Downtown McKinney Partners, LLC v. InterMcKinney, LLC

Opinion

Order entered July 18, 2022

In The Court of Appeals Fifth District of Texas at Dallas

No. 05-22-00501-CV

DOWNTOWN MCKINNEY PARTNERS, LLC, Appellant

V.

INTERMCKINNEY, LLC, Appellee

On Appeal from the 471st Judicial District Court Collin County, Texas Trial Court Cause No. 471-03474-2020

ORDER

This is the second appeal stemming, in part, from the trial court’s October

20, 2021 partial summary judgment. 1 The first appeal, appellate cause number 05-

21-00913-CV, was dismissed for want of jurisdiction as a claim for attorney’s fees

remained pending. See Downtown McKinney Partners, LLC v. InterMcKinney,

LLC, No. 05-21-00913-CV, 2022 WL 1314948 (Tex. App.—Dallas May 3, 2022,

1 This appeal also challenges the trial court’s April 21, 2022 order granting appellee’s motion to expunge notice of lis pendens. no pet.). This appeal was filed after the pending claim was nonsuited but before a

final judgment had been signed.

Because appellate deadlines run from the date the judgment or order

disposing of all remaining parties and claims is signed, not the filing of a notice of

nonsuit, we questioned our jurisdiction over this appeal. See In re Bennett, 960

S.W.2d 35, 38 (Tex. 1997) (per curiam) (orig. proceeding); Farmer v. Ben E.

Keith, 907 S.W.2d 495, 496 (Tex. 1995) (per curiam). From jurisdictional briefing

the parties filed at our request, the trial court has not signed a final judgment to

date, but a motion for entry of judgment is pending.

We could dismiss this appeal for want of jurisdiction also. However, the

signing of an order granting a nonsuit is a ministerial act. See Iacono v. Lyons, 6

S.W.3d 715, 716 (Tex. App.—Houston [1st Dist.] 1999, order) (per curiam).

Given that and the pending motion for entry of judgment, we ORDER the trial

court to sign a final judgment no later than August 17, 2022. A supplemental

clerk’s record containing a copy of the judgment and a supplemental reporter’s

record of any hearing held pursuant to this order shall be filed no later than

August 24, 2022.

We note appellant has filed a motion to transfer the clerk’s record from the

first appeal into this appeal. We GRANT the motion and ORDER the clerk’s record filed in appellate cause number 05-21-00913-CV transferred into this

appeal.

We DIRECT the Clerk of the Court to send a copy of this order to the

Honorable Andrea K. Bouressa, Presiding Judge of the 471st Judicial District

Court; Collin County District Clerk Lynne Finley; Denise Carillo, Official Court

Reporter for the 471st Judicial District Court; and, the parties.

We ABATE the appeal to allow the trial court an opportunity to comply

with this order. The appeal shall be reinstated no later than August 31, 2022 and is

subject to dismissal without further notice should a final judgment not be signed.

/s/ ROBERT D. BURNS, III CHIEF JUSTICE