Opinion issued July 18, 2024
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-23-00487-CV ——————————— PAUL WRIGHT AND THERESA WRIGHT, Appellants V. BRANDON LIMING AND JENNA LIMING, Appellees
On Appeal from the 334th District Court Harris County, Texas Trial Court Case No. 2018-19746
OPINION
Paul and Theresa Wright appeal the trial court’s judgment awarding their
neighbors, Brandon and Jenna Liming, attorney’s fees in this real property dispute.
After a bench trial, the trial court signed two judgments—both labeled “final”—
three months apart. The first judgment ordered that the Limings recover attorney’s fees “for an amount to be determined during a separate hearing on a date and time
noticed by [their] counsel.” But it also included finality language disposing of “all
parties and all claims” and stating it was “appealable.” After three hearings, the trial
court signed a second judgment specifying the amount of attorney’s fees. On appeal,
the Wrights contend the second judgment is void because (1) the first judgment was
final and plenary power expired before the trial court signed the second judgment,
(2) the second judgment is not a proper nunc pro tunc judgment, (3) the second
judgment does not enforce the first judgment, and (4) there can be only one final
judgment.
Because we conclude the first judgment was interlocutory and the second
judgment is final, we affirm.
Background
The Limings and the Wrights had a dispute over physical access to a strip of
land along their adjoining properties. The Limings alleged that the Wrights used a
“driveway” on the Limings’ property as a turnaround for the Wrights’ commercial
vehicles and to access a rear residence located on the Wrights’ property. They also
alleged that they could not begin construction of their home or install fencing
because of the Wrights’ “intrusions and refusal to remove vehicles and trailers from
[their] property.”
2 The Limings sued. Among other things, they asked the trial court to declare
that the Wrights have no right to access the property and to enjoin them from
trespassing or making any claim of interest or right in the property. The Limings also
asked for attorney’s fees under the Declaratory Judgments Act and the Fraudulent
Lien or Claims Act. See TEX. CIV. PRAC. & REM. CODE §§ 12.001–.007, 37.001–
.009. The Wrights counterclaimed, seeking a judgment declaring that they had a
valid and enforceable easement and awarding them attorney’s fees.
The trial court held a one-day bench trial. Neither party requested a transcript,
but the record reflects that the Limings submitted 79 pages of invoices to support
their claim for attorney’s fees. The Wrights did not object.
On March 13, 2023, the trial court signed its First Judgment, ordering that the
Limings own the disputed property, that no valid easement exists for the Wrights,
and that the Wrights take nothing on their declaratory judgment counterclaim. The
First Judgment also awarded the Limings attorney’s fees for an amount to be
determined in a separate hearing:
IT IS FURTHER ORDERED, ADJUDGED, and DECREED that [the Limings] shall have and recover from [the Wrights] their attorney’s fees for the trial of this cause for an amount to be determined during a separate hearing on a date and time noticed by [the Limings’] counsel.
IT IS FURTHER ORDERED, ADJUDGED, and DECREED that [the Limings] recover from the [Wrights] interest on the sum awarded in this paragraph beginning on the date of this Final Judgment at the rate of 5.00% per annum, compounded annually, for which let execution issue. 3 The First Judgment was titled “final” and included this finality language:
IT IS FURTHER ORDERED, ADJUDGED, and DECREED that all writs to enforce this Final Judgment shall issue.
Any other and further relief requested by a party to this action that is not expressly given in this Final Judgment is denied. This Final Judgment finally disposes of all parties and all claims and is appealable.
Neither side filed post-judgment motions or a notice of appeal challenging the
First Judgment.
In May and June, the trial court conducted three hearings to determine the
amount of the Limings’ attorney’s fees. During the first hearing, the Wrights
objected that the First Judgment was final and that the trial court no longer had
plenary power to award attorney’s fees. They pointed out that 30 days had passed
since the trial court signed the First Judgment and no plenary-power-extending
motions had been filed. They argued that because the trial court had not determined
the amount of attorney’s fees before signing the First Judgment, or within 30 days,
the trial court could no longer “take judicial actions . . . to change the relief that’s
already been granted.” According to the Wrights, determining the amount of
attorney’s fees was a prohibited judicial action.
