Adam M. Swartz v. Sewell Village Cadillac Co., Inc. D/B/A Sewell Infiniti, Carmax Auto Superstore, Inc. and Nissan North America, Inc. ( 2022 )

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.
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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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