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Bean v. Temple Windmill Farms Homeowners Association, Inc.

Court of Appeals of Texas, Third District, Austin

May 9, 2018

David Bean and Alison Bean, Appellants
v.
Temple Windmill Farms Homeowners Association, Inc., Appellee

          FROM THE DISTRICT COURT OF BELL COUNTY, 169TH DISTRICT NO. 291, 731-C, HONORABLE GORDON G. ADAMS, JUDGE PRESIDING

          Before Chief Justice Rose, Justices Goodwin and Field.

          MEMORANDUM OPINION

          Melissa Goodwin, Justice.

         David Bean and Alison Bean appeal from the trial court's order granting the motion for summary judgment of Temple Windmill Farms Homeowners Association, Inc. (the Association), and denying the Beans' motion for partial summary judgment. In response to a letter from this Court questioning our jurisdiction over this appeal, the Association filed a response and a motion to dismiss for lack of jurisdiction, contending that the trial court's order was not final and appealable. The Beans filed a response and oppose the motion. Because we conclude that the order granting summary judgment in favor of the Association is not a final appealable order, we grant the Association's motion and dismiss this appeal for want of jurisdiction.

         Background

         In the underlying proceeding, the Association sued the Beans, alleging that the Beans had breached applicable restrictive covenants. The Association sought injunctive relief and an award of damages, attorney's fees, and court costs. The Beans filed an answer, generally denying the Association's claims.

         The Association filed a motion for summary judgment seeking a ruling that the Beans had violated the restrictive covenants and injunctive relief requiring the Beans to comply with the restrictive covenants. The Beans filed a response and a competing motion for partial summary judgment, arguing that the Association had waived its pleaded causes of action. The Beans also filed an amended answer, counterclaims, and third party claims, seeking declaratory and injunctive relief. The Beans' causes of action included breach of fiduciary duty, fraud, and abuse of position.

         After the trial court signed the order granting the Association's motion for summary judgment and denying the Beans' motion for partial summary judgment, the Beans filed a motion for interlocutory appeal and stay pending appeal. After the Association filed a response to this motion, opposing it, the Beans filed a notice of non-suit without prejudice of their counterclaims and third-party claims and then filed their notice of appeal in this proceeding.

         Analysis

         "[T]he general rule, with a few mostly statutory exceptions, is that an appeal may be taken only from a final judgment. 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 v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001) (footnote omitted). "Because the law does not require that a final judgment be in any particular form, whether a judicial decree is a final judgment must be determined from its language and the record in the case." Id. When making this determination, "[a] judgment 'must be read in light of the importance of preserving a party's right to appeal'; if we imply finality from anything less than an unequivocal expression, a party's right to appeal may be jeopardized." In re Burlington Coat Factory Warehouse, 167 S.W.3d 827, 830 (Tex. 2005) (quoting Lehmann, 39 S.W.3d at 195, 206); see Tex. R. App. P. 26.1 (setting deadlines for perfecting appeal from date judgment is signed); Farmer v. Ben E. Keith Co., 907 S.W.2d 495, 496 (Tex. 1995) (per curiam) ("The appellate timetable does not commence to run other than by signed, written order, even when the signing of such an order is purely ministerial." (emphasis in original)).

         The language of the trial court's order and the record in this case make clear that the order is not final. See Lehmann, 39 S.W.3d at 195 (determining whether judicial decree is final from "its language and the record in the case"). For example, the order does not contain language stating that it disposes of all parties and claims or that it is a final appealable order. And the record reflects that the Association's claims for damages and attorney's fees remain pending.[1] Further, although the Beans filed a notice of non-suit of their counterclaims and third party claims, the record does not include a corresponding order. See Park Place Hosp. v. Estate of Milo, 909 S.W.2d 508, 510 (Tex. 1995) ("All parties and all issues before the trial court must be disposed of before a summary judgment becomes final and appealable. . . . Although the plaintiffs had filed notice to nonsuit [pending party], the appellate timetable could not be triggered until a signed, written order of the court dismissed him."); Yi v. Ko, No. 05-15-00644-CV, 2015 Tex.App. LEXIS 10123, at *1-2 (Tex. App.-Dallas Sept. 29, 2015, no pet.) (mem. op.) (dismissing appeal because judgment and order that was appealed did not dispose of claims against two other parties and rejecting argument that "parties and claims were disposed by the combination of the default judgment, notice of nonsuit, and trial court's closure of the case"; notice of nonsuit of other parties was filed after judgment and order that was appealed and "the trial court did not sign an order of nonsuit"); see also Crites v. Collins, 284 S.W.3d 839, 840-41 (Tex. 2009) (per curiam) (noting that, if other claims such as motion for sanctions remain in case after judgment dismissing all of plaintiff's claims, order determining last claim is final appealable order).

         On this record, we conclude that the summary judgment order is interlocutory and not among the types of interlocutory orders that are appealable. See Tex. Civ. Prac. & Rem. Code § 51.014 (addressing appeals from interlocutory orders). Thus, we conclude that this Court does not have jurisdiction over this appeal.

         Conclusion

         Because the record before this Court does not contain an appealable judgment or order, we grant the Association's motion and dismiss this appeal for ...


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