The Limings responded that the trial court had awarded attorney’s fees in the
First Judgment, their evidence was admitted during trial without objection, and they
were “not coming back and asking for relief that wasn’t already granted.” The trial
4 court agreed with the Limings but reset the matter for a second hearing so the parties
could brief the plenary power issue.
At the second fees hearing, the trial court overruled the Wrights’ plenary
power objection. A dispute arose over redaction and segregation of the attorney’s
fees proof, and the issue was reset for a third hearing. During the third hearing, the
trial court again overruled the Wrights’ plenary power objection, concluding that it
had plenary power “to consider or sign an order regarding attorney’s fees.”
On June 27, 2023, the trial court signed its Second Judgment awarding nearly
identical relief, but specifying the amount of attorney’s fees:
IT IS FURTHER ORDERED, ADJUDGED, and DECREED that [the Limings] shall have and recover from [the Wrights] their attorney’s fees for the trial of this cause in the sum of thirty-nine thousand, five hundred and eighty-two dollars and nine cents ($39,582.09) for which let execution issue. IT IS FURTHER ORDERED, ADJUDGED, and DECREED that [the Limings] recover from [the Wrights] interest on the sum awarded in this paragraph beginning on the date of this Final Judgment at the rate of 5.00% per annum, compounded annually, for which let execution issue.
(italics added.) The Second Judgment was also titled “final” and included identical
finality language.
Again, neither side filed any post-judgment motions. Instead, the Wrights
appealed, contending that the Limings are not entitled to attorney’s fees.
5 Trial Court’s Jurisdiction to Enter the Second Judgment
A trial court retains plenary power over a case for 30 days after it signs a final
judgment, which includes the power to vacate, modify, correct, or reform its final
judgment. TEX. R. CIV. P. 329b(d). Plenary power can be extended up to 75 days
when a party timely files an appropriate post-judgment motion. See TEX. R. CIV. P.
329b(c); Lane Bank Equip. Co. v. Smith S. Equip., Inc., 10 S.W.3d 308, 310 (Tex.
2000). Action taken after the trial court’s plenary power has expired is void. State ex
rel. Latty v. Owens, 907 S.W.2d 484, 485 (Tex. 1995) (“A judgment is void only
when it is clear that the court rendering the judgment had no jurisdiction over the
parties or subject matter, no jurisdiction to render judgment, or no capacity to act as
a court.”).
Whether the trial court acted after its plenary power expired is a question of
subject-matter jurisdiction that we review de novo. In re Guardianship of Semrad,
No. 01-21-00491-CV, 2023 WL 5534251, at *7 (Tex. App.—Houston [1st Dist.]
Aug. 29, 2023, no pet.) (mem. op.) (citing Est. of Brazda, 582 S.W.3d 717, 731 (Tex.
App.—Houston [1st Dist.] 2019, no pet.)).
A. Applicable law
There can be only one final judgment in this cause. See TEX. R. CIV. P. 301.
“In determining whether a judgment is final, different presumptions apply depending
on whether the judgment follows a conventional trial on the merits or results from
6 default or a motion for summary judgment.” Hous. Health Clubs, Inc. v. First Ct. of
Appeals, 722 S.W.2d 692, 693 (Tex. 1986) (per curiam).
Under the Aldridge presumption, a judgment following a conventional trial on
the merits creates a presumption that the judgment is final for purposes of appeal
and disposes of all parties and issues unless the trial court ordered a separate trial to
resolve a specific issue. Ne. Indep. Sch. Dist. v. Aldridge, 400 S.W.2d 893, 897–98
(Tex. 1966); see TEX. R. CIV. P. 174(b) (permitting trial courts to “order a separate
trial of any claim, cross-claim, counterclaim, or third-party claim, or of any separate
issue or of any number of claims, cross-claims, counterclaims, third-party claims, or
issues” to further convenience or avoid prejudice). Absent a contrary showing in the
record, a judgment that follows a conventional trial on the merits does not need to
dispose of every party or claim for the Aldridge presumption to apply. Vaughn v.
