Giddy Holdings, Inc. v. Alpha Five Construction, Harley Winters, and Cris W. Craft

       TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                     NO. 03-23-00659-CV


                               Giddy Holdings, Inc., Appellant

                                                v.

          Alpha Five Construction, Harley Winters, and Cris W. Craft, Appellees




           FROM THE COUNTY COURT AT LAW NO. 2 OF TRAVIS COUNTY,
      NO. C-1-CV-22-003708, THE HONORABLE TODD T. WONG, JUDGE PRESIDING


                ORDER AND MEMORANDUM OPINION


PER CURIAM

               Appellant Giddy Holdings, Inc. filed a notice of appeal on October 20, 2023,

stating that it seeks to appeal the trial court’s September 21, 2023 order on defendant Alpha Five

Construction, LLC’s plea to the jurisdiction. Nothing in the notice of appeal informed the Court

about the trial court’s disposition of Giddy Holdings’ claims against the other defendants, Harley

Winters and Cris W. Craft.

               The trial-court clerk’s record, which was filed on November 15, 2023, contains

Giddy Holdings’ original petition and its live pleading, a first amended petition.        In both

pleadings, Giddy Holdings asserted claims against the three defendants for breach of contract,

breach of duty of good faith and fair dealing, fraud and fraudulent inducement, tortious

interference with contract, unjust enrichment, declaratory judgment (for declaration and removal

of invalid lien), and violation of Texas Civil Practice & Remedies Code Chapter 12, and it
sought exemplary damages and attorneys’ fees. Both the original petition and amended petition

alleged damages collectively against the defendants. The original petition alleged as follows:

“The damages sought are within the jurisdictional limits of this Court, and Giddy [Holdings]

seeks monetary relief of over $100,000 but less than $1,000,000, as well as nonmonetary relief.”

               The record contains a January 4, 2023 order granting a no-answer default

judgment in favor of Giddy Holdings against Winters. On March 21, 2023, the trial court

granted Giddy Holdings’ motion for partial summary judgment, ordering removal of an invalid

lien filed by Alpha Five in Travis County and awarding statutory damages and attorneys’ fees to

be paid to Giddy Holdings by Alpha Five.

               On April 28, 2023, Alpha Five filed a counterclaim against Giddy Holdings, Brett

Jacobson, and Christopher Clark. Alpha Five asserted the following claims: fraud and fraudulent

inducement against Giddy Holdings and Jacobson; conspiracy against Giddy Holdings,

Jacobson, and Clark; breach of contract and quantum meruit against Giddy Holdings. Alpha

Five also sought exemplary damages and attorneys’ fees.           Alpha Five filed a plea to the

jurisdiction that same day asserting that all claims and counterclaims should be transferred to

Travis County District Court because the amount of damages it sought exceeded the $250,000

jurisdictional limit of the Travis County Court at Law. Giddy Holdings then filed a competing

plea to the jurisdiction asserting that the trial court should dismiss Alpha Five’s counterclaim to

the extent it alleged damages over the jurisdictional amount and that Alpha Five’s counterclaim

did not make the trial court lose jurisdiction over Giddy Holdings’ claims if they were properly

within the trial court’s jurisdictional limit. Alpha Five subsequently filed an amended plea to the

jurisdiction. In its amended plea, Alpha Five asserted that the unambiguous language in Giddy

Holdings’ original petition contained specific factual allegations that placed its claims outside the



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jurisdictional limits of the county court at law. In response to the amended plea, Giddy Holdings

amended its petition and added this statement to the damages allegation quoted above: “The

actual damages sought by Giddy [Holdings] are less than $250,000.” Both Alpha Five’s original

plea to the jurisdiction and its amended plea to the jurisdiction were filed only on its own behalf,

not on behalf of any other defendant.

               The trial court conducted a hearing on Alpha Five’s amended plea to the

jurisdiction. No reference was made to defendant Craft and the claims against him during the

hearing. The trial court’s September 21, 2023 “Order on Defendants Plea to the Jurisdiction of

Defendant/Counter-Plaintiff Alph[a] Five Construction LLC” stated: “IT IS THEREFORE

ORDERED ADJUDGED AND DECREED that Giddy Holding Inc’s claims are DISMISSED

WITHOUT PREJUDICE for lack of jurisdiction. Further, the Counter Claims of Alpha Five

Construction LLC are also DISMISSED WITHOUT PREJUDICE as requested.” The order

does not mention defendant Craft or expressly dispose of Giddy Holdings’ claims against him.

               On that same day after the order on the plea was filed, Giddy Holdings filed a

notice of nonsuit without prejudice of all of its claims against “Defendants” except its claims for

(1) declaratory judgment for declaration and removal of invalid lien and (2) violation of Texas

Civil Practice & Remedies Code Chapter 12. No order disposing of Giddy Holdings’ claims

based on the nonsuit is in the clerk’s record. The time for perfecting an appeal in a civil case

runs from a signed judgment or order, not from the filing of a pleading or a notice of nonsuit.

