Opinion
No. 06-16-00068-CV
06-02-2017
KENNETH LEO BUHOLTZ, Appellant v. GREGG GIBBS AND CHARLES PHILIPS, Appellees
On Appeal from the County Court at Law No. 4 Collin County, Texas
Trial Court No. 004-01275-2016 Before Morriss, C.J., Moseley and Burgess, JJ.
MEMORANDUM OPINION
Kenneth Leo Buholtz sued his former attorneys, Gregg Gibbs and Charles Philips, for legal malpractice in the County Court at Law No. 7 of Collin County, Texas, under trial court cause number 007-01275-2016. The trial court granted Gibbs' and Philips' motions to dismiss the case under Rule 91a. Buholtz appeals. Because the trial court's order resolved neither a suit on sworn account filed by an intervenor nor Buholtz's counterclaim of fraud against the intervenor, we conclude that the trial court's Rule 91a dismissal did not dispose of all parties and all claims. In the absence of a final, appealable order, we dismiss this appeal for want of jurisdiction.
Originally appealed to the Fifth Court of Appeals in Dallas, this case was transferred to this Court by the Texas Supreme Court pursuant to its docket equalization efforts. See TEX. GOV'T CODE ANN. § 73.001 (West 2013). We follow the precedent of the Fifth Court of Appeals in deciding this case. See TEX. R. APP. P. 41.3.
Our jurisdiction is limited to appeals from final judgments, except as explicitly allowed by statute. See TEX. CIV. PRAC. & REM. CODE ANN. § 51.012 (West 2015), § 51.014 (West Supp. 2016). Because no statute permits interlocutory appeals from Rule 91a dismissals, Buholtz must demonstrate that the order appealed from is final and appealable. See Koenig v. Blaylock, 497 S.W.3d 595, 598 n.4 (Tex. App.—Austin 2016, pet. denied). The facts of this case demonstrate that the Rule 91a dismissal here is not final.
After Buholtz brought suit against Gibbs and Philips, Philmoore Management, LLC, assignee of accounts previously held by the law firm that employed Philips, intervened and filed an original petition for suit on sworn account seeking $17,250.24 in unpaid attorney fees billed to Buholtz for legal services performed in 2010 through 2012. Both the petition in intervention and the original petition for suit on sworn account were filed under trial court cause number 007- 01275-2016. In response to the intervenor's verified claims, Buholtz raised a counterclaim asserting that a "past-due notice" issued by the intervenor in 2016 was fraudulent.
Gibbs and Philips filed separate motions to dismiss under Rule 91a of the Texas Rules of Civil Procedure, and the trial court granted both of those motions. While the orders of dismissal state that "[c]ause number 007-01275-2016 is dismissed, with prejudice," the Rule 91a motions to dismiss did not involve the intervenors claims or Buholtz's counterclaims against the intervenor, which, as previously noted, were all filed under the same cause number. Additionally, after the orders of dismissal were entered, the trial court signed an order (1) recusing from the case and (2) transferring the case to another court. Therefore, the orders of dismissal from which Buholtz appeals were not final, appealable orders. See Villalba v. Fashing, 951 S.W.2d 485 (Tex. App.—El Paso 1997, no writ); Tramco Enters., Inc. v. Indep. Am. Sav. Ass'n, 739 S.W.2d 944 (Tex. App.—Fort Worth 1987, no writ).
We note that the case was subsequently transferred to the County Court at Law No. 4 of Collin County, Texas, where it was assigned trial court cause number 004-01275-2016.
By letter of May 3, 2017, we informed Buholtz of this potential defect in our jurisdiction and provided him with an opportunity to demonstrate proper grounds for our retention of the appeal. Buholtz's response to our letter failed to demonstrate how this Court has jurisdiction over this appeal in light of the intervenors claims and Buholtz's counterclaims against the intervenor.
Accordingly, we dismiss this appeal for want of jurisdiction.
Josh R. Morriss, III
Chief Justice Date Submitted: April 24, 2017
Date Decided: June 2, 2017