law-finality of order | appellate jurisdiction | interlocutory vs final order | interlocutory appeal | appeal from final
judgment disposing of all parties and claims | severance made order final | appealable order | timeliness of notice
of appeal | deadline for perfecting appeal | dismissal for failure to invoke appeallate jurisdiction | dismissal for want
of jurisdiction | appellate challenge to interlocutory order by petition for mandamus relief |
With few exceptions, an appeal may only be taken from a final judgment. Lehmann v. Har-Con Corp., 39
S.W.3d 191, 195 (Tex. 2001). An order or judgment is ordinarily not final for purposes of appeal unless it
actually disposes of every pending claim and party or clearly and unequivocally states that it finally
disposes of all claims and parties. Id. at 205; see also Underhill v. Underhill, 614 S.W.2d 178, 181 (Tex.
Civ. App.—Houston [14th Dist.] 1981, writ ref’d n.r.e.).
The judgment is not final merely because it states that it is final; it must actually dispose of all parties and
claims or demonstrate an unequivocal intent to dispose of all parties and claims. See Lehmann v. Har-
Con Corp., 39 S.W.3d 191, 205 (Tex. 2001).
REGULAR APPEAL REQUIRES FINAL ORDER / JUDGMENT
Generally, parties may appeal only from a final judgment. Brittingham-Sada de Ayala v.
Mackie, 193 S.W.3d 575, 578 (Tex. 2006); Bozeman v. Kornblit, 232 S.W.3d 261, 262
(Tex. App.--Houston [1st Dist.] 2007, no pet.).
An appeal may be taken only from a final judgment, unless a statute specially authorizes an interlocutory appeal.
See Tex. Civ. Prac. & Rem. Code Ann. §§ 51.012, 51.014(a) (Vernon 1997 & Supp. 2007); Lehmann v. Har-Con
Corp., 39 S.W.3d 191, 195 (Tex. 2001). Although the trial court and the parties may have presumed all claims and
parties were disposed of, an appellate court cannot speculate as to the intended disposition of any remaining
claims. See Sw. Invs. Diversified, Inc. v. Estate of Mieszkuc, 171 S.W.3d 461, 469 (Tex. App.-Houston [14th Dist.]
2005, no pet.). A judgment issued without a conventional trial on the merits is final for purposes of appeal if it: (1)
actually disposes of all claims and all parties before the court; or (2) states with unmistakable clarity it is a final
judgment as to all claims and all parties. Lehmann, 39 S.W.3d at 192.
To determine whether an order actually disposes of all pending claims and parties, it is necessary for the courts of
appeals to look to the record of the case. See id. at 205-06. If the record reveals the existence of parties or claims
not mentioned in the order, the order is not final. Id. at 206. An order does not dispose of all claims and all parties
merely because it is entitled “final,” uses the word “final” in the order, awards costs, or states that it is appealable.
Id. at 205.
However, the language of an order or judgment can make it final, even though it should have been interlocutory, if
that language expressly disposes of all claims and all parties. Id. at 200. The intent to finally dispose of the case
must be unequivocally expressed in the words of the order itself. Id. An order that expressly disposes of the entire
case is not interlocutory merely because the record fails to show an adequate motion or other legal basis for the
disposition. Id. at 200, 206. Granting more relief than the movant is entitled to makes the order reversible, but it is
not, for that reason alone, interlocutory. Id. at 200, 204. If the language of an order is clear and unequivocal, it
must be given effect despite any other indications that one or more parties did not intend for the judgment to be
final. Id. at 206. When a defendant moves for summary judgment on only some of the multiple claims asserted, and
the trial court grants the motion for summary judgment, without stating the grounds, and orders that the plaintiff
take nothing, that judgment is erroneous, but final. See Jacobs v. Satterwhite, 65 S.W.3d 653, 655-56 (Tex. 2001).
REGULAR APPEALS ONLY FROM A FINAL JUDGMENT (UNLESS INTERLOCUTORY
APPEAL IS AUTHORIZED BY STATUTE)
CASES FROM HOUSTON COURTS OF APPEALS
A default judgment is not presumed to be final. In re Burlington Coat Factory Warehouse of McAllen, Inc., 167 S.W.
3d 827, 829 (Tex. 2005) (orig. proceeding); Houston Health Clubs, Inc. v. First Court of Appeals, 722 S.W.2d 692,
693 (Tex. 1986) (orig. proceeding) (per curiam). When there has not been a conventional trial on the merits, an
order or judgment is not final for purposes of appeal unless it (1) actually disposes of every pending claim and
party, or (2) clearly and unequivocally states that it finally disposes of all claims and all parties. Lehmann v. Har-
Con Corp., 39 S.W.3d 191, 205 (Tex. 2001). “[A] default judgment that fails to 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.’” In re
Burlington Coat Factory Warehouse of McAllen, Inc., 167 S.W.3d at 830 (quoting Lehmann, 39 S.W.3d at 200);
see also In re Lynd. Co., 195 S.W.3d 682, 685 (Tex. 2006) (orig. proceeding) (“A default judgment is deemed final
if it expresses an unequivocal intent to finally dispose of the case.”).
