Kerrville Fitness Property, LLC, J. Houser Construction, Inc. and Josh Houser d/b/a Houser Construction v. PE Services, LLC, Landry Architects, and Fabristructure, Inc Appeal from 134th Judicial District Court of Dallas County (memorandum opinion)

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DISMISS and Opinion Filed August 21, 2019 S In The Court of Appeals Fifth District of Texas at Dallas No. 05-19-00478-CV KERRVILLE FITNESS PROPERTY, LLC, J. HOUSER CONSTRUCTION, INC., AND JOSH HOUSER D/B/A HOUSER CONSTRUCTION, Appellants V. PE SERVICES, LLC, LANDRY ARCHITECTS, AND FABRISTRUCTURE, INC., Appellees On Appeal from the 134th Judicial District Court Dallas County, Texas Trial Court Cause No. DC-14-05761 MEMORANDUM OPINION Before Chief Justice Burns, Justice Whitehill, and Justice Nowell Opinion by Justice Whitehill Kerrville Fitness Property, LLC, J. Houser Construction, Inc., and Josh Houser d/b/a Houser Construction (collectively “Kerrville”) appeal from the trial court’s August 17, 2017 order granting summary judgment. Kerrville originally appealed from this order in 2017. See Kerrville Fitness Prop., LLC, et al. v. PE Servs., LLC, et al., No. 05-17-01317-CV, 2019 WL 1324122, at *1-2 (Tex. App.—Dallas March 25, 2019, no pet. h.) (mem. op.) (“prior appeal”). This Court dismissed the prior appeal for want of jurisdiction because the trial court had not signed an order of non-suit as to certain pending claims. Id. at *1-2.1 1 On the same date, this Court dismissed as duplicative the second appeal filed of the same trial court order. See Kerrville Fitness Prop., LLC, et al. v. PE Servs., LLC, et al., No. 05-17-01317-CV, 2019 WL 1323965 (Tex. App.—Dallas March 25, 2019, no pet.) (mem. op.) On March 27, 2019, two days after this Court’s opinion in the prior appeal issued, the trial court signed an order of non-suit and Kerrville and appellee Landry Architects filed timely motions for rehearing. Additionally, with motions for rehearing in the prior appeal pending, appellants filed a new notice of appeal on April 25th that was docketed as this appeal. In the notice of appeal, Kerrville asserts the August 17th order is now final because of the non-suit order. Four days later, Kerrville filed a motion to consolidate this appeal with the prior appeal. In that motion, Kerrville explains that it filed the new notice of appeal “out of an abundance of caution so that the merits of this case may be reviewed in the event the Court disagrees with the parties that the order of nonsuit resolved the jurisdictional issue in [the prior appeal].” On July 15, 2019, this Court in the prior appeal denied Kerrville’s motion for rehearing.2 In that order, this Court held that the March 27, 2019 non-suit order did not make the August 17, 2017 interlocutory order granting summary judgment final. Rather, this Court held “the claims disposed of in the August 17, 2017 interlocutory order granting summary judgment were reinstated making the March 27, 2019 order of non-suit an interlocutory order over which we do not have jurisdiction.” Because this Court has determined in the prior appeal that we lack jurisdiction over the appealed order even after the trial court signed the order of non-suit, we necessarily conclude we lack jurisdiction over this duplicative appeal. Accordingly, we dismiss this appeal and all 2 On August 5, 2019, the panel in the prior appeal denied appellee Landry Architects’ motion for rehearing and appellees’ joint unopposed motion for extension of time to file further motion for rehearing. –2– pending motions for want of jurisdiction. /Bill Whitehill/ BILL WHITEHILL JUSTICE 190478F.P05 S Court of Appeals Fifth District of Texas at Dallas JUDGMENT KERRVILLE FITNESS PROPERTY, LLC, J. HOUSER CONSTRUCTION, INC., AND JOSH HOUSER D/B/A HOUSER CONSTRUCTION, Appellants No. 05-19-00478-CV On Appeal from the 134th Judicial District Court, Dallas County, Texas Trial Court Cause No. DC-14-05761. Opinion delivered by Justice Whitehill. Chief Justice Burns and Justice Nowell participating. V. PE SERVICES, LLC, LANDRY ARCHITECTS, AND FABRISTRUCTURE, INC., Appellees In accordance with this Court’s opinion of this date, the appeal is DISMISSED. It is ORDERED that appellees PE SERVICES, LLC, LANDRY ARCHITECTS, AND FABRISTRUCTURE, INC. recover their costs of this appeal from appellants KERRVILLE FITNESS PROPERTY, LLC, J. HOUSER CONSTRUCTION, INC., AND JOSH HOUSER D/B/A HOUSER CONSTRUCTION. Judgment entered August 21, 2019 –2–

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