Maverick County, Texas
                              Trial Court No. 08-09-23807-MCVAJA
                         Honorable Amado J. Abascal, III, Judge Presiding

Opinion by:       Steven C. Hilbig, Justice

Sitting:          Rebecca Simmons, Justice
                  Steven C. Hilbig, Justice
                  Marialyn Barnard, Justice

Delivered and Filed: July 15, 2009

DISMISSED FOR LACK OF JURISDICTION

           Appellant Law Office of Henry Gates Steen Jr., P.C. (“Steen”) seeks to appeal the trial

court’s order granting Eagle Pass Independent School District’s (“EPISD”) interpleader petition.

After reviewing the clerk’s record in this appeal, this court ordered Steen to show cause why this

appeal should not be dismissed for lack of jurisdiction, noting the order appeared to be an

unappealable interlocutory order. After reviewing Steen’s response and EPISD’s reply, we retained
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the appeal on our docket, but ordered the parties to address the issue of our jurisdiction in their

briefs. Having further considered the jurisdictional issue, we hold the trial court’s order granting the

interpleader petition is an unappealable interlocutory order. Accordingly, we dismiss the appeal for

lack of jurisdiction.

        In its response to this court’s show cause order and in the brief, Steen primarily relies on two

cases to support the contention that the trial court’s order is appealable. See Reynolds v. Nagely, 262

S.W.3d 521 (Tex. App.—Dallas 2008, pet. denied); Taliaferro v. Texas Commerce Bank, 660

S.W.2d 151 (Tex. App.—Fort Worth 1983, no writ). EPISD, on the other hand, relies on the Texas

Supreme Court’s discussion of finality of judgments in Lehmann v. Har-Con Corp., 39 S.W.3d 191

(Tex. 2001), and two opinions from the Houston appellate courts dismissing appeals of orders

granting interpleader petitions for lack of jurisdiction. See Lakota Resources, Inc. v. Pathex

Petroleum, Inc., Nos. 01-07-00369-CV & 01-07-00537-CV, 2008 WL 3522253 (Tex.

App.—Houston [1st Dist.] Aug. 14, 2008, no pet.) (mem. op.); Lloyd v. Abraham, Watkins, Nichols,

Sorrels, Matthews & Friend, No. 14-07-00667-CV, 2008 WL 1991773 (Tex. App.—Houston [14th

Dist.] May 8, 2008, no pet.) (mem. op.).

        In Lehmann, the Texas Supreme Court revisited “the persistent problem of determining when

a judgment rendered without a conventional trial on the merits is final for purposes of appeal.” 39

S.W.3d at 192. The court held “that in cases in which only one final and appealable judgment can

be rendered, a judgment issued without a conventional trial is final for purposes of appeal if and only

if either it actually disposes of all claims and parties then before the court, regardless of its language,

or it states with unmistakable clarity that it is a final judgment as to all claims and all parties.” Id.

at 192-93.



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        One of the cases on which Steen relies, Taliaferro, was decided before the Texas Supreme

Court’s decision in Lehmann. See 660 S.W.2d at 151. Although the Taliaferro court generally

addressed the issue of whether an order granting an interpleader petition is a final appealable

judgment, Taliaferro involved an appeal from an order entered in a probate proceeding, 660 S.W.2d

at 152-53, and the Texas Supreme Court has noted probate proceedings are an exception to the

general rule permitting only one final and appealable judgment. See Lehmann, 39 S.W.3d at 192,

195. In addition, although the Reynolds court cited Taliaferro as support for its assertion that an

order disposing of an interpleader action is a final judgment, the appeal in Reynolds was filed after

the trial court signed a final judgment based on a jury’s verdict, and the court was not addressing the

jurisdictional issue presented in this case. Reynolds, 262 S.W.3d 523, 526-27; see also K & S

Interests, Inc. v. Texas Am. Bank/Dallas, 749 S.W.2d 887, 889-891 (Tex. App.—Dallas 1988, writ

denied) (dismissing appeal for lack of jurisdiction after distinguishing Taliaferro because claims

were made seeking relief against interpleader). Finally, we recognize this court cited Taliaferro in

asserting that “[t]he granting of interpleader is a final judgment in its own right as between the

stakeholder and defendants.” Boise Cascade Corp. v. Valls Int’l, Inc., No. 04-98-00005-CV, 1999

WL 266705, at *2 (Tex. App.—San Antonio 1999, pet. denied) (not designated for publication). The

statement in Boise Cascade Corp., however, was dicta as the appeal was from a judgment signed

after a bench trial, and dicta is not binding. See id. at *1 (discussing trial court’s findings after trial

to the bench); see also Continental Cas. Ins. Co. v. Functional Restoration Assocs., 19 S.W.3d 393,

400 n.6 (Tex. 2000) (noting dicta is not binding).

        The trial court’s order in this case notes that it does not dispose of all claims and parties,

expressly stating, “This case shall continue on the merits between LINEBARGER, GOGGAN,



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BLAIR & SAMPSON, LLP and LAW OFFICE OF HENRY GATES STEEN, JR., P.C., to

determine their respective rights to the funds [deposited by the interpleader].” The trial court’s order

was not signed after a conventional trial on the merits and is not final because it does not dispose of

every pending claim and party and does not clearly and unequivocally state that it finally disposes

of all claims and all parties. Lehmann, 39 S.W.3d at 205. Because the order being appealed is

interlocutory and is not made appealable by statute, we lack jurisdiction over this appeal. See Lakota

Resources, 2008 WL 3522253, at *2-3; see also Lloyd, 2008 WL 1991773, at *1; Clayton v. Clayton,

No. 09-05-517-CV, 2006 WL 302232, at *2-3 (Tex. App.—Beaumont Feb. 6. 2006, no pet.) (mem.

op.). Accordingly, the appeal is dismissed for lack of jurisdiction.



                                                        Steven C. Hilbig, Justice




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