brentwood-apartments-at-fort-worth-a-series-of-westmoore-income ( 2010 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-10-016-CV
BRENTWOOD APARTMENTS APPELLANTS
AT FORT WORTH, A SERIES
OF WESTMOORE INCOME
PROPERTIES, LLC; MATTHEW
R. JENNINGS; ROBERT L.
JENNINGS; AND WESTMOORE
HOLDINGS, INC.
V.
BUILDERS BANK, AN ILLINOIS APPELLEE
BANKING CORPORATION
------------
FROM THE 17TH DISTRICT COURT OF TARRANT COUNTY
------------
MEMORANDUM OPINION 1
------------
Appellants Brentwood Apartments at Fort Worth, a Series of Westmoore
Income Properties, LLC; Matthew R. Jennings; Robert L. Jennings; and
1
 See Tex. R. App. P. 47.4.
Westmoore Holdings, Inc. attempt to appeal a default judgment entered in favor
of Appellee Builders Bank, an Illinois Banking Corporation. The default
judgment signed on September 22, 2009, states that it “disposes of all issues
and parties in this case and is final for purposes of appeal,” but the judgment
does not identify Defendant Darin Feinstein as one of the defendants who
defaulted, nor does it otherwise dispose of claims against Feinstein therein.
Further, the trial court signed an “Order Removing Case From Active Docket
Due To Bankruptcy” on December 11, 2009, over two months after the trial
court signed the default judgment in favor of Appellee, stating that the trial
court had “received notice that Darin Feinstein has filed for” bankruptcy
protection. The order provides that it “shall not operate as a dismissal of this
case and that this Court retains jurisdiction for all purposes.”
On January 28, 2010, we notified Appellants that we were concerned
that this court may not have jurisdiction over this appeal because the judgment
does not appear to dispose of all parties in the case and does not appear to be
a final order or an appealable interlocutory order. We stated that the appeal
would be dismissed for want of jurisdiction unless Appellants or any party
desiring to continue the appeal filed a response showing grounds for continuing
the appeal on or before February 8, 2010. See Tex. R. App. P. 42.3(a). We
have not received a response.
2
Appellate courts have jurisdiction over appeals from final judgments and
from specific types of interlocutory orders designated by the legislature as
appealable. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001)
(providing general rule that an appeal may be taken only from a final judgment);
see Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a) (Vernon 2008) (listing
appealable interlocutory orders). A judgment is final and appealable if it
disposes of all parties and all issues. Lehmann, 39 S.W.3d at 195. An order
that does not dispose of all parties and all issues in the case must be classified,
for purposes of an appeal, as an unappealable interlocutory order. Ruiz v. Ruiz,
946 S.W.2d 123, 124 (Tex. App.—El Paso 1997, no writ).
The trial court has not entered a severance order in this case. The default
judgment that Appellants attempt to appeal is an unappealable interlocutory
order. Because there is no final judgment or appealable interlocutory order, we
dismiss the appeal for want of jurisdiction. See Tex. R. App. P. 42.3(a),
43.2(f).
PER CURIAM
PANEL: MEIER, LIVINGSTON, and DAUPHINOT, JJ.
DELIVERED: April 1, 2010
3