Dismissed and Memorandum Opinion filed August 4 , 2022

.

In The 

## Fourteenth Court of Appeals

NO. 14

- 20

- 00693

- CV

JOHN GANNON, INC. , Appellant

V. 21333 INVESTMENTS, I NC. , Appellee

On Appeal from the 125th District Court

Harris County, Texas Tr ial Court Cause No. 2019

- 67138

MEMORANDUM OPINION Appellant/Cross

- Appellee , John Gannon, Inc. ( “ Gannon ” ) , appe als the trial

court ’ s order granting its motion for summary judgment contend ing that the trial

court err oneously “ disposed of the case and granted more r elief than requested by entering a final judgment on its docket sheet when Gannon’s request for attorneys’
fees remained pending. ” Appellee / Cross

- Appe llant , 21333 Investmen ts , Inc. ( “ 21333 Investments ” ) , challenges the trial court ’ s order granting G annon ’ s motion for summary judgment on 21333 Investments ’ counterclaims contending that (1)2

the trial court err ed by holding that 21333 Investments breached its l ease

a greement with Gannon ; (2) the trial court erred by “ essentially ruling that Gannon woul d b e f

r e e to put the contemplated billboard anywhere on [ the p roperty at issue] , despite the specific agreement in [an exhib i t] that states otherwise ” ; ( 3) the defense of impossibility preclude s summary judgment i n favo r of Gannon because the City of H ousto n did not grant a permit to Gannon to place the sign at the agreed upon location ; and (4) fact issues preclude summary judgment

. We dismiss the appeal for want of subject matter jurisdiction.

B ACKG ROUND
G annon and 21333 Investments e ntered into a 10

- year lease agreement in September 2018. Under the lease , Gannon would have the right to erect and maintain it s billboard on a portion of 21333 Investments ’ property as described in

an attach ment t o the lease . After signing the lease , Gann on attempted to obtai n a
p e rmit from the City of Houston to construct the billboard on the originally agreed

upon location by the parties

. I n July of 2019, however, the City of Hous ton inform ed Gannon that the location need ed to be moved app roxima tely one hundred feet west of the o riginally contemplated location in accordance with a City

approved location map . 21333 Investments refused to consent to the new location because ano ther ten ant on the prop erty objected to the new location for the billbo ard.

In September 2019, Ganno n sue d 21333 Investments asserting claims for breach of contract, decl a ra tory relief, and attorney ’ s fees . 21333 Investments filed its original answer in O ctober 2019. Several days la ter, Gannon filed a tradit ional motion for summary judgment on its clai ms fo r breach of contrac t and declaratory relief , requesting the trial court find as a matter of law that “ (1) 21333 Investments, Inc. is liable to John Gan non, Inc. for breach of c ontract, (2) John Gannon, Inc. is3

entitled to a declaratory judgment that t he Le a se entitles Gannon to place the Sign on the Property in the location identified on Exhibit 4, and (3) 21333 Investments, Inc. shall consen t to the pla cement of the sign on the Property in the location iden tified on Exhibi t 4. ” In its summary judgmen t mot i on , G annon did not request any relief regarding it s claim for attorney ’ s fees. In January 2020, 21333 Investments filed its response to Ga nnon ’ s motio n for summary judgment . Seven da ys later, Gannon filed a reply to 2133 3
Inv estm ents ’ summary judgme nt re s ponse and objections to 21333 Investments ’ evidence. In March, 21333 Investm ents filed its second amended original answer and original co unterclaim , asserting counterclaims for breach of contract and decl aratory judgment as well as several affirmati ve de f enses

. In April , Gannon filed a traditional motion for summary judgment on 21333 Investments ’ counterclaims. In May , 21333 Inv estments fil ed a motio n for continuance of the summary judgment hearing , which the tria l court granted. On July 22, 2020, t he t r ial court signed an order grantin g Gannon ’ s motion for summary judgment on 21333 Investments ’ counterclaims. That same day, the trial court als o signed an order granting Gannon ’ s motion for summary judgment.
On Au gust 18, 2020, Gannon filed a motio n for partial new trial stating that (1) the trial court ’ s docket sheet reflects the court signed a final summary judgment , and (2) “ [ t] o the exte nt the Court’s entry of judgment constitutes a final judgme nt, [Gannon] see ks a new trial for the limited purp ose o f having the Court consider
Gannon ’s reasonable attorneys ’ fees and costs

. ” 21333 Investments opposed
Gannon ’ s motion for partial new trial. In October 2020, Gannon filed a notice of appeal and 21333 Investments file d a cross

- notic e of appeal.

