Motion D enied ; Appe al Di smissed and Memorandum Opi nion filed June 8 ,

2021.

In The



## Fourteenth Court of Appeals

NO. 14

- 21

- 00103

- CV

JARED DOUET AND JASALYN MOSBEY

- DOUET , Appellant s V. PAPILLON ROMERO , BOBBY SULLIVAN, AND U NITED REALTY ADVISO RS, A ppell ee s
On Appeal fr om the 157th Dis trict Court

Harris County, Texas Trial Court Cause No. 2018

- 38090

MEMORANDUM OPINION
This is the second appeal brought by a ppellants Jared Douet and Jasalyn Mosbey

- Douet from two orders : an order granting defendant Bobby Su llivan’s no

ev idence motion for summary judg ment , signed August 14, 2020 ; and an order granting defendant Papillon Romero’s motion for summary judgment, signed August 20, 2020

. T hat appeal was before this court as appeal number 14

- 20

- 00632

- CV . Appellants f

iled a mot ion to dismiss their appeal. The m otion state d2

defendant URE Houston, LLC , had not been dismissed or non

- suited , thus the judgments were not final and appealable. We constru ed t he motion as one for voluntary dismissal under Texas Rule of Appe ll at e Procedure 42.1(a)(1) , granted
t he motion , and dismissed the appeal. We explain ed that “ [o]ur grant of appellant ’ s moti on should not be construed as a conclusion regarding this court ’ s appellate jurisdiction. ” After an order of non

- suit dismissing appel la nts ’ claims against URE Houston was signed , appellants again appealed

. Appellee Romero has filed a motion to dismiss for lack of jurisdiction on the basis that the August 20, 2020 judgment was final

. Romero contends the notice of

a ppeal was therefore un ti mely filed and we are without jurisdiction

. See Tex. R. App. P. 26. 1. Appellants filed a response, to which appellee filed a reply

. For the

r easons sta ted below , we deny appellee Romero ’ s motion but dismiss the appeal because the record does not reflect there i s a final judgment

. In t heir origin al petition, appellants named URE Houston as a defendant

. In their First Amended Original Petition , filed March 25, 2019, appellant s named United Real ty Advisors (“URA”) as a defendant ; URE Houston is not named at all

. Th e parties agree t hat URA was not served

. Subsequently, t he tria l court granted two motion s fo r summary judgment in favor of the only two remaining parties, Sullivan and Romero. Th e August 20, 2020, summary judgment only den ies re lie f “as a gainst th e Defendant P apillon Romero

. ” There is no language of finality in the body of the order

. See Lehmann v. Har

- Con Corp ., 39 S.W .3d 191, 20 6 (Tex. 2001)

. The word “ FINAL ” was added in front of “ORDER GRANTING DEFENDANT PAPILLON R EOMERO’S [sic] MOTI ON FOR SUMM ARY JUDGMENT .” The docket sheet provides “ORDER FOR INTERLOCUTORY SUMMARY JUDGMENT SIGNED.”3

Ab sent language of finality, the Au gust 20, 2020, Ro mero judgment is a final judgment “ if it actually disposes of all claims still pending in the cas e. Thus , an ord er tha t gran ts a motion for partial summary judgment is final if in fact it dispos es of the only remaining issue and party in the case, even if the order does not say that it is f

inal, indeed, even if it says it is not final. ” Lehmann , 39 S. W.3d at 204

. UR E Houston wa s not a re m aining defendant when judgment was granted in favor of R ome ro because it had been effectively dismissed from the suit by the amended pe tition. Tex. R. Civ. P. 65 ; Webb v. Jorns , 488 S. W.2d 407, 409 (Te x. 1972) ( for explan ation that an amended pleading acts as vo luntary dismissal of omitted defe ndant ). 1 The issu e is wh ether appellee URA was a remaining defendant on August 20, 2020

. There is no dispute URA was not serve d , but that is
not determinative if appellants expected to ob t ain s ervice

