Opinion issued April 2, 2015
In The
Court of Appeals
For The
First District of Texas
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NO. 01-14-00604-CV
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SHEA PALAVAN, Appellant
V.
BRIAN MCCULLEY, BOULEVARD REALTY LLC, AND TBW
DEVELOPMENT, LLC, Appellees
On Appeal from County Civil Court at Law No. 3
Harris County, Texas
Trial Court Case No. 1047954
MEMORANDUM OPINION
Appellant, Shea Palavan, filed suit in justice of the peace court against
appellees, Brian Mcculley, Boulevard Realty LLC, and TBW Development, LLC.
On March 20, 2014, the parties signed an agreed judgment settling the claims.
Thereafter, Palavan appealed the agreed judgment to county civil court at law
(“county court”), alleging that he had been coerced into signing the judgment. As
an alternative to the appeal, Palavan also filed a request for writ of certiorari in the
county court. In turn, Appellees filed counterclaims against Palavan in the county
court proceeding.
Appellees also filed a motion requesting the county court (1) to dismiss
Palavan’s appeal and (2) to deny his request for writ of certiorari. On June 30,
2014, the county court granted Appellees’ motion, signing an order dismissing
Palavan’s appeal, denying his request for writ of certiorari, and affirming the
agreed judgment.
Palavan appealed the county court’s June 30, 2014 order (“the order”) to this
Court. In their brief, Appellees assert that this appeal should be dismissed because
the order is not a final, appealable judgment; nor is it an appealable interlocutory
order. Appellees point out that, although Palavan’s appeal and request for writ of
certiorari are disposed of, the counterclaims are still pending in the county court.
We agree with Appellees that we lack jurisdiction over this appeal because
there is not yet a final, appealable judgment. When, as here, there has been no
conventional trial on the merits, we do not presume that a judgment is final. See
Lehmann v. Har–Con Corp., 39 S.W.3d 191, 199–200 (Tex. 2001). An order or
judgment is not final for purposes of appeal unless it actually disposes of every
pending claim and party or unless it unequivocally states that it finally disposes of
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all claims and all parties. Id. at 200. Here, Appellees’ counterclaims have not
been disposed of and remain pending. In addition, the order does not contain
finality language, or any other “clear indication that the trial court intended the
order to completely dispose of the entire case.” Am. Heritage Capital, LP v.
Gonzalez, 436 S.W.3d 865, 870 (Tex. App.—Dallas 2014, no pet.).
Palavan claims that the order is a final, appealable judgment. He asserts that
Appellees’ counterclaims were severed from the main action in the county court,
thereby making the order a final, appealable judgment. See Lehmann, 39 S.W.3d
at 195. To support his assertion, Palavan points out the word “CLOSED” has been
stamped on the top of the June 30, 2014 order. However, there is no indication that
the stamp was made by the county court, rather than by the county clerk, to
indicate finality of the order or to indicate a severance of the counterclaims.
In addition, Palavan points out that the counterclaims have been docketed
under a modified cause number. Palavan’s appeal to the county court was assigned
cause number 1047954. The suffix –002 has been added to this cause number with
regard to the counterclaims. However, the record contains no order, signed by the
trial court, severing the counterclaims. Without a severance order, the
counterclaims remain pending in original-filed proceeding in the county court,
irrespective of how the county clerk has chosen to docket and administer the
counterclaims.
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Because the June 30, 2014 order is not a final, appealable judgment, we lack
jurisdiction over this appeal. Accordingly, the appeal is dismissed for lack of
jurisdiction.
PER CURIAM
Panel consists of Justices Jennings, Higley, and Huddle.
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