JIMMY PURSELLEY v. JAMES BENNETT JR (2017)

MEMORANDUM OPINION

Jimmy Purselley appeals from the trial court's December 1, 2016, summary judgment order. A review of the procedural history of the trial court case indicates that this order is not a final, appealable order.

On January 12, 2016, James Bennett, Jr., sued Jasco Services, LLC (Jasco), and Jimmy Purselley (Purselley) in the 249th Judicial District Court of Johnson County, Texas.¹ The suit alleged that the defendants (1) violated the Deceptive Trade Practices Act, (2) committed acts of common law fraud, (3) committed acts of simple negligence, (4) made negligent misrepresentations, (5) breached a contract, (6) are liable under a theory of promissory estoppel, (7) are subject to civil liability under the Texas Theft Liability Act, (8) are liable under a theory of “MONEY HAD AND RECEIVED,” and (9) are liable under a sworn account theory. Additionally, Bennett's petition sought the entry of a declaratory judgment. By way of damages, Bennett's petition sought economic and actual damages, “MULTIPLE DAMAGES,” damages for mental anguish, exemplary damages, “RESCISSION AND OTHER ORDERS TO RESTORE,” and attorney fees. On June 22, 2016, the defendants, jointly, filed an original answer to Bennett's lawsuit.

On September 13, 2016, Bennett filed a motion for partial summary judgment against Jasco and Purselley, and on October 20, 2016, the trial court entered a written order ruling on that motion. That order found that Jasco breached its contract with Bennett, resulting in actual damages of $23,350.00. While the order did not find that Purselley had breached any contract, it did hold Jasco and Purselley jointly and severally liable for the $23,350.00 damages. The order went on to find, as a matter of law, that Jasco acted knowingly and intentionally and awarded Bennett exemplary damages against Jasco in the amount of $70,050.00. The order required Jasco to pay Bennett $9,863.82 in attorney fees and $420.22 for court costs. Finally, the order required Jasco to pay $902.01 in pre-judgment interest, for a total damages award of $104,586.05. Although the trial court's October 20 order, as originally written, found that both Jasco and Purselley had breached a contract with Bennett and that both defendants were jointly and severally liable for all damages awarded, the trial court crossed out Purselley's name from all relevant portions of the order, other than the actual damage award of $23,350.00. Notwithstanding the fact that the October 20 order unequivocally did not dispose of all claims and parties to this litigation, the order, inexplicably contained Mother-Hubbard language to the contrary.

On November 16, 2016, the trial court entered a temporary restraining order against Jasco and Purselley.

On November 18, 2016, the Honorable Wayne Bridewell recused from the case, and on November 21, 2016, the Honorable William Bosworth, Jr., was assigned to preside.

On December 1, 2016, Judge Bosworth signed an order that was nearly identical to the trial court's October 20 order, except that the December 1 order found that Purselley had also breached a contract with Bennett and found that Purselley was also liable to Bennett for each item of damages that made up the previous $104,586.05 award. Again, while this order clearly did not dispose of all claims and parties, the December 1 order also contained Mother-Hubbard language to the contrary.

On December 2, 2016, Jasco filed a Suggestion of Bankruptcy, notifying the trial court that it had filed for bankruptcy in the United States District Court for the Northern District of Texas, Fort Worth Division, under cause number 16-44578. The suggestion also intimated that Bennett's lawsuit against Jasco and Purselley was stayed under the automatic stay provisions of the United States Bankruptcy Code. See 11 U.S.C.A. § 362 (West, Westlaw current through P.L. 114-327).

On December 5, 2016, Bennett filed in the trial court his first amended original petition in which he sought to add, in addition to the original defendants, the following parties as defendants in the lawsuit: (1) Jasco Construction, LLC, (2) Roadway Trucking, LLC, and (3) Purselley Properties, LLC. The amended petition alleged all of the same causes of action against both the original defendants and the newly named defendants.

Also on December 5, 2016, Bennett filed a motion in the trial court seeking to sever his causes of action against the three defendants newly named in the amended petition, on the one hand, from his causes of action against the two defendants named in the original petition, on the other. Based on the record before this Court, that motion was not ruled on by the trial court.

Finally, on December 20, 2016, Purselley filed a notice of appeal “from the judgment and sentence [sic] entered against him ․ on November 29, 2016.”

Our jurisdiction, as an appellate court, is constitutional and statutory in nature. See TEX. CONST. art. V, § 6; TEX. GOV'T CODE ANN. § 22.220 (West Supp. 2016). “[T]he general rule, with a few mostly statutory exceptions, is that an appeal may be taken only from a final judgment.” Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001). “A judgment is final for purposes of appeal if it disposes of all pending parties and claims in the record ․” Id. The trial court's December 1 order, from which appeal was taken, does not appear to be a final, appealable order in that it does not dispose of all claims and parties to the litigation. While the order does explicitly state that it is a final, appealable order and includes a general, catch-all provision that purports to dispose of all parties and claims not specifically addressed in the order, it seems fairly clear from the circumstances that the order was not actually meant to be final and appealable. Further, if we were to construe the Mother-Hubbard language from the December 1 order to be effective, then we would also have to construe the Mother-Hubbard language from the trial court's earlier October 20 order to be effective. Under that scenario, the October 20 order would have been the final, appealable order in the case, the trial court would have lacked the plenary power to enter the December 1 order, and Purselley's November 29 notice of appeal would be untimely. Either way, we lack jurisdiction to hear this appeal.

By letter of February 8, 2017, we informed Purselley of this potential defect in our jurisdiction and afforded him the opportunity to demonstrate proper grounds for our retention of the appeal. In response to that letter, Purselley conceded that “there is not total finality in this cause,” but urged this Court to abate the appeal either until such time as a final judgment is entered or, alternatively, until such time as the trial court has ruled on the motion to sever that was filed, but not ruled on, prior to perfection of this appeal. We decline to abate the appeal to await the entry of either a final judgment or a severance order.

Consequently, we are left with no alternative but to dismiss the appeal for want of jurisdiction.

We dismiss this appeal for want of jurisdiction.

FOOTNOTES

1.   Originally appealed to the Tenth Court of Appeals, 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 are unaware of any conflict between precedent of the Tenth Court of Appeals and that of this Court on any relevant issue. See TEX. R. APP. P. 41.3.

Bailey C. Moseley Justice