Opinion issued November 5, 2015

In The

Court of Appeals 

For The 

First District of Texas 

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NO. 01-14-00027-CV

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JUAN ALANIZ, ET AL., Appellants1

 1 The appellants are: Bernardino Acevedo, Juan A. Alaniz, Rafael Alaniz, Louie 

Albarado, Walter Albro, Haskell Andrews, Johnny Anazaldua, Jose Manuel Araujo, 

James D. Archer, Roberto Ovalle Armendariz, Matthew Auguste, David Bachus, Richard 

L. Bachus, Billy Wayne Bailey, Jack Stewart Baker, Lewis B. Bell, Santos Benavidez, 

Ramus Benoit, Chester Benton, Marvin A. Benton, Donald A. Bianchin, James E. 

Blakeslee, Edgar A, Bonilla, Freddie C. Bracken, Jessie B. Branch, Raymond Guy 

Branin, Granville Lee Brewer, Donald Ray Brooks, A. R. Brown, Jesse J. Buitron, Will 

Bullock, Jr., James F. Bush, Charles Lee Butler, Rufus Edgar Butler, Dwight Cahanin, 

Terry Richard Calhoun, Refugio Carmona, William S. Carpenter, Raul S. Carrillo, Glenn 

W. Casteel, Martin Castillo, Noe R. Castillo, Jose Manuel Cavazos, Antonio C. Cazares, 

Gilberto Garcia Cazares, Jesus Cervantes, Merado Oscar Chapa, Richard Chapa, Tomas 

Chapa, James Clary, Arthur G. Coley, Bobby L. Conner, Frank Cooks, Reynaldo 

Coronado, Carl Coutee, Danny Dwayne Daniel, Odell Davis, Alfonso De Alba, George 

W. Delacerda, Lynn J. Dempsey, Tommy Dennis, Roosevelt Dickson, Gary Dilworth, Ira 

R. Doggett, Rodolfo Dominguez, Cyrille Errol Donelly, James Lee Duirden, Glenn 

Dunn, Marvin G. Dunn, Robert Edwin Durham, Juan Edison, Lester Gregory Ener, 

Andres Dominguez Enriquez, Eugene R. Farren, Larry Don Featherston, Claude 

Flanagan, Arthur M. Fletcher, Philman Fontenot, James Gaboury, Herlindo H. Galindo, 

Ernest R. Garcia, James Garcia, Jimmy G. Garcia, Martin Miguel Garcia, Raul Garcia, 

Rogelio Garcia, Lawrence Garner, Fidel Garza, Jesus M. Garza, Roberto Garza, Emilio 
2

V.

 

Gonzales, Richard R. Gonzales, Anatolio Gonzalez, Jose Luis Gonzalez, Roberto A. 

Gonzalez, Curtis Joe Goodwin, William E. Gordy, Jessie Goss, Jose Luis Gracia, 

Natividad Granado, Alton Graves, Gary Gray, James Green, Jerry Green, Jorge L. 

Gutierrez, Lawrence Gutierrez, Darnell Earl Hamilton, Amos Hampton, Emil Hanzel, 

David Hardin, L.V. Hare, Glenn A. Hargraves, Wayne E. Harman, Thomas Earl Harmon, 

R.D. Burnett Henderson, Bias G. Hernandez, David M. Hernandez, Jose Francisco 

Hernandez, Ricardo M. Herrera, Lemuel Earl Hicks, Milton Hill, Epifanio Hinojosa, 

Lazaro C. Hinojosa, Michael Hinson, Nathaniel Hodge, Joseph D. Holder, Samuel M. 

Holsome, Harold Dean Hopkins, Richard Dave Howard, Claude Jackson, Norman 

Jackson, Alfredo Jimenez, Lonnie L. Johnson, Ira Lee Jones, William George Jones, 

Richard Lee King, Randall L. Land, Alton Langley, James G. Lashlee, Lovejoy Lashlee, 

Leroy Lewis, Lloyd Loose, Ernesto G. Lopez, Juan M. Lopez, Gabriel L. Lozano, Jesus 