In re Drake (Tex.App.- Houston [14th Dist.] Feb. 9, 2010)(per curiam)
(mandamus challenging order granting new trial denied; default judgment was only partial, did not dispose of all
claims in suit, thus there was no final judgment and plenary power had not expired)
MOTION OR WRIT DENIED: Per Curiam
Before Justices Frost, Boyce and Sullivan
14-09-01058-CV In Re John Drake
Appeal from 133rd District Court of Harris County
Trial Court Judge: Jaclanel McFarland
FINALITY REQUIREMENT: Generally, appeals may be taken only from final judgments. Lehmann v.
Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001). Generally, appeals may be taken only from final
judgments. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001). Interlocutory orders may be appealed
only if expressly permitted by statute. Bally Total Fitness Corp. v. Jackson, 53 S.W.3d 352, 352 (Tex. 2001); Jack
B. Anglin Co., Inc. v. Tipps, 842 S.W.2d 266, 272 (Tex. 1992) (orig. proceeding).
NO MANDAMUS WHEN REGULAR APPEAL AVAILABLE FROM FINAL ORDER
To be entitled to the extraordinary relief of a writ of mandamus, a relator must show that the trial court clearly
abused its discretion and he has no adequate remedy by appeal. In re Team Rocket, L.P., 256 S.W.3d 257, 259
(Tex. 2008) (orig. proceeding). Relator complains that the two orders signed by Judge Ellisor and Judge Garner
are void and, therefore, not appealable. Both orders, upon finding that relator had filed the respective underlying
lawsuits in violation of the order finding him to be a vexatious litigant, and that he had filed the underlying lawsuits
without obtaining prior permission from the local administrative judge, dismissed the underlying cases with
prejudice.
A void judgment can become final for purposes of appeal. Newsom v. Ballinger Indep. Sch. Dist., 213 S.W.3d 375,
379, 380 (Tex. App.- Austin 2006, no pet.); In re Vlasak, 141 S.W.3d 233, 237-38 (Tex. App.-San Antonio 2004,
orig. proceeding). Each order “disposes of the entire case" and directs that “[p]laintiff shall take nothing by this
suit." Having disposed of all claims, the orders are final and thus are appealable even if void. See In re Vlasak,
141 S.W.3d at 237-38 (holding court can render final judgment even if it lacks personal jurisdiction - judgment is
void if challenged, but no less final); Estate of Courvier, No. 04-07-00469-CV, 2007 WL 2935809, at *1 (Tex. App.-
San Antonio Oct. 10, 2007, no pet.) (mem. op.) (assuming, without deciding, trial court's judgment is void,
appellant was required to file timely notice of appeal). Therefore, we need not determine whether either order is
void because relator has an adequate remedy by appeal. See In re Hamel, 180 S.W.3d 226, 229 (Tex. App- San
Antonio 2005, orig. proceeding) (stating that mandamus relief is not available if the order complained of is
appealable because appeal is almost always adequate remedy).
In Re Johnson (Tex.App.- Houston [14th Dist.] Jul. 23, 2009)(per curiam denial)
(allegedly void final orders dismissing cases with prejudice are nevertheless appealable; mandamus relief denied)
(IFP appeal, finality of order for purposes of regular appeal, mandamus criteria)
MOTION OR WRIT DENIED: Per Curiam
Before Justices Anderson, Guzman and Boyce
14-09-00614-CV In Re R. Wayne Johnson
Appeal from 10th District Court of Galveston County (judge's name not on docket)
EFFECT OF GRANT OF NEW TRIAL AFTER NOTICE OF APPEAL IS FILED: When a motion for
new trial is granted, the case is reinstated upon the docket of the trial court and will stand for trial the
same as though no trial had been had. Wilkins v. Methodist Health Care Sys., 160 S.W.3d 559, 563
(Tex. 2005). Thus, when the trial court grants a motion for new trial, the trial court "essentially wipes the
slate clean and starts over." Id. Here, the trial court granted Stelly's motion for new trial within the period
of its plenary power. See Tex. R. Civ. P. 329b(d), (e); Thomas v. Oldham, 895 S.W.2d 352, 356 (Tex.
1995). Therefore, the issues presented in this appeal are rendered moot and this Court lacks appellate
jurisdiction. Accordingly, we order the appeal dismissed.
Stelly v. Citibank (Tex.App.- Houston [14th Dist.] May 15, 2008)(Hedges) (credit card debt suit, appeal mooted by trial court's grant of
motion for new trial after notice of appeal was filed)
DISMISSED: Opinion by Chief Justice Adele Hedges
14-07-00601-CV Diane T. Stelly v. Citibank (South Dakota) N.A.
