Cedric Harper v. Johnnie Smith

Dismiss and Opinion Filed December 9, 2024

In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-24-00865-CV

CEDRIC HARPER, Appellant
V.
JOHNNIE B. SMITH, JR. AND MARQUIES JACKSON-SMITH, Appellees

On Appeal from the 298th Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-21-16733

MEMORANDUM OPINION
Before Chief Justice Burns, Justice Pedersen, III, and Justice Carlyle
Opinion by Chief Justice Burns
This appeal challenges the trial court’s summary judgment order. 1 Asserting

the order is an unappealable interlocutory order that does not dispose of all parties

and claims and the appeal is frivolous, appellee Johnnie B. Smith has filed a motion

to dismiss the appeal and for damages. See TEX. R. APP. P. 42.3(a), 45. Though

more than ten days have passed since the motion was filed, appellant has not

responded to the motion. We grant the motion to the extent we dismiss the appeal.

1
The appeal also challenges the trial court’s oral denial of appellant’s motion for new trial. An oral
ruling, however, is not appealable. See Farmer v. Ben E. Keith Co., 907 S.W.2d 495, 496 (Tex. 1995) (per
curiam) (signed, written order required to appeal).
It is well-settled that an appeal can only be taken from a final judgment that

disposes of all parties and claims or an interlocutory order as authorized by statute.

See Jack B. Anglin Co., Inc. v. Tipps, 842 S.W.2d 266, 272 (Tex. 1992). When, as

here, a conventional trial on the merits has not been held, a judgment is final and

appealable if it actually disposes of every pending claim and party in the case or

clearly and unequivocally states it finally disposes of all claims and parties.

Lehmann v. Har-Con Corp., 39 S.W.3d 191, 205 (Tex. 2001).

As reflected in the clerk’s record, appellee sued appellant and non-party to the

appeal Aaron McCardell seeking a declaration that certain warranty deeds

transferring property to appellant were void, rescission of the deeds, temporary

injunctive relief, actual and exemplary damages, and attorney’s fees. Subsequently,

appellee Marquies Jackson-Smith, Smith’s brother, intervened, seeking similar

relief.

Smith moved for summary judgment on all claims against both appellant and

McCardell, and Jackson-Smith joined in the motion. Following a hearing, the trial

court granted the motion as to appellant only, signing an order declaring the deeds

void. The summary judgment order, however, did not address the issues of damages

and attorney’s fees as to either Harper or McCardell and does not include any finality

language.

Because the summary judgment order did not dispose of all issues and is not

final on its face, we agree with Smith that the appeal should be dismissed. See

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McNally v. Guevara, 52 S.W.3d 195, 196 (Tex. 2001) (per curiam); Lehmann, 39

S.W.3d at 205. We decline to award damages against appellant and grant the motion

to the extent we dismiss the appeal. See TEX. R. APP. P. 42.3(a), 45; McNally, 52

S.W.3d at 196.

240865f.p05 /Robert D. Burns, III//
ROBERT D. BURNS, III
CHIEF JUSTICE

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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT

CEDRIC HARPER, Appellant On Appeal from the 298th Judicial
District Court, Dallas County, Texas
No. 05-24-00865-CV V. Trial Court Cause No. DC-21-16733.
Opinion delivered by Chief Justice
JOHNNIE B. SMITH, JR. AND Burns, Justices Pedersen, III and
MARQUIES JACKSON-SMITH, Carlyle participating.
Appellees

In accordance with this Court’s opinion of this date, we DISMISS the appeal.

We ORDER that appellees Johnnie B. Smith, Jr. and Marquies Jackson-Smith
recover their costs, if any, of this appeal from appellant Cedric Harper.

Judgment entered this 9th day of December, 2024.

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