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

In The Court of Appeals Fifth District of Texas at Dallas


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 carry out the decree. Lehmann, 39 S.W.3d at 195; See also Jack B. Anglin Co. v. Tipps, 842 S.W.2d 266, 272 (Tex. 1992). "The intent to finally dispose of the case must be unequivocally expressed in the words of the order itself." Lehmann, 39 S.W.3d at 200.

The June 4, 2009 purported final judgment in this case contains contradictory language. The third paragraph states in full:

THE COURT FINDS FURTHER THAT Defendant McCray charged Plaintiffs usurious interest and plaintiff is entitled to the statutory penalty of twice the amount of interest contracted for, charged or received, for the statutory damages penalty totaling $173,528.00. The court finds that the statutory penalties for usury are awarded in addition to the recession damages for a total damages award of $238,845.15 plus attorney fees plus attorney's fees [sic] in the amount of $40,000.00 through May 29, 2009 plus pre judgment interest in the amount of $4,294.83 ($65,317.15 x 5% from February 4th, 2008-May 29, 2009), post judgment interest as provided by law and for all further relief to which Plaintiffs may be justly entitled by law or in equity and to set trial for the remainder of Plaintiff's claims and actions (emphasis added).

It is clear from this court's findings that the trial court only granted summary judgment on usury, recission, pre-judgment interest and attorney fee claims. It is also clear that the trial court, by its own language, retained the remaining causes of action and intended they be set for trial, even though the final paragraph contains boilerplate language that the judgment is final and appealable. Conclusion

Because of the contradiction in the language of the final judgment, we conclude the judgment is not a final, appealable order. Accordingly, we dismiss the appeal for want of jurisdiction.

Do Not Publish

Tex. R. App. P. 47 090828F.U05

Court of Appeals Fifth District of Texas at Dallas

JUDGMENT

STEWART MCCRAY, Appellant GERALD H. AND ELIZABETH A. HOAG, Appellees

No. 05-09-00828-CVV.

Appeal from the 68th District Court of Dallas County, Texas. (Tr.Ct.No. 07-12998). Opinion delivered by Justice Richter, Justices Bridges and Murphy participating.

Based on the Court's opinion of this date, we DISMISS the appeal for want of jurisdiction.

Judgment entered February 29, 2012.

MARTIN RICHTER JUSTICE

20120229

© 1992-2012 VersusLaw Inc.



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