Shelby Black and Dallas County Recovery, LLC v. Emilio Nunez Individually and A/N/F of Gabino Nunez

Opinion

Dismiss and Opinion Filed May 23, 2023

In The Court of Appeals Fifth District of Texas at Dallas No. 05-23-00003-CV

SHELBY BLACK AND DALLAS COUNTY RECOVERY, LLC, Appellants V. EMILIO NUNEZ, INDIVIDUALLY AND A/N/F OF GABINO NUNEZ, Appellee

On Appeal from the 95th District Court Dallas County, Texas Trial Court Cause No. DC-20-12602

MEMORANDUM OPINION Before Justices Nowell, Goldstein, and Breedlove Opinion by Justice Goldstein This appeal challenges a default judgment that provided in the first paragraph

as follows:

On this day came on to be considered the Plaintiff’s Motion for Final Judgment. The Court, having considered the Motion, the pleadings on file in the case, and the evidence presented, finds that the motion should be GRANTED[.]

After stating that the trial court had jurisdiction and the material allegations of

plaintiff’s petition had been proven, itemizing the recoverable actual damages, and awarding pre- and post-judgment interest and court costs, the judgment concluded

with this language:

IT IS FURTHER ORDERED that Plaintiff is entitled to enforce this judgment through abstract, execution, and any other process necessary. This is a final judgment and can be appealed.

The judgment was signed September 30, 2021, but the appeal was not filed until

December 29, 2022, well over a year later. Because the appeal appeared untimely,

we questioned our jurisdiction. See TEX. R. APP. P. 26.1 (providing deadline for

filing appeal ranging from thirty days from judgment to six months from judgment,

depending on circumstances); Brashear v. Victoria Gardens of McKinney, L.L.C.,

302 S.W.3d 542, 545 (Tex. App.—Dallas 2009, no pet.) (op. on reh’g) (timely filing

of notice of appeal is jurisdictional).

Relying on Lehmann v. Har-Con Corp., 39 S.W.3d 191 (Tex. 2001) and In re

L.C.R., No. 05-17-00085-CV, 2018 WL 2676467 (Tex. App.—Dallas June 5, 2018,

no pet.) (mem. op.), appellants assert in jurisdictional briefing filed at our request

that the judgment was not final because it did not “actually dispose[] of all claims

and parties” before the court–specifically, it did not dispose of appellee’s claim for

punitive damages–or state[] with “unmistakable clarity” that it disposed of all claims

and parties. However, they maintain, the judgment was made final by the trial court’s

December 6, 2022 order denying their motion for new trial and, because the notice

of appeal was filed within thirty days of that order, the appeal was timely. In

–2– response, appellee asserts, in part, that the judgment was final on its face. We agree

with appellee.

A judgment that does not follow a conventional trial on the merits, such as a

default judgment, need not actually dispose of every party and claim before the court

in order to be final and appealable so long as it includes “‘clear and unequivocal’

indicia of finality.” See Patel v. Nations Renovations, 661 S.W.3d 151, 154-55

(Tex. 2023). A judgment that includes a combination of statements that describe the

trial court’s actions as (1) final, (2) disposing of all claims and parties, and (3)

appealable reflects an intent to completely dispose of the entire case. See id. at 155.

Examples of statements or actions that in combination indicate finality include

•a statement that the judgment is final; •a statement that the judgment is appealable; •a statement that all relief not granted is denied; •an award of costs; •an award of pre-and/or post-judgment interest; and, •an order authorizing enforcement of the judgment.

See id.; Krawiec v. Holt, No. 05-17-00307-CV, 2018 WL 2126858, *4 (Tex. App.—

Dallas May 7, 2018, no pet.) (mem. op.).

The judgment here indicates a clear intent to dispose of the entire case. It

begins by stating that the court considered “the Plaintiff’s Motion for Final

Judgment” (italics added) and concludes with five of the six indicia of finality listed

above: (1) a statement that the judgment is final; (2) a statement that the judgment is

–3– appealable; (3) an award of costs; (4) an award of pre- and post-judgment interest;

and, (5) an order permitting enforcement of the judgment.

Because the judgment includes “clear and unequivocal” indicia of finality, it

was final and the notice of appeal was due within thirty days of the date the judgment

was signed. See TEX. R. APP. P. 26.1. Having been filed well over a year later, the

notice of appeal failed to invoke our jurisdiction. Accordingly, we dismiss the

appeal. See id. 42.3(a).

230003f.p05 /Bonnie Lee Goldstein// BONNIE LEE GOLDSTEIN JUSTICE

–4– Court of Appeals Fifth District of Texas at Dallas JUDGMENT

SHELBY BLACK AND DALLAS On Appeal from the 95th District COUNTY RECOVERY, LLC, Court, Dallas County, Texas Appellants Trial Court Cause No. DC-20-12602. Opinion delivered by Justice No. 05-23-00003-CV V. Goldstein, Justices Nowell and Breedlove participating. EMILIO NUNEZ, INDIVIDUALLY AND A/N/F OF GABINO NUNEZ, Appellee

In accordance with this Court’s opinion of this date, we DISMISS the appeal.

We ORDER that appellee Emilio Nunez, Individually and a/n/f of Gabino Nunez recover his costs, if any, of this appeal from appellants Shelby Black and Dallas County Recovery, LLC.

Judgment entered this 23rd day of May 2023.

–5–