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In The

Court of Appeals

Ninth District of Texas at Beaumont

____________________

NO. 09-19-00036-CV

____________________

CLOTILDE EAKER, Appellant

V.

JOHN MANGIAMELI, JOSEPH L. MANGIAMELI, JAMES H. 

STILWELL, MARTIN, EARL & STILWELL, LLP, AND THE JOLE P. 

EAKER IRREVOCABLE TRUST, Appellees

__________________________________________________________________

On Appeal from the County Court at Law No. 2

Montgomery County, Texas

Trial Cause No. 17-30341

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MEMORANDUM OPINION

Appellant Clotilde Eaker filed a notice of appeal from three orders ruling on 

appellees’ two motions for partial summary judgment, Eaker’s cross-motion for 

summary judgment, and appellees’ motion for summary judgment as to Eaker’s 

cause of action for declaratory judgment. The appellees filed a motion to dismiss 

Eaker’s appeal, arguing that the appeal is premature because it relates to 

interlocutory orders. According to appellees’ motion, Eaker’s cause of action for 
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declaratory relief related to a mediated settlement agreement and “allegations of 

breach of fiduciary duty and gross negligence.” Appellees asserted that they obtained 

a dismissal of the claims against James H. Stilwell and Martin, Earl, & Stilwell, LLP, 

pursuant to Rule 91a and they contend that they also sought a recovery of their 

attorney’s fees. See Tex. R. Civ. P. 91a. According to appellees, Eaker’s appeal is 

premature because it pertains to three “interlocutory partial summary judgment 

orders.” In addition, appellees asserted that the motions for partial summary 

judgment “only tackled a single part of the case[,]” and that none of the appellees’ 

motions sought summary judgment as to the claim for attorney’s fees, which remains

pending.

Eaker then filed a motion to abate the appeal, in which she states that the trial 

court’s “series of judgments” constitutes a “substantive” disposition of the case. 

Eaker concedes that the motions were captioned as partial motions for summary 

judgment, but she points out that a pleading’s effect rather than how it is captioned 

is controlling. Appellees filed a response to Eaker’s motion to abate, in which it 

reasserts its position that the orders at issue are not appealable because none of the 

orders address appellees’ claim for attorney’s fees. 

Generally, appellate courts review only final judgments and interlocutory 

orders specifically made appealable by statute. Lehmann v. Har-Con Corp., 39 
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S.W.3d 191, 195 (Tex. 2001). The trial court has not authorized a permissive appeal 

in this matter and there is no indication in the record that a final judgment is 

imminent. See N.Y. Underwriters Ins. Co. v. Sanchez, 799 S.W.2d 677, 678-79 (Tex. 

1990) (concluding that the Court of Appeals erred by assuming jurisdiction over an 

appeal in which the defendant’s counterclaim for attorney’s fees remained pending). 

Eaker also has not demonstrated that the judgments are appealable because they 

ended a discrete phase of a probate proceeding. See In re Guardianship of Murphy, 

1 S.W.3d 171, 172-73 (Tex. App.—Fort Worth 1999, no pet.) (explaining that when 

an order ends a discrete phase of a probate proceeding, it is a final and appealable 

order). We conclude that the three orders ruling on appellees’ two motions for partial 

summary judgment, Eaker’s cross-motion for summary judgment, and appellees’ 

motion for summary judgment as to Eaker’s cause of action for declaratory judgment 

are interlocutory and are not final appealable orders. Accordingly, we dismiss the 

appeal for lack of jurisdiction. See Tex. R. App. P. 43.2(f).

APPEAL DISMISSED.

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 LEANNE JOHNSON

 Justice

Submitted on March 27, 2019

Opinion Delivered March 28, 2019

Before McKeithen, C.J., Kreger and Johnson, JJ.