Opinion
NO. 14-16-00545-CV
03-27-2018
REYNA ISABEL TABORDA AND PHILLIP L. HURLEY, Appellants v. SRINIVASACHARY V. TAMIRISA AND BARRY POWELL, Appellees
On Appeal from the 400th District Court Fort Bend County, Texas
Trial Court Cause No. 15-DCV-221564
MEMORANDUM OPINION
Appellants Reyna Isabel Taborda and Phillip L. Hurley appeal from the trial court's rendition of final judgment, arguing the trial court erred in granting a final judgment prior to all parties and claims being disposed and in awarding appellate attorney's fees. For the reasons set forth below, we dismiss the appeal for want of jurisdiction because there is no final, appealable order.
I. Background
On March 2, 2015, Taborda and Hurley filed this case against Srinivasachary V. Tamirisa and Barry Powell, asserting in their second amended petition causes of action for breach of contract, statutory fraud in a real estate transaction, common law fraud, fraudulent inducement, fraud by non-disclosure, violations of the Texas Debt Collection Practices Act, promissory estoppel, and wrongful eviction. Tamirisa filed an answer; Powell did not. Tamirisa also filed affirmative defenses and a counterclaim against Taborda and Hurley as well as a cross-claim against Powell. Taborda filed an answer to the counterclaim; Hurley and Powell did not.
Appellants maintain that Powell was served with citation and a copy of their petition on June 4, 2015.
On December 3, 2015, Tamirisa filed a motion for summary judgment on Taborda's and Hurley's claims against her and her breach of contract counterclaim against them, which was granted. In an amended order granting Tamirisa's motion for summary judgment dated March 8, 2016, the trial court ruled that Taborda and Hurley take nothing on their causes of action against Tamirisa, and that Tamirisa prevailed on her breach of contract counterclaim. The trial court stated in its order that "[t]his judgment finally disposes of all claims between Plaintiffs and Defendant SRINIVASACHARY V. TAMIRISA."
On April 2, 2016, Tamirisa moved for a non-suit without prejudice as to her cross-claims against Powell, which was granted. Thereafter, on May 4, 2016, Tamirisa moved to enter final judgment, noting that summary judgment had been granted against Taborda and Hurley on their causes of action as well as Tamirisa's breach of contract counterclaim. Tamirisa also noted that the trial court had granted Tamirisa's nonsuit as to her claim against Powell.
On June 7, 2016, the trial court issued an "Order Entering Final Judgment." The order recites that Tamirisa moved to enter final judgment "on the above-styled and numbered cause wherein REYNA ISABEL [TABORDA] and PHILLIP L. HURLEY are Plaintiffs and Counter-Defendants." The order further noted that after consideration of the evidence, there was no genuine issue of material fact and summary judgment was granted in favor of Tamirisa on Plaintiffs' Causes of Action and Breach of Contract Counterclaim. Thereafter, the trial court made findings related to the grant of the summary judgment and counterclaim in ten numbered paragraphs. The last finding provided as follows:
No. 10. It is therefore ORDERED, ADJUDGED and DECREED this judgment finally disposes of all parties and the claims set forth herein (except those claims that have been non-suited without prejudice) and [sic] appealable and that [counter-]plaintiff is entitled to enforce this judgment through abstract, execution and any other process and as necessary consistent with the terms of this Judgment.
Thereafter, Taborda and Hurley, as plaintiffs and counter-defendants, filed this appeal. In their brief, appellants assert the trial court erred by: (1) issuing a final order on appellants' causes of action against Powell; (2) issuing a final order against Hurley as a counter-defendant; and (3) awarding Tamirisa attorney's fees for an appeal without conditioning it upon a successful appeal.
II. Jurisdiction Analysis
Although not raised by any party, we have an obligation to ensure that we have jurisdiction before proceeding to the merits of the appeal. See M.O. Dental Lab v. Rape, 139 S.W.3d 671, 673 (Tex. 2004) (per curiam); Royal Indep. Sch. Dist. v. Ragsdale, 273 S.W.3d 759, 763 (Tex. App.—Houston [14th Dist.] 2008, no pet.) (jurisdiction is fundamental in nature and may not be ignored). "An appellate court lacks jurisdiction to review an interlocutory order unless a statute specifically authorizes an exception to the general rule, which is that appeals may only be taken from final judgments." Qwest Commc'ns Corp. v. AT&T Corp., 24 S.W.3d 334, 336 (Tex. 2000) (per curiam). In cases like this, in which there is no conventional trial on the merits and no statutory exception applies, a judgment is final for purposes of appeal only if: (1) it actually disposes of all claims and parties before the court, regardless of its language; and (2) the order states with unmistakable clarity that it is a final judgment. See Guajardo v. Conwell, 46 S.W.3d 862, 863-64 (Tex. 2001) (per curiam); Lehmann v. Har-Con Corp., 39 S.W.3d 191, 192 (Tex. 2001).
Appellants make no specific request for relief in their brief; however, we presume they ask for reversal of the summary judgment, as they did in their motion for reconsideration before the trial court, rather than a dismissal of the appeal for want of jurisdiction.
