Opinion issued June 14 , 2016

In The 

## Court of Appeals For The 

## First District of Texas

———————————— NO. 01
- 15
- 01083
- CV

——————————— SUSAN POWELL , Appella nt

V. THE HOUSE COMPANY, D AVID BOWERS, AND STEVEN MACKLEM , Appell e e s
On Appeal from the County Court at Law No . 1

Galveston County, Texas Trial Court Ca se No. CV0074820

MEMORANDUM OPINION After discovering alleged defects in her home, Susan Powell sued her realtor (David Bowers), the realtor company ( T he House Company ) , and the previous owner ( Steven Mack lem ) , seeking a declaratory judgment that certain provisions in the purchase contract were void and unenforceable. The defendants filed a motion2

to dismiss the declaratory

- judgment action for lack of subject

- matter jurisdiction, which the trial court grant ed. Powell appeals the order granting that motion because it (1) improperly states that it is a “final judgment” and (2) would have a negative res judicata effect on a second lawsuit that was , and remains, pending . We affirm. Background Powell alleges th at the home she purchased from Macklem had numerous defects, including improperly installed wiring and incomplete structural repairs. According to Powell , Macklem concealed these defects and neither Bowers nor
T he House Company disclosed the m to her.
Powe ll sued Macklem, T he House Company, and Bowers , seeking a declaratory judgment t hat certain provisions in her home purchase agreement are void and unenforceable. She moved for summary judgment, which the trial court denied. Powell then filed a second lawsu it to recover damages caused by the defects in the home. Before the trial court rule d on Powell’s motion for summary judgment, t he defendants filed a motion to dismiss the declaratory

- judgment action for lack of subject

- matter jurisdiction because, accord ing to them, Powell’s claims did not
meet the Texas Declaratory Judgment Act ’s requirement that a declaration of rights be capable of resulting in a full and final disposition of the parties’ legal relations

.3

Powell originally opposed the defendants ’ motio n to dismiss but then withdrew her opposition. Before the hearing on the motion, Powell rescinded her withdrawal of opposition and argued that the trial court retained subject

- matter jurisdiction. T he trial court granted the summary - judgment motion “in reg ard to all defendants” and “dismissed” the lawsuit “dispos[ing] of all claims by the Plaintiff.” T he order stated that it “is a final judgment.” Powell appeals that order.

“ Final Judgment ” Language in Order Powell does not deny that the trial court lacked jurisdiction over her declaratory

-

judgment lawsuit . S he asks us to affirm the trial court’s judgment dismissing the lawsuit for lack of subject

- matter jurisdiction. But she argues that the trial court erred in designating the dismissal a s a “final judgment .” The defendants argue that the trial court “does not purport to render a judgment on the merits of [Powell’s] claims” and, thus, the dismissal order is not improper. 1

1 Powell also contends that the trial court’s earlier denial of her summary

- judgment motions may have a res judicata effect on her second lawsuit

. The defendants contend that we do not have jurisdi ction over that issue . They argue that, because Powell asks us to affirm the trial court’s judgment dismissing her case for lack of subject

- matter jurisdiction, th ere is no controversy between the partie s and , therefore , any decision on the res judicata effect of the trial court’s orders denying Powell’s summary

-

judgment orders would be an impermissible advisory opinion

. The general rule is that a trial court’s d enial of a summary

- judgment motion is not reviewable on appeal

. See Cincinnati Life Ins. Co. v. Cates , 9 27 S.W.2d 623, 625 (Tex. 1996). Thus, we do not address Powell’s arguments about those issues.4

A. “ Final judgment ” language For an appellate court to have subject

- matter jurisdiction, aside from inapplicable statutory interlocutory appeals, the trial court must have issued a “final judgment,” that is, a judgment that “ disposes of all pending parties and claims .” Castillo v. Aguilar , 366 S.W.3d 251, 253 (Tex. App.

— El Paso 2012 , no pet. ). In determining whether a judgment is final for purposes of appellate subject

matter jurisdiction, the appellate court cannot require that the final judgment be in any particular form ; it “ must be determined from its language and the record in the

case. ” I d. at 254. Powell cites Whallon v. City of Houston to argue that the “final judgment” language in the trial court’s order is improper because a n order on the merits entered in a case in which the trial court does not have subject

- matter jurisdiction

“ canno t be considered fina l” because it is void. 462 S.W.3d 146, 155 (Tex. App.

— Houston [1st Dist.] 2015 , no pet. )

. The failure of a jurisdictional requirement deprives the court of the power to act , “ and ever to have acted, as a matter of law .” In re Guardiansh ip of V.A. , 390 S.W.3d 414, 417

– 18 (Tex. App.

— San Antonio
2012 , pet. denied ). The trial court’s order in this case does not purport to be a ruling on the merits. It is entitled “order of dismissal.” The order references the defendants’ motion to “dismiss for lack of subject matter jurisdiction” and states that it grants5

that motion “in regard to all defendants.” Although it states that it is a “final judgment,” in context of the order, this means that the order “ disposes of all pending parties and claims .” See Castillo , 366 S.W.3d at 253. Thus, the trial court did not err in including the words “final judgment” in the order dismissing the declaratory

-

judgment lawsuit

. We affirm the trial court’s order dismissing the first lawsuit for lack of subject

- matter jurisdiction. Conclusion We affirm the trial court’s order.

Harvey Brown Justice Panel consists of Justices Keyes, Brown, and Huddle.