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Taborda v. Tamirisa

Court of Appeals of Texas, Fourteenth District

March 27, 2018


          On Appeal from the 400th District Court Fort Bend County, Texas Trial Court Cause No. 15-DCV-221564

          Panel consists of Justices Jamison, Busby, and Donovan.


          John Donovan, Justice

         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.[1] 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.

         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, [2] 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).

         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 Lehm ...

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