Johnathan Cooper v. Michael Mowla Appeal from 192nd Judicial District Court of Dallas County (memorandum opinion)
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DISMISS and Opinion Filed October 25, 2021 S In The Court of Appeals Fifth District of Texas at Dallas No. 05-21-00757-CV JOHNATHAN COOPER, Appellant V. MICHAEL MOWLA, Appellee On Appeal from the 192nd Judicial District Court Dallas County, Texas Trial Court Cause No. DC-20-17693 MEMORANDUM OPINION Before Justices Molberg, Nowell, and Goldstein Opinion by Justice Goldstein This appeal from the trial court’s March 30, 2021 order granting appellee’s motion for dismissal under Texas Rule of Civil Procedure 91a was filed as a restricted appeal on August 31, 2021. See TEX. R. APP. P. 26.1(c), 30 (both concerning restricted appeals); TEX. R. CIV. P. 91a (concerning baseless causes of action). After reviewing the clerk’s record, we questioned our jurisdiction over the appeal as the dismissal order did not address appellee’s request, in the motion to dismiss, for attorney’s fees and it appeared the appeal had been prematurely filed. See Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001) (subject to mostly statutory exceptions, appeal may be taken only from final judgment that disposes of all parties and claims). At our request, the parties filed letter briefs addressing our concern. Both parties note that on September 17, 2021, appellee filed in the trial court a “waiver of right to attorney’s fees effective March 30, 2021.” The waiver asserted that “[w]hen the Court signed the March 30, 2021 Order, [appellee] chose to not pursue his right to request attorney’s fees. [Appellee] waived this right as of March 30, 2021.” (emphasis in original) Appellant questions the veracity of the waiver in his letter brief, but appellee maintains that as a result of the waiver, the dismissal order is final and appealable. We note appellee’s Rule 91a motion for dismissal was heard by submission and stated, with regard to attorney’s fees, that “[u]pon the granting of this motion, [appellee] requests a hearing so that he may present evidence of his costs and fees necessary to defend against [appellant’s] frivolous claims.” Although appellee asserts he waived his right to fees as of March 30, nothing in the trial court’s docket sheet or elsewhere in the clerk’s record reflects the trial court was aware, at the time it signed the dismissal order, that appellee waived his right to fees such that the order is final. And nothing before us reflects that, since the filing of the waiver on September 17, a final order has been signed. –2– Based on the record before us, we conclude the appeal was filed prematurely. Accordingly, we dismiss the appeal for want of jurisdiction. See TEX. R. APP. P. 42.3(a). /Bonnie Lee Goldstein/ BONNIE LEE GOLDSTEIN JUSTICE 210757F.P05 –3– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT JOHNATHAN COOPER, Appellant No. 05-21-00757-CV On Appeal from the 192nd Judicial District Court, Dallas County, Texas Trial Court Cause No. DC-20-17693. Opinion delivered by Justice Goldstein, Justices Molberg and Nowell participating. V. MICHAEL MOWLA, Appellee In accordance with this Court’s opinion of this date, we DISMISS the appeal. Judgment entered October 25, 2021. –4–
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