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Stewart Mccray v. Gerald H. and Elizabeth A. Hoag

February 29, 2012

STEWART MCCRAY,
APPELLANT
v.
GERALD H. AND ELIZABETH A. HOAG,
APPELLEES



On Appeal from the 68th Judicial District Court Dallas County, Texas Trial Court Cause No. 07-12998

The opinion of the court was delivered by: Martin Richter Justice

DISMISS and Opinion Filed February 29, 2012

OPINION

Before Justices Bridges, Richter, and Murphy

Opinion By Justice Richter

Stewart McCray ("McCray") appeals from a partial summary judgment in favor of Gerald H. and Elizabeth A. Hoag ("Hoags") awarding damages on failure to make statutory disclosures under the federal Truth in Lending Act, rescission, damages for usury, and attorney's fees. For the reasons that follow, we dismiss the appeal for want of jurisdiction.

Background

In November 2007, the Hoags initiated this suit against McCray. During the course of litigation, the Hoags filed a motion for partial summary judgment in February 2009 on the claims of truth in lending violations and usury. The trial court granted the partial summary judgment. The Hoags also filed a motion to non-suit the remaining claims of violation of the federal and Texas Fair Debt Collection Practices Act, conversion and violation of the Texas Deceptive Trade Practices Act, which the court also granted without prejudice in an order dated February 16, 2009. The court then entered a final judgment dated February 16, 2009. However, on March 13, 2009, McCray filed a motion to vacate the judgment and for a new trial. McCray's motion for new trial was granted on May 14, 2009 and the court order also vacated the order granting the Hoags' motion of non-suit and reinstated "all claims and causes of action asserted by Plaintiff."

Subsequently, the Hoags filed a second motion for partial summary judgment which addressed only two causes of action: truth in lending violations and usury. The Hoags' partial summary judgment was granted, awarding the statutory remedy of rescission, damages for usury, and attorney's fees in what is purported to be a final judgment dated June 4, 2009. McCray now appeals.

Appellate jurisdiction is never presumed. See Parks v. DeWitt County Elec. Co-op., Inc., 112 S.W.3d 157, 160 (Tex. App.-Corpus Christi 2003, no pet.) We review de novo whether we have jurisdiction over an appeal because jurisdiction is a legal question. See Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998). The appeal must be dismissed unless the record affirmatively demonstrates the appellate court's jurisdiction. See Texas Integrated Conveyor Sys., Inc. v. Innovative Conveyor Concepts, Inc., 300 S.W.3d 348, 360 (Tex. App.-Dallas 2009, no pet.) (citing IFS Sec. Group, Inc. v. Am. Equity Ins. Co., 175 S.W.3d 560, 562 (Tex. App.-Dallas 2005, no pet.)). The general rule is that an appeal may be taken only from a final judgment. See Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001); North East Indep. Sch. Dist. v. Aldridge, 400 S.W.2d 893, 895 (Tex. 1966). A judgment is final for purposes of appeal if it disposes of all pending parties and claims in the record, except as necessary to ...

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