Zedrickv.Bilder

Court of Appeals Fifth District of Texas at DallasJul 10, 2019
No. 05-18-01356-CV (Tex. App. Jul. 10, 2019)

No. 05-18-01356-CV

07-10-2019

OLGA LESYA SYTNIANSKA ZEDRICK, Appellant v. STANISLAV BILDER, Appellee


On Appeal from the 401st Judicial District Court Collin County, Texas
Trial Court Cause No. 401-04816-2017

MEMORANDUM OPINION

Before Chief Justice Burns, Justice Whitehill, and Justice Molberg
Opinion by Chief Justice Burns

Before the Court is Stanislav Bilder's motion to dismiss the appeal. He contends this Court lacks jurisdiction because the appealed order is not final as it does not dispose of the claim for exemplary damages.

Generally, this Court has jurisdiction only over appeals from final judgments. See Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001). A final judgment is one that disposes of all pending parties and claims. Id. A judgment that does not dispose of a claim for exemplary damages is not final. See In re Burlington Coat Factory Warehouse of McAllen, Inc., 167 S.W.3d 827, 830 (Tex. 2005) (citing Houston Health Clubs, Inc. v. First Court of Appeals, 722 S.W.2d 692, 693 (Tex. 1986)).

In her original petition, Olga Lesya Sytnianska Zedrick asserted claims for assault, intentional infliction of emotional distress, and declaratory judgment that she had the parties' child for the majority of the time in 2016 for tax purposes. She sought actual damages, exemplary damages for the intentional conduct, and attorney's fees. In her second amended petition, appellant dropped her claims for assault and intentional infliction of emotional distress. However, she retained her claim for exemplary damages.

Zedrick filed a motion for summary judgment. In his amended response to the motion, Bilder stated that he had amended his 2016 tax return to remove the child as his dependent. In the appealed order, the trial court denied Zedrick's motion for summary judgment, denied her claim for declaratory judgment as moot, and denied her request for attorney's fees. The order does not contain any finality language.

Zedrick filed a response to the motion to dismiss. Although she states she is "not inclined to voluntarily dismiss her appeal", she concedes that the trial court's order on her motion for summary judgment fails to dispose of the pending exemplary damages claim and appears to be interlocutory. Because the trial court's order did not dispose of all claims, we grant Bilder's motion and dismiss this appeal for want of jurisdiction. See TEX. R. APP. P. 42.3(a).

/Robert D. Burns, III/


ROBERT D. BURNS, III


CHIEF JUSTICE 181356F.P05

JUDGMENT

On Appeal from the 401st Judicial District Court, Collin County, Texas
Trial Court Cause No. 401-04816-2017.
Opinion delivered by Chief Justice Burns. Justices Whitehill and Molberg participating.

In accordance with this Court's opinion of this date, the appeal is DISMISSED.

It is ORDERED that appellee STANISLAV BILDER recover his costs of this appeal from appellant OLGA LESYA SYTNIANSKA ZEDRICK. Judgment entered July