Build-Infinity.Com, LLC D/B/A Infinity Construction v. Scott and Elizabeth Woodard

Opinion

Dismissed; Opinion Filed July 31, 2018.

In The Court of Appeals Fifth District of Texas at Dallas No. 05-18-00515-CV

BUILD-INFINITY.COM, LLC D/B/A INFINITY CONSTRUCTION, Appellant V. SCOTT AND ELIZABETH WOODARD, Appellees

On Appeal from the 101st Judicial District Court Dallas County, Texas Trial Court Cause No. DC-16-05680

MEMORANDUM OPINION Before Justices Lang, Myers, and Stoddart Opinion by Justice Myers

By letter dated June 11, 2018, we questioned our jurisdiction over this appeal as the clerk’s

record does not reflect a final judgment has been entered. See Lehman v. Har-Con Corp., 39

S.W.3d 191, 195 (Tex. 2001) (subject to few, mostly statutory exceptions, appellate courts have

jurisdiction over appeals from judgments and orders that dispose of all parties and claims).

The record reflects appellees sued appellant for breach of contract, breach of warranty,

violation of the Deceptive Trade Practices Act, fraud, conversion, failure to provide certain

statutory notices under the property code, and attorney’s fees. The trial court granted summary

judgment on appellees’ claims for breach of contract and attorney’s fees but denied summary

judgment on the rest of the claims. Subsequently, appellees filed a notice non-suiting the

remaining claims. The record, however, does not reflect the trial court signed an order dismissing those claims, and without a dismissal order, the case is not final and appealable. See Davidoff v.

GX Tech. Corp., 134 S.W.3d 514, 515 (Tex. App.—Waco 2004, order) (per curiam) (“Because

the trial court has not signed an order dismissing GX’s non-suited counterclaims, the record does

not contain a final, appealable judgment.”).

In our letter questioning our jurisdiction, we directed appellant to file a letter brief

addressing our concerns no later than June 21, 2018 and to have a supplemental clerk’s record

filed if the response was based on documents not contained in the clerk’s record. We also

cautioned appellant that failure to comply could result in dismissal of the appeal without further

notice. See TEX. R. APP. P. 42.3(a),(c). To date, appellant has not filed the requested letter brief

or had a supplemental clerk’s record filed demonstrating our jurisdiction. Accordingly, we dismiss

the appeal. See id. 42.3(a),(c).

/Lana Myers/ LANA MYERS JUSTICE

180515F.P05

–2– Court of Appeals Fifth District of Texas at Dallas JUDGMENT

BUILD-INFINITY.COM, LLC D/B/A On Appeal from the 101st Judicial District INFINITY CONSTRUCTION, Appellant Court, Dallas County, Texas Trial Court Cause No. DC-16-05680. No. 05-18-00515-CV V. Opinion delivered by Justice Myers, Justices Lang and Stoddart participating. SCOTT AND ELIZABETH WOODARD, Appellees

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

We ORDER appellees Scott and Elizabeth Woodard recover their costs, if any, of this appeal from appellant Build-Infinity.com, LLC d/b/a Infinity Construction.

Judgment entered this 31st day of July, 2018.

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