Opinion
NO. 14-19-00972-CV
01-12-2021
JOSE M. GALLEGOS, Appellant v. ELLA PARK TERRACE CIVIC CLUB, Appellee
On Appeal from the 55th District Court Harris County, Texas
Trial Court Cause No. 2011-75448
MEMORANDUM OPINION
Appellant Jose M. Gallegos attempts to appeal the trial court's permanent injunction in favor of appellee Ella Park Terrace Civic Club. Because the order is interlocutory, we lack jurisdiction and dismiss the appeal.
BACKGROUND
On December 14, 2011, appellee Ella Park Terrace Civic Club filed an original petition in which Ella Park alleged that appellant Jose Gallegos altered the topography of his property leading to flooding of property in Ella Park. Ella Park sought damages and injunctive relief. Damages were sought for permanent harm and diminution in the reasonable fair market value of property in Ella Park. Injunctive relief was sought in the form of a permanent injunction requiring Gallegos to construct a barrier to prevent water from migrating to adjoining properties.
Suit was initially filed on behalf of Ella Park by the City of Houston. By the time Gallegos filed subsequent proceedings in 2018 the City had withdrawn from representing Ella Park as it was not authorized to represent private parties. See Tex. Civ. Prac. & Rem. Code Ann. § 125.002(a).
After several unsuccessful attempts at service on Gallegos Ella Park obtained an order for substitute service. Substitute service was accomplished on May 26, 2012. Ella Park filed a motion for default judgment on September 11, 2012 in which it alleged that Gallegos had not filed an answer or otherwise made an appearance. Ella Park further alleged in its motion that Gallegos owned the property adjacent to Ella Park and that Gallegos had altered the property such that it caused flooding on property in Ella Park. Ella Park requested the court to enter "a Default Judgment granting the relief requested in Plaintiffs' Original Petition for Damages to Land and for Injunctive Relief."
On September 26, 2012, the trial court signed a "Permanent Injunction" in which the court ordered:
1. The Premises adjoining Plaintiffs' property in Ella Park Terrace subdivision are declared a nuisance;
2. Defendant shall be restrained and enjoined from allowing or causing water to stream onto and over the property owned by Plaintiffs;
3. Defendant shall construct a barrier or alter the topography in order to prevent water from migrating onto adjoining properties;
4. Such barrier or alteration shall be completed by December 1, 2012;
5. In the event Defendant fails to comply by December 1, 2012
Plaintiffs may without further notice construct a barrier on Defendant's property to prevent water from migrating onto the adjoining properties.The trial court did not award damages as requested by Ella Park in its original petition and motion for default judgment. The court's order ended with language commonly known as a Mother Hubbard clause, i.e., "The court hereby denies all relief not expressly granted." Ella Park did not dismiss or otherwise sever its request for damages, nor was that portion of Ella Park's suit dismissed for want of prosecution.
6. Defendant shall maintain the Premises so that they are no longer a nuisance; and
7. Defendant's failure to comply with this Permanent Injunction shall constitute contempt of a valid court order.
On July 25, 2018, Gallegos filed a motion to set aside the permanent injunction in which he alleged that the substitute service did not comply with the trial court's order, and that he never received service of Ella Park's 2011 suit. The trial court denied Gallegos' motion to set aside default judgment stating the court had lost jurisdiction over the 2012 default judgment. Gallegos also filed a plea to the jurisdiction in which he alleged that Ella Park did not have standing to bring the 2011 suit. Gallegos also filed a bill of review in another cause number, which is still pending in the trial court.
Gallegos filed notice of appeal in this court seeking to appeal the trial court's orders denying his plea to the jurisdiction and motion to set aside default judgment. Gallegos also appealed the trial court's permanent injunction order.
ANALYSIS
In Gallegos' first issue he asserts that this court lacks jurisdiction over his appeal because the permanent injunction is not a final appealable judgment. We agree.
