DISMISS and Opinion Filed August 4, 2021
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-21-00468-CV
VERTICAL HOLDINGS, LLC AND VANGUARD FINANCIAL TRUST,
Appellants
V.
LOCATORX, INC., Appellee
On Appeal from the 101st Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-20-04237
MEMORANDUM OPINION
Before Justices Myers, Partida-Kipness, and Garcia
Opinion by Justice Myers
We questioned our jurisdiction over this appeal because there did not appear
to be a final judgment or other appealable interlocutory order. See Lehmann v. Har–
Con Corp., 39 S.W.3d 191, 195 (Tex. 2001) (generally appellate courts have
jurisdiction over final judgments or certain interlocutory orders permitted by
statute); TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a) (listing appealable
interlocutory orders). We instructed appellant to file a letter brief with an
opportunity for appellee to respond.
The underlying lawsuit involves a dispute regarding a subscription agreement.
Appellants asserted claims against appellee for declaratory judgment, breach of
contract, and attorney’s fees. Appellee asserted counterclaims for declaratory
judgment, breach of contract, fraudulent inducement, fraud, and attorney’s fees.
Both parties filed motions for summary judgment. Additionally, appellant Vertical
Holdings, LLC sought dismissal of appellee’s counterclaims pursuant to the Texas
Citizens’ Participation Act. See TEX. CIV. PRAC. & REM. CODE ANN. § 27.003.
In the notice of appeal, appellants state they are appealing the following trial
court orders: (1) January 7, 2021 order granting appellee’s cross-motion for
summary judgment on appellant Vertical Holdings’ claims;1 (2) March 17, 2021
order granting appellee’s motion for summary judgment on its counterclaim for
declaratory judgment and awarding attorney’s fees; and (3) June 2, 2021 order
denying appellants’ motion for summary judgment and granting appellee’s cross-
motion for summary judgment on each of appellants’ claims against appellee with
appellee’s attorney’s fees to be determined. Appellants noted in their notice of
appeal that they questioned whether the June 2nd order is final in light of the issue
of appellee’s attorney’s fees to be determined and because another order signed on
1
The cross-motion for summary judgment was filed prior to appellants’ amended petition that added
Vanguard Financial Trust as a party. Subsequent to the filing of the cross-motion but prior to the order
granting it, appellee asserted its counterclaims.
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the same date denied appellant Vertical Holding’s TCPA motion to dismiss
appellee’s counterclaims. 2
In their letter brief, appellants acknowledge that claims remain pending. They
explain they filed the notice of appeal out of an abundance of caution because the
trial court canceled the trial setting with the designation “Case Closed” and indicated
on the docket sheet that a total judgment of $0.00 was awarded to appellee. See
Lehmann, 39 S.W.3d 191, 196 (“A party who is uncertain whether a judgment is
final must err on the side of appealing or risk losing the right to appeal.”).
Regardless of the trial court’s administrative notations, appellee’s
counterclaims for fraudulent inducement, fraud, and breach of contract and claim for
attorney’s fees remain pending. Accordingly, we dismiss the appeal for want of
jurisdiction. See TEX. R. APP. P. 42.3(a).
/Lana Myers//
LANA MYERS
JUSTICE
2
By separate appeal docketed as appellate cause number 05-21-00469-CV, appellants appeal from the
trial court’s order denying their TCPA motion to dismiss. See TEX. CIV. PRAC. & REM. CODE ANN. §
51.014(a)(12).
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
VERTICAL HOLDINGS, LLC AND On Appeal from the 101st Judicial
VANGUARD FINANCIAL TRUST, District Court, Dallas County, Texas
Appellants Trial Court Cause No. DC-20-04237.
Opinion delivered by Justice Myers.
No. 05-21-00468-CV V. Justices Partida-Kipness and Garcia
participating.
LOCATORX, INC., Appellee
In accordance with this Court’s opinion of this date, the appeal is
DISMISSED.
It is ORDERED that appellee LOCATORX, INC. recover its costs of this
appeal from appellants VERTICAL HOLDINGS, LLC AND VANGUARD
FINANCIAL TRUST.
Judgment entered this 4th day of August, 2021.
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