Johnathan Cooper v. Michael Mowla ( 2021 )


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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                 On Appeal from the 192nd Judicial
    District Court, Dallas County, Texas
    No. 05-21-00757-CV         V.               Trial Court Cause No. DC-20-17693.
    Opinion delivered by Justice
    MICHAEL MOWLA, Appellee                     Goldstein, Justices Molberg and
    Nowell participating.
    In accordance with this Court’s opinion of this date, we DISMISS the appeal.
    Judgment entered October 25, 2021.
    –4–
    

Document Info

Docket Number: 05-21-00757-CV

Filed Date: 10/25/2021

Precedential Status: Precedential

Modified Date: 10/27/2021