Vertical Holdings, LLC and Vanguard Financial Trust v. LocatorX, Inc.

Opinion

DISMISS and Opinion Filed August 4, 2021

In The Court of Appeals Fifth District of Texas at Dallas No. 05-21-00468-CV

VERTICAL HOLDINGS, LLC AND VANGUARD FINANCIAL TRUST, Appellants V. LOCATORX, INC., Appellee

On Appeal from the 101st Judicial District Court Dallas County, Texas Trial Court Cause No. DC-20-04237

MEMORANDUM OPINION Before Justices Myers, Partida-Kipness, and Garcia Opinion by Justice Myers We questioned our jurisdiction over this appeal because there did not appear

to be a final judgment or other appealable interlocutory order. See Lehmann v. Har–

Con Corp., 39 S.W.3d 191, 195 (Tex. 2001) (generally appellate courts have

jurisdiction over final judgments or certain interlocutory orders permitted by

statute); TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a) (listing appealable

interlocutory orders). We instructed appellant to file a letter brief with an

opportunity for appellee to respond. The underlying lawsuit involves a dispute regarding a subscription agreement.

Appellants asserted claims against appellee for declaratory judgment, breach of

contract, and attorney’s fees. Appellee asserted counterclaims for declaratory

judgment, breach of contract, fraudulent inducement, fraud, and attorney’s fees.

Both parties filed motions for summary judgment. Additionally, appellant Vertical

Holdings, LLC sought dismissal of appellee’s counterclaims pursuant to the Texas

Citizens’ Participation Act. See TEX. CIV. PRAC. & REM. CODE ANN. § 27.003.

In the notice of appeal, appellants state they are appealing the following trial

court orders: (1) January 7, 2021 order granting appellee’s cross-motion for

summary judgment on appellant Vertical Holdings’ claims;1 (2) March 17, 2021

order granting appellee’s motion for summary judgment on its counterclaim for

declaratory judgment and awarding attorney’s fees; and (3) June 2, 2021 order

denying appellants’ motion for summary judgment and granting appellee’s cross-

motion for summary judgment on each of appellants’ claims against appellee with

appellee’s attorney’s fees to be determined. Appellants noted in their notice of

appeal that they questioned whether the June 2nd order is final in light of the issue

of appellee’s attorney’s fees to be determined and because another order signed on

1 The cross-motion for summary judgment was filed prior to appellants’ amended petition that added Vanguard Financial Trust as a party. Subsequent to the filing of the cross-motion but prior to the order granting it, appellee asserted its counterclaims. –2– the same date denied appellant Vertical Holding’s TCPA motion to dismiss

appellee’s counterclaims. 2

In their letter brief, appellants acknowledge that claims remain pending. They

explain they filed the notice of appeal out of an abundance of caution because the

trial court canceled the trial setting with the designation “Case Closed” and indicated

on the docket sheet that a total judgment of $0.00 was awarded to appellee. See

Lehmann, 39 S.W.3d 191, 196 (“A party who is uncertain whether a judgment is

final must err on the side of appealing or risk losing the right to appeal.”).

Regardless of the trial court’s administrative notations, appellee’s

counterclaims for fraudulent inducement, fraud, and breach of contract and claim for

attorney’s fees remain pending. Accordingly, we dismiss the appeal for want of

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

/Lana Myers// LANA MYERS JUSTICE

2 By separate appeal docketed as appellate cause number 05-21-00469-CV, appellants appeal from the trial court’s order denying their TCPA motion to dismiss. See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(12). –3– Court of Appeals Fifth District of Texas at Dallas JUDGMENT

VERTICAL HOLDINGS, LLC AND On Appeal from the 101st Judicial VANGUARD FINANCIAL TRUST, District Court, Dallas County, Texas Appellants Trial Court Cause No. DC-20-04237. Opinion delivered by Justice Myers. No. 05-21-00468-CV V. Justices Partida-Kipness and Garcia participating. LOCATORX, INC., Appellee

In accordance with this Court’s opinion of this date, the appeal is DISMISSED.

It is ORDERED that appellee LOCATORX, INC. recover its costs of this appeal from appellants VERTICAL HOLDINGS, LLC AND VANGUARD FINANCIAL TRUST.

Judgment entered this 4th day of August, 2021.

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