A. Lozano, Allen Lyle, Bennie Joe Maly, Randolph Marroquin, Robert Leonard 

Marshall, Delmas Odell Martin, Santos Martinez, John R. Mauhar, Ronald A. Mayo, 

Billy R. McClendon, Marvin L. McKay, Clayton McQueen, Frank C. Megerle, Raymond 

Edward Melcer, Robert Perez Mendez, Juan M. Mendoza, Leroy Franklin Miles, Willie 

Z. Mitchell, Jesus Montalvo, Robert Lewis Moore, Edward Mario Morales, Roberto 

Morales, Little John Moreland, Roy B. Moreno, Charles Morgan, Ottis L. Morton, Elmer 

Myers, Juan Garcia Narvaez, Pedro A. Oquendo, Darryl Orr, Tony G. Ortega, Juan 

Ozuna, Fidel S. Paiz, Luther Patton, Bryan Perez, Jose Luis Perez, Bennie Phillips, 

Milton Pines, Dwayne Pinkard, Julian R. Polanco, Alton Pope, Alton Mitchell Pope, 

Ruben M. Quintero, James C. Reed, Francisco G. Reyes, Ruben Reyes, Eluterio 

Rodriguez, Gilberto Rodriguez, Modesto C. Rodriguez, Modesto Rodriguez, Sr., Paul 

Rojas, Sheldon D. Ruelas, Lorenzo O. Ruiz, Kennard M. Rydolph, Samuel Saavedra, 

Baldemar Saenz, Rodolfo Sainz, Mesindo Salazar, Irineo M. Saldivar, Ruben Saldivar, 

Abel Salinas, Lewis Victor Sanford, James E. Scarborough, Lee Caster Schexnider, 

Willie Scott, Charles W. Seidler, Salvador Sendejo, James W. Shelton, James L. Shinn, 

Frank Singleton, Harry Lee Singleton, William Smith, Juan Sordia, Steve A. Soto, 

Bobbie Joe Sparks, Riley E. Spittler, Mitchell Stacey, John Starett, William J. Sylvester, 

Leeland Wayne Temple, Thomas Brent Thibodaux, Henry Thomas, Larry Thomas, 

Joseph Reid Thompson, Jesus C. Tijerina, Columbus M. Tippett, Ronnie Toatley, David 

Torres, Simon Torres, Jimmy Towry, Herbert F. Trahan, Reynaldo Trevino, Thomas G. 

Tucker, Iradell Tutt, Gustavo Uribe, George Vega, Ernesto Vera, Joseph C. Verde, 

George Villarreal, Jesus Villarreal, Medardo Villarreal, Jessie L. Wade, Thomas Walters, 

Willie C. Wedgman, James M. Whatley, Thomas Neal Wiggins, Alfred Wiley, Michael 

Lee Wilkerson, George L. Williams, Jack C. Williams, Ralph Williams, Alfred Wilson, 

Jeffery L. Wimberly, Jerry L. Woodson, Carroll J. Yancey, Senobio V. Ybarra, Jose G. 

Zamora, and Ramon Zapata.
3

THE O’QUINN LAW FIRM, JOHN M. O’QUINN & ASSOCIATES, LLP, 

THE ESTATE OF JOHN M. O’QUINN, DECEASED, AND ABEL MANJI, 

Appellees

On Appeal from the Probate Court No. 2

Harris County, Texas

Trial Court Case No. 392,274-414

MEMORANDUM OPINION

In this legal malpractice suit, former clients of the appellees, the O’Quinn 

Law Firm, John M. O’Quinn & Associates, LLP, and T. Gerald Treece, as 

independent executor of the Estate of John M. O’Quinn, deceased (collectively, 

“the Firm”), sued the Firm and others for negligence arising out of the handling of 

the clients’ claims against various manufacturers and distributers of silica and 

manufacturers of silica-related protective gear (collectively, “the Silica 

Defendants”). The Firm filed partial no-evidence motions for summary judgment 

against the appellants in this case—263 of the former clients involved in the 

ongoing suit against the Firm (collectively, “the Former Clients”). The Firm’s 

motion argued that the Former Clients had no evidence of causation on their legal 

malpractice claims because they had not shown that they actually suffered from 

silica-related injuries that would have entitled them to recover under settlements

with the various Silica Defendants. The trial court granted the motion, dismissed 

the Former Clients’ malpractice claims, and then severed the parties and issues 
4

addressed in the summary judgments in an order providing “that the parties and all 

issues raised by the No Evidence Motions for Partial Summary Judgment, and the 

Order granting the same, be and are hereby severed regarding the 263” Former 

Clients.

