James Arthur v. Blackburne & Brown Mortgage Fund, Inc.

Opinion

Opinion issued October 7, 2021

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-20-00122-CV ——————————— JAMES ARTHUR; MARY ARTHUR; ARTHUR HOLDINGS, LP; ARTHUR P. HOLDINGS, LP; LEGONITE, INC.; ARTHUR J. HOLDINGS, INC.; PARADISE LIVING, INC.; and THE COTTAGE HEALTH SERVICES, Appellants V. BLACKBURNE & BROWN MORTGAGE FUND, INC., Appellee

On Appeal from the 11th District Court Harris County, Texas Trial Court Case No. 2019-80239

MEMORANDUM OPINION

Appellants, as identified in the above style, attempt to appeal the trial court’s

“Order of Non-Suit and Findings by the Court,” which dismisses, with prejudice, their claims against appellee, Blackburne & Brown Mortgage Fund, Inc.

(Blackburne).* Each side has already filed its respective briefing on the merits.

In its brief, Blackburne points out that it filed counterclaims against

Appellants in the trial court. Because its counterclaims are still pending, Blackburne

asserts that the Order of Non-Suit dismissing Appellants’ claims is not a final

judgment. Without a final judgment, Blackburne asserts this Court lacks subject-

matter jurisdiction and should dismiss the appeal.

Appellants have not responded to Blackburne’s argument regarding

jurisdiction. Nor have they responded to our August 10, 2021 notice of intent to

dismiss for lack of jurisdiction, which sought an explanation of why we have

jurisdiction over this appeal. See TEX. R. APP. P. 42.3(a) (providing that, after 10

days’ notice, appellate court may dismiss appeal for want of jurisdiction).

“[T]he general rule, with a few mostly statutory exceptions, is that an appeal

may be taken only from a final judgment.” Lehmann v. Har-Con Corp., 39 S.W.3d

191, 195 (Tex. 2001); see TEX. CIV. PRAC. & REM. CODE § 51.012. No statute allows

for the appeal of an interlocutory order dismissing a party’s claims following a

nonsuit. See TEX. CIV. PRAC. & REM. CODE § 51.014 (listing orders from which

* In the order, the trial court stated that at a hearing on January 6, 2020, Appellants “orally announced in open court and on the record that [they] nonsuit[ed] with prejudice their claims” against Blackburne & Brown Mortgage Fund. The trial court stated that, “pursuant to such nonsuit and the arguments of counsel presented at the hearing,” the “Plaintiffs’ claims are dismissed with prejudice to refiling same.” 2 interlocutory appeals may be taken). When, as here, “there has not been a

conventional trial on the merits, an order or judgment is not final for purposes of

appeal unless it actually disposes of every pending claim and party or unless it

clearly and unequivocally states that it finally disposes of all claims and all parties.”

Lehmann, 39 S.W.3d at 205. Here, the Order of Non-Suit does not meet the

requirements of Lehmann. The order does not dispose of Blackburne’s

counterclaims, nor does it include clear finality language. See id. Nothing in the

record otherwise shows that Blackburne’s counterclaims have been resolved.

Because the record shows that Appellants’ counterclaims against Blackburne

remain pending in the trial court, the trial court’s order dismissing Appellants’

claims is not a final and appealable judgment. See id. Therefore, we dismiss the

appeal for lack of jurisdiction. See TEX. R. APP. P. 42.3(a).

PER CURIAM

Panel consists of Justices Kelly, Hightower, and Farris.