Thomas E. Breen v. Commerce Equities, LLC

• Court: Court of Appeals of Texas
• Decided: July 1, 2025
• Docket: 01-25-00227-CV
• Status: Published

Opinion

Opinion issued July 1, 2025

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-25-00227-CV ——————————— THOMAS E. BREEN, Appellant V. COMMERCE EQUITIES – SETTLERS RANCH, LTD., Appellee

On Appeal from the 269th District Court Harris County, Texas Trial Court Case No. 2023-57925

MEMORANDUM OPINION

Appellant, Thomas E. Breen, is attempting to appeal from an interlocutory

order, signed on February 28, 2025, granting Counter-Defendant Commerce

Equities – Settlers Ranch, Ltd.’s motion to dismiss. We dismiss for lack of

jurisdiction. Appellee Commerce Equities – Settlers Ranch, Ltd. originally filed suit

against Breen for fraud and breach of contract, among other claims. Commerce

Equities later amended its petition to add four other defendants. Although the

counterpetition is not included in the record, Breen apparently filed a counterpetition

asserting several counterclaims against Commerce Equities. Commerce Equities, as

counter-defendant, filed a motion to dismiss counter-plaintiff Breen’s claims of

defamation, retaliation, wrongful eviction, intentional infliction of emotional

distress, and abuse of process pursuant to Chapter 27 and section 27.003 of the Texas

Civil Practice and Remedies Code. Breen opposed the motion. The trial court

signed an order on February 28, 2025, granting Commerce Equities’ motion,

dismissing Breen’s counterclaims with prejudice and ordering Breen to pay

attorney’s fees in the amount of $3,700.00 and sanctions in the amount of $500.00.

Breen filed a notice of appeal.

The Court issued a notice on June 13, 2025, advising Breen that the Court

might dismiss the appeal for lack of jurisdiction because the order appealed was

interlocutory and no statute authorized interlocutory appeal. Breen filed a response,

arguing that: (1) his notice of appeal was timely filed; (2) the trial court’s February

28, 2025 order was final and appealable under Lehmann v. Har-Con Corp., 39

S.W.3d 191 (Tex. 2001); and (3) sanctions and dismissal under the Texas Citizens

Participation Act are reviewable by interlocutory or final appeal.

2 The Court’s notice advised Breen that it might dismiss, not because the notice

of appeal was untimely, but because the order he was attempting to appeal was

interlocutory and not appealable. As the Court stated in its notice, appeals generally

may be taken only from final judgments and if the order appealed does not dispose

of all pending parties and claims, the order is interlocutory and not appealable until

after final judgment is signed, unless a statute provides for interlocutory appeal. See

Bally Total Fitness Corp. v. Jackson, 53 S.W.3d 352, 352 (Tex. 2001). Because the

trial court’s order only disposed of Breen’s counterclaims against Commerce

Equities and Commerce Equities’ causes of action against Breen and the other four

defendants remain pending, the February 28, 2025 order is interlocutory.

Although Texas Civil Practice and Remedies Code Section 51.014(a)(12)

provides for an appeal from an interlocutory order denying a motion to dismiss under

section 27.003, no statute provides for appeal from an interlocutory order granting a

motion to dismiss. See Schlumberger Ltd. v. Rutherford, 472 S.W.3d 881, 890 (Tex.

App.—Houston [1st Dist.] 2015, no pet.) (dismissing for lack of jurisdiction appeal

from partial grant of TCPA motion to dismiss). Because no statute permits appeal

from this interlocutory order, we lack jurisdiction and must dismiss the appeal. See

Luna v. Jones, No. 01-19-00995-CV, 2021 WL 3775607, at *2 (Tex. App.—

Houston [1st Dist.] Aug. 26, 2021, no pet.) (mem. op.).

3 We dismiss the appeal for lack of jurisdiction. See TEX. R. APP. P. 43.2(f).

Any pending motions are dismissed as moot.

PER CURIAM Panel consists of Justices Guerra, Gunn, and Dokupil.