Jose Alba, Candelaria Alba, Jose Alba, Jr., and Lizbeth Gurrusquieta v. CalAtlantic Homes of Texas, Inc., Lennar Corporation, and Lennar Pacific Properties Management, Inc. D/B/A Village Builders

• Court: Court of Appeals of Texas
• Decided: May 5, 2022
• Docket: 02-21-00345-CV
• Status: Published

Opinion

In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________ No. 02-21-00345-CV ___________________________

JOSE ALBA, CANDELARIA ALBA, JOSE ALBA, JR., AND LIZBETH GURRUSQUIETA, Appellants

V.

CALATLANTIC HOMES OF TEXAS, INC., LENNAR CORPORATION, AND LENNAR PACIFIC PROPERTIES MANAGEMENT, INC. D/B/A VILLAGE BUILDERS, Appellees

On Appeal from the 431st District Court Denton County, Texas Trial Court No. 19-9952-16

Concurring and Dissenting Memorandum Opinion by Justice Wallach CONCURRING AND DISSENTING MEMORANDUM OPINION

Assuming this court has jurisdiction of this case, I concur in the judgment and

rationale of the majority opinion. However, because it is my opinion that this court

does not have jurisdiction, I respectfully dissent.

The only allegedly dispositive order in this case is entitled “Order.” It provides,

in its entirety, as follows,

CAME ON BEFORE this Court Defendants CalAtlantic Homes of Texas, Inc., Lennar Corporation, and Lennar Pacific Properties Management, Inc. d/b/a Village Builders’ Traditional and No-Evidence Motion for Summary Judgment. The Court, having considered the motion, Plaintiffs’ response thereto, any replies, and the pleadings on file, hereby orders that the motion is:

X GRANTED

DENIED

SIGNED this 10th day of June , 2021.

/s/ JUDGE PRESIDING

The only other dispositive document was a Notice of Nonsuit Without Prejudice

filed on July 14, 2021 where CalAtlantic Homes of Texas, Inc., Lennar Corporation,

and Lennar Pacific Properties Management, Inc., d/b/a Village Builders nonsuited their

third-party claims against Perez Masonry Construction, LLC.

2 Does this record present a final appealable judgment? I would hold that it does

not. Appellants bring this appeal as an appeal from a final judgment.1 If an order on a

motion for summary judgment is not final, we must dismiss the appeal for lack of

jurisdiction. Frausto v. RC Indus. LLC, 605 S.W.3d 54, 56 (Tex. App.—San Antonio

2020, no pet.).

As held by our supreme court in Naaman v. Grider, 126 S.W.3d 73, 74 (Tex. 2003),

“[a]n order that merely grants a motion for judgment is in no sense a judgment itself. It

adjudicates nothing.” Likewise, an order that “merely grants a motion for summary

judgment without any decretal language actually disposing of a claim is not a judgment

on any claim.” Frausto, 605 S.W.3d at 56–57; see also Shetewy v. Mediation Inst. of N. Tex.,

LLC, 624 S.W.3d 285, 288 (Tex. App.—Fort Worth 2021, no pet.); Redwine v.

Peckenpaugh, 535 S.W.3d 44, 48 (Tex. App.—Tyler 2017, no pet.). Precisely all that is in

the record in this case is an order granting a motion for summary judgment, period.

While there may be other circumstances where the entire record, combined with the

language used in a court order, may be construed to constitute an adjudication, such is

not the case here.2

Interlocutory appellate jurisdiction is not in issue. 1

2 See In re Guardianship of Jones, 629 S.W.3d 921, 926 (Tex. 2021). In distinguishing its prior holding in Naaman, quoted above, the court noted that the order in question regarding dismissal of a bill of review petition was a final adjudication where, even though the order did not announce the petition’s disposition with words like “ordered,

3 Until the supreme court overrules its holding in Namaan, I feel compelled to hold

that this “Order” which merely “granted” the motions for summary judgment is not a

final judgment. I would dismiss the appeal for want of jurisdiction.

/s/ Mike Wallach

Mike Wallach Justice

Delivered: May 5, 2022

adjudicated or decreed,” it not only granted the motion to dismiss it also expressly stated it was a “final order” constituting “the dismissal of the Bill of Review filed in this case.”