Opinion issued June 30, 2015
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-14-00870-CV ——————————— ELISHAH SAWYERS, PAX CRATE & FREIGHT, INC., AND ROBIN SAWYERS, Appellants V. MARC CARTER AND SALLY CARTER, Appellees
On Appeal from the 506th District Court Waller County, Texas Trial Court Case No. 14-07-22604
MEMORANDUM OPINION
Elishah and Robin Sawyers, together with Pax Crate & Freight, Inc.
(collectively, the Sawyers) appeal the trial court’s default judgment in favor of
Marc and Sally Carter. The Sawyers contend that the judgment is an interlocutory order, or alternatively, that the Carters did not obtain effective service of process
on them before obtaining the judgment. They further contend that the evidence
supporting the trial court’s award of damages is legally and factually insufficient.
We conclude that the challenged judgment is an interlocutory order and thus
dismiss the appeal for want of jurisdiction.
Background
The Carters and the Sawyers own adjoining lots in Hockley, Texas on
Margerstadt Road. In July 2014, the Carters sued the Sawyers for private
nuisance, alleging that the Sawyers’ use of dirt bikes on their property interfered
with the Carters’ use and enjoyment of their neighboring property. Pax Crate &
Freight, Inc. is a corporation whose registered agent is Elishah Sawyers. In their
petition, the Carters sought damages for diminution of their property value and a
permanent injunction against the “use of excessively loud dirt bikes or other
ATV’s on the Defendant’s property” and “the construction of Pax Crate & Freight,
Inc. on the Defendants’ property [on] . . . Margerstadt Road.” The Carters also
requested that the trial court award attorney’s fees, court costs, and prejudgment
and postjudgment interest on their claims.
In August 2014, the Carters moved for a default judgment, asserting that the
Sawyers had not answered or appeared in response to the suit. In September 2014,
the trial court granted the motion. It awarded actual damages of $480,000,
2 attorney’s fees of $3,071.20, court costs, and postjudgment interest, but it did not
award prejudgment interest. The order also purported to grant “an injunction
against unreasonable and excessive noise and dust created by the riding of large
dirt bikes on the Defendants’ property” and “an injunction against moving
Defendants’ crating business, Pax Crate and Freight, Inc., to Defendants’
Margerstadt Road property.” The order does not contain a Mother Hubbard clause
or state that it is a final judgment. The Carters thereafter sought execution of the
judgment.
Discussion
The Sawyers conditionally appeal the judgment, contending that it is an
interlocutory order. They ask that we remand the case to the trial court to allow it
to address their challenges to service of process and to the order in the first
instance. In the event we hold that the judgment is final and appealable, they ask
that we review the merits of their challenges to the judgment. Because the order
does not dispose of the requests for prejudgment interest and neither the order nor
the record contains evidence that the order was a final order, we conclude that the
trial court’s order is not a final judgment.
Standard of Review and Applicable Law
A judgment following a trial on the merits is presumed to be final, but no
similar presumption of finality attaches to a default judgment. In re Burlington
3 Coat Factory Warehouse of McAllen, Inc., 167 S.W.3d 827, 829 (Tex. 2005)
(citing Lehmann v. Har-Con Corp., 39 S.W.3d 191, 199–200 (Tex. 2001), and
Houston Health Clubs, Inc. v. First Ct. of App., 722 S.W.2d 692, 693 (Tex. 1986)
(per curiam)). A judgment that disposes of all parties and claims is final. Id. at
830 (citing Lehmann, 39 S.W.3d at 200). “To determine whether an order disposes
of all pending claims and parties, it may . . . be necessary for the appellate court to
look at the record in the case.” Lehmann, 39 S.W.3d at 205–06. A default
judgment that does not dispose of all claims can be final only if the “intent to
finally dispose of the case” is “unequivocally expressed in the words of the order
itself.” Burlington, 167 S.W.3d at 830 (quoting Lehmann, 39 S.W.3d at 200). A
reviewing court “cannot conclude that language permitting execution
‘unequivocally express[es]’ finality in the absence of a judgment that actually
disposes of all parties and all claims.” Id. at 830–31 (holding that trial court
abused its discretion by permitting execution to issue) (quoting Lehmann, 39
S.W.3d at 200).
