Peter Del Mastro v. Patrick Slater

• Court: Court of Appeals of Texas
• Decided: February 28, 2024
• Docket: 07-23-00365-CV
• Status: Published

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo

No. 07-23-00365-CV

PETER DEL MASTRO, APPELLANT

V.

PATRICK SLATER, APPELLEE

On Appeal from the 98th District Court Travis County, Texas Trial Court No. D-1-GN-21-003262, Honorable Maya Guerra Gamble, Presiding

February 28, 2024 MEMORANDUM OPINION Before QUINN, C.J., and PARKER and DOSS, JJ.

Appellant, Peter Del Mastro, appeals from the trial court’s partial summary

judgment order in favor of Appellee, Patrick Slater.1 Because the order is not a final

judgment or an interlocutory order made immediately appealable by statute, we dismiss

the appeal for want of jurisdiction.

1 Originally appealed to the Third Court of Appeals, this appeal was transferred to this Court by the

Texas Supreme Court pursuant to its docket equalization efforts. See TEX. GOV’T CODE ANN. § 73.001. Background

In 2021, Slater sued Del Mastro, Ben Neece, and Benjamin Jackson for allegedly

inducing him to loan money as part of a fraudulent investment scheme. Slater later

dismissed his claims against Jackson—the agreed order of dismissal was signed by the

trial court on June 5, 2024—and nonsuited his claims against Neece. The record,

however, does not reflect that the trial court ever signed an order granting the nonsuit.

Slater and Del Mastro filed competing motions for summary judgment on the

claims against Del Mastro, common law fraud and fraud by nondisclosure. On August

28, 2023, the trial court denied Del Mastro’s motion for summary judgment and granted

Slater partial summary judgment on his fraud by nondisclosure claim. Slater’s common

law fraud claim against Del Mastro remains pending.

Analysis

We have jurisdiction to hear an appeal from a final judgment or from an

interlocutory order made immediately appealable by statute. See Lehmann v. Har-Con

Corp., 39 S.W.3d 191, 195 (Tex. 2001); Stary v. DeBord, 967 S.W.2d 352, 352–53 (Tex.

1998) (per curiam). “[W]hen 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 205–06 (“A statement like, ‘This

judgment finally disposes of all parties and all claims and is appealable,’ would leave no

doubt about the court’s intention.”).

2 Here, the trial court’s August 28, 2023, summary judgment order does not contain

any finality language and does not resolve Slater’s common law fraud claim against Del

Mastro. See Lehmann, 39 S.W.3d at 205. Nor does it resolve Slater’s nonsuit against

Neece. See Iacono v. Lyons, 6 S.W.3d 715, 716–17 (Tex. App.—Houston [1st Dist.]

1999) (“Because the trial court did not sign either an order granting the nonsuit or a

judgment memorializing the nonsuit, the partial summary judgment is not final.”); Cavin v.

Abbott, No. 03-23-00541-CV, 2023 Tex. App. LEXIS 8884, at *2–4 (Tex. App.—Austin

Nov. 29, 2023, no pet.) (per curiam) (mem. op.) (holding same). The trial court’s order is,

thus, interlocutory and without statutory authority permitting its appeal.

By letter of January 30, 2024, we notified the parties that it did not appear we have

jurisdiction over this appeal. Although Del Mastro contends that the trial court intended

to render a final judgment, he fails to identify any language in the summary judgment

order that “clearly and unequivocally” disposes of all parties and claims or anything in the

record effectively doing so. See Lehmann, 39 S.W.3d at 205–06. Slater, on the other

hand, concedes that the summary judgment order is not a final judgment and has advised

the Court that his fraudulent inducement claim against Del Mastro is set for trial in March

2024.

For the reasons set forth above, we conclude that there is no final judgment or

appealable order presented for review. Consequently, we dismiss the appeal for want of

jurisdiction. See TEX. R. APP. P. 42.3(a).

Per Curiam