Adam M. Swartz v. Sewell Village Cadillac Co., Inc. d/b/a Sewell Infiniti, Carmax Auto Superstore, Inc. and Nissan North America, Inc. Appeal from County Court at Law No. 1 of Dallas County (memorandum opinion)
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DISMISS and Opinion Filed December 30, 2022 S In The Court of Appeals Fifth District of Texas at Dallas No. 05-22-00447-CV ADAM M. SWARTZ, Appellant V. SEWELL VILLAGE CADILLAC CO., INC. D/B/A SEWELL INFINITI, CARMAX AUTO SUPERSTORE, INC. AND NISSAN NORTH AMERICA, INC., Appellees On Appeal from the County Court at Law No. 1 Dallas County, Texas Trial Court Cause No. CC-20-00256-A MEMORANDUM OPINION Before Justices Pedersen, III, Goldstein, and Smith Opinion by Justice Goldstein Adam Swartz filed the underlying suit in January 2020, asserting claims against the three appellees for violations of the Deceptive Trade Practices Act (“DTPA”) and fraud. The claims were either dismissed by summary judgment or nonsuited. At issue in the appeal are two summary judgment orders. Asserting we lack jurisdiction because Nissan North America, Inc.’s counterclaim for attorney’s fees under section 17.50(c) of the DTPA is still pending, CarMax Auto Superstore, Inc. and Nissan have filed an opposed motion to dismiss the appeal. Because the counterclaim is indeed pending, we grant the motion and dismiss the appeal. See TEX. R. APP. P. 42.3(a). It is well-settled that an appeal may generally be taken only after all claims against all parties have been resolved. See Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001). When, as here, no conventional trial on the merits has been held and the trial court has disposed of claims by separate orders, appellate court jurisdiction is not invoked until an order disposing of the last claim is signed or one of the orders unequivocally states it disposes of all claims and all parties. See id. at 200, 205; Farmer v. Ben E. Keith, 907 S.W.2d 495, 496 (Tex. 1995) (per curiam). In opposing dismissal,1 Swartz does not argue the record includes an order that states it disposes of all claims and parties. Rather, he maintains no “collateral matters remain.” He notes the trial court “closed” the case and argues that Nissan lacked “standing” to assert the counterclaim because the relief afforded under DTPA section 17.50 is available only to consumers, and Nissan is not a consumer. Finally, he asserts that even if Nissan could seek fees under section 17.50, the claim “ceased to exist” thirty days after the case was closed. A claim may “cease to exist” without a written order of dismissal, however, only if omitted from an amended pleading. See FKM P’ship, Ltd. v. Bd. of Regents 1 Swartz did not file a response to the motion to dismiss but responded to an earlier motion by CarMax that asserted the same argument concerning our jurisdiction and remained pending at the time the motion to dismiss was filed. We consider Swartz’s arguments in his response to the earlier motion in determining the motion to dismiss. –2– of the Univ. of Houston Sys., 255 S.W.3d 619, 633 (Tex. 2008). Nissan’s claim for attorney’s fees here was not omitted from any amended pleading; it was asserted in Nissan’s live pleading. Accordingly, an order disposing of this claim is necessary to invoke our jurisdiction. See Lehmann, 39 S.W.3d at 200. Because no order disposes of the claim, we lack jurisdiction. See id. We grant CarMax and Nissan’s motion and dismiss the appeal and all other pending motions. See TEX. R. APP. P. 42.3(a). /Bonnie Lee Goldstein/ BONNIE LEE GOLDSTEIN JUSTICE 220447F.P05 –3– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT ADAM M. SWARTZ, Appellant No. 05-22-00447-CV On Appeal from the County Court at Law No. 1, Dallas County, Texas Trial Court Cause No. CC-20-00256A. Opinion delivered by Justice Goldstein, Justices Pedersen, III and Smith participating. V. SEWELL VILLAGE CADILLAC CO., INC. D/B/A SEWELL INFINITI, CARMAX AUTO SUPERSTORE, INC., AND NISSAN NORTH AMERICA, INC., Appellees In accordance with this Court’s opinion of this date, we DISMISS the appeal. We ORDER that appellees Sewell Village Cadillac Co., Inc. d/b/a Sewell Infiniti, CarMax Auto Superstore, Inc., and Nissan North America, Inc. recover their costs, if any, of this appeal from appellant Adam M. Swartz. Judgment entered December 30, 2022. –4–
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