Drennon, 324 S.W.3d 560, 561 (Tex. 2010) (per curiam) (citing Aldridge, 400
S.W.2d at 897–98). If a court has dismissed all the other claims in a case but one,
the order determining the last claim is final. See Lehmann v. Har-Con Corp., 39
S.W.3d 191, 200 (Tex. 2001).
Mother Hubbard clauses—clauses stating that “all relief not granted is
denied”—are weighed differently depending on whether the clause is included in a
judgment following a conventional trial. See id. at 204. “If there has been a full trial
on the merits either to the bench or before a jury, the language indicates the court’s
7 intention to finally dispose of the entire matter, assuming that a separate or bifurcated
trial is not ordered.” Id.
B. Analysis
In their first issue, the Wrights argue that the First Judgment is final because
it “disposes of every pending claim and party” and “clearly and unequivocally states
that it finally disposes of all claims and parties,” despite it ordering a future hearing
to calculate the awarded attorney’s fees. They argue that because the First Judgment
was final, and neither side filed post-judgment motions to extend the plenary period,
the trial court’s plenary power expired before it signed the Second Judgment, making
the Second Judgment void.
1. Finality under Aldridge.
Here, even though the First Judgment followed a conventional trial on the
merits, it contains language rebutting the Aldridge finality presumption. Vaughn,
324 S.W.3d at 563 (stating that presumption of finality applies “unless a trial court
orders a separate trial to resolve a specific issue”); Aldridge, 400 S.W.2d at 898
(presuming judgment following trial on merits is final “in the absence of a contrary
showing in the record”). The First Judgment awarded the Limings attorney’s fees
but expressly reserved, for future consideration, the calculation of the amount of
fees. That is, the First Judgment ordered that the Limings “shall have and recover
from [the Wrights] their attorney’s fees for the trial of this cause for an amount to be
8 determined during a separate hearing on a date and time noticed by [the Limings’]
counsel.” “A claim for attorney’s fees necessarily implies the existence of a separate
cause of action requiring disposition by the court.” Infonova Sols., Inc. v. Griggs, 82
S.W.3d 613, 616 (Tex. App.—San Antonio 2002, no pet.) (citing Travelers Indem.
Co. v. Mayfield, 923 S.W.2d 590, 593 (Tex. 1996)).
The First Judgment’s language thus reflects the trial court’s intention to
conduct a separate hearing, on a date and time noticed by plaintiff’s counsel, to
resolve the specific issue of calculating attorney’s fees. Because the trial court
ordered a separate hearing to resolve the specific issue of the amount of the Limings’
attorney’s fees, the Aldridge finality presumption is rebutted. Id.; see also Vaughn,
324 S.W.3d at 563; Aldridge, 400 S.W.2d at 898.
2. Finality under Mother Hubbard.
We next analyze whether the First Judgment is final because a Mother
Hubbard clause negated the trial court’s order for a separate hearing to calculate the
attorney’s fees it awarded. We conclude it is not.
The Mother Hubbard clause in the First Judgment reads:
Any other and further relief requested by a party to this action that is not expressly given in this Final Judgment is denied. This final judgment finally disposes of all parties and all claims and is appealable.
The Wrights contend that, under Patel and Lehmann, this language makes the First
Judgment final. Patel v. Nations Renovations, LLC, 661 S.W.3d 151, 155 (Tex.
9 2023) (per curiam); see also Lehmann, 39 S.W.3d at 204.
Both Patel and Lehmann analyzed judgments that did not result from a
conventional trial on the merits. Patel, 661 S.W.3d at 154 (assuming the disputed
judgment “did not follow a comprehensive arbitration equivalent to a conventional
trial on the merits”); Lehmann, 39 S.W.3d at 192 (analyzing the finality of a
judgment rendered without a conventional trial). Neither case specifically analyzed
Mother Hubbard clauses where a trial court simultaneously awarded relief, ordered
the relief to be calculated at a future hearing, and erroneously included a Mother
Hubbard clause. See Patel, 661 S.W.3d at 154; see also Lehmann, 39 S.W.3d at 194.