A judgment that does not dispose of all parties and claims is interlocutory and will not be considered final for purposes of appeal unless the intent to finally dispose of the case is unequivocally expressed in the words of the order itself. In re Burlington Coat Factory Warehouse of McAllen, Inc., 167 S.W.3d 827, 830 (Tex. 2005) (orig. proceeding); Lehmann, 39 S.W.3d at 200. Such an order would be erroneous to the extent that it granted more relief than requested, but it would be considered final for purposes of appeal. See Lehmann, 39 S.W.3d at 200 (a judgment that grants more relief than requested by a party would not be interlocutory, but would be subject to reversal). In Lehmann, the Texas Supreme Court instructed that appellate courts should review the record in the case and the language of the order to determine whether the order is final. Id. at 205-06.
A review of the record in this case reveals that the Order Entering Final Judgment does not actually dispose of claims asserted by appellants against Powell. The Second Amended Petition, the live pleading at the time of the Order Entering Final Judgment, set forth claims against Powell that have not yet been adjudicated. The record does not contain any orders of severance or nonsuit addressing those claims. The motion for entry of final judgment filed by Tamirisa does not mention the appellants' claims against Powell. It is premised only on Tamirisa's summary judgment and counterclaim. Similarly, the trial court's order contains no ruling on appellants' causes of action against Powell. As a result, the Order Entering Final Judgment does not dispose of all pending claims and parties, and is not final for purposes of appeal unless the language of the order unequivocally expresses an intent to dispose of the case. See Lehmann, 39 S.W.3d at 200, 205-06 ("[I]f the record reveals the existence of parties or claims not mentioned in the order, the order is not final.").
The Order Entering Final Judgment states it is "ORDERED, ADJUDGED and DECREED this judgment finally disposes of all parties and the claims set forth herein," provides it is "appealable," and that Tamirisa is "entitled to enforce this judgment t[h]rough abstract, execution and any other process and as necessary. . . ." (emphasis added). This language, while indicating finality, does not unequivocally indicate the trial court's intent to finally dispose of appellants' causes of action against Powell. See In Re Burlington Coat Factory, 167 S.W.3d at 830; Lehman, 39 S.W.3d at 200, 205; Davati v. McElya, 530 S.W.3d 265, 267 (Tex. App.—Houston [1st Dist.] 2017, no pet.) ("merely including the words 'final' and 'appealable' is not enough to make the judgment or order final.").
In In re Burlington Coat Factory, the Texas Supreme Court addressed similar language contained in a default judgment order. In Re Burlington Coat Factory, 167 S.W.3d at 828. The plaintiff sued the retail store for actual and exemplary damages arising from injuries sustained while shopping at the store in McAllen. Id. When Burlington failed to answer, the trial court rendered a default judgment finding Burlington negligent and awarding actual damages. Id. The order was silent on the plaintiffs' exemplary damages claim. The order did award post-judgment interest and costs, include a Mother Hubbard clause, and state that the judgment could be enforced through "abstract, execution and any other process necessary." Id. at 830. The Texas Supreme Court first determined that the judgment did not dispose of all claims because it did not dispose of the claim for exemplary damages based on gross negligence. Id.
The Court clarified Lehman to include default judgments as well as summary judgments. "Although a judgment following a trial on the merits is presumed to be final, there is no such presumption of finality following a summary judgment or default judgment." In re Burlington Coat Factory, 167 S.W. 3d at 829.
The Court then held that the language providing for costs, post-judgment interest, and execution of the judgment were not dispositive in determining finality. Id. The Court held "[w]e cannot conclude that language permitting execution 'unequivocally express[es]' finality in the absence of a judgment that actually disposes of all parties and all claims." Id.
The judgment in this case does not actually dispose of all parties and all claims—there is no reference to appellants' claims against Powell. Although it allows for execution and includes language expressing finality, such language is expressly limited to "parties and the claims set forth herein." (emphasis added). There is no language pertaining to Powell set forth therein. Powell is never mentioned in the order. We cannot conclude that this language "unequivocally expresses finality." In re Burlington Coat Factory, 167 S.W.3d at 830. Because the Order Entering Final Judgment does not actually dispose of the causes of action asserted by appellants against Powell, and the order does not unequivocally express the trial court's intent to dispose of appellants' claims against Powell, the order is not an appealable judgment. Id; see also Davati, 530 S.W.3d at 267 (the language "final and appealable" is qualified as the severance order neither actually disposed of every pending claim between the severed parties nor clearly and unequivocally stated that it finally disposed of the parties and claims; thus, it does not make the summary judgment final and appealable). As such, we are without power to review it, and we have jurisdiction only to dismiss the appeal. See Bison Bldg. Materials, Ltd. v. Aldridge, 422 S.W.3d 582, 585 (Tex. 2012) ("Unless specifically authorized by statute, Texas appellate courts only have jurisdiction to review final judgments.").
III. Conclusion
Accordingly, we dismiss the appeal for want of jurisdiction.
/s/ John Donovan
Justice Panel consists of Justices Jamison, Busby, and Donovan.