. See Youngstown Sheet & Tube Co. v. Penn , 363 S.W. 2d 230, 232 (Tex. 1962) (summa ry judgment expressly disposing of all named parties other than party that record reflected was not served, did not a nsw er, and plaintiff did not expect to obtain s ervic e upon , stood “as if there had been a discontinuance” as to that party, and judg ment wa s regarded as final for purposes of appeal); see also M.O. Dental Lab v. Rape , 139 S.W.3d 671, 674

– 75 (Tex. 2004) (sum ma ry judgment that failed to address claims ag ainst all named defendants was final when record affirmatively showed plaintiff never intend ed to serve remaining defendant, did not request citation be issued for that defendant, and appealed judgment without in dicating it was not final because she intend ed to serve remaining defendant ) ; Broderick v. Universal Healt h Services, Inc ., No. 0 5

- 16

- 01 379

- CV, 2018 WL 1835689, at *2 (Tex. App.

— Dallas Apr. 18, 2018, no pet.).

1 A ppellants non

- suited URE Houston , and the trial court signed a January 22, 2021 o rder t o memoriali ze that , but URE Housto n had already been dismissed b y the amended pleading.4

In this case , it is undisput ed that appellants req uested service of citation. In considering w hether there is evidence in the record befo re us that appellan ts expected to o b t ain ser vice, w e consider a case fo rm ou r sister court, Taylor v. Jones , No. 01

- 16

- 00999

- CV, 2017 WL 6327375, at *1 (Tex. App.

— Houston [1st Dist.] Dec. 12, 2017, no pet.) (mem. op.) :

Here, t he summary judgment order “does not unequ ivocall y express an i nte nt to dispose of all claims and all parties” but specifically disposes only of Taylor's claims against AOF/Houston. Crites , 284 S.W.3d 841. A judgment that “expressly disposes of some, but no t all defendants,” is final when remainin g defen dants have not be en served or answered and “nothing in the record indicates that plaintiff ever expected to obt ain service on the unserved defendants, such that the case ‘stands as if there had b een a discont inuance’ as to the unserved defendants.” In re S heppard , 193 S .W. 3d 181, 187 (Tex. App.

– Houston [1st Dist.] 2006, orig. proceeding) (quoting Youngstown Sheet & Tube Co. v. Penn , 363 S.W.2d 230, 232 (Tex. 1962)). A failure to effect service of process again st an unserved defendant does not, by its elf, de monstrate a la ck of intent to serve the defendant. In re Sheppard , 193 S.W.3d at 188.

. . . Nothing in the record indicates that Taylor did not expect to obtain service on Jones or had discontinu ed her suit a s to him. Accordingly, a signed, written order d isposing of Ta ylo r ’ s claims against Jones would be necessary for a final, appealable judgment. See Wanzer v . Mendoza , No. 04

– 05

– 00505

– CV, 2005 WL 2368007, at *1 (Tex. App.

– San Antonio Sept. 28, 2 005, no pet.) (mem. op.) (citing M.O. Dental Lab. v. R ape , 13 9 S.W.3d 671, 675 (Tex. 2004)). Because the November 21, 2016 order does not dispose of all parties and all claims in the trial court proceeding, we conclude that the order is not final and appea lable. We dis miss the appeal for lack of jurisdiction. See Te x. R. A pp. P. 42. 3(a), 43.2(f). Id. at *2

.5

The recor d before us does not demonstrate that appel lants did not expec t to obtain service on URA or had discontinued their suit as to URA. See Tex. R. Civ. P. 16 1. Because the judgment aga inst Rom ero cont ains no la ng uage of finality , and all parties and all claims in the trial court were not disposed of, w e dismiss th is interlocutory appeal for want of jurisdiction. Tex. R. App. P. 42.3(a). Romero ’ s mot ion to dismiss is also denied.
PER CURIAM
Panel cons is ts of Justices Bourliot, Zimmerer, and Spain.