Jose Alba, Candelaria Alba, Jose Alba, Jr., and Lizbeth Gurrusquieta v. CalAtlantic Homes of Texas, Inc., Lennar Corporation, and Lennar Pacific Properties Management, Inc. D/B/A Village Builders ( 2022 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-21-00345-CV
___________________________
JOSE ALBA, CANDELARIA ALBA, JOSE ALBA, JR., AND LIZBETH
GURRUSQUIETA, Appellants
V.
CALATLANTIC HOMES OF TEXAS, INC., LENNAR CORPORATION, AND
LENNAR PACIFIC PROPERTIES MANAGEMENT, INC. D/B/A VILLAGE
BUILDERS, Appellees
On Appeal from the 431st District Court
Denton County, Texas
Trial Court No. 19-9952-16
Concurring and Dissenting Memorandum Opinion by Justice Wallach
CONCURRING AND DISSENTING MEMORANDUM OPINION
Assuming this court has jurisdiction of this case, I concur in the judgment and
rationale of the majority opinion. However, because it is my opinion that this court
does not have jurisdiction, I respectfully dissent.
The only allegedly dispositive order in this case is entitled “Order.” It provides,
in its entirety, as follows,
CAME ON BEFORE this Court Defendants CalAtlantic Homes
of Texas, Inc., Lennar Corporation, and Lennar Pacific Properties
Management, Inc. d/b/a Village Builders’ Traditional and No-Evidence
Motion for Summary Judgment. The Court, having considered the
motion, Plaintiffs’ response thereto, any replies, and the pleadings on file,
hereby orders that the motion is:
X GRANTED
DENIED
SIGNED this 10th day of June , 2021.
/s/
JUDGE PRESIDING
The only other dispositive document was a Notice of Nonsuit Without Prejudice
filed on July 14, 2021 where CalAtlantic Homes of Texas, Inc., Lennar Corporation,
and Lennar Pacific Properties Management, Inc., d/b/a Village Builders nonsuited their
third-party claims against Perez Masonry Construction, LLC.
2
Does this record present a final appealable judgment? I would hold that it does
not. Appellants bring this appeal as an appeal from a final judgment.1 If an order on a
motion for summary judgment is not final, we must dismiss the appeal for lack of
jurisdiction. Frausto v. RC Indus. LLC, 605 S.W.3d 54, 56 (Tex. App.—San Antonio
2020, no pet.).
As held by our supreme court in Naaman v. Grider, 126 S.W.3d 73, 74 (Tex. 2003),
“[a]n order that merely grants a motion for judgment is in no sense a judgment itself. It
adjudicates nothing.” Likewise, an order that “merely grants a motion for summary
judgment without any decretal language actually disposing of a claim is not a judgment
on any claim.” Frausto, 605 S.W.3d at 56–57; see also Shetewy v. Mediation Inst. of N. Tex.,
LLC, 624 S.W.3d 285, 288 (Tex. App.—Fort Worth 2021, no pet.); Redwine v.
Peckenpaugh, 535 S.W.3d 44, 48 (Tex. App.—Tyler 2017, no pet.). Precisely all that is in
the record in this case is an order granting a motion for summary judgment, period.
While there may be other circumstances where the entire record, combined with the
language used in a court order, may be construed to constitute an adjudication, such is
not the case here.2
Interlocutory appellate jurisdiction is not in issue.
1
2
See In re Guardianship of Jones, 629 S.W.3d 921, 926 (Tex. 2021). In distinguishing
its prior holding in Naaman, quoted above, the court noted that the order in question
regarding dismissal of a bill of review petition was a final adjudication where, even
though the order did not announce the petition’s disposition with words like “ordered,
3
Until the supreme court overrules its holding in Namaan, I feel compelled to hold
that this “Order” which merely “granted” the motions for summary judgment is not a
final judgment. I would dismiss the appeal for want of jurisdiction.
/s/ Mike Wallach
Mike Wallach
Justice
Delivered: May 5, 2022
adjudicated or decreed,” it not only granted the motion to dismiss it also expressly stated
it was a “final order” constituting “the dismissal of the Bill of Review filed in this case.”
4