Because we conclude that the record does not contain an order that is final as 

to all claims and parties, we dismiss the appeal for want of jurisdiction.

Background

The Former Clients are all Texas residents who worked with products or 

materials containing silica. Beginning in 2000, they and thousands of other 

individuals retained the Firm to represent them in litigation against various Silica 

Defendants, or users and manufacturers of silica or protective gear. Between 2002 

and 2004, the individual Silica Defendants and the Firm entered into a series of 

settlement agreements and other written agreements filed under Texas Rule of 

Civil Procedure 11. The settlement agreements varied in the amounts involved and 

the exact terms, but all of them provided total amounts needed to pay all of the 

Firm’s clients, as estimated by the parties, and a procedure for the dispersal of 

those funds to individual claimants.

The Firm submitted information regarding the Former Clients’ silica-related 

injuries to the Silica Defendants for settlements of the clients’ claims. A few of the 

Former Clients were able to obtain limited settlement payments from some of the 
5

Silica Defendants. However, many of the Former Clients’ silica-related claims 

were never paid. 

In 2005, the Texas Legislature passed Civil Practice and Remedies Code 

chapter 90, setting out the specific medical criteria that a claimant must establish in 

order to proceed with discovery in a silica-related injury case. See TEX. CIV. PRAC.

& REM. CODE ANN. §§ 90.001–.012 (Vernon 2011 & Supp. 2014). Chapter 90 also 

governs the administration of claims, and all civil actions involving silica-related 

claims were consolidated in Harris County District Court No. 333. A few of the 

Former Clients received payments after 2005 under settlement agreements with 

some of the Silica Defendants, but those few did not obtain payments from all of 

the Silica Defendants they had sued. Other Former Clients never obtained any 

settlement payments. Pursuant to the provisions of chapter 90, Harris County 

District Court No. 333 placed the Former Clients’ remaining claims against the 

Silica Defendants on the inactive docket and subsequently dismissed them.

Accordingly, in 2011, hundreds of the Firm’s clients in the silica litigation 

(collectively, “the plaintiffs”), including the Former Clients who are the appellants 

in this appeal, sued the Firm,2 alleging that the Firm committed legal malpractice 

in its negligent management of the implementation of the settlements. The 

 2 The plaintiffs in the underlying litigation originally filed suit in state district court, 

but the suit was transferred to Harris County Probate Court No. 2, which is 

administering O’Quinn’s estate.
6

plaintiffs generally asserted that in the course of the representation the Firm 

“[e]ntered settlement agreements and failed to enforce those agreements,” incurred 

unreasonable and unnecessary expenses, and failed to adequately communicate 

with them regarding various aspects of the settlement process. The plaintiffs 

specifically asserted that the Firm was negligent in its handling of their claims 

against Clemtex and other Silica Defendants. The live pleading, which was filed 

on behalf of all of the plaintiffs in the underlying suit, including the Former 

Clients, also asserted causes of action based on breach of fiduciary duty, violations 

of the DTPA, fraud, unjust enrichment, and others. The plaintiffs also argued that 

the Firm “received settlement proceeds and retained the proceeds for their own 

benefit.” They sought an accounting of the Firm’s financial records. 

Regarding their professional negligence claim, the plaintiffs argued that the 

Firm failed to provide the legal advice and services that a reasonable and prudent 

firm would have provided, that they were dependent upon and relied upon the 

Firm’s “representations of [its] absolute loyalty, and competency to represent 

[their] best interests,” and that the Firm’s negligence proximately caused them 

“actual and inherent” damages. 

The Firm denied the allegations and proceeded with discovery. The parties 

assert in their briefs on appeal that the trial court set four of the plaintiffs’ cases for 

trial as test cases and ruled that the plaintiffs in those four cases were required to 
7

prove that they had silicosis and that the medical evidence they presented was 

insufficient to prove that, but that ruling is not included in our record. The parties 

also assert that, at some point, the trial court ruled that the expert reports of Dr. 

Ray Harron, a doctor relied upon by most of the Former Clients, lacked credibility. 

