Opinion
01-21-00567-CV
08-30-2022
WANDA JOYCE SMITH, Appellant v. CASEY LENDING, LLC, Appellee
On Appeal from the 234th District Court Harris County, Texas Trial Court Case No. 2016-49408
Panel consists of Justices Kelly, Rivas-Molloy, and Guerra.
MEMORANDUM OPINION
PER CURIAM
Appellant Wanda Joyce Smith ("Smith") appeals from the trial court's order granting summary judgment in favor of Appellee Casey Lending, LLC ("Casey Lending"). We dismiss the appeal for lack of jurisdiction.
Background
Smith claims she has an ownership interest in residential property located at 12330 Fairpoint Drive, Houston, Texas ("Property"). Harris County, Houston Community College Systems, and the City of Houston filed suit against Smith and others in 2016, seeking to recover outstanding taxes, penalties, and interest due on the Property. Casey Lending intervened in the lawsuit claiming an interest in the Property pursuant to a written agreement with Thomas Charles, who also claimed an ownership interest in the Property. Casey Lending sought to recover tax liens and a judgment of foreclosure. The trial court granted a default judgment against Smith and entered an order to sell the Property. Tai Phan ("Phan") purchased the property at the public foreclosure sale and commenced eviction proceedings against Smith.
Smith, who asserts she was unaware that Thomas Charles had entered into an agreement with Casey Lending for certain tax liens on the Property, claims she paid all outstanding taxes due on the Property (except the liens due to Casey Lending), and that the default judgment taken against her was improper because she answered and appeared at the last trial setting of which she was notified. Smith contends she did not receive a copy or notification of the final judgment until six months after its entry, resulting in the foreclosure sale of the Property to satisfy the tax liens held by Casey Lending. Smith filed a petition in the trial court requesting a bill of review to set aside the final judgment entered against her. She also added several claims against Casey Lending and Phan, who Smith joined as a third-party defendant. Casey Lending filed a motion for summary judgment seeking "full and final summary judgment on its foreclosure claims." The trial court granted Casey Lending's motion for summary judgment and Smith appealed.
"A bill of review is an equitable proceeding brought by a party seeking to set aside a prior judgment that is no longer subject to challenge by a motion for new trial or appeal." Caldwell v. Barnes, 154 S.W.3d 93, 96 (Tex. 2004) (citing Baker v. Goldsmith, 582 S.W.2d 404, 406 (Tex. 1979)). Smith filed a bill of review requesting that the trial court (1) declare the default judgment entered against her void as a matter of law, (2) void the Constable's Sale and Deed for the foreclosure sale, (3) refund some or all of the purchase price paid by Phan, (4) "reinstate th[e] tax cause," and (5) upon final judgment, find that Casey Lending cannot enforce its tax lien on the Property.
Smith asserted claims for trespass to try title, quiet title, and declaratory relief. She also sought injunctive relief enjoining Casey Lending and Phan from "taking any action that might in any way interfere with her ownership interest, use, and control" of the Property.
Casey Lending argued Smith was never an owner of the Property, and even if she were, Thomas Charles legally authorized the transfer of her interest in the Property or, at a minimum, Casey Lending's liens attached to Thomas Charles' interest in the Property.
Discussion
Generally, appeals may be taken only from final judgments. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001). An appellate court has jurisdiction to consider an appeal from an interlocutory order only if a statute explicitly authorizes an interlocutory appeal. CMH Homes v. Perez, 340 S.W.3d 444, 447 (Tex. 2011); Lehman, 39 S.W.3d at 195; see, e.g., Tex. Civ. Prac. & Rem. Code Ann. § 51.014 (authorizing appeals from certain interlocutory orders). A judgment issued without a conventional trial is final for appeal only if it (1) disposes of all claims and parties then before the trial court, regardless of its language, or (2) states with "unmistakable clarity" that it is a final judgment as to all claims and parties. Lehmann, 39 S.W.3d at 192-93.
The trial court's summary judgment order from which Smith appeals does not constitute a final judgment disposing of all pending issues and parties in the case. See id. at 192-93, 205; see also V.I.P. Royal Palace, LLC v. Hobby Event Ctr. LLC, No. 01-18-00621-CV, 2020 WL 3579563, at *4 (Tex. App.-Houston [1st Dist.] July 2, 2020, no pet.) (mem. op.) ("Because the trial court's . . . order does not actually dispose of all claims and all parties, it is interlocutory and not final . . . ."). The trial court's order does not state with "unmistakable clarity" that it constitutes a final judgment as to all claims and all parties. See Lehmann, 39 S.W.3d at 205 ("There must be some . . . clear indication that the trial court intended the order to completely dispose of the entire case."). The trial court's order disposing of Casey Lending's motion for summary judgment states:
[T]he Court GRANTS the Motion and ORDERS all claims brought by Wanda Joyce Smith against Casey Lending, LLC . . . DISMISSED WITH PREJUDICE. This order grants partial summary judgment to the extent there are claims remaining, relating to other parties to this suit, that do not implicate Casey Lending, LLC. This is a final and appealable order that is effective immediately.(Emphasis in original.) This order does not dispose of all claims asserted by Smith. On the contrary, Smith's claims against Phan, who did not seek summary judgment, remain pending. Further, the order does not, given the language referring to a partial summary judgment, state with "unmistakable clarity" that the order is a final judgment.
Smith asserts in her brief that "Tai Phan paid $92,000 at the foreclosure sale" for the Property.
"An order that does not actually dispose of all claims and all parties before the trial court and does not state with unmistakable clarity that it is a final judgment as to all claims and all parties must be classified, for purposes of appeal, as an unappealable interlocutory order." See V.I.P. Royal Palace, 2020 WL 3579563, at *6. And without affirmative statutory authority to hear an interlocutory appeal, this Court lacks jurisdiction. See id.
We notified Smith of this potential jurisdictional defect and of our intention to dismiss her appeal unless she filed a written response demonstrating, with citation to authorities and the record, that this Court has appellate jurisdiction over the appeal. See Tex. R. App. P. 42.3(a), 42.3(f). Smith's response does not establish we have jurisdiction over her appeal. In her response, she asserts that "by ruling for Casey [Lending] on the grounds it asserted in its Motion, the Court's order effectively disposed of not just the bill of review, but all the remaining claims in the case including the counterclaim and third-party claims." This argument is unavailing. Phan did not move for summary judgment or join Casey Lending's motion. As such, Smith's claims against Phan remain pending. See, e.g., Brown v. McClure, No. 01-19-00504-CV, 2021 WL 6119990, at *9 (Tex. App.-Houston [1st Dist.] Dec. 28, 2021, no pet.) (mem. op.) (holding even if elements of various claims overlap, "a trial court may not grant summary judgment on a claim not before it on a motion for summary judgment").
Because we conclude that the trial court's summary judgment order does not constitute a final judgment and is not appealable, we lack jurisdiction over the appeal. See id.; see also Bonsmara Nat. Beef Co., LLC v. Hart of Tex. Cattle Feeders, LLC, 603 S.W.3d 385, 387 (Tex. 2020) ("[O]ur rule has long been that a party against whom an interlocutory [order] has been rendered will have his right of appeal when . . . the same is merged in a final judgment disposing of the whole case." (second and third alterations in original) (quotations omitted)).
Conclusion
We dismiss the appeal for lack of jurisdiction. See Tex. R. App. P. 43.2(f). We dismiss all pending motions as moot.