John Yi v. Bong Ko, Kon Young Park and Unlimited PCS, Inc.

• Court: Court of Appeals of Texas
• Decided: September 29, 2015
• Docket: 05-15-00644-CV
• Status: Published

Opinion

Dismiss and Opinion Filed September 29, 2015.

In The Court of Appeals Fifth District of Texas at Dallas No. 05-15-00644-CV

JOHN YI, Appellant

V.

BONG KO, Appellee

On Appeal from the 101st Judicial District Court Dallas County, Texas Trial Court Cause No. DC-13-10821-E

MEMORANDUM OPINION Before Justices Lang, Evans, and Whitehill Opinion by Justice Evans

Subject to a few mostly statutory exceptions, we have jurisdiction only over appeals from

final judgments and orders, that is, judgments and orders disposing of all parties and claims.

Lehman v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001). The judgment and order appellant

appeals, a default judgment and order denying appellant’s sworn motion for new trial and to set

aside the default judgment, dispose only of appellee’s claims against appellant and not appellee’s

claims against two other parties. Although appellee filed a notice nonsuiting the two other

parties after obtaining the default judgment, the trial court did not sign an order of nonsuit. See

Farmer v. Ben E. Keith Co., 907 S.W.2d 495, 496 (Tex. 1995) (per curiam) (“When a judgment

is interlocutory because unadjudicated parties or claims remain before the court, and when one moves to have such unadjudicated claims or parties removed by severance, dismissal, or nonsuit,

the appellate timetable runs from the signing of a judgment or order disposing of those claims or

parties.”).

Because it appeared no final judgment existed, we directed the parties to file letter briefs

addressing our jurisdiction. In his brief, appellant agrees no final judgment exists. Appellee,

however, noting the trial court closed the case and cancelled the trial setting upon the filing of

the notice of nonsuit, asserts all parties and claims were disposed by the combination of the

default judgment, notice of nonsuit, and trial court’s closure of the case. We are unpersuaded by

appellee’s arguments. See Farmer, 907 S.W.2d at 496; see also Park Place Hosp. v. Estate of

Milo, 909 S.W.2d 508, 510 (Tex. 1999) (although notice of nonsuit filed, appellate timetable not

triggered until trial court signed written order of dismissal). Accordingly, we dismiss the appeal.

TEX. R. APP. P. 42.3(a), 43.2(f).

/David W. Evans/ DAVID EVANS 150644F.P05 JUSTICE

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

JOHN YI, Appellant On Appeal from the 101st Judicial District Court, Dallas County, Texas No. 05-15-00644-CV V. Trial Court Cause No. DC-13-10821-E. Opinion delivered by Justice Evans. Justices BONG KO, Appellee Lang and Whitehill participating.

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

We ORDER that appellee Bong Ko recover his costs, if any, of this appeal from appellant John Yi.

Judgment entered this 29th day of September, 2015.

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