Again, that ruling is not included in our record.

On July 23, 2013, the trial court signed an “Order on Case Management.” 

The court ordered that the Firm “shall file No Evidence motions for Summary 

Judgment on all cases pending in this Court which rely on the medical findings of 

Dr. Ray Harron to support a diagnosis of a silica injury.” The order set a deadline 

of October 1, 2013, for the Firm to file its motions and specifically stated, “This 

Court is delaying the filing of the [Firm’s] Motions in order to allow 

Plaintiffs . . . a reasonable time to retain a qualified medical expert if they choose 

to do so.” It further ordered that the motions “shall be limited to the absence of 

competent medical evidence to prove a silica injury.” 

In accordance with the trial court’s July 23, 2013 order, the Firm filed a noevidence partial motion for summary judgment against each of the Former Clients 

on October 1, 2013, addressing only those legal malpractice claims that were based 

on allegations that the Firm failed to obtain applicable settlements and relied upon 

“medical findings of Dr. Ray Harron to support a diagnosis of silica injury.” The 

motions specifically asserted that the Former Clients had no evidence that the Firm 
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proximately caused their injury because they had no “qualified and reliable expert 

testimony” establishing that they had a silica-related injury that would have 

entitled them to settlement from any of the Silica Defendants.

The Former Clients responded to the no-evidence motions for summary 

judgment by reasserting their allegations against the Firm. They also argued that 

their “claims of negligence are based on a number of various issues, some claims 

[for] which a silicosis medical report is not necessary,” such as untimely 

processing of settlements. They also listed certain Former Clients who were 

specifically named as settling plaintiffs entitled to a sum certain in various Rule 11 

settlement agreements but who were never paid, and they provided copies of all of 

the relevant settlement agreements with the Silica Defendants as summary 

judgment evidence.

On November 5, 2013, the trial court granted the no-evidence motions for 

partial summary judgment in each case. On December 18, 2013, it severed the 

parties and issues addressed in the partial summary judgments in an order 

providing “that the parties and all issues raised by the No Evidence Motions for 

Partial Summary Judgment, and the Order granting the same, be and are hereby 

severed regarding the 263” Former Clients. The trial court further ordered that the 

severed action be assigned a separate cause number and listed documents to be 

included in the case file for the severed action. 
9

The Former Clients then appealed “from the Order Granting the O’Quinn 

Defendants’ No-Evidence Motions for Partial Summary Judgment as to Plaintiffs 

signed November 5, 2013 . . . , made a final and appealable judgment by the 

Amended Order of Severance signed December 18, 2013.” During oral argument, 

this Court raised the question of appellate jurisdiction and sought supplemental 

briefing on that issue.

Jurisdiction

As a preliminary matter, we must first consider whether there is an 

appealable final judgment in this case. We must determine our jurisdiction to hear 

an appeal, and we are not limited by the parties’ failure to challenge this Court’s 

jurisdiction. Saudi v. Brieven, 176 S.W.3d 108, 113 (Tex. App.—Houston [1st 

Dist.] 2004, pet. denied) (lack of jurisdiction may be recognized by appellate court 

sua sponte); Walker Sand, Inc. v. Baytown Asphalt Materials, Ltd., 95 S.W.3d 511, 

514 (Tex. App.—Houston [1st Dist.] 2002, no pet.) (“Appellate courts must 

determine, even sua sponte, the question of jurisdiction, and the lack of jurisdiction 

may not be ignored simply because the parties do not raise the issue.”). We review 

our own jurisdiction de novo as a question of law because jurisdiction is never 

presumed. Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 228 (Tex. 

2004). If the record does not affirmatively demonstrate our jurisdiction, we have 

no option but to dismiss the appeal. IFS Sec. Grp., Inc. v. Am. Equity Ins. Co., 175 
10

S.W.3d 560, 562 (Tex. App.—Dallas 2005, no pet.); Parks v. DeWitt Cnty. Elec. 

Coop., Inc., 112 S.W.3d 157, 160 (Tex. App.—Corpus Christi 2003, no pet.); see

Lehmann v. Har-Con Corp., 39 S.W.3d 191, 199–200 (Tex. 2001).

