Opinion issued April 14, 2015

In The

Court of Appeals 

For The 

First District of Texas 

————————————

NO. 01-14-00711-CV

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RICHARD J. GONZALES, Appellant

V.

ROBERT DRAKE TERRELL AND HERITAGE PROPERTIES, LP, 

Appellees

On Appeal from the 55th District Court

Harris County, Texas

Trial Court Case No. 2008-09906A

MEMORANDUM OPINION

Appellant Richard J. Gonzales appeals from a summary judgment order 

entered on April 30, 2014. Gonzales contends the trial court’s July 2, 2014 

severance order rendered the April 30, 2014 order final and appealable. Our 
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review of the record indicates that the summary-judgment order is interlocutory, 

and that we therefore must dismiss this appeal.

Gonzales sued Stanford Development Corporation, Robert Drake Terrell, 

Heritage Properties, LP, and others over alleged defects in his condominium. 

Terrell and Heritage filed a counterclaim against Gonzales, and moved for 

summary judgment on Gonzales’s claims against them. On April 30, 2014, the 

trial court granted summary judgment in favor of Heritage and Terrell on 

Gonzales’s claims. Heritage and Terrell later moved for severance of the claims 

between themselves and Gonzales to a new cause number, purportedly to render 

the summary judgment final. Their motion was granted on July 2, 2014. 

The July 2, 2014 severance order states that “any and all causes of action” 

between Heritage, Terrell, and Gonzales are severed into a new cause. The order 

goes on to say: “The Court notes the Summary Judgment granted April 30, 2014 in 

favor of Heritage Texas Properties LP and Robert Drake Terrell and disposes of all 

claims against Heritage Texas Properties, LP and Robert Drake Terrell in this 

severed case. That Judgment is hereby a final appealable judgment. The parties 

are hereby responsible for any costs incurred by same. All relief not herein granted 

is denied.” Although the severance order severed all causes of action between 

Heritage, Terrell, and Gonzales into the new action, it did not dispose of Heritage 

and Terrell’s counterclaim against Gonzales.
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The Texas Supreme Court has held that “the language of an order or 

judgment can make it final, even though it should have been interlocutory, if that 

language expressly disposes of all claims and all parties.” Lehmann v. Har-Con 

Corp., 39 S.W.3d 191, 200 (Tex. 2001). But “[a]n order does not dispose of all 

claims and all parties merely because it is entitled ‘final’, or because the word 

‘final’ appears elsewhere in the order, or even because it awards costs. Nor does

an order completely dispose of a case merely because it states that it is appealable, 

since even interlocutory orders may sometimes be appealable.” See id. at 205. 

Moreover, “the inclusion of a Mother Hubbard clause—by which we mean the 

statement, ‘all relief not granted is denied’, or essentially those words—does not 

indicate that a judgment rendered without a conventional trial is final for purposes 

of appeal.” Id. at 203–04. To be final, an order must “actually dispose[] of all 

claims and parties then before the court, regardless of its language,” or “state[]

with unmistakable clarity that it is a final judgment as to all claims and all 

parties.” Id. at 192–93 (emphasis added).

Here, the April 30, 2014 summary-judgment order was not a final judgment 

because it disposed only of Gonzales’s claims against Heritage and Terrell, and did 

not address Heritage and Terrell’s counterclaim. And the July 2, 2014 severance

order does not meet the criteria set forth in Lehmann to render the summaryjudgment order final. Although the severance order states that it renders the 
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summary-judgment order “final,” “[i]t is not enough . . . that the order or judgment 

merely use the word ‘final.’” See id., 39 S.W.3d at 200. Likewise, the inclusion of 

the statement “[a]ll relief not herein granted is denied” in the severance order, 

“does not indicate that a judgment rendered without a conventional trial is final for 

purposes of appeal.” See id. at 203–04. The severance order does not “actually 

dispose” of Heritage and Terrell’s counterclaim, nor does it state that “it is a final 

judgment as to all claims and all parties.” See id. at 192–93. Accordingly, the 

judgment is not final for purposes of appeal. See id.; see also Hinojosa v. 

Hinojosa, 866 S.W.2d 67, 70 (Tex. App.—El Paso 1993) (failure to dispose of 

counterclaim results in interlocutory or partial judgment over which appellate court 

lacks jurisdiction).

In response to our notice of intent to dismiss for want of jurisdiction,

Gonzales argues that we should treat the summary-judgment order as final because 

(1) the order was prepared by the appellees’ attorney and the appellees’ severance 

motion asked the trial court to grant severance in order to render the summaryjudgment order final and (2) the language in the severance order renders it final 

and appealable. 

But we determine finality from the language of the order entered by the trial 

court, and not the parties’ intent. See Lehmann, 39 S.W.3d at 204. In support of 

his claim that the appellees’ intent in requesting severance can support a 
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conclusion that the judgment is final, Gonzales relies upon a statement, quoted in 

Lehmann, from an earlier Texas Supreme Court case, Continental Airlines, Inc. v. 

Kiefer, 920 S.W.2d 274 (Tex. 1996). In Kiefer, the Supreme Court stated that 

“[f]inality must be resolved by a determination of the intention of the court as 

gathered from the language of the decree and the record as a whole, aided on 

occasion by the conduct of the parties.” Id. at 277. But Lehmann referred to this 

language in Kiefer to show that “our opinions have not been entirely consistent on 

whether the inclusion or omission of a Mother Hubbard clause does or does not 

indicate that a summary judgment is final for purposes of appeal” and that “[t]his 

ambivalence has resulted in considerable confusion in the courts of appeal.” 

Lehmann, 39 S.W.3d at 203. Lehmann goes on to say “[m]uch confusion can be 

dispelled by holding, as we now do, that the inclusion of a Mother Hubbard 

clause—by which we mean the statement, ‘all relief not granted is denied’, or 

essentially those words—does not indicate that a judgment rendered without a 

conventional trial is final for purposes of appeal.” Id. at 203–04. Thus, Lehmann, 

and not Kiefer, guides our determination here.

Gonzales contends that there is finality here because the severance order 

states that the summary-judgment order is a “final appealable judgment” and that 

“[a]ll relief not herein granted is denied,” and because it awards costs. But under 

Lehmann, none of these is sufficient to render the judgment final unless the order 
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“actually dispose[s]” of all parties and claims or states that “it is a final judgment

as to all claims and all parties.” See id. at 192–93. Gonzales relies upon various 

cases where orders actually disposed of all parties and claims or stated they were a 

final judgment “as to all claims and all parties,” as required by Lehmann, but the 

severance order in this case contains no such language.

Because the order in the underlying case is not final, and an interlocutory 

appeal of the order is not authorized by statute, we lack jurisdiction over this 

appeal. See Bison Bldg. Materials, Ltd. v. Aldridge, 422 S.W.3d 582, 585 (Tex. 

2012); Stary v. DeBord, 967 S.W.2d 352, 352-353 (Tex. 1998). Accordingly, we 

dismiss the appeal for lack of jurisdiction. See TEX. R. APP. P. 42.3(a). We 

dismiss all pending motions as moot.

PER CURIAM

Panel consists of Justices Jennings, Higley, and Huddle.