J URISD ICT I O N
S ubject matter jurisdiction is never presumed , cannot be confer red by4

consent or estoppel, and cannot be waive d

. S ee Wilmer

- Hutchins Indep. Sch. Dist. v. Sullivan , 51 S.W.3d 293, 294 (Tex. 2001) (per cu riam) ; Waco Indep. Sch. Dist. v. Gibson , 22 S. W.3d 84 9, 850 (T e x

. 2000); Dubai Petroleum Co. v. Kazi , 12 S.W.3d 7 1, 76 (Tex. 2000 ) ; Tex. Ass’n of Bus. v. Tex. Air Control Bd. , 852 S.W.2d
440 , 443

- 44 (Tex. 1993)

. Even if not raised, issues affecting jurisdiction must be reviewed sua sponte

. M.O

. Dent al La b v. Rape , 1 3 9 S.W.3d 671, 673 (Tex. 2004) (per curiam) ; Gantt v. Gantt , 20 8 S.W.3d 27 , 30 (Tex. App.

— Houston [14th Dist.] 2006, pet. denied)

. As an appellate court, we lack jurisdiction to review an interlocutory order unless a statute specifically a uthor iz es an excepti on to the g e neral rule, which is that appeals may only be ta ken from final j udgments. See Qwest Commc’ns Corp. v. AT & T Corp. , 24 S.W.3d 334, 336 (Tex. 2000) (per curiam)

. When, as here, there has been no conventional trial on the me rits, “an order or j udgment is no t final f o r purposes of appeal unless it actually disposes o f every p ending claim and party or unless it clearly and unequivocally states that it finally disposes of all claims and all parties.” See Lehmann v. Har

- Con Cor p. , 39 S.W.3d 191, 20 5 (Tex. 2001)

. The rec o r d before us contains no orders, whether taken ind ividually or col lectively, which dispose of all parties and claims in this case. In our record, we have the trial court’s (1) ORDER GRANTING JOHN GANNON, INC.’S
MOTION FOR SUMMARY JU DGMENT ON DEF EN DANT’S
C O U NTERCLAIMS; and (2) ORDER GRANTING JOHN GANNON, INC.’S
MOTION FO R SUMMARY JUDGMENT. Gannon moved for summary judgment, requesting “that the Court render Summary Judgment in favor of John Gannon, Inc. and hold as a m atter of law th at ( 1) 21333 Investmen t s , Inc. is liable to John Gannon, Inc. for breach of contract, (2) John Gannon, Inc. is entitled to a5

declaratory judgment that the Lease entitles Gannon to place the Sign on the Property in the location identifi ed on Exhibit 4, and (3) 21333 Inv estments, I n c. shall consent to the placement of the sign on the Property in the location identified on Exhibit 4.” Gannon did not move for summary judgment on its claim for attorney’s fees, and the trial court did not ru le on that cla im in any order.

The refore, w e n otified the parties that we would consider dismissal of the appeal on our own motion for want of jurisdiction unless any party filed a response

on or be fore June 12 , 20 22, showing the trial court disposed of al l part ies and all claims. Neither party fi l e d a response to our notice

. The trial court orders before us do not dispose of Gannon ’ s outstanding attorney ’ s fees claim n or do the orde rs “ clearly and u nequivocally state [] that [ they] finally dispose [] of a ll cla ims and all par ties.” See id

. Thus, t h ere is no final judgment because the trial court did not dispose of all claims and parties in t his

case or use clear and unequivoc al langu age stating it fi nally disposed of all claims and parties

. See id

. Bec ause w e conclude t her e is no final judgment , w e lack jurisdiction and must dismiss the appeal

. See Bison Bldg. Materials, Ltd. v. Aldridge , 422 S.W.3d 582 , 585 (Tex. 2012) ( “ Unless specifically authorized by statute, Texas appellate courts only h ave juris dictio n to review final judgments. ”) ; Eter v

. Moghnieh , No. 14

- 21

- 00627

- CV, 2022 WL 599260 , at *1 (Tex. App.

— Houston [14th Dist.] Mar. 1, 2022, no pet.) (mem . op.) ( per curi am) (Appellee ’ s

“ outstanding claim for attorney ’ s fees render this appeal in terlocu tory ” and “ the appeal is ordered dismissed f o r want of jurisdiction. ” )

.6 C ONCLUSION Having concluded there is no final, appealable judgment , w e dismiss the

a ppeal for lack o f subject matter jurisdiction.

/s/ Meag a n Ha ss an Justice

Panel co ns ists o f J ust i c e s Wis e , Spa in, and Has san

.