IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 17-50053

NEVAREZ LAW FIRM, P.C., 

 Plaintiff - Appellant

v.

DONA ANA TITLE COMPANY; STEVE PARSLEY; SHAWNA BLOUNT, 

formerly known as Shawna Gonzales; JACQUE SELBY; FIRST AMERICAN 

TITLE GUARANTY COMPANY, formerly known as United General Title 

Insurance Company; FIRST AMERICAN TITLE INSURANCE COMPANY; 

FIRST AMERICAN FINANCIAL CORPORATION; ARACELI HERRERA; 

TOMASA R. ROJAS, also known as Tomasa Rojas, also known as Tomasa 

Rodriquez, also known as Tomasa Rodriguez Rojas, also known as Tomasa R. 

De Rojas, also known as Tomasa R. Derojas, also known as Tomasa R. 

Rodriguez, also known as Tomasa Rodriguez Deroja, also known as Tomasa 

Rodriguezderoja, also known as Tomasa Rodriguez Derojas, also known as 

Tomasa Rodriguezderojas, also known as Tomasa Rodriguez-Deroja, also 

known as Tomasa Rodriguez-Derojas; J.L.R., A Minor; JOSE LUIS ROJAS, 

also known as Jose Rojas, also known as Jose Rodriguez, also known as Jose 

Luis Rodriguez, also known as Jose L. Rojas; ARTEMIO JAYME; VIVIANA 

JAYME; MARCO AURELIO JAYME; PAUL JAYME; M. J., A Minor; G. J., A 

Minor; TATIANA JAYME; ZACOUR & ASSOCIATES, INCORPORATED; 

PAUL G. ZACOUR; BANK OF AMERICA CORPORATION; 

COUNTRYWIDE HOME LOANS, INCORPORATED, doing business as 

America's Wholesale Lender; 

 Defendants - Appellees

Appeal from the United States District Court

for the Western District of Texas 

USDC No. 3:15-CV-297

United States Court of Appeals

Fifth Circuit

FILED

January 3, 2018

Lyle W. Cayce

Clerk

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No. 17-50053

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Before WIENER, ELROD, and SOUTHWICK, Circuit Judges.

PER CURIAM:*

Nevarez Law Firm, P.C., brought suit in the United States District Court 

for the Western District of Texas against various individuals and entities that 

were allegedly engaged in a fraudulent real estate transaction that harmed the 

law firm’s former clients. Nevarez brought Racketeer Influenced and Corrupt 

Organizations Act claims and numerous state law claims against the 

defendants. The law firm sought to recover two types of damages from the 

defendants: (1) unpaid attorney’s fees the law firm incurred in representing 

the former clients in litigation against the defendants and (2) a forty-percent 

interest in the net recovery of the litigation against the defendants, to which

the law firm would have been entitled under its agreement with its former 

client.

Under Federal Rule of Civil Procedure 12(b)(1), the district court 

dismissed with prejudice all of Nevarez’s claims against the defendants, 

holding the law firm lacked Article III standing to pursue the claims. The 

district court did not err in dismissing on that basis. As properly analyzed by 

the district court, Nevarez suffered neither an injury in fact nor one fairly 

traceable to the defendants’ conduct.

The district court relied on Rule 12(b)(1) when it dismissed Nevarez’s 

claims with prejudice after concluding there was no standing. That was error. 

“A dismissal with prejudice is a final judgment on the merits” of a case. Brooks 

v. Raymond Dugat Co. L C, 336 F.3d 360, 362 (5th Cir. 2003) (citing Schwarz 

v. Folloder, 767 F.2d 125, 129–30 (5th Cir. 1985)). We agree with an earlier 

 

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5TH 

CIR. R. 47.5.4.

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No. 17-50053

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opinion of this court that “to dismiss with prejudice under Rule 12(b)(1) is to 

disclaim jurisdiction and then exercise it.” Cox, Cox, Filo, Camel & Wilson, 

L.L.C. v. Sasol N. Am., Inc., 544 F. App’x. 455, 456–57 (5th Cir. 2013). Because 

the court did not have jurisdiction over Nevarez’s claims, it could not enter a 

final judgment on the merits by dismissing Nevarez’s claims with prejudice. 

See Heaton v. Monogram Credit Card Bank of Ga., 231 F.3d 994, 1000 (5th Cir.

2000). 

We VACATE and REMAND so that the district court may enter a revised 

order and final judgment that dismiss Nevarez’s claims without prejudice.

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