Brentwood Apartments at Fort Worth, a Series of Westmoore Income Properties, LLC Matthew R. Jennings Robert L. Jennings And Westmoore Holdings, Inc. v. Builders Bank, an Illinois Banking Corporation

• Court: Court of Appeals of Texas
• Decided: April 1, 2010
• Docket: 02-10-00016-CV
• Status: Published

Opinion

COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH

NO. 2-10-016-CV

BRENTWOOD APARTMENTS APPELLANTS AT FORT WORTH, A SERIES OF WESTMOORE INCOME PROPERTIES, LLC; MATTHEW R. JENNINGS; ROBERT L. JENNINGS; AND WESTMOORE HOLDINGS, INC.

V.

BUILDERS BANK, AN ILLINOIS APPELLEE BANKING CORPORATION ------------

FROM THE 17TH DISTRICT COURT OF TARRANT COUNTY

------------

MEMORANDUM OPINION 1

Appellants Brentwood Apartments at Fort Worth, a Series of Westmoore

Income Properties, LLC; Matthew R. Jennings; Robert L. Jennings; and

1  See Tex. R. App. P. 47.4. Westmoore Holdings, Inc. attempt to appeal a default judgment entered in favor

of Appellee Builders Bank, an Illinois Banking Corporation. The default

judgment signed on September 22, 2009, states that it “disposes of all issues

and parties in this case and is final for purposes of appeal,” but the judgment

does not identify Defendant Darin Feinstein as one of the defendants who

defaulted, nor does it otherwise dispose of claims against Feinstein therein.

Further, the trial court signed an “Order Removing Case From Active Docket

Due To Bankruptcy” on December 11, 2009, over two months after the trial

court signed the default judgment in favor of Appellee, stating that the trial

court had “received notice that Darin Feinstein has filed for” bankruptcy

protection. The order provides that it “shall not operate as a dismissal of this

case and that this Court retains jurisdiction for all purposes.”

On January 28, 2010, we notified Appellants that we were concerned

that this court may not have jurisdiction over this appeal because the judgment

does not appear to dispose of all parties in the case and does not appear to be

a final order or an appealable interlocutory order. We stated that the appeal

would be dismissed for want of jurisdiction unless Appellants or any party

desiring to continue the appeal filed a response showing grounds for continuing

the appeal on or before February 8, 2010. See Tex. R. App. P. 42.3(a). We

have not received a response.

2 Appellate courts have jurisdiction over appeals from final judgments and

from specific types of interlocutory orders designated by the legislature as

appealable. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001)

(providing general rule that an appeal may be taken only from a final judgment);

see Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a) (Vernon 2008) (listing

appealable interlocutory orders). A judgment is final and appealable if it

disposes of all parties and all issues. Lehmann, 39 S.W.3d at 195. An order

that does not dispose of all parties and all issues in the case must be classified,

for purposes of an appeal, as an unappealable interlocutory order. Ruiz v. Ruiz,

946 S.W.2d 123, 124 (Tex. App.—El Paso 1997, no writ).

The trial court has not entered a severance order in this case. The default

judgment that Appellants attempt to appeal is an unappealable interlocutory

order. Because there is no final judgment or appealable interlocutory order, we

dismiss the appeal for want of jurisdiction. See Tex. R. App. P. 42.3(a),

43.2(f).

PER CURIAM

PANEL: MEIER, LIVINGSTON, and DAUPHINOT, JJ.

DELIVERED: April 1, 2010