When a default judgment does not dispose of an unresolved request for
prejudgment interest, the judgment is interlocutory, not final. Hunt Oil Co. v.
Moore, 639 S.W.2d 459, 460 (Tex. 1982) (per curiam) (holding that summary
judgment was interlocutory, reasoning that judgment awarded damages requiring a
future accounting and that “judgment did not address [the plaintiff’s] claim for
4 prejudgment interest”); Rosedale Parts., Ltd. v. 131st Judicial Dist. Ct., Bexar
Cnty., 869 S.W.2d 643, 648–49 (Tex. App.—San Antonio 1994, no pet.) (holding
that default judgment that did not dispose of claims for prejudgment interest and
attorney’s fees was interlocutory); see also Farm Bureau Cnty. Mut. Ins. Co., v.
Rogers, 455 S.W.3d 161, 161–62 (Tex. 2015) (per curiam) (holding that order
denying summary judgment, which contained Mother Hubbard clause, was
interlocutory because “it did not resolve the parties’ competing requests for
attorney’s fees”); Houston Health Clubs, 722 S.W.2d at 693–94 (holding that
default judgment was interlocutory, as it did not dispose of plaintiff’s claim for
punitive damages); Harris Cnty. Toll Rd. Auth. v. Sw. Bell Tel., L.P., 263 S.W.3d
48, 56 (Tex. App.—Houston [1st Dist.] 2006) (holding that summary judgment
was interlocutory because it left open amount of prejudgment interest and did not
dispose of all claims), aff’d, 282 S.W.3d 59 (Tex. 2009).
In Rosedale, the San Antonio Court of Appeals reasoned that when the
record presented no “evidence of an amended petition deleting the claims for
prejudgment interest and attorney’s fees, an affidavit explaining when the claim
was abandoned, or any other evidence indicating [the plaintiff’s] intent to abandon
the remaining claims,” it could not determine that the plaintiff had abandoned
those requests at the time of the default judgment. 869 S.W.2d at 648. Because
the judgment in that case did not dispose of the plaintiff’s requested prejudgment
5 interest and attorney’s fees, the San Antonio Court of Appeals held that the
judgment was interlocutory. Id. at 649.
Free access — add to your briefcase to read the full text and ask questions with AI
Opinion issued June 30, 2015
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-14-00870-CV ——————————— ELISHAH SAWYERS, PAX CRATE & FREIGHT, INC., AND ROBIN SAWYERS, Appellants V. MARC CARTER AND SALLY CARTER, Appellees
On Appeal from the 506th District Court Waller County, Texas Trial Court Case No. 14-07-22604
MEMORANDUM OPINION
Elishah and Robin Sawyers, together with Pax Crate & Freight, Inc.
(collectively, the Sawyers) appeal the trial court’s default judgment in favor of
Marc and Sally Carter. The Sawyers contend that the judgment is an interlocutory order, or alternatively, that the Carters did not obtain effective service of process
on them before obtaining the judgment. They further contend that the evidence
supporting the trial court’s award of damages is legally and factually insufficient.
We conclude that the challenged judgment is an interlocutory order and thus
dismiss the appeal for want of jurisdiction.
Background
The Carters and the Sawyers own adjoining lots in Hockley, Texas on
Margerstadt Road. In July 2014, the Carters sued the Sawyers for private
nuisance, alleging that the Sawyers’ use of dirt bikes on their property interfered
with the Carters’ use and enjoyment of their neighboring property. Pax Crate &
Freight, Inc. is a corporation whose registered agent is Elishah Sawyers. In their
petition, the Carters sought damages for diminution of their property value and a
permanent injunction against the “use of excessively loud dirt bikes or other
ATV’s on the Defendant’s property” and “the construction of Pax Crate & Freight,
Inc. on the Defendants’ property [on] . . . Margerstadt Road.” The Carters also
requested that the trial court award attorney’s fees, court costs, and prejudgment
and postjudgment interest on their claims.
