Full Opinion (html_with_citations)

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




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                                   S
                            Court of Appeals
                     Fifth District of Texas at Dallas
                                  JUDGMENT

ADAM M. SWARTZ, Appellant                     On Appeal from the County Court at
                                              Law No. 1, Dallas County, Texas
No. 05-22-00447-CV          V.                Trial Court Cause No. CC-20-00256-
                                              A.
SEWELL VILLAGE CADILLAC                       Opinion delivered by Justice
CO., INC. D/B/A SEWELL                        Goldstein, Justices Pedersen, III and
INFINITI, CARMAX AUTO                         Smith participating.
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.




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