Still, Lehmann guides us in weighing the First Judgment’s Mother Hubbard
clause. After a conventional trial, the inclusion of this language indicates “the court’s
intention to finally dispose of the entire matter, assuming that a separate or
bifurcated trial is not ordered.” Lehmann, 39 S.W.3d at 204 (emphasis added).
Therefore, the presumption of finality traditionally associated with Mother Hubbard
clauses in judgments following a conventional trial on the merits only applies in the
absence of a contrary showing in the record. Aldridge, 400 S.W.2d at 898 (“The rule
announced disposes of the question to be decided in this case unless the statement
contained in the court’s summary judgment is regarded as an order for a separate
trial of the issue of damages.”); see also Exxon Corp. v. Garza, 981 S.W.2d 415, 419
10 (Tex. App.—San Antonio 1998, pet. denied) (“This presumption only applies,
however, in the absence of a contrary showing in the record.”).
Reading the body of the First Judgment, we conclude that its purpose was to
order a second hearing to calculate the awarded amount of attorney’s fees. Since the
trial court ordered a separate hearing to calculate the relief it awarded, the
presumption of finality traditionally attributed to Mother Hubbard clauses after a
conventional trial on the merits does not apply in this limited scenario. That the First
Judgment is titled “final” does not compel a different conclusion. Lehmann, 39
S.W.3d at 200 (“It is not enough, of course, that the order or judgment merely use
the word final.” (internal quotations omitted)).
3. Trial court’s intent from the decree.
Having overcome the Aldridge and Mother Hubbard presumptions of finality,
we now analyze the trial court’s intent. See Vaughn, 324 S.W.3d at 561. Questions
of “[f]inality must be resolved by a determination of the intention of the court [as]
gathered from the language of the decree and the record as a whole, aided on
occasion by the conduct of the parties.” Id. at 563 (citing Lehmann, 39. S.W.3d at
203).
Here, while the First Judgment awards attorney’s fees and orders the fees to
be calculated in a separate hearing, the judgment also includes a Mother Hubbard
clause stating that the judgment “finally disposes of all parties and all claims and is
11 appealable.” But the First Judgment did not actually dispose of the Limings’ claim
for attorney’s fees. The First Judgment ordered that the amount of awarded
attorney’s fees would be “determined during a separate hearing on a date and time
noticed by plaintiff’s counsel.” Guided by Vaughn and the parameters set in Aldridge
and Lehmann, we hold that the First Judgment, on its face, shows the trial court’s
intention to not completely dispose of the entire case and resolve the amount of fees
at a future hearing. See id.; see also Aldridge, 400 S.W.2d at 897–98; Lehmann, 39.
S.W.3d at 203.
Because the trial court’s intent that the First Judgment not be final is clear
from the face of the decree, analyzing the record or the parties’ conduct is not
necessary. Vaughn, 324 S.W.3d at 563 (citing Lehmann, 39 S.W.3d at 203). We
conclude that the trial court intended the First Judgment to be interlocutory.
4. Enforceability of final judgments.
Our conclusion is supported by analyzing the enforceability of the First
A final judgment must dispose of all parties and issues in a lawsuit and “be
certain, so that it can be enforced by writ of execution.” H.E. Butt Grocery Co. v.
Bay, Inc., 808 S.W.2d 678, 680 (Tex. App.—Corpus Christi–Edinburg 1991, writ
denied) (citing Schlipf v. Exxon Corp., 644 S.W.2d 453, 454 (Tex. 1982)). A
judgment that awards an unascertainable amount is interlocutory. In re
12 Blankenhagen, 513 S.W.3d 97, 100 (Tex. App.—Houston [14th Dist.] 2016, pet.
dism’d); In re Educap, Inc., No. 01-12-00546-CV, 2012 WL 3224110, at *3 (Tex.