In August 2014, the Carters moved for a default judgment, asserting that the
Sawyers had not answered or appeared in response to the suit. In September 2014,
the trial court granted the motion. It awarded actual damages of $480,000,
2 attorney’s fees of $3,071.20, court costs, and postjudgment interest, but it did not
award prejudgment interest. The order also purported to grant “an injunction
against unreasonable and excessive noise and dust created by the riding of large
dirt bikes on the Defendants’ property” and “an injunction against moving
Defendants’ crating business, Pax Crate and Freight, Inc., to Defendants’
Margerstadt Road property.” The order does not contain a Mother Hubbard clause
or state that it is a final judgment. The Carters thereafter sought execution of the
judgment.
Discussion
The Sawyers conditionally appeal the judgment, contending that it is an
interlocutory order. They ask that we remand the case to the trial court to allow it
to address their challenges to service of process and to the order in the first
instance. In the event we hold that the judgment is final and appealable, they ask
that we review the merits of their challenges to the judgment. Because the order
does not dispose of the requests for prejudgment interest and neither the order nor
the record contains evidence that the order was a final order, we conclude that the
trial court’s order is not a final judgment.
Standard of Review and Applicable Law
A judgment following a trial on the merits is presumed to be final, but no
similar presumption of finality attaches to a default judgment. In re Burlington
3 Coat Factory Warehouse of McAllen, Inc., 167 S.W.3d 827, 829 (Tex. 2005)
(citing Lehmann v. Har-Con Corp., 39 S.W.3d 191, 199–200 (Tex. 2001), and
Houston Health Clubs, Inc. v. First Ct. of App., 722 S.W.2d 692, 693 (Tex. 1986)
(per curiam)). A judgment that disposes of all parties and claims is final. Id. at
830 (citing Lehmann, 39 S.W.3d at 200). “To determine whether an order disposes
of all pending claims and parties, it may . . . be necessary for the appellate court to
look at the record in the case.” Lehmann, 39 S.W.3d at 205–06. A default
judgment that does not dispose of all claims can be final only if the “intent to
finally dispose of the case” is “unequivocally expressed in the words of the order
itself.” Burlington, 167 S.W.3d at 830 (quoting Lehmann, 39 S.W.3d at 200). A
reviewing court “cannot conclude that language permitting execution
‘unequivocally express[es]’ finality in the absence of a judgment that actually
disposes of all parties and all claims.” Id. at 830–31 (holding that trial court
abused its discretion by permitting execution to issue) (quoting Lehmann, 39
S.W.3d at 200).
When a default judgment does not dispose of an unresolved request for
prejudgment interest, the judgment is interlocutory, not final. Hunt Oil Co. v.
Moore, 639 S.W.2d 459, 460 (Tex. 1982) (per curiam) (holding that summary
judgment was interlocutory, reasoning that judgment awarded damages requiring a
future accounting and that “judgment did not address [the plaintiff’s] claim for
4 prejudgment interest”); Rosedale Parts., Ltd. v. 131st Judicial Dist. Ct., Bexar
Cnty., 869 S.W.2d 643, 648–49 (Tex. App.—San Antonio 1994, no pet.) (holding
that default judgment that did not dispose of claims for prejudgment interest and
attorney’s fees was interlocutory); see also Farm Bureau Cnty. Mut. Ins. Co., v.
Rogers, 455 S.W.3d 161, 161–62 (Tex. 2015) (per curiam) (holding that order
denying summary judgment, which contained Mother Hubbard clause, was
interlocutory because “it did not resolve the parties’ competing requests for
attorney’s fees”); Houston Health Clubs, 722 S.W.2d at 693–94 (holding that
default judgment was interlocutory, as it did not dispose of plaintiff’s claim for
punitive damages); Harris Cnty. Toll Rd. Auth. v. Sw. Bell Tel., L.P., 263 S.W.3d
48, 56 (Tex. App.—Houston [1st Dist.] 2006) (holding that summary judgment
was interlocutory because it left open amount of prejudgment interest and did not
dispose of all claims), aff’d, 282 S.W.3d 59 (Tex. 2009).
