Aurora Loan Services v. Aurora Loan Services, LLC

• Court: Court of Appeals of Texas
• Decided: January 31, 2013
• Docket: 05-11-01362-CV
• Status: Published

Opinion

DISMISS; Opinion Filed January31, 2013

S In The Court of Appeals Fifth District of Texas at Dallas No. 05-11-01362-CV

AURORA LOAN SERVICES, Appellant V. AURORA LOAN SERVICES, LLC, Appellee

On Appeal from the 191st Judicial District Court Dallas County, Texas Trial Court Cause No. 10-11206

MEMORANDUM OPINION Before Justices FitzGerald, Fillmore and Richter 1 Opinion by Justice FitzGerald

By letter to the parties dated December 18, 2012, the Court questioned its jurisdiction

over this appeal. We notified the parties of our concerns and afforded them ten days in which to

file letter briefs addressing those concerns. Neither party filed such a letter brief. Concluding

that there is no final judgment, we dismiss the appeal.

Generally, appeals may be taken only from final judgments. See Lehmann v. Har–Con

Corp., 39 S.W.3d 191, 195 (Tex. 2001). A judgment is final for purposes of appeal if it disposes

of all pending parties and claims. Id. When there has not been a conventional trial on the merits,

1. The Hon. Martin E. Richter, Retired Justice, sitting by assignment. an order or judgment is final only if it actually disposes of every pending claim and party or it

clearly and unequivocally states that it finally disposes of all claims and all parties. Id. at 205. A

Mother Hubbard clause in an otherwise interlocutory partial-summary-judgment order does not

suffice to make the order a final judgment. See id. at 203–04. Moreover, an order does not

completely dispose of case “merely because it is entitled ‘final’, or because the word ‘final’

appears elsewhere in the order, or even because it awards costs.” Id. at 205.

We review the record to ascertain the propriety of our jurisdiction. See Brashear v.

Victoria Gardens of McKinney, L.L.C., 302 S.W.3d 542, 546 (Tex. App.—Dallas 2009, no pet.).

Appellee was the plaintiff in the trial court and asserted five distinct claims against appellant in

five separate counts. Appellee asserted claims under the federal Lanham Act in counts one and

two, a common-law claim for unfair competition in count three, a claim for a violation of section

16.29 of the Texas Business and Commerce Code in count four, and a claim for declaratory

judgment in count five. The parties filed cross-motions for summary judgment. The summary-

judgment order signed by the trial judge is entitled “Summary Judgment and Permanent

Injunction.” In that order, the judge granted summary judgment for appellant on count one and

summary judgment for appellee on counts two and four. The order does not address counts three

or five. The order also grants appellee permanent injunctive relief against appellant, exonerates a

bond previously posted by appellee, taxes costs against appellant, and concludes with a Mother

Hubbard clause reciting, “All relief requested and not expressly granted herein is hereby denied.”

The summary-judgment order in this case is not final for purposes of appeal. The order

does not address two of appellee’s pleaded claims. It does not recite that it is a final or

appealable order. Although it contains a Mother Hubbard clause and awards costs, those

provisions are not sufficient to make the order final under Lehmann. See 39 S.W.3d at 205.

2 As for the award of injunctive relief, we have recently reiterated that “[a] summary

judgment that fails to dispose of all claims, even if it grants a permanent injunction, is

interlocutory and unappealable.” Young v. Golfing Green Homeowner’s Ass’n, Inc., No. 05-12-

00651-CV, 2012 WL 6685472, at *1 (Tex. App.—Dallas Dec. 21, 2012, no pet. h.) (mem. op.);

accord Aloe Vera of Am., Inc. v. CIC Cosmetics Int’l Corp., 517 S.W.2d 433, 435–36 (Tex. Civ.

App.—Dallas 1974, no writ). Temporary injunctions, by contrast, are immediately appealable

on an interlocutory basis. See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(4) (West Supp.

2012). The supreme court has said that we look at the character and function of an injunction to

determine whether it is an immediately appealable temporary injunction or not. Qwest

Commc’ns Corp. v. AT&T Corp., 24 S.W.3d 334, 336 (Tex. 2000) (per curiam). In this case,

however, we need not determine whether the injunction awarded in the trial court’s order is

permanent or temporary because we lack appellate jurisdiction either way. If the injunction is

permanent, it is not appealable because it is part of an unappealable interlocutory order, as in

Young. And if it is an appealable temporary injunction, we lack appellate jurisdiction because

appellant filed its notice of appeal ninety days after the order was signed. See TEX. R. APP. P.

26.1(b) (setting twenty-day deadline for filing notice of appeal in accelerated appeals); id.

28.1(a) (providing that appeals from interlocutory orders are accelerated); In re K.A.F., 160

S.W.3d 923, 928 (Tex. 2005) (holding that post-judgment motions do not extend the deadline for

perfecting an accelerated appeal and affirming dismissal of untimely appeal for want of

jurisdiction).

Because not all claims have been disposed of, the trial judge’s summary-judgment order

is interlocutory and not appealable. To the extent the award of injunctive relief may be

construed as a temporary injunction, appellant’s notice of appeal was untimely. Accordingly, we

3 dismiss the appeal for want of jurisdiction. See TEX. R. APP. P. 42.3(a); Bonnema v. Guardian

Life Ins. Co. of Am., No. 05-12-00554-CV, 2012 WL 2359899, at *1 (Tex. App.—Dallas June

21, 2012, no pet.) (mem. op.).

/Kerry P. FitzGerald/ KERRY P. FITZGERALD JUSTICE

111362F.P05

4 S Court of Appeals Fifth District of Texas at Dallas JUDGMENT

Aurora Loan Services, Appellant On Appeal from the 191st Judicial District Court, Dallas County, Texas No. 05-11-01362-CV V. Trial Court Cause No. 10-11206. Opinion delivered by Justice FitzGerald. Aurora Loan Services, LLC, Appellee Justices Fillmore and Richter participating.

In accordance with this Court’s opinion of this date, the appeal is DISMISSED for want of jurisdiction.

It is ORDERED that appellee Aurora Loan Services, LLC recover its costs of this appeal from appellant Aurora Loan Services.

Judgment entered this January 31, 2013.