Opinion
No. 03-09-00186-CV
Filed: October 9, 2009.
Appealed from the District Court of Travis County, 345th Judicial District No. D-1-GN-08-002044, Honorable Scott Ozmun, Judge Presiding.
Before Justices PATTERSON, PURYEAR and PEMBERTON.
ORDER
Appellee, American Constructors, Inc. (ACI), has filed a motion to dismiss this appeal. In the underlying litigation, appellant, First-Citizens Bank and Trust Company (First-Citizens), sued ACI alleging that it was the assignee of certain obligations that ACI, a general contractor, allegedly owed to one of its subcontractors and that ACI had never paid First-Citizens those amounts. In response to First-Citizens's suit, ACI filed a petition in interpleader in which it counterclaimed against First-Citizens and also joined several other of its subcontractors as third-party defendants. With this, ACI deposited $90,105.61 into the district court's registry. Subsequently, ACI moved for summary judgment on First-Citizens's claims against it. In two orders dated March 25 of this year, the district court ruled on various objections to the parties' summary-judgment evidence and granted ACI's motion. In April, First-Citizens filed a notice of appeal from both March 25 orders. The appeal has proceeded, with the clerk's record being filed in June and First-Citizens filing its appellant's brief in early August.
On August 26, ACI filed its dismissal motion. ACI asserts that the March 25 orders do not constitute a final, appealable judgment because they disposed only of First-Citizens's claim against ACI, not ACI's interpleader claims or other parties to the litigation. In response to ACI's motion, First-Citizens concedes that when it filed its notice of appeal from the summary-judgment order, that order was not yet final. Nonetheless, First-Citizens asserts that any jurisdictional defect existing at the time of filing was cured because subsequently "the trial court entered an order disposing of all issues." See Tex. R. App. P. 27.1(a) ("In a civil case, a prematurely filed notice of appeal is effective and deemed filed on the day of, but after, the event that begins the period for perfecting the appeal."). First-Citizens relies on, and has supplemented the record with, a July 27 "Order Granting Petition in Interpleader." ACI has filed a reply in which it argues that there is still no final judgment because the July 27 order does not dispose of all parties and claims. See Lehmann v. Har-Con Corp., 39 S.W.3d 191, 205 (Tex. 2001). We agree with ACI that the July 27 order does not give rise to a final judgment.
Similarly, in its opening appellant's brief, First-Citizens represents that the interpleader claims "have been disposed of separately."
The July 27 order does not purport to dispose of all remaining parties and claims in the suit with unmistakable clarity, nor does it have that effect. See id. To the contrary, the order, on its face, fails to dispose of approximately $7,500 of the interpled funds. Consequently, there is still no final, appealable judgment. And because the legislature has not provided an interlocutory appeal from the March 25 orders, we lack subject-matter jurisdiction over First-Citizens's appeal.
Under Texas Rule of Appellate Procedure 27.2, we have discretion to permit the orders on appeal to be made final so as to cure the jurisdictional defect. Under the circumstances, we exercise our discretion to do so. We give notice to First-Citizens that this Court will dismiss this appeal for want of subject-matter jurisdiction within thirty days of the date of this order unless it can demonstrate by that time that the jurisdictional defect has been cured and supplements the appellate record accordingly. See Tex. R. App. P. 42.3(a).
In the event First-Citizens complies with this order, ACI's deadline for filing its appellee's brief is extended until the thirtieth day after the date the district court's judgment becomes final. See id. R. 27.2.
Finally, in its reply in support of its dismissal motion, ACI has requested that we award it the costs and attorney's fees it incurred in filing its dismissal motion and reply. ACI complains that First-Citizens "forced" its dismissal motion by persisting with prosecuting the appeal, including filing its appellant's brief, despite awareness that there is no final, appealable judgment. Further, counsel for ACI represents that First-Citizens has knowingly "misrepresented the state of the record below" to this Court by stating or insinuating there was a final judgment when, in fact, it knew there was not. In particular, regarding the July 27 order that First-Citizens now advocates is a final judgment, ACI's counsel represents that "[i]n fact, the order is in the process of being amended by agreement due to the request of another party, as First Citizens' counsel is well aware since he agreed to it being amended." We request that First-Citizens file a response to ACI's request for attorney's fees and costs within ten days of the date of this order.
It is so ORDERED October 9, 2009.