CROSSOVER: No Appellate Jurisdiction: Rule 91a/TCPA + Fee Order Still Not Final When Any Claims/Parties Remain or Order Is Internally Inconsistent

Corey Morrell v. Burton Baker, Individually and in his Professional Capacity; Lummus, Hallman, Pritchard & Baker, P.C.; and Mercer Transportation Co., Inc., 02-25-00642-CV, March 26, 2026.

On appeal from 236th District Court, Tarrant County, Texas

Synopsis

The Fort Worth Court of Appeals dismissed the appeal for want of jurisdiction because the Rule 91a/TCPA dismissal order and the later attorney’s-fee order did not dispose of all claims and parties with unmistakable finality. The trial court’s own language signaled that claims remained pending and, in places, was internally inconsistent about what survived. With no final judgment and no applicable interlocutory-appeal statute in this posture, the court could not reach the merits.

Relevance to Family Law

Texas family cases routinely spawn “crossover” civil claims—defamation, business torts, fraudulent lien/slander of title (often involving real property or lis pendens), and TCPA-based retaliation for litigation communications. This opinion is a jurisdictional trap for divorce and custody litigators: if you try to appeal a partial TCPA/Rule 91a dismissal (even paired with a fee order) while any claims or parties remain—or if the order is internally inconsistent about what remains—the appellate court may dismiss, burning time and leverage while trial-court deadlines continue to run.

Case Summary

Fact Summary

The plaintiff sued multiple defendants and pleaded numerous causes of action (the opinion references fourteen). Defendants responded with a combined Rule 91a motion to dismiss and a TCPA motion to dismiss. The trial court signed an order granting those motions and dismissing several listed causes of action “with prejudice,” but the order also stated that the plaintiff’s “only remaining claims” were certain numbered counts in a “Third Amended Petition.”

That created a problem: the clerk’s record did not contain any third amended petition. The plaintiff moved to correct or clarify, arguing the order was internally inconsistent—dismissing claims by title while stating that numerically corresponding “counts” remained, and referencing a pleading that was not actually on file. The trial court denied the clarification request.

Afterward, the trial court signed a separate order awarding attorney’s fees under Rule 91a.7 and TCPA § 27.009(a)(1). The fee order also contained (1) a Mother Hubbard clause and (2) enforcement language, and it contemplated ongoing litigation activity—specifically restraining discovery directed to one defendant (Mercer Transportation) until the fee award was satisfied. The plaintiff appealed from both the dismissal order and the fee order. Appellees moved to dismiss the appeal for lack of appellate jurisdiction.

Issues Decided

• Whether the Rule 91a/TCPA dismissal order constituted a final judgment disposing of all claims and parties.
• Whether the subsequent attorney’s-fee order transformed the posture into a final, appealable judgment.
• Whether either order was an appealable interlocutory order conferring jurisdiction in the absence of a final judgment.

Rules Applied

• Final-judgment requirement: Appeals generally lie only from final judgments or statutorily authorized interlocutory orders. Lehmann v. Har-Con Corp., 39 S.W.3d 191 (Tex. 2001).
• Unmistakable clarity test: Absent a conventional trial, finality requires either (1) unmistakably clear finality language or (2) actual disposition of all claims and parties. Lehmann, 39 S.W.3d at 192–93.
• Order-first, then record: Courts look first to the order’s language, then to the record if the order is not unequivocally final. In re Elizondo, 544 S.W.3d 824 (Tex. 2018).
• No “magic words,” but examples matter: Clear finality language can include “final,” “disposes of all claims and all parties,” and “appealable.” Bella Palma, LLC v. Young, 601 S.W.3d 799 (Tex. 2020).
• Mother Hubbard clause not determinative: A Mother Hubbard clause does not, by itself, establish finality. In re R.R.K., 590 S.W.3d 535 (Tex. 2019); Lehmann, 39 S.W.3d at 206–07.
• Execution/enforcement language not determinative: Enforcement language does not create finality where claims/parties remain. In re Burlington Coat Factory Warehouse of McAllen, Inc., 167 S.W.3d 827 (Tex. 2005).

Application

The court began where Texas finality analysis begins: the face of the orders. Neither the dismissal order nor the fee order contained the kind of “unmistakable clarity” language that Lehmann and Elizondo describe as signaling a final, appealable judgment. Instead, both orders affirmatively suggested the opposite.

First, the dismissal order expressly stated that certain claims remained pending—identifying “remaining claims” by referencing counts in a “Third Amended Petition.” That alone undercut any argument that the order disposed of the entire case. Worse, the “Third Amended Petition” reference was not merely a clerical quirk; it amplified ambiguity because the clerk’s record did not show such a pleading, and the plaintiff highlighted an internal inconsistency between (a) the dismissed claim titles and (b) the purportedly surviving numbered counts.

Second, the fee order did not cure the jurisdictional defect. The court treated the fee award as ancillary to the partial dismissal posture, not as a final judgment in disguise. The fee order’s restraint on discovery aimed at Mercer Transportation was a tell: it contemplated active litigation continuing as to at least one defendant, which is incompatible with final disposition. The plaintiff’s reliance on the Mother Hubbard clause and “writs and process” enforcement language failed under controlling Supreme Court authority—those features do not manufacture finality when the case remains pending as to any claims or parties.