Unless a statute authorizes an interlocutory appeal, appellate courts 

generally have jurisdiction only over final judgments. CMH Homes v. Perez, 340 

S.W.3d 444, 447 (Tex. 2011) (citing Lehmann, 39 S.W.3d at 195). When, as here, 

there has been no conventional trial on the merits, we do not presume that a 

judgment is final. Lehmann, 39 S.W.3d at 199–200. A judgment is final for 

purposes of appeal if it either (1) “actually disposes of all claims and parties then 

before the court, regardless of its language” or (2) states with “unmistakable 

clarity” that it is intended as a final judgment as to all claims and all parties. Farm 

Bureau Cnty. Mut. Ins. Co. v. Rogers, 455 S.W.3d 161, 163 (Tex. 2015) (per 

curiam) (citing Lehmann, 39 S.W.3d at 192–93).

Neither the order granting summary judgment nor the severance order here 

contained finality language or any other clear indication that the trial court 

intended the order to completely dispose of the entire case. See id.; Am. Heritage 

Capital, LP v. Gonzalez, 436 S.W.3d 865, 870 (Tex. App.—Dallas 2014, no pet.). 

Thus, we must determine whether the order before us actually disposes of all 

pending parties and claims in the record. Long v. Castle Tex. Prod. Ltd. P’ship, 

426 S.W.3d 73, 78–79 (Tex. 2014) (citing Lehmann, 39 S.W.3d at 195). We 
11

determine whether an order is a final judgment from the language of the order and 

the record of the case. Lehmann, 39 S.W.3d at 195; Parks, 112 S.W.3d at 161.

Here, the November 5, 2013 order granting the Firm’s no-evidence motions 

for partial summary judgment was not a final judgment because it disposed of only 

those legal malpractice claims that depended upon proof of medical causation. 

And the December 18, 2013 severance order severed the parties and issues 

addressed in the summary judgments in an order providing “that the parties and all 

issues raised by the No Evidence Motions for Partial Summary Judgment, and the 

Order granting the same, be and are hereby severed regarding the 263” Former 

Clients. It did not address or otherwise dispose of the other legal malpractice 

claims pending for at least some of those same plaintiffs, such as claims that the 

Firm was negligent in its untimely processing of settlements or in failing to make 

payments to clients who had been specifically named in Rule 11 settlement 

agreements with certain Silica Defendants. And even if the motion for partial 

summary judgment had addressed causation for all theories advanced in the 

Former Clients’ legal malpractice claims, it did not address other pending claims 

asserted against the Firm by the plaintiffs, including some of the Former Clients 

who are appellants here, such as the claims for breach of fiduciary duty, fraud, and 

unjust enrichment. Because the order does not dispose of all the claims of the 

parties, the trial court’s order was not final for purposes of an appeal.
12

The parties filed briefing asserting that the severance order created a final 

and appealable judgment. However, the briefing also demonstrated that the parties 

disagree regarding whether the summary judgment order encompassed negligence 

claims that did not require proof of silicosis, such as the claim that the Firm failed 

to disburse settlements that Silica Defendants had already agreed to pay. As 

discussed above, the Firms’ no-evidence motions for partial summary judgment 

expressly stated that they were filed in response to the trial court’s July 23, 2013 

“Order on Case Management” requiring that the Firm “shall file No Evidence 

motions for Summary Judgment on all cases pending in this Court which rely on 

the medical findings of Dr. Ray Harron to support a diagnosis of a silica injury.” 

The motions for summary judgment and the order granting them addressed only 

this one theory of liability for legal malpractice or professional negligence—the 

no-evidence motions for summary judgment did not address all of the professional 

negligence claims made by the plaintiffs, nor even all of the professional 

negligence claims made by the Former Clients who are appellants here.

We conclude that the record does not contain a judgment that is final for 

purposes of appeal, and there is no statute providing for consideration of this 

interlocutory order. See Lehmann, 39 S.W.3d at 195. Because the record does not 

affirmatively demonstrate our jurisdiction, we have no option but to dismiss the 
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appeal. See id. at 199–200; IFS Sec. Grp., Inc., 175 S.W.3d at 562; Parks, 112 

S.W.3d at 160.

Conclusion

We dismiss the appeal for want of jurisdiction.

Evelyn V. Keyes

Justice

Panel consists of Justices Keyes, Bland, and Massengale.