Jacque Passino and Lone Pine Properties, Ltd. v. David C. Ruch

• Court: Court of Appeals of Texas
• Decided: February 18, 2016
• Docket: 01-15-01081-CV
• Status: Published

Opinion

Order issued February 18, 2016

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-15-01081-CV ——————————— JACQUE PASSINO AND LONE PINE PROPERTIES, LTD.; MARAVILLA OWNERS’ ASSOCIATION, INC., CATHLEEN COMEAUX BACH, JOHN KUBIS, LLOYD RINDERER, AND LYSSA M. GRAHAM REYNOLDS; AHMED GHALAMDANCHI AND SHARON GHALAMDANCHI, Appellants/Cross-Appellees V. DAVID C. RUCH, GALVESTONVIEWS LLC, ENTRUST OF COLORADO, INC. D/B/A ENTRUST NEW DIRECTION IRA, INC. D/B/A END-IRA, INC. F/B/O DAVID C. RUCH, IRA, IDLE TIME INVESTMENTS, LLC, ROBERT F. ZANT, SUE F. ZANT, RUTHANN CASSIDY, MARI VAN DE VEN, HADFIELD COMMUNICATIONS, INC., MAUREEN ZAMBO, REED A. SKIRPAN, ROBERT C. CARLSON, LYNDA M. CARLSON, BARBARA SHERMAN AND RICHARD SHERMAN; WILLIAM ETHEREDGE, III, INDIVIDUALLY AND D/B/A ETHEREDGE REAL ESTATE; AND TED W. ALLEN & ASSOCIATES, INC., Appellees/Cross-Appellants On Appeal from the 10th District Court Galveston County, Texas Trial Court Case No. 11-CV-0697 (consolidated with No. 11-CV-0886)

MEMORANDUM ORDER The above parties filed a joint amended motion to dismiss all appeals and

cross-appeals from the final judgment, signed by the trial court on September 22,

2015 after a jury trial in this contract action, without prejudice to refiling their

claims in a later appeal. See TEX. R. APP. P. TEX. R. APP. P. 42.1(a)(1). The parties

request that we dismiss all the appeals and cross-appeals because the trial court, in

an order signed on December 30, 2015 and attached to their motion, granted a

motion to vacate the September 22nd final judgment, and ordered the parties to

submit a new final judgment.

On February 5, 2016, most of the cross-appellants, David C. Ruch,

Galvestonviews LLC, Entrust of Colorado, Inc. d/b/a Entrust New Direction Ira,

Inc. d/b/a End-Ira, Inc. f/b/o David C. Ruch, IRA, Idle Time Investments, LLC,

Robert F. Zant, Sue F. Zant, Ruthann Cassidy, Mari van de Ven, Hadfield

Communications, Inc., Maureen Zambo, Reed A. Skirpan, Robert C. Carlson,

Lynda M. Carlson, Barbara Sherman, and Richard Sherman (“Ruch Cross-

Appellants”), filed a second notice of appeal from the new final judgment, signed

2 on January 8, 2016. On February 16, 2016, the Ruch Cross-Appellants filed a

Notice of Partial Settlement in this Court, stating that because they settled their

claims against the appellants Maravilla Owners’ Association, Inc., Cathaleen

Comeaux-Bach, John Kubis, Lloyd Rinderer, Lyssa Graham-Reynolds, Green

Light Investments, LLC, Jacque Passino, Jr. and Lone Pine Properties, Ltd.

(“Maravilla Appellants”) on February 8, 2016, that should render moot the joint

amended motion to dismiss. The Ruch Cross-Appellants further note that they

have not settled their claims against appellees Ted. W. Allen & Associates, Inc.,

William Etheredge, III, individually and d/b/a Etheredge Real Estate & Property

Management and d/b/a Etheredge Real Estate (“Allen Appellees”), which they

contend remains pending from their second notice of appeal arising from the

January 8, 2016 new final judgment.

Generally, this Court has civil appellate jurisdiction over final judgments or

interlocutory orders specifically authorized as appealable by statute. See TEX. CIV.

PRAC. & REM. CODE ANN. §§ 51.012, 51.014(a)(1)–(12) (West Supp. 2015);

Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001). After the trial court

vacated the final judgment signed on September 22, 2015, there is no appealable

final judgment or interlocutory order, and no exception applies here. See Heckman

v. Williamson Cnty., 369 S.W.3d 137, 154 (Tex. 2012); see, e.g., Zapata v. Clear

Creek Indep. Sch. Dist., No. 01-15-00346-CV, 2015 WL 7737626, at *1 (Tex.

3 App.—Houston [1st Dist.] Dec. 1, 2015, no pet.) (mem. op.) (granting parties’

motion to dismiss appeal for want of jurisdiction after trial court granted taxing

entity’s motion to vacate judgment under section 33.56(a)(1) of Tax Code).

Although the Ruch Cross-Appellants have filed a second notice of appeal, that

appeal arises from the January 8, 2016 new final judgment, and no other party has

filed a notice of appeal and no opinion has issued regarding the September 22,

2015 final judgment. See TEX. R. APP. P. 42.1(a)(1), (c).

Accordingly, we construe the joint amended motion as one seeking dismissal

for want of jurisdiction over the September 22, 2015 final judgment and to include

taxing costs against the parties incurring the same, grant the motion, and dismiss

the appeals and cross-appeals of that September 22, 2015 final judgment for want

of jurisdiction. See TEX. R. APP. P. 42.1(d), 42.3(a), 43.2(f). The appeal by the

Ruch Cross-Appellants against the Allen Appellees regarding the January 8, 2016

new final judgment remains pending on this Court’s active docket.

PER CURIAM Panel consists of Chief Justice Radack and Justices Keyes and Higley.