Adam M. Swartz v. Sewell Village Cadillac Co., Inc. D/B/A Sewell Infiniti, Carmax Auto Superstore, Inc. and Nissan North America, Inc.

• Court: Court of Appeals of Texas
• Decided: December 30, 2022
• Docket: 05-22-00447-CV
• Status: Published

Opinion

DISMISS and Opinion Filed December 30, 2022

S In The Court of Appeals Fifth District of Texas at Dallas No. 05-22-00447-CV

ADAM M. SWARTZ, Appellant V. SEWELL VILLAGE CADILLAC CO., INC. D/B/A SEWELL INFINITI, CARMAX AUTO SUPERSTORE, INC. AND NISSAN NORTH AMERICA, INC., Appellees

On Appeal from the County Court at Law No. 1 Dallas County, Texas Trial Court Cause No. CC-20-00256-A

MEMORANDUM OPINION Before Justices Pedersen, III, Goldstein, and Smith Opinion by Justice Goldstein Adam Swartz filed the underlying suit in January 2020, asserting claims

against the three appellees for violations of the Deceptive Trade Practices Act

(“DTPA”) and fraud. The claims were either dismissed by summary judgment or

nonsuited. At issue in the appeal are two summary judgment orders.

Asserting we lack jurisdiction because Nissan North America, Inc.’s

counterclaim for attorney’s fees under section 17.50(c) of the DTPA is still pending,

CarMax Auto Superstore, Inc. and Nissan have filed an opposed motion to dismiss the appeal. Because the counterclaim is indeed pending, we grant the motion and

dismiss the appeal. See TEX. R. APP. P. 42.3(a).

It is well-settled that an appeal may generally be taken only after all claims

against all parties have been resolved. See Lehmann v. Har-Con Corp., 39 S.W.3d

191, 195 (Tex. 2001). When, as here, no conventional trial on the merits has been

held and the trial court has disposed of claims by separate orders, appellate court

jurisdiction is not invoked until an order disposing of the last claim is signed or one

of the orders unequivocally states it disposes of all claims and all parties. See id. at

200, 205; Farmer v. Ben E. Keith, 907 S.W.2d 495, 496 (Tex. 1995) (per curiam).

In opposing dismissal,1 Swartz does not argue the record includes an order

that states it disposes of all claims and parties. Rather, he maintains no “collateral

matters remain.” He notes the trial court “closed” the case and argues that Nissan

lacked “standing” to assert the counterclaim because the relief afforded under DTPA

section 17.50 is available only to consumers, and Nissan is not a consumer. Finally,

he asserts that even if Nissan could seek fees under section 17.50, the claim “ceased

to exist” thirty days after the case was closed.

A claim may “cease to exist” without a written order of dismissal, however,

only if omitted from an amended pleading. See FKM P’ship, Ltd. v. Bd. of Regents

1 Swartz did not file a response to the motion to dismiss but responded to an earlier motion by CarMax that asserted the same argument concerning our jurisdiction and remained pending at the time the motion to dismiss was filed. We consider Swartz’s arguments in his response to the earlier motion in determining the motion to dismiss. –2– of the Univ. of Houston Sys., 255 S.W.3d 619, 633 (Tex. 2008). Nissan’s claim for

attorney’s fees here was not omitted from any amended pleading; it was asserted in

Nissan’s live pleading. Accordingly, an order disposing of this claim is necessary

to invoke our jurisdiction. See Lehmann, 39 S.W.3d at 200. Because no order

disposes of the claim, we lack jurisdiction. See id. We grant CarMax and Nissan’s

motion and dismiss the appeal and all other pending motions. See TEX. R. APP. P.

42.3(a).

/Bonnie Lee Goldstein/ BONNIE LEE GOLDSTEIN JUSTICE

220447F.P05

–3– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT

ADAM M. SWARTZ, Appellant On Appeal from the County Court at Law No. 1, Dallas County, Texas No. 05-22-00447-CV V. Trial Court Cause No. CC-20-00256- A. SEWELL VILLAGE CADILLAC Opinion delivered by Justice CO., INC. D/B/A SEWELL Goldstein, Justices Pedersen, III and INFINITI, CARMAX AUTO Smith participating. SUPERSTORE, INC., AND NISSAN NORTH AMERICA, INC., Appellees

In accordance with this Court’s opinion of this date, we DISMISS the appeal.

We ORDER that appellees Sewell Village Cadillac Co., Inc. d/b/a Sewell Infiniti, CarMax Auto Superstore, Inc., and Nissan North America, Inc. recover their costs, if any, of this appeal from appellant Adam M. Swartz.

Judgment entered December 30, 2022.

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