In Rosedale, the San Antonio Court of Appeals reasoned that when the
record presented no “evidence of an amended petition deleting the claims for
prejudgment interest and attorney’s fees, an affidavit explaining when the claim
was abandoned, or any other evidence indicating [the plaintiff’s] intent to abandon
the remaining claims,” it could not determine that the plaintiff had abandoned
those requests at the time of the default judgment. 869 S.W.2d at 648. Because
the judgment in that case did not dispose of the plaintiff’s requested prejudgment
5 interest and attorney’s fees, the San Antonio Court of Appeals held that the
judgment was interlocutory. Id. at 649.
In Hunt Oil, the Texas Supreme Court considered a case in which the parties
contested the finality of a summary judgment order. 639 S.W.2d at 459. In its
summary judgment, the trial court did not dispose of a claim for prejudgment
interest and ordered that one party “render an accounting” of damages. Id. After
the accounting of damages was complete, the trial court entered another judgment,
ordering damages of approximately $377,000. Id. The Texas Supreme Court held
that the summary judgment was interlocutory because it required a future
calculation of damages and did not dispose of a claim for prejudgment interest. Id.
at 460.
Analysis
Similar to the facts presented in Rosedale Partners, the default judgment in
this case does not contain any finality language. Thus, we examine the record to
determine whether the judgment disposes of all claims and parties. See Burlington,
167 S.W.3d at 830; Lehmann, 39 S.W.3d at 205–06.
The Carters requested prejudgment interest in their petition, but the trial
court did not dispose of their request. The record does not contain any evidence
that the Carters abandoned their claim before the trial court rendered its default
judgment. See Rosedale, 869 S.W.2d at 648. Because the judgment does not
6 dispose of the Carters’ request for prejudgment interest, we conclude that it is
interlocutory. See id. at 648–49.
In response, the Carters point to their request for execution of the judgment.
However, the Texas Supreme Court has held that language permitting execution of
a judgment does not unequivocally express finality when the judgment does not
dispose of all parties and claims and the judgment under review is a default
judgment. See Burlington, 167 S.W.3d at 830–31.
In addition, the trial court’s order purporting to grant injunctive relief lacks
specificity about the acts to be restrained, the reasons for its issuance, and its
duration; it merely states that the Carters’ “Motion for Default Judgment on an
injunction against unreasonable and excessive noise and dust created by the riding
of large dirt bikes on Defendants’ property is granted” and “Motion for Default
Judgment on an injunction against moving Defendants’ crating business, Pax Crate
and Freight, Inc., to Defendants’ Margerstadt Road property is granted.” These
orders are inadequate to grant permanent injunctive relief. See TEX. R. CIV. P. 683
(“Every order granting an injunction . . . shall set forth the reasons for its issuance;
shall be specific in terms; shall describe in reasonable detail and not by reference
to the complaint or other document, the act or acts sought to be restrained . . . .”).
Because the trial court’s default order neither (1) details specific reasons for its
issuance, nor (2) details with any specificity or duration the acts which the Sawyers
7 must refrain from doing, nor (3) expresses any indication that it is a permanent
injunction or a final order, we conclude that the purported grant of injunctive relief
by default does not appear on its face to be a final permanent injunction. See Hunt
Oil, 639 S.W.2d at 460.
Because it lacks indicia of finality, the trial court’s order granting a default
judgment is not a final order. Our appellate jurisdiction is limited to review of
final judgments; we thus dismiss this appeal for want of jurisdiction. See
Braeswood Harbor Parts. & Prop. Owners ex rel. Patrick O’Connor & Assocs.,
Inc. v. Harris Cnty. Appraisal Dist., 69 S.W.3d 251, 252 (Tex. App.—Houston [1st
Dist.] 2002, no pet.) (“Excluding certain statutory exceptions that do not apply
here, this Court’s appellate jurisdiction is limited to review of final judgments that
dispose of all parties and claims.”). We remand the case to the trial court to
consider the parties’ other arguments raised on appeal. See TEX. R. APP. P. 47.1.
8 Conclusion
We dismiss the appeal for want of jurisdiction. All pending motions are
dismissed as moot.
Jane Bland Justice
Panel consists of Justices Jennings, Bland, and Brown.