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, Judge Presiding

O R D E R

Sitting: Rebeca C. Martinez, Chief Justice

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 appellants to pay all pending closing costs due to third parties. 

Appellants filed an answer and counterclaims. In their pleadings, appellants 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’ pleadings 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 registry 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 pay the earnest money to appellee and it further 

ordered the parties to pay their own attorney’s fees and expenses. On July 30, 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 trial 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 interlocutory 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 appeal from an interlocutory order. See TEX.

CIV. PRAC. & REM. CODE ANN. § 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. 

We, 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