In Re: United Development Funding, L.P. v. the State of Texas ( 2024 )

Dissenting Opinion Filed June 4, 2024
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-23-00359-CV
IN RE UNITED DEVELOPMENT FUNDING, L.P.; UNITED
DEVELOPMENT FUNDING II, L.P.; UNITED DEVELOPMENT
FUNDING III, L.P.; UNITED DEVELOPMENT FUNDING IV, A
MARYLAND REIT; UNITED DEVELOPMENT FUNDING INCOME
FUND V, A MARYLAND REIT; UNITED MORTGAGE TRUST, A
MARYLAND REIT; UNITED DEVELOPMENT FUNDING LAND
OPPORTUNITY FUND, L.P.; AND UNITED DEVELOPMENT FUNDING
LAND OPPORTUNITY FUND INVESTORS, L.L.C., Relators
Original Proceeding from the County Court at Law No. 3
Dallas County, Texas
Trial Court Cause No. CC-17-06253-C
OPINION DISSENTING FROM THE DENIAL OF MOTION FOR
EN BANC RECONSIDERATION
Dissenting Opinion by Justice Pedersen, III
Once again, this Court has held that, following a notice of nonsuit, an order
that states that “the above captioned case is hereby dismissed without prejudice”
demonstrates a “clear indication that the trial court intended the order to
completely dispose of the case.” In so holding, we are simply declaring invocation
of those particular “magic words” sufficient to resolve the important and often
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elusive determination as to finality. See Bella Palma, LLC v. Young, 601 S.W.3d
799, 801 (Tex. 2020) (per curiam) (“[N]o ‘magic language’ is required” to render a
judgment “final[.]”) Review of the record makes unmistakably clear that neither
trial court intended this result. However, we refuse to consider the record, and we
also refuse to remand for clarification by the trial court. I have previously
disagreed with this Court’s now binding precedent to such effect. See In re C.K.M.,
No. 05-23-00983-CV, 2024 WL 448854, at *3–5 (Tex. App.—Dallas Feb. 6, 2024,
pet. filed) (mem. op.) (Pedersen, III, J. dissenting).
It is my belief that our supreme court has rejected “magic words” and
instead “[a] judgment dismissing all of a plaintiff’s claims against a defendant,
such as an order of nonsuit, does not necessarily dispose of any cross-actions, such
as a motion for sanctions, unless specifically stated within the order.” Crites v.
Collins, 284 S.W.3d 839, 840–41 (Tex. 2009) (per curiam) (citing Lehmann v.
Har-Con Corp., 39 S.W.3d 191, 199 (Tex. 2001)) (emphasis added). Not even the
word “final” is enough. See Lehmann, 39 S.W.3d at 205 (“An order does not
dispose of all claims and all parties merely because it is entitled ‘final,’ or because
the word ‘final’ appears elsewhere in the order, or even because it awards costs.”).
Instead, “[a] judgment is final for purposes of appeal if it actually disposes of all
claims and parties, regardless of its language, or states with unmistakable clarity
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that it is a final judgment as to all claims and parties.1 Our precedent improperly
deprives the trial judge of the appropriate responsibility of the initial determination
of finality of the trial court’s own judgment, even if that determination turns out to
be erroneous.
I believe this court has deviated again from supreme court authority. I
remain unconvinced that “the above captioned case is hereby dismissed without
prejudice” provides “unmistakable clarity” as to the trial court’s intention of
finality, and are simply “magic words” we will hereafter accept, regardless of other
available avenues for determination of the trial court’s true intentions. This
deviation has created an unnecessary and unacceptable risk of closing the
courthouse door for unwary litigants, and in the two cases discussed herein,
contrary to the clear intentions of the trial judges who signed the applicable orders.
This poorly serves parties with legitimate needs to access our civil justice system.
1
I understand this test to mean that if a trial judge says, clearly and unequivocally, that she intends the
judgment to be final, it is final for purposes of appellate review. Of course, the trial judge may be wrong,
but the clear and unequivocal expression of the trial court’s intentions provides an appellate court with
jurisdiction to determine if the trial court is correct. If any doubt exists, Texas law allows two options: (1)
abate the appeal and remand to permit clarification by the trial court, or (2) review of the record. See
Lehmann, 39 S.W.3d at 206; In re C.K.M., 2024 WL 448854, at *3 (Pedersen, III, J. dissenting).
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I respectfully dissent from this Court’s denial of the motion for en banc
reconsideration.
/Bill Pedersen, III/
BILL PEDERSEN, III
JUSTICE
Miskel, J., joins this dissenting opinion.
230359F.P05
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