Opinion
01-22-00812-CV
01-19-2023
DENARD MCCLAIRNE, Appellant v. PRIMEWAY FEDERAL CREDIT UNION, Appellee
On Appeal from the 61st District Court Harris County, Texas Trial Court Case No. 2022-40625
Panel consists of Justices Kelly, Landau, and Farris.
MEMORANDUM OPINION
PER CURIAM
Appellant, Denard McClairne, filed a notice of appeal from the trial court's October 20, 2022 "Order Granting [Appellee] PrimeWay Federal Credit Union's First Amended Rule 91a Motion to Dismiss." On November 11, 2022, PrimeWay filed a "Motion to Dismiss Appeal," arguing that this Court lacks jurisdiction over McClairne's appeal because the order being appealed is an interlocutory order.
We grant PrimeWay's motion and dismiss the appeal for lack of jurisdiction.
This Court generally has jurisdiction only over appeals from final judgments and specific interlocutory orders that the Texas Legislature has designated as appealable orders. See CMH Homes v. Perez, 340 S.W.3d 444, 447-48 (Tex. 2011); see also Tex. Civ. Prac. & Rem. Code Ann. § 51.014. An order granting a motion to dismiss under Texas Rule of Civil Procedure 91a has not been specifically designated as an appealable interlocutory order. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014; see also DRC Constr. v. Pickle, No. 01-20-00576-CV, 2022 WL 479918, at *3-4 (Tex. App.-Houston [1st Dist.] Feb. 17, 2022, no pet.) (mem. op.) (dismissing appeal of order granting motion to dismiss pursuant to Texas Rule of Civil Procedure 91a and noting there is "[n]o statutory or other authority [that] allows for an interlocutory appeal from an order that grants a Rule 91a motion to dismiss but does not dispose of all pending claims").
Accordingly, we can exercise jurisdiction over this appeal only if the trial court's October 20, 2022 order is a final judgment. See In re Shire PLC, 633 S.W.3d 1, 11 n.3 (Tex. App.-Texarkana 2021, orig. proceeding [mand. denied]) (concluding order granting motion to dismiss pursuant to Texas Rule of Civil Procedure 91a disposing of all pending claims and parties is appealable "because the decision is final"). A judgment is final for purposes of appeal if it either (1) actually disposes of all claims and parties then before the trial court, regardless of its language, or (2) states with "unmistakable clarity" that it is intended as a final judgment as to all claims and all parties. See Farm Bureau Cnty. Mut. Ins. Co. v. Rogers, 455 S.W.3d 161, 163 (Tex. 2015).
Here, McClairne has appealed from the trial court's October 20, 2022 order granting PrimeWay's amended motion to dismiss filed pursuant to Texas Rule of Civil Procedure 91a. The trial court's order satisfies neither of the requirements set forth above.
Notably, the underlying litigation was initiated by PrimeWay, as plaintiff. In its original petition, PrimeWay sought "declaratory relief due to McClairne's repeated and continuing false assertions that his auto-loan debt to PrimeWay was discharged and further [sought] protection from false claims of lien that McClairne filed on the vehicle that serve[d] as collateral for said auto-loan." McClairne subsequently asserted counterclaims against PrimeWay for breach of trust, unenforceable agreement unlawful repossession, consumer rights violations, and damages.
PrimeWay then filed a motion to dismiss those counterclaims as "baseless causes of action" pursuant to Texas Rule of Civil Procedure 91a. See Tex. R. Civ. P. 91a. In its order, the trial court dismissed all counterclaims asserted by McClairne against PrimeWay. However, the trial court's order does not dispose of PrimeWay's requests for affirmative relief. See DRC Constr., 2022 WL 479918, at *3-4.
Similarly, the trial court's October 20, 2022 order does not state with "unmistakable clarity" that it is intended as a final judgment disposing of all claims and all parties. The trial court's order does not include any "finality" language and addresses only the counterclaims alleged by McClairne against PrimeWay. See Lehmann v. Har-Con Corp., 39 S.W.3d 191, 205 (Tex. 2001) ("A statement like, 'This judgment finally disposes of all parties and all claims and is appealable'[] would leave no doubt as to the [trial] court's intention.").
Because McClairne has appealed from an interlocutory trial court order, and he has not identified a statute-and we have found none-that would authorize an interlocutory appeal from the trial court's October 20, 2022 order, we conclude that we lack jurisdiction over the appeal. See V.I.P. Royal Palace, LLC v. Hobby Event Ctr. LLC, No. 01-18-00621-CV, 2020 WL 3579563, at *6 (Tex. App.-Houston [1st Dist.] July 2, 2020, no pet.) (mem. op.).
PrimeWay filed its motion to dismiss the appeal for lack of jurisdiction on November 14, 2022. More than ten days have passed, and McClairne has not filed a response to the motion. See Tex. R. App. P. 10.3(a).
Accordingly, we grant PrimeWay's motion, and dismiss the appeal for lack of jurisdiction. See Tex. R. App. P. 42.3(a), 43.2(f). All other pending motions are dismissed as moot.