Opinion
14-21-00635-CV
03-01-2022
CHRISTOPHER DUPUY, Appellant v. HEATHER WILLIAMS, Appellee
On Appeal from the 333rd District Court Harris County, Texas Trial Court Cause No. 2019-89958
Panel consists of Justices Bourliot, Zimmerer, and Spain.
MEMORANDUM OPINION
PER CURIAM.
This is an attempted appeal from an interlocutory order denying appellant Christopher Dupuy's motion for default judgment against appellee Heather Williams on April 7, 2020. On December 8, 2021, this court informed appellant of the lack of any appealable order and notified him that his appeal was subject to dismissal if he failed to show meritorious grounds for continuing the appeal. Tex.R.App.P. 42.3(a); see also CMH Homes v. Perez, 340 S.W.3d 444, 447 (Tex. 2011) (acknowledging general rule that "interlocutory orders are not immediately appealable").
Appellant attempts to appeal the trial court's order denying his motion for default judgment, but appellant has taken a non-suit and appellee has filed counterclaims that the appellate record suggests are still pending. See Tex. R. Civ, P. 162. See Law Offices of Windle Turley, P.C. v. French, 109 S.W.3d 599, 601-02 (Tex. App.-Dallas 2003, no pet.) (holding that because counterclaim for frivolous lawsuit damages remained pending before trial court, there was no appealable final judgment and the appeals court lacked jurisdiction over appeal). Even if the parties' controversy has actually concluded in the trial court, by taking a non-suit, appellant mooted the entirety of his case. See Hous. Mun. Emps. Pension Sys. v. Ferrell, 248 S.W.3d 151, 157 (Tex. 2007). This also mooted his appeal of any matters related to the merits of those claims. See Klein v. Hernandez, 315 S.W.3d 1, 3-4 (Tex. 2010) (acknowledging general rule that when non-suit ends case against party, "there [is] no live controversy for the court of appeals to decide" between the parties).
In addition, although appellant has submitted a purported non-suit order with his brief, the appellate record does not reflect that the trial court has signed an order acknowledging the non-suit. See Farmer v. Ben E. Keith Co., 907 S.W.2d 495, 496 (Tex. 1996) (per curiam); see also Tex. R. App. P. 34.1 (noting that appellate record consists of "the clerk's record and, if necessary to the appeal, the reporter's record"); Nogle & Black Aviation, Inc. v. Faveretto, 290 S.W.3d 277, 287 (Tex. App.-Houston [14th Dist.] 2009, no pet.) (noting that courts of appeals "may not consider evidence that is only attached to briefs").
We dismiss this appeal for want of jurisdiction.