Melba James v. Anchor Boatlifts LLC and Jason Miller

• Court: Court of Appeals of Texas
• Decided: June 20, 2024
• Docket: 09-22-00208-CV
• Status: Published

Opinion

In The

Court of Appeals

Ninth District of Texas at Beaumont

________________

NO. 09-22-00208-CV ________________

MELBA JAMES, Appellant

V.

ANCHOR BOATLIFTS LLC AND JASON MILLER, Appellees ________________________________________________________________________

On Appeal from the 457th District Court Montgomery County, Texas Trial Cause No. 21-08-11463-CV ________________________________________________________________________

MEMORANDUM OPINION

Melba James appeals the trial court’s Order Granting Anchor Boatlifts LLC’s

and Jason Miller’s (collectively, “Anchor”) Traditional and No-Evidence Motion for

Summary Judgment and dismissing all her claims with prejudice. The Order stated

that “all of Plaintiff’s causes of action asserted therein against Defendants are hereby

dismissed with prejudice.” Anchor had a pending counterclaim for attorney’s fees

under the DTPA that was unresolved by the trial court’s Order. We notified the

parties that the Order appealed from did not appear to be appealable or constitute a

1 final judgment, and we warned the parties that the appeal would be dismissed for

lack of jurisdiction unless the Court received a response showing a ground for

continuing the appeal. James responded and argued the Order was final because it

dismissed all her claims with prejudice, yet she did not address Anchor’s pending

counterclaim for attorney’s fees. Anchor also responded that while the Order

disposed of all James’s affirmative claims, neither the Motion for Summary

Judgment nor the Order addressed its counterclaim for attorney’s fees under the

DTPA. Anchor argued the Order was not final on its face, thus not appealable and

noted that the trial court had set Anchor’s remaining claims for attorneys’ fees for a

bench trial.

Generally, in civil cases appellate courts review only final judgments and

interlocutory orders specifically made appealable by statute. Lehmann v. Har-Con

Corp., 39 S.W.3d 191, 195 (Tex. 2001). Two options exist for an order to become a

final judgment without a trial: it can (1) dispose of all remaining parties and claims

then before the court, regardless of its language; or (2) include unequivocal finality

language expressly disposing of all claims and parties. Id. at 200; see also Sealy

Emergency Room, LLC v. Free Standing Emergency Room Mgrs. of Am., LLC, 685

S.W.3d 816, 820 (Tex. 2024). “An order that adjudicates only the plaintiff’s claims

against the defendant does not adjudicate a counterclaim[.]” Lehmann, 39 S.W.3d at

205. The Order at issue lacks clear and unequivocal language of finality and does

2 not address counterclaims. See id. at 206. The trial court has not authorized a

permissive appeal in this matter, and the record does not indicate a final judgment is

imminent. See N.Y. Underwriters Ins. Co. v. Sanchez, 799 S.W.2d 677, 678–79 (Tex.

1990) (concluding the court of appeals erred by assuming jurisdiction over an appeal

when the defendant’s counterclaim for attorney’s fees remained pending). We

conclude the Order Granting Defendants’ Traditional and No-Evidence Summary

Judgment is interlocutory and is not a final appealable order. Accordingly, we

dismiss the appeal for lack of jurisdiction. See Tex. R. App. P. 43.2(f).

APPEAL DISMISSED.

PER CURIAM

Submitted on July 12, 2023 Opinion Delivered June 20, 2024

Before Golemon, C.J., Horton, and Wright, JJ.