Rainer Vnon Falkenhorst III v. Arthur Kwok, Qai Asset, LP, Erika Lynnsey, Kwok, Rush Green Asset LP, Erika J. Kwok, Metropolitan Escrow & Title LLP

• Court: Court of Appeals of Texas
• Decided: March 21, 2023
• Docket: 01-22-00370-CV
• Status: Published

Opinion

Opinion issued March 21, 2023

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-22-00370-CV ——————————— RAINER VON FALKENHORST, III, Appellant V. METROPOLITAN ESCROW & TITLE, LLC, ERICA J. THOMAS, AND MICHAEL L. FUQUA, Appellees

On Appeal from the 269th District Court Harris County, Texas Trial Court Case No. 2021-18661

MEMORANDUM OPINION

On May 6, 2022, appellant, Rainer von Falkenhorst, III, filed a notice of

appeal from the trial court’s April 26, 2022 interlocutory order granting summary

judgment in favor of appellee, Metropolitan Escrow & Title, LLC (“Metropolitan

Escrow”). On August 5, 2022, appellant filed a notice of appeal from the trial court’s August 5, 2022 “Order Expunging Lis Pendens on Memorial Drive Condominium.”

And on September 6, 2022, appellant filed a notice of appeal from the trial court’s

August 29, 2022 interlocutory order granting summary judgment in favor of

appellee, Michael L. Fuqua.

We dismiss for lack of jurisdiction.

In his fifth amended petition, appellant brought claims against Metropolitan

Escrow and Fuqua as well as appellee, Erica J. Thomas, and others. Subsequently,

Metropolitan Escrow and Fuqua each moved for summary judgment on appellant’s

claims against them, as alleged in his fifth amended petition, asserting that they were

entitled to judgment as a matter of law.1 On April 26, 2022, the trial court granted

Metropolitan Escrow summary judgment on appellant’s claims against it. On

August 29, 2022, the trial court granted Fuqua summary judgment on appellant’s

claims against him.

Further, on June 29, 2022, Thomas filed a motion to expunge lis pendens,

which the trial court granted on August 5, 2022.

“[C]ourts always have jurisdiction to determine their own jurisdiction.”

Heckman v. Williamson Cnty., 369 S.W.3d 137, 146 n.14 (Tex. 2012) (internal

quotations omitted); see also Royal Indep. Sch. Dist. v. Ragsdale, 273 S.W.3d 759,

1 Metropolitan Escrow and Fuqua each filed their own motion for summary judgment in the trial court.

2 763 (Tex. App.—Houston [14th Dist.] 2008, no pet.) (jurisdiction fundamental in

nature and cannot be ignored). Whether we have jurisdiction is a question of law,

which we review de novo. See Tex. A & M Univ. Sys. v. Koseoglu, 233 S.W.3d 835,

840 (Tex. 2007). If this case is an appeal over which we have no jurisdiction, the

appeal must be dismissed. V.I.P. Royal Palace, LLC v. Hobby Event Ctr. LLC, No.

01-18-00621-CV, 2020 WL 3579563, at *2 (Tex. App.—Houston [1st Dist.] July 2,

2020, no pet.) (mem. op.); Ragsdale, 273 S.W.3d at 763.

Generally, this Court has jurisdiction only over appeals from final judgments

and specific interlocutory orders that the Legislature has designated as appealable

orders. See TEX. CIV. PRAC. & REM. CODE ANN. § 51.012; CMH Homes v. Perez,

340 S.W.3d 444, 447–48 (Tex. 2011); see also TEX. CIV. PRAC. & REM. CODE ANN.

§ 51.014(a) (authorizing appeals from certain interlocutory orders). A judgment

issued without a conventional trial is final for appeal only if it: (1) actually disposes

of all claims and parties then before the court, regardless of its language or (2) states

with “unmistakable clarity” that it is a final judgment as to all claims and all parties.

Lehmann v. Har–Con Corp., 39 S.W.3d 191, 192–93, 200, 204 (Tex. 2001).

Here, neither the trial court’s April 26, 2022 interlocutory order nor the trial

court’s August 29, 2022 interlocutory order actually dispose of all claims against all

parties. See V.I.P. Royal Palace, 2020 WL 3579563, at *4 (“Because the trial

court’s . . . order does not actually dispose of all claims and all parties, it is

3 interlocutory and not final . . . .”). The trial court’s April 26, 2022 interlocutory

order only granted summary judgment on appellant’s claims against Metropolitan

Escrow, and the trial court’s August 29, 2022 interlocutory order only granted

summary judgment on appellant’s claims against Fuqua.

Additionally, the trial court’s April 26, 2022 and August 29, 2022

interlocutory orders do not contain finality language that could turn an otherwise

interlocutory order into a final judgment. See id. at *4–6. An order that does not

actually dispose of all claims and all parties and does not state with unmistakable

clarity that it is a final judgment as to all claims and all parties must be classified for

purposes of appeal as an unappealable interlocutory order. See id. at *6.

As to the trial court’s August 5, 2022 “Order Expunging Lis Pendens on

Memorial Drive Condominium,” we note that “there is no statutory authority for an

appeal of an interlocutory order expunging notices of lis pendens,” and we have no

jurisdiction to review a complaint about such an interlocutory order. Margetis v.

Bayview Loan Servicing, LLC, 553 S.W.3d 643, 644–45 (Tex. App.—Waco 2018,

no pet.); see also Smith v. Schwartz, No. 02-15-00146-CV, 2015 WL 3645862, at *1

(Tex. App.—Fort Worth June 11, 2015, no pet.) (mem. op.) (“[W]e find no statutory

authority for an appeal of an interlocutory order expunging notices of lis pendens.”);

Casmir v. Frontera Energy, LLC, No. 14-12-00023-CV, 2012 WL 8015783, at *1

4 (Tex. App.—Houston [14th Dist.] Feb. 16, 2012, no pet.) (mem. op.) (dismissing

appeal from order expunging lis pendens).

On July 28, 2022, August 18, 2022, and January 19, 2023, this Clerk of this

Court notified appellant that we lacked jurisdiction over his appeal and directed

appellant that, unless a response was provided within ten days, in writing,

demonstrating that this Court has jurisdiction over the appeal, the appeal would be

dismissed for lack of jurisdiction. See TEX. R. APP. P. 42.3(a), 43.2(f). Appellant

did not adequately respond.

Accordingly, we dismiss the appeal for lack of jurisdiction and for appellant’s

failure to comply with a notice from the Clerk of this Court requiring a response.

See TEX. R. APP. P. 42.3(a), (c), 43.2(f). All pending motions are dismissed as moot.

PER CURIAM

Panel consists of Justices Landau, Countiss, and Guerra.