See Tex. R. App. P. 26.1; Farmer v. Ben E. Keith Co., 

 (Tex. 1995) (per

curiam). “When a judgment is interlocutory because unadjudicated parties or claims remain

before the court, and when one moves to have such unadjudicated claims or parties removed by

severance, dismissal, or nonsuit, the appellate timetable runs from the signing of a judgment or



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order disposing of those claims or parties.” Farmer, 

; see also, e.g., Smith

v. McCorkle, 

 (Tex. 1995) (per curiam) (“A docket entry does not constitute a

written order.”). Appellate timetables run from the date that the trial court signs an order of

dismissal, not from the date a nonsuit is filed, even when the signing of such an order is purely

ministerial. In re Bennett, 

 (Tex. 1997) (orig. proceeding) (citing Farmer,

).

               Accordingly, upon initial review, the Clerk of the Court sent Giddy Holdings a

letter informing it that this Court appears to lack jurisdiction over the appeal because our

jurisdiction is limited to appeals in which there exists a final or appealable judgment or order that

has been signed by a judge, see Lehmann v. Har-Con Corp., 

 (Tex. 2001)

(explaining that “the general rule, with a few mostly statutory exceptions, is that an appeal may

be taken only from a final judgment”); see also Tex. Civ. Prac. & Rem. Code § 51.012, and that

the order appealed from does not appear to dispose of all claims and all parties. The Clerk’s

letter also informed Giddy Holdings that there is no signed judgment or order disposing of the

claims identified in the September 21, 2023 “Plaintiff’s Notice of Nonsuit.”

               Giddy Holdings filed a response asserting that because the trial court’s order

explicitly states that its claims are dismissed without prejudice, “and there is no language in the

order excepting Giddy Holdings’ claims against Winters and Craft from the dismissal,” the trial

court’s dismissal order resulted in a dismissal of its claims against all defendants for lack of

jurisdiction. In addition, it asserts that because the dismissal order dismissed Alpha Five’s

counterclaims against Giddy Holdings, the only other live claims filed by any party, it was a final

and appealable order. Giddy Holdings acknowledges that it filed a nonsuit of some claims after

the order on the plea, although it does not explain why or contend that the nonsuit has any effect



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on claims already dismissed by the trial court. Instead, it contends no order on the nonsuit is

necessary “because the trial court’s order effectively resolved all of Giddy Holdings’ claims by

dismissing them for lack of jurisdiction.”

               In the alternative, Giddy Holdings requests that this Court abate the appeal to

allow the trial court to clarify its order if we disagree about the intent of the trial court’s order.

See Lehmann, 

 (stating that when appellate court is uncertain about intent of

order lacking clear and unequivocal finality language, it may abate appeal to permit clarification

by trial court). Here, the trial court’s order lacks clear and unequivocal finality language, and it

is unclear whether it disposes of Giddy Holdings’ claims against all parties.           Under these

circumstances, abating the case to allow the trial court to clarify its order will aid this Court in

confirming our jurisdiction over the appeal.

               Accordingly, we abate the appeal and remand the case to the trial court to allow

Giddy Holdings to seek clarification of the trial court’s order. 1 A supplemental clerk’s record

containing the trial court’s order, or, if no order has been signed, a status report from Giddy

Holdings shall be filed with this Court no later than January 22, 2024. See Tex. R. App. P.

34.5(c)(1). If a supplemental clerk’s record containing a signed final and appealable order or a

status report is not filed in this Court by January 22, 2024, we may dismiss the appeal for want of

jurisdiction. See Tex. R. App. P. 42.3(a).


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            We note that in the absence of a signed judgment or appealable order, the trial court
retains its plenary power. See Tex. R. Civ. P. 329b(d) (“The trial court, regardless of whether an
appeal has been perfected, has plenary power to grant a new trial or to vacate, modify, correct, or
reform the judgment within thirty days after the judgment has been signed.”). This Court retains
jurisdiction to consider our jurisdiction over this appeal. See In re Washington, 

 (Tex. App.—Houston [1st Dist.] 1999, orig. proceeding) (holding that once notice of appeal,
whether timely or untimely, is delivered to trial-court clerk for filing, “any further determination
concerning appellate jurisdiction must be made by the appellate court”). If a final order is signed
by the trial court, we will treat Giddy Holdings’ October 20, 2023 notice of appeal as a
premature notice of appeal under Texas Rule of Appellate Procedure 27.1.

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              It is so ordered on December 22, 2023.



Before Justices Baker, Triana, and Smith

Abated and Remanded

Filed: December 22, 2023




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