Finally, the court confirmed there was no statutory path to interlocutory review on these facts. With no final judgment and no applicable interlocutory authorization, jurisdiction was absent and dismissal was mandatory.

Holding

The court held that neither the Rule 91a/TCPA dismissal order nor the subsequent attorney’s-fee order contained clear and unequivocal finality language, and both signaled that claims and/or parties remained pending. Because the orders did not actually dispose of all claims and parties with unmistakable finality, they were not final judgments.

The court further held that, in this posture, no statute authorized an interlocutory appeal from those orders. Accordingly, the Second Court of Appeals dismissed the appeal for want of jurisdiction.

Practical Application

In family law litigation, partial disposition is common: a party may knock out a tort counterclaim with TCPA/Rule 91a while property division, SAPCR issues, enforcement, or other parties remain. This case is a reminder that “winning” a dismissal and a fee award does not automatically create an appealable posture—and a premature notice of appeal can be strategically costly.

Practical scenarios where this opinion matters:

• Divorce + tort counterclaims: If the court dismisses defamation/IIED/DTPA-style claims via TCPA or Rule 91a but the divorce and property issues remain, you likely do not have a final judgment absent unmistakable finality language and true disposition of all parties/claims.
• Multi-party property fights: When third parties (family LLCs, employers, business partners, grandparents) are joined, it is easy to obtain an order that resolves claims against some but not all parties; a fee order tied to those partial dismissals may still be nonfinal.
• Ambiguous “what remains” orders: If the order references the wrong pleading or mislabels surviving claims (“counts” vs. causes of action), the ambiguity itself can undermine finality and delay appellate review—especially when the order simultaneously dismisses claims “with prejudice” but implies something survives.
• Fee collection as leverage: A fee award may be enforceable through trial-court mechanisms, but it is not a substitute for finality. If you plan to leverage a fee order during settlement, be realistic about appeal timing and jurisdictional vulnerabilities.

Checklists

Drafting an Appealable (Final) Disposition After Rule 91a/TCPA Success

• Confirm on the record that all parties and all claims are disposed of (including “John Doe”/unknown parties if pleaded).
• If the intention is finality, request an order stating: the judgment is final, disposes of all claims and all parties, and is appealable (consistent with Lehmann/Elizondo exemplars).
• Ensure the order identifies the correct live pleading by filing date and instrument title (and confirm it appears in the clerk’s docket).
• Avoid mixed signals: do not include language that “remaining claims” exist if finality is intended.
• If severance is the strategy, pursue a severance order that places the dismissed/TCPA-ruled claims into a separate cause number with a final judgment in that severed case.

Avoiding the “Internally Inconsistent Order” Trap

• Cross-check that dismissed items match the pleadings:
• claim titles vs. count numbers
• parties named in each count
• “with prejudice” language vs. any stated surviving claims
• If the court signs an inconsistent order, promptly move to:
• correct clerical errors (if truly clerical), and/or
• clarify adjudicated vs. unadjudicated claims, and/or
• enter a modified order with unmistakable finality language (if appropriate).
• Create a clean record: attach the live pleading and a proposed corrected order to your motion.

Jurisdictional Triage Before Filing the Notice of Appeal

• Identify whether any claim remains pending (including DJ remedies, attorney’s fees, sanctions, enforcement requests, or third-party claims).
• Check whether any party remains pending (including parties not addressed in the dismissal order).
• Do not rely on:
• a Mother Hubbard clause alone, or
• “writs and process may issue”/execution language,
  to establish finality.
• Evaluate whether a statutory interlocutory appeal actually applies to the specific order and posture; if not, assume finality is required.

Using Fee Orders Strategically Without Overstepping Finality

• Treat a post-dismissal fee award as potentially nonfinal if the merits case continues.
• If you need immediate appellate review, consider:
• severance to create a final judgment, or
• narrowing the case to true final disposition before appeal deadlines run.
• Coordinate enforcement strategy with ongoing discovery: any order restraining discovery (as occurred here) can telegraph nonfinality and continued proceedings.

Citation

Corey Morrell v. Burton Baker, Individually and in his Professional Capacity; Lummus, Hallman, Pritchard & Baker, P.C.; and Mercer Transportation Co., Inc., No. 02-25-00642-CV (Tex. App.—Fort Worth Mar. 26, 2026) (mem. op.).

Full Opinion

Read the full opinion here.

Family Law Crossover

In a divorce or custody case, this ruling can be weaponized as a timing-and-leverage tool: if your opponent obtains a partial TCPA/Rule 91a win (or you do) and then tries to rush an appeal to stall trial-court proceedings, you can attack appellate jurisdiction by showing any claim/party remains or the order is internally inconsistent about what survived. Conversely, if you want an immediate appealable posture from a TCPA/Rule 91a ruling inside a broader family case, you can use this decision to justify a targeted severance and a revised order with unmistakable finality language—preventing the other side from dragging you into a jurisdictional dismissal that wastes months while temporary orders, discovery, and enforcement pressures continue unabated in the trial court.

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