App.—Houston [1st Dist.] Aug. 7, 2012, no pet.) (mem. op.). For a judgment to be
final, “[m]inisterial officers must be able to carry the judgment into execution
without ascertainment of additional facts.” In re Blankenhagen, 513 S.W.3d at 100.
(citing Bay, 808 S.W.2d at 680).
The First Judgment awarded attorney’s fees but did not specify the amount;
instead, it ordered that the amount be calculated during a separate hearing. The First
Judgment thus awards “an unascertainable amount” of attorney’s fees and cannot be
enforced without an officer ascertaining additional facts. Accordingly, the First
Judgment cannot be final and is interlocutory. See id.
5. Plenary power.
Concluding that the First Judgment is interlocutory, we hold that the trial court
had plenary power to sign the Second Judgment and it is not void.
The First Judgment did not dispose of all claims in the case and was thus not
enforceable. Because the First Judgment was interlocutory, the trial court’s plenary
power did not expire on April 12, 2023, as the Wrights contend. The trial court still
had plenary power to enter the Second Judgment awarding the Limings $39,582.09
in attorney’s fees and thus the Second Judgment is not void. See Guajardo v.
Conwell, 46 S.W.3d 862, 864 (Tex. 2001) (per curiam) (holding summary judgment
13 was interlocutory because intervenor’s claim for attorney’s fees remained pending);
see also Garza, 981 S.W.2d at 419–20 (holding first of two judgments signed after
trial was not final despite Mother Hubbard clause because it “contained no indication
that the trial court intended to disregard the jury’s verdict”); see also Brower v.
Hearn, No. 14-07-00967-CV, 2009 WL 10220174, at *2 (Tex. App.—Houston [14th
Dist.] Feb. 10, 2009, no pet.) (mem. op.) (concluding order was not final because it
“specifically noted that appellees might be entitled to reasonable attorneys’ fees in
an amount to be determined at a subsequent hearing”).
We overrule the Wrights’ first issue.
6. “One Judgment Rule” per Texas Rule of Civil Procedure 301.
In the Wrights’ fourth issue, they argue the Second Judgment is void because
“it constituted the second final judgment signed by the trial court in the same lawsuit,
with no vacating of the first final judgment occurring during the trial court’s plenary
power, therefore violating the One Judgment Rule.” But this argument hinges on the
Wrights’ assertion that the First Judgment was final, which we have rejected. See
Garza, 981 S.W.2d at 419.
Again, to be final, a judgment must dispose of all parties and issues. Aldridge,
400 S.W.2d at 895 (“[A]n appeal may be prosecuted only from a final judgment and
that to be final a judgment must dispose of all issues and parties in a case.”). Because
the First Judgment, properly construed, did not dispose of all claims and was not
14 enforceable, it was interlocutory. Id. Accordingly, the Second Judgment disposing
of the remaining claim for attorney’s fees is not a nullity and does not violate the
“One Judgment” Rule. See Garza, 981 S.W.2d at 420. Upon signing the Second
Judgment, any prior interlocutory orders, including the First Judgment, “merged into
it, creating only one final and appealable judgment.” Id. (citing Woosley v. Smith,
925 S.W.2d 84, 87 (Tex. App.—San Antonio 1996, no writ)); see also In re
Guardianship of Miller, 299 S.W.3d 179, 184 (Tex. App.—Dallas 2009, no pet.)
(“Once the trial court disposes of all parties and claims, the trial court’s preceding
interlocutory judgments and orders are merged into the final judgment whether or
not the interlocutory judgments or orders are specifically named within the final
judgment.”).
Concluding that the First Judgment is interlocutory, we hold the Second
Judgment does not violate Texas Rule of Civil Procedure 301.
We overrule the Wrights’ fourth issue.1
1 Because we conclude the Second Judgment is the final judgment, we need not reach the Wrights’ second and third issues challenging it as an improper nunc pro tunc judgment or enforcement action. See TEX. R. APP. P. 47.1. 15 Conclusion
Having concluded that the Second Judgment is the trial court’s final judgment
and not void, we affirm the Second Judgment.
Sarah Beth Landau Justice
Panel consists of Justices Landau, Countiss, and Guerra.