TRISHE RESOURCES, INC.; TRISHE WIND MINNESOTA, LLC; AND TRISHE WIND COLORADO, LLC, Appellants
HILLIARD ENERGY, LTD., Appellee
Appeal from the 385th District Court Midland County, Texas
Trial Court Cause No. CV 50941
consists of: Willson, J., Bailey, J., and Wright,
M. BAILEY JUSTICE.
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
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.
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.
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 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.
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
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).
appeal is dismissed for want of jurisdiction.
We note that there is no indication in
the record that Hilliard's "motion" to nonsuit
was acted upon by the trial court.
Jim R. Wright, Senior Chief Justice
(Retired), Court of Appeals, 11th District of Texas at