Nevarez Law Firm, P.C. v. Dona Ana Title Company

Case: 17-50053 Document: 00514292118 Page: 1 Date Filed: 01/03/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 17-50053
Fifth Circuit
FILED
January 3, 2018
NEVAREZ LAW FIRM, P.C., Lyle W. Cayce
Clerk
Plaintiff - Appellant
v.
DONA ANA TITLE COMPANY; STEVE PARSLEY; SHAWNA BLOUNT,
formerly known as Shawna Gonzales; JACQUE SELBY; FIRST AMERICAN
TITLE GUARANTY COMPANY, formerly known as United General Title
Insurance Company; FIRST AMERICAN TITLE INSURANCE COMPANY;
FIRST AMERICAN FINANCIAL CORPORATION; ARACELI HERRERA;
TOMASA R. ROJAS, also known as Tomasa Rojas, also known as Tomasa
Rodriquez, also known as Tomasa Rodriguez Rojas, also known as Tomasa R.
De Rojas, also known as Tomasa R. Derojas, also known as Tomasa R.
Rodriguez, also known as Tomasa Rodriguez Deroja, also known as Tomasa
Rodriguezderoja, also known as Tomasa Rodriguez Derojas, also known as
Tomasa Rodriguezderojas, also known as Tomasa Rodriguez-Deroja, also
known as Tomasa Rodriguez-Derojas; J.L.R., A Minor; JOSE LUIS ROJAS,
also known as Jose Rojas, also known as Jose Rodriguez, also known as Jose
Luis Rodriguez, also known as Jose L. Rojas; ARTEMIO JAYME; VIVIANA
JAYME; MARCO AURELIO JAYME; PAUL JAYME; M. J., A Minor; G. J., A
Minor; TATIANA JAYME; ZACOUR & ASSOCIATES, INCORPORATED;
PAUL G. ZACOUR; BANK OF AMERICA CORPORATION;
COUNTRYWIDE HOME LOANS, INCORPORATED, doing business as
America's Wholesale Lender;
Defendants - Appellees
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:15-CV-297
Case: 17-50053 Document: 00514292118 Page: 2 Date Filed: 01/03/2018
No. 17-50053
Before WIENER, ELROD, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Nevarez Law Firm, P.C., brought suit in the United States District Court
for the Western District of Texas against various individuals and entities that
were allegedly engaged in a fraudulent real estate transaction that harmed the
law firm’s former clients. Nevarez brought Racketeer Influenced and Corrupt
Organizations Act claims and numerous state law claims against the
defendants. The law firm sought to recover two types of damages from the
defendants: (1) unpaid attorney’s fees the law firm incurred in representing
the former clients in litigation against the defendants and (2) a forty-percent
interest in the net recovery of the litigation against the defendants, to which
the law firm would have been entitled under its agreement with its former
client.
Under Federal Rule of Civil Procedure 12(b)(1), the district court
dismissed with prejudice all of Nevarez’s claims against the defendants,
holding the law firm lacked Article III standing to pursue the claims. The
district court did not err in dismissing on that basis. As properly analyzed by
the district court, Nevarez suffered neither an injury in fact nor one fairly
traceable to the defendants’ conduct.
The district court relied on Rule 12(b)(1) when it dismissed Nevarez’s
claims with prejudice after concluding there was no standing. That was error.
“A dismissal with prejudice is a final judgment on the merits” of a case. Brooks
v. Raymond Dugat Co. L C, 336 F.3d 360, 362 (5th Cir. 2003) (citing Schwarz
v. Folloder, 767 F.2d 125, 129–30 (5th Cir. 1985)). We agree with an earlier
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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Case: 17-50053 Document: 00514292118 Page: 3 Date Filed: 01/03/2018
No. 17-50053
opinion of this court that “to dismiss with prejudice under Rule 12(b)(1) is to
disclaim jurisdiction and then exercise it.” Cox, Cox, Filo, Camel & Wilson,
L.L.C. v. Sasol N. Am., Inc., 544 F. App’x. 455, 456–57 (5th Cir. 2013). Because
the court did not have jurisdiction over Nevarez’s claims, it could not enter a
final judgment on the merits by dismissing Nevarez’s claims with prejudice.
See Heaton v. Monogram Credit Card Bank of Ga., 231 F.3d 994, 1000 (5th Cir.
2000).
We VACATE and REMAND so that the district court may enter a revised
order and final judgment that dismiss Nevarez’s claims without prejudice.
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