Appeal from County Civil Court at Law No 4 of Harris County
Trial Court Judge: Roberta Anne Lloyd
PRESUMPTIONS AS TO FINALITY OF JUDGMENT: We do not presume a default judgment to be an
appealable final judgment. See Lehmann v. Har-Con Corp., 39 S.W.3d 191, 199-200 (Tex. 2001). A judgment
that finally disposes of all remaining parties and claims based upon a review of the record is final and appealable.
Id. The August 31, 2007 default judgment is final because it addresses all relief sought by Textron and Farmtrac
against Jackson, and disposes of “any and all claims by Jackson against Textron or Farmtrac.” Therefore, the
default judgment is final and appealable, and we have jurisdiction over Jackson’s appeal. See id. Jackson v.
Textron Fin. Corp. (Tex.App. – Houston [14th Dist.] Apr. 14, 2009)(Boyce)
Dyer v. Tex. Bd. of Pardons and Paroles (pdf) (Tex.App.- Houston [1st Dist.] Jan. 14, 2009)(Bland)
(petition for expunction of an arrest record pursuant to Chapter 55 of the Texas Code of Criminal Procedure,Tex.
Code Crim. Proc. Ann. art. 55.01 (Vernon Supp. 2009), finality issue and appellate jurisdiction, DWOJ)
The trial court signed an order sustaining the district clerk’s contest to Fredrick Dyer’s affidavit of indigency. On appeal, Dyer
requests that we reverse the trial court’s order and allow him to proceed as indigent in the trial court. We dismiss the appeal for
want of jurisdiction because the trial court’s order sustaining the contest to Dyer’s affidavit of indigency is neither final nor appealable.
DISMISS APPEAL: Opinion by Justice Jane Bland
Before Chief Justice Radack, Justices Bland and Massengale
01-08-00884-CV Fredrick Dwayne Dyer v. Texas Board of Pardons and Paroles
Appeal from 190th District Court of Harris County
Trial Court Judge: Hon. Patricia J. Kerrigan
Nashville Texas, Inc. v. City of Burleson (Tex.App.- Houston [1st Dist.] Mar. 12, 2009)(Alcala)
(untimely appeal, finality, prayer for attorney's fee not sufficient to assert counterclaim)
DISMISS APPEAL: Opinion by Justice Alcala
Before Chief Justice Radack, Justices Alcala and Hanks
01-08-00274-CV Nashville Texas, Inc. v. City of Burleson, Texas, Rovin, Inc., Paradigms for Success, Inc.
Appeal from COUNTY COURT AT LAW of Callahan County
Trial Court Judge: Hon. William C. Bosworth Jr.
Thompson v. Myrow (Tex.App.- Houston [1st Dist.] Aug 14, 2008)(Keyes)
(probate case, finality of order, no interlocutory jurisdiction, DWOJ)
DISMISS APPEAL: Opinion by Justice Keyes
Before Chief Justice Radack, Justices Keyes and Higley
01-07-00125-CV Marjorie Thompson and George Thompson v. David Myrow
Appeal from Probate Court No 3 of Harris County
Trial Court Judge: Hon. Rory R. Olsen
Sondock v. HCAD (Tex.App.- Houston [14th Dist.] May 31, 2007)(Hedges)
[property tax, HCAD appeal, unequal assessment]
AFFIRMED: Opinion by Chief Justice Hedges
Before Chief Justice Hedges, Justices Hudson and Guzman
14-06-00676-CV Deborah S. Sondock, as the Property Owners and the Property Owners v. Harris County
Appraisal District
Appeal from 125th District Court of Harris County (Hon. John A. Coselli)
The Appraisal Review Board of Harris County Appraisal District ("the Board") was also named as a defendant in appellant's petition.
It is undisputed that appellant never obtained service over the Board. Even though only HCAD moved for summary judgment, the
judgment in this case is nonetheless final for purposes of appeal. A judgment is final "if it disposes of all pending parties and claims
in the record." Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001). To determine whether a judgment disposes of all
pending claims and parties, it may be necessary for the appellate court to look to the record in the case. Id. There must be some
"clear indication that the trial court intended the order to completely dispose of the entire case." Id. at 205. Therefore, a judgment is
final for purposes of appeal when (1) the judgment expressly disposes of some, but not all defendants, (2) the only remaining
defendants have not been served or answered, and (3) nothing in the record indicates that the plaintiff ever expected to obtain service
on the unserved defendants. See Youngstown Sheet & Tube Co. v. Penn, 363 S.W.2d 230, 232 (Tex.1962) (describing when failure
to obtain service on defendant may be treated as a nonsuit for purposes of determining finality of judgment); see also M.O. Dental
Lab. v. Rape, 139 S.W.3d 671, 674-75 (Tex. 2004) (holding that decision in Penn survives Lehmann); In re Sheppard, 193 S.W.3d
181, 187 (Tex.App.-Houston [1 Dist.] 2006, orig. proceeding).
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