Shea Palavan v. Brian McCulley, Boulevard Realty LLC, and TBW Development, LLC

Opinion

Opinion issued April 2, 2015

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-14-00604-CV ——————————— SHEA PALAVAN, Appellant V. BRIAN MCCULLEY, BOULEVARD REALTY LLC, AND TBW DEVELOPMENT, LLC, Appellees

On Appeal from County Civil Court at Law No. 3 Harris County, Texas Trial Court Case No. 1047954

MEMORANDUM OPINION

Appellant, Shea Palavan, filed suit in justice of the peace court against

appellees, Brian Mcculley, Boulevard Realty LLC, and TBW Development, LLC.

On March 20, 2014, the parties signed an agreed judgment settling the claims.

Thereafter, Palavan appealed the agreed judgment to county civil court at law (“county court”), alleging that he had been coerced into signing the judgment. As

an alternative to the appeal, Palavan also filed a request for writ of certiorari in the

county court. In turn, Appellees filed counterclaims against Palavan in the county

court proceeding.

Appellees also filed a motion requesting the county court (1) to dismiss

Palavan’s appeal and (2) to deny his request for writ of certiorari. On June 30,

2014, the county court granted Appellees’ motion, signing an order dismissing

Palavan’s appeal, denying his request for writ of certiorari, and affirming the

agreed judgment.

Palavan appealed the county court’s June 30, 2014 order (“the order”) to this

Court. In their brief, Appellees assert that this appeal should be dismissed because

the order is not a final, appealable judgment; nor is it an appealable interlocutory

order. Appellees point out that, although Palavan’s appeal and request for writ of

certiorari are disposed of, the counterclaims are still pending in the county court.

We agree with Appellees that we lack jurisdiction over this appeal because

there is not yet a final, appealable judgment. When, as here, there has been no

conventional trial on the merits, we do not presume that a judgment is final. See

Lehmann v. Har–Con Corp., 39 S.W.3d 191, 199–200 (Tex. 2001). An order or

judgment is not final for purposes of appeal unless it actually disposes of every

pending claim and party or unless it unequivocally states that it finally disposes of

2 all claims and all parties. Id. at 200. Here, Appellees’ counterclaims have not

been disposed of and remain pending. In addition, the order does not contain

finality language, or any other “clear indication that the trial court intended the

order to completely dispose of the entire case.” Am. Heritage Capital, LP v.

Gonzalez, 436 S.W.3d 865, 870 (Tex. App.—Dallas 2014, no pet.).

Palavan claims that the order is a final, appealable judgment. He asserts that

Appellees’ counterclaims were severed from the main action in the county court,

thereby making the order a final, appealable judgment. See Lehmann, 39 S.W.3d

at 195. To support his assertion, Palavan points out the word “CLOSED” has been

stamped on the top of the June 30, 2014 order. However, there is no indication that

the stamp was made by the county court, rather than by the county clerk, to

indicate finality of the order or to indicate a severance of the counterclaims.

In addition, Palavan points out that the counterclaims have been docketed

under a modified cause number. Palavan’s appeal to the county court was assigned

cause number 1047954. The suffix –002 has been added to this cause number with

regard to the counterclaims. However, the record contains no order, signed by the

trial court, severing the counterclaims. Without a severance order, the

counterclaims remain pending in original-filed proceeding in the county court,

irrespective of how the county clerk has chosen to docket and administer the

counterclaims.

3 Because the June 30, 2014 order is not a final, appealable judgment, we lack

jurisdiction over this appeal. Accordingly, the appeal is dismissed for lack of

jurisdiction.

PER CURIAM Panel consists of Justices Jennings, Higley, and Huddle.