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Trishe Resources, Inc. v. Hilliard Energy, Ltd.

Court of Appeals of Texas, Eleventh District

February 28, 2018


         On Appeal from the 385th District Court Midland County, Texas Trial Court Cause No. CV 50941

          Panel consists of: Willson, J., Bailey, J., and Wright, S.C.J.[2]



         Appellants-Trishe Resources, Inc.; Trishe Wind Minnesota, LLC; and Trishe Wind Colorado, LLC-filed a notice of restricted appeal from an order granting a default judgment in favor of Hilliard Energy, Ltd. Upon reviewing the clerk's record, this court became concerned about the finality of the trial court's order granting a default judgment because that order did not dispose of all of the defendants below. We notified the parties of our concern and requested that the parties file a response regarding finality. Each side filed a response.

         In their response, Appellants expressed the same concern as this court and agreed that "the default judgment in this case is interlocutory rather than final." Appellants request that we dismiss this appeal if we determine that the default judgment is interlocutory.

         Hilliard, on the other hand, argues that the default judgment was a final, appealable judgment despite the judgment's failure to dispose of two defendants- Karomi Energy, Inc. and Karomi, Inc.-against whom Hilliard had asserted claims in its live petition. Hilliard suggests that it had discontinued its claims against the Karomi defendants based upon the following: neither of the Karomi defendants had been served with citation; neither of the Karomi defendants had appeared in this cause; and Hilliard had filed a motion to nonsuit one of the Karomi defendants (Karomi, Inc.). In support of its position, Hilliard relies upon Ballard v. Portnoy, 886 S.W.2d 445, 446 (Tex. App.-Houston [1st Dist.] 1994, no writ) (citing Youngstown Sheet & Tube Co. v. Penn, 363 S.W.2d 230 (Tex. 1962)). In Penn, the supreme court held that "the case stands as if there had been a discontinuance as to [the remaining defendant], and the [summary] judgment is to be regarded as final for the purposes of appeal" if the remaining defendant was never served with citation and did not answer and nothing indicates that the plaintiff ever expected to obtain service upon that defendant. Penn, 363 S.W.2d at 232.

         We have read Ballard and Penn, but we do not agree that they are controlling under the record in this cause. In its live pleading, Hilliard asserted claims against the Karomi defendants, requested that each Karomi defendant be served with citation, and provided separate addresses for each Karomi defendant. Additionally, Hilliard filed a motion to nonsuit[1] one of the Karomi defendants, but not both of them; the order granting the default judgment lists the other Karomi defendant, Karomi Energy, Inc., as a defendant in the caption. The record in this cause also reflects that both Hilliard and the trial court distinguished "the Trishe defendants" from "the Karomi defendants." We note that, in Penn, nothing in the record suggested that the plaintiff expected to obtain service upon the remaining defendant. Penn, 363 S.W.2d at 232. In another "discontinuance" case, the court reaffirmed its position in Penn and held that the summary judgment was final even though it did not dispose of one of the defendants. See M.O. Dental Lab v. Rape, 139 S.W.3d 671, 674-75 (Tex. 2004). The remaining defendant in M.O. Dental had not been served with citation, but as pointed out by the supreme court, the petition there indicated that the location for service of that defendant was unknown and that "no citation is requested." Id. at 674. We conclude that the facts in the present case do not support a finding of "discontinuance" and that Penn and M.O. Dental are therefore distinguishable.

         Instead, we believe that the decision in Park Place Hospital v. Estate of Milo, 909 S.W.2d 508 (Tex. 1995), controls the outcome of the present appeal. See M.O. Dental, 139 S.W.3d at 675 (noting that the decisions in Penn and Milo are not inconsistent). In Milo, the Texas Supreme Court determined that, because the summary judgment at issue did not dispose of two of the defendants, it did not become final and appealable until a severance order was issued. 909 S.W.2d at 510. Similar to the situation in the present case, the plaintiffs in Milo had filed a notice of nonsuit as to one of the two defendants that were not disposed of in the summary judgment. Id. The supreme court pointed out that the trial court had not entered any order dismissing that defendant. Id. (citing Farmer v. Ben E. Keith Co., 907 S.W.3d 495 (Tex. 1995)). Also similar to the present case, the second of the two remaining defendants in Milo had not been served with citation at the time of the summary judgment. Id.

         Unless specifically authorized by statute, appeals may be taken only from final judgments. Tex. A & M Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 840 (Tex. 2007); Lehmann v. Har-Con Corp., 39 S.W.3d 191 (Tex. 2001). Because the trial court's order granting default judgment against "the Trishe defendants" does not dispose of all parties and all claims and does not reflect that it is final and appealable, it is not a final, appealable judgment. See Lehmann, 39 S.W.3d at 199-200, 205. Without a final, appealable judgment, we have no jurisdiction to reach the merits of this appeal at this time. As suggested by Appellants, we dismiss this appeal as having been prematurely filed. See Tex. R. App. P. 42.3(a).

         The appeal is dismissed for want of jurisdiction.



[1]We note that there is no indication in the record that Hilliard's "motion" to nonsuit was acted upon by the trial court.

[2]Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland, ...

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