Ella Park sought both damages and injunctive relief in its original petition and in its motion for default judgment. The trial court granted injunctive relief but did not address Ella Park's request for damages. Ella Park argues that the judgment's Mother Hubbard language in addition to the record and the conduct of the parties shows the trial court intended the judgment to be final.
In Lehmann v. Har-Con Corp., 39 S.W.3d 191 (Tex. 2001), the Supreme Court of Texas held that "a judgment issued without a conventional trial is final for purposes of appeal if and only if either [1] it actually disposes of all claims and parties then before the court, regardless of its language, or [2] it states with unmistakable clarity that it is a final judgment as to all claims and all parties." Lehmann, 39 S.W.3d at 192-93. To determine whether an order is final, courts and parties must examine the express language of the order and whether the order actually disposes of all claims against all parties. Id. at 200. If neither examination indicates that the order is final, then the order is interlocutory and unappealable. Id.; see also Crites v. Collins, 284 S.W.3d 839, 840 (Tex. 2009).
Attempting to resolve decades of confusion, the court further held that "the inclusion of a Mother Hubbard clause—by which we mean the statement, 'all relief not granted is denied,' or essentially those words—does not indicate that a judgment rendered without a conventional trial is final for purposes of appeal." Lehmann, 39 S.W.3d at 203-04. Mother Hubbard clauses are problematic because they are open to interpretation. Id. at 204. Sometimes a Mother Hubbard clause "mean[s] only that the relief requested in the motion—not all the relief requested by anyone in the case—and not granted by the order is denied," and sometimes it "may also have no intended meaning at all, having been inserted for no other reason than that it appears in a form book or resides on a word processor." Id. The supreme court thus rejected the notion that a Mother Hubbard clause such as the one here gives "any indicia of finality in any order not issued after a conventional trial." Id.; Farm Bureau County Mut. Ins. Co. v. Rogers, 455 S.W.3d 161, 163 (Tex. 2015). "[W]hile a clause stating that 'all other relief not expressly granted is hereby denied' indicates that a post-trial judgment is final, it does not establish finality with regard to a default judgment." In re Burlington Coat Factory Warehouse of McAllen, Inc., 167 S.W.3d 827, 829-30 (Tex. 2005).
The language of the order at issue does not unequivocally express an intent to dispose of all claims and all parties; instead, it specifically disposes of only the injunctive relief requested by Ella Park. Ella Park asserts, however, that its attorneys drafted the court's injunction order and that by proposing the order, "Ella Park abandoned its claim for damages." In the alternative Ella Park asserts that the trial court's judgment can be read as denying its request for damages. Ella Park cites no authority for this proposition, and we have found none. In reviewing whether the trial court's order disposed of all parties and issues we examine the express language of the order. Lehmann, 39 S.W.3d at 200. The express language of the permanent injunction order does not dispose of Ella Park's damages claim. If Ella Park wanted to abandon such a claim it was entitled to dismiss the claim for damages. See Park Place Hospital v. Estate of Milo, 909 S.W.2d 508, 510 (Tex. 1995) (holding that an order of nonsuit dismissing the parties is needed to make a summary judgment final even when the plaintiff nonsuits all claims against the party).
The supreme court recently held, "when there is doubt about finality, the record resolves the issue." In re R.R.K., 590 S.W.3d 535, 541 (Tex. 2019). In this case, the record reflects that the permanent injunction signed September 26, 2012 is not a final appealable order. As such, we lack jurisdiction over Gallegos' appeal of that order. We sustain Gallegos' first issue.
In Gallegos' remaining issues he assails the trial court's order denying his motion for default judgment, signed February 18, 2019, and the order denying his motion to reconsider the plea to the jurisdiction, signed November 13, 2019. Because the trial court's default judgment is interlocutory, we lack jurisdiction over this appeal and need not address Gallegos' remaining issues.
CONCLUSION
We dismiss the appeal for want of jurisdiction.
/s/ Jerry Zimmerer
Justice Panel consists of Justices Bourliot, Zimmerer, and Spain.