Opinion
NO. 03-17-00655-CV
02-09-2018
William Bunte, Alan C. Fielder, Albi Land Investments, Appellants v. Wilbert Myers and Cheryl Meyers, Appellees
FROM THE DISTRICT COURT OF BASTROP COUNTY, 21ST JUDICIAL DISTRICT
NO. 225-21 , HONORABLE CARSON TALMADGE CAMPBELL, JUDGE PRESIDING MEMORANDUM OPINION
On October 6, 2017, appellants William Bunte, Alan C. Fielder, and Albi Land Investments (collectively, the "Appellants") filed a notice of restricted appeal from a default judgment granted in favor of the appellees Wilbert Meyers and Cheryl Meyers (collectively, the "Appellees").
In their brief on appeal, the Appellants explain that, as a threshold matter, it is unclear whether this Court has jurisdiction to review the appeal because the default judgment may not operate as a final judgment. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001) ("[W]ith a few mostly statutory exceptions [not applicable here], an appeal may be taken only from a final judgment."). Consequently, the Appellants request that this Court dismiss their appeal for want of jurisdiction so that the case may proceed in the trial court. In the alternative, the Appellants assert that, for a variety of reasons, the trial court erred in granting the default judgment, that such error is apparent from the face of the record, and that as a result, this Court should reverse the trial court's judgment and remand for a new trial. See Tex. R. App. P. 30; Alexander v. Lynda's Boutique, 134 S.W.3d 845, 848 (Tex. 2004) (summarizing requirements of restricted appeal).
The Appellants have now filed a motion to dismiss their appeal. According to the Appellants, the trial court signed orders on January 10, 2018, concluding that it retained plenary jurisdiction because there has been no final judgment in the case and setting aside the default judgment that is the subject of this appeal. The Appellants request that we "dismiss the restricted appeal" if we determine that the "trial court is correct in finding in it had plenary jurisdiction" so that the case "may then proceed with a new trial." Alternatively, the Appellants request that we "consider the restricted appeal on the merits" if we determine that "the trial court is wrong." To date, the Appellees have not filed their appellees' brief and have not responded to the Appellants' motion to dismiss.
When, as in this case, there has been no traditional trial on the merits, there is no presumption of finality of a judgment. Crites v. Collins, 284 S.W.3d 839, 840 (Tex. 2009) (per curiam). Rather, "when there has not been a conventional trial on the merits, an order or judgment is not final for purposes of appeal [(1)] unless it actually disposes of every pending claim and party or [(2)] unless it clearly and unequivocally states that it finally disposes of all claims and all parties." Lehmann, 39 S.W.3d at 205. "[T]he language of an order of judgment can make it final, even though it should have been interlocutory, if that language expressly disposes of all claims and all parties." Id. at 200. "A statement like, 'This judgment finally disposes of all parties and all claims and is appealable,' would leave no doubt about the court's intention." Id. at 206.
Here, the default judgment does not contain any language suggesting that it was intended as a judgment disposing of all claims and parties. Further, based on our review of the record, including the trial court's default judgment, we cannot conclude that the judgment actually disposes of every pending claim and party. Accordingly, we must dismiss this appeal for want of jurisdiction. See Tex. R. App. P. 42.3(a).
/s/_________
Scott K. Field, Justice Before Chief Justice Rose, Justices Goodwin and Field Dismissed for Want of Jurisdiction Filed: February 9, 2018