# Fourth Court of Appeals

San Antonio , Texas

June 28, 2021

No. 04

- 20

- 00388

- CV

Jason Matthew SMITH and Christa Eve Smith,

Appellants

v.

Dana G. KIRK , Trustee of Kirk Ranch Trusts,

Appellees

From the County Court at Law

, Kerr County, Texas

Trial Court No. 18935C

Honorable Susan Harris , Ju dge Presiding



### O R D E R

Sitting: Rebeca C. Martinez, Chief Justi ce

Irene Rios, Justice

Liza A . Rodriguez, Justice

Appellee sued appellees for declaratory judgment seeking to recover earnest money deposited with a title company for the purchase of real estate. In her pleadings, appellee also asked the trial court to order app ellants to pay all pending closing costs due to third parties.

Appellants filed an answer and counterclaims. In their pleadings, a ppellants asked the

trial court to award them the earnest money in question and to order appellee to pay all pending closing costs due to third parties . Appellants’ ple adings also alleged a cause of action for statutory fraud in a real estate transaction

. Thereafter, appellants and appellee filed competing motions for summary judgment, each asking to be awarded the earnest money, which by then had been deposited in the r egistry of the court.

On July 1, 2020, the trial court signed an order denying appellants’ motion for partial summary judgment and granting appellee’s motion for summary judgment. Additionally, the trial

court’s order directed the Kerr County Clerk to pa y the earnest money to appellee and it further ordered the parties to pay their own attorney’s fees and expenses. On July 3 0 , 2020, appellants filed their notice of appeal, which was subsequently amended twice.Importantly, nothing in the clerk’s record shows the trial court has disposed of all of the

claims pending in the trial court . In particular, the record shows appellants’ fraud claim and the parties’ competing claims regarding closing costs due to third parties have not been disposed of by the tria l court

. A judgment or order is final for purposes of appeal if it actually disposes of all pending parties and claims before the court. Lehmann v. Har

- Con Corp. , 39 S.W.3d 191, 195 (Tex. 2001). Here, the trial court’s summary judgment order is interlocut ory because it does not dispose of all of the causes of action in the case. Further, the record does not include any order severing claims or parties. Thus, the July 1, 2020 summary judgment order is not a final and appealable order. Interlocutory orders may be appealed only if a specific statute authorizes such an interlocutory appeal. For example, section 51.014 of the Texas Civil Practice and Remedies Code lists circumstances under which a party may appea l from an interlocutory order. See T EX

. C IV

. P RAC

. & R EM

. C ODE A NN

. § 51.014. We cannot, however, find any statutory authority that allows a party to appeal from the interlocutory summary judgment order contained in the record

before us.

W e, therefore, ORDER appellants to show cause in writing on or before July 16, 2021

, why this appeal should not be dismissed for lack of jurisdiction.

It is so ORDERED on June 28, 2021.

PER CURIAM

ATTESTED TO:

_________________________

MICHAEL A. CRUZ

, CLERK OF COURT