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Dick Poe Motors7/28/2005
This is an appeal from the trial court's entry of an agreed order of dismissal entered by the trial court on December 1, 2003 and the denial of a motion for clarification dated February 17, 2004. On the court's own motion, we dismiss this appeal for the reason that the order appealed from is not a final appealable order.
I. FACTUAL AND PROCEDURAL BACKGROUND
The original lawsuit in this case arose as a result of a tragic automobile accident where the plaintiff, Jennifer Ann Lee, as mother of Alyssa Catlin Lee, deceased, brought suit against various corporate defendants, DaimlerChrysler Corporation, formerly known as Chrysler Corporation ("Chrysler"), TRW, Inc. ("TRW"), and Dick Poe Motors ("Dick Poe"), doing business as Dick Poe Chrysler Plymouth. Dick Poe filed a cross-action against Chrysler and TRW. The underlying personal injury claims against each corporate defendant were ultimately settled and various orders of dismissal were entered disposing of portions of the lawsuit. The trial court signed an agreed order of dismissal on December 1, 2003 which disposed of the claims between the plaintiff and Chrysler. The pertinent part of the order was worded as follows:
On the date hereinafter shown, came on to be heard the Motion by JENNIFER ANN LEE, Individually, as Independent Administratrix of the ESTATE OF ALYSSA CATLIN LEE, a Minor, Deceased, and on Behalf of All Wrongful Death Beneficiaries of ALYSSA CATLIN LEE, a Minor, Deceased, Plaintiff, and DAIMLERCHRYSLER CORPORATION, f/k/a CHRYSLER CORPORATION, Defendants, to dismiss any and all claims by and between them in their entirety with prejudice with each party to bear its own attorneys fees and costs for the reason that all matters in dispute between them have been fully and finally settled.
IT IS, THEREFORE, ORDERED that any and all counter-claims, cross-claims, and any and all other claims of any type whatsoever by and between the parties herein are dismissed in their entirety with prejudice with each party to bear its own attorneys fees and costs.
SIGNED this 1 day of Dec , 2003.
JUDGE LUIS AGUILAR
The order was signed, approved as to form, by Evelina Ortega, attorney for the plaintiff, and Patrick Seyferth, attorney for Chrysler, only.
A dispute among the parties arose over the effect of the December 1 order and Dick Poe filed a "Motion for Clarification Regarding Order of Dismissal Between Plaintiff and Daimlerchrysler Corporation," specifically questioning the effect of the agreed order of dismissal signed by the court on December 1, 2003. On February 17, 2004, the trial court held a hearing and entered an order that stated the following:
IT IS ORDERED that Dick Poe Motor, Inc.'s Motion for Clarification is hereby denied on the basis that Dick Poe Motor, Inc. abandoned or waived its cross-claims against Defendants DaimlerChrysler Corporation and TRW, Inc.
SIGNED on this 17 day of Feb, 2004.
Luis Aguilar Judge Presiding
On March 18, 2004, Dick Poe filed its notice of appeal, asking this Court to determine whether the orders of December 1, 2003 and February 17, 2004 provided a final appealable order for purposes of appeal. We filed this notice of appeal under cause number 08-04-00080-CV. After a review of the appellate record, we hold that they do not.
II. ORDER ON APPEAL
Unless otherwise statutorily authorized, an appeal may be taken only from a final judgment or order. Tex. Civ. Prac. & Rem. Code Ann. ยงยง 51.012, 51.014 (Vernon 1997 & Supp. 2004-05). A judgment or order is final for purposes of appeal if it disposes of all parties and all issue
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