Gordon C. Boyce v. John MacKoy ( 2007 )

In The Court of Appeals Sixth Appellate District of Texas at Texarkana

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No. 06-07-00009-CV ______________________________



GORDON C. BOYCE, Appellant

V.

JOHN MACKOY, Appellee

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On Appeal from the County Court at Law Lamar County, Texas Trial Court No. 68663

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Before Morriss, C.J., Carter and Moseley, JJ. Memorandum Opinion by Justice Carter

MEMORANDUM OPINION

Gordon C. Boyce appeals from a default judgment entered for Raymond Cain in this obstructed-easement case. After entry of judgment, John Mackoy purchased Cain's land; he is the substituted Appellee. Boyce raises eight points of error. Although the parties did not raise or brief the issue, our own review of the record reveals that the trial court did not render a final, appealable judgment and that we do not have jurisdiction over the appeal.

Unless otherwise statutorily authorized, an appeal may be made only from a final judgment. See Tex. Civ. Prac. & Rem. Code Ann. § 51.012 (Vernon 1997), § 51.014 (Vernon Supp. 2006); Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001). The decree granting a permanent injunction is a final judgment and "must dispose of all parties and issues raised by the pleadings and evidence the same as final judgments in other civil actions." 44 Tex. Jur. 3d Injunctions § 146 (2005) (footnotes omitted). A final judgment is one that disposes of all parties and all issues in a lawsuit. Schlipf v. Exxon Corp., 644 S.W.2d 453, 454 (Tex. 1982); see also Kubala Public Adjusters, Inc. v. Unauthorized Practice of Law Comm., 133 S.W.3d 790, 794 (Tex. App.--Texarkana 2004, no pet.).

The typical presumption that a judgment not intrinsically interlocutory in character-- rendered and entered in a case regularly set for a conventional trial on the merits and with no order for a separate trial of issues--will be presumed final does not apply to default judgments. See Houston Health Clubs v. First Court of Appeals, 722 S.W.2d 692 (Tex. 1986) (citing Teer v. Duddlesten, 664 S.W.2d 702, 704 (Tex. 1984)); Baker v. Hansen, 679 S.W.2d 480, 481 (Tex. 1984); PHB, Inc. v. Goldsmith, 539 S.W.2d 60 (Tex. 1976). Contra N.E. Ind. School Dist. v. Aldridge, 400 S.W.2d 893, 897-98 (Tex. 1966) (for the presumption of finality after trial on merits). The finality of a judgment is determined on its face by the language of the judgment for purposes of appeal. Lehmann, 39 S.W.3d at 199.

The order at issue is styled "Final Judgment." It is rendered on the petition pleading for temporary injunction, permanent injunction, and damages. ⁽¹⁾

The order defines certain obstructions currently on the (undefined) easement and then states:

IT IS, THEREFORE, ORDERED, ADJUDGED AND DECREED that Defendant, GORDON C. BOYCE, within thirty (30) days of the signing by the Court of this judgment, remove all fences, structures and anything or matter that in any manner obstructs the easement owned by Plaintiff, RAYMOND CAIN herein.

Should the said GORDON C. BOYCE fail to remove all obstacles within 30 days of the signing of this judgment, IT IS ORDERED that RAYMOND CAIN is granted judgment in the amount of $1,500.00 to pay for removal of all such obstructions on and over the easement and GORDON C. BOYCE is ORDERED not to in any manner or means to [sic] interfere with such removal.

Subsequent to the expiration of the thirty (30) day period above, should RAYMOND CAIN not be allowed by the Defendant, GORDON C. BOYCE to remove the obstructions or should the Defendant, GORDON C. BOYCE interfere with such removal, IT IS ORDERED that Plaintiff, RAYMOND CAIN shall recover the sum of $100.00 per day from the Defendant, GORDON C. BOYCE, for each day that such obstructions remain on and over the easement preventing Plaintiff, RAYMOND CAIN to access his property.

The order also provides for Boyce's payment of costs and fees. The order does not include a "Mother Hubbard" clause or other language indicating an intent to dispose of all issues not otherwise addressed.

The judgment does not enjoin Boyce's placement of future obstructions across the easement that would restrict Cain's access to his property. ⁽²⁾ By only addressing the current situation and not enjoining future acts of obstruction, the purported final judgment does not dispose of all claims presented. As such, it is not final.

Neither do we have jurisdiction over the appeal as an appealable interlocutory temporary injunction. ⁽³⁾ The jurisdiction of a court of appeals is invoked by timely filing documents showing a bona fide intent to appeal. See Verburgt v. Dorner, 959 S.W.2d 615, 616 (Tex. 1997). In an accelerated appeal, such as an appeal of an interlocutory order, the notice of appeal must be filed within twenty days after the judgment is signed. See Tex. R. App. P. 26.1(b), 28.1. Boyce did not file his notice of appeal within twenty days of the signing of the order.

Once a court determines that it has no jurisdiction, its only legitimate choice is to dismiss. State v. Morales, 869 S.W.2d 941, 949 (Tex. 1994). We have no jurisdiction over this appeal as an appeal of either a final judgment or interlocutory temporary injunction.

Accordingly, we dismiss this appeal for want of jurisdiction.

Jack Carter

Justice

Date Submitted: September 26, 2007

Date Decided: October 5, 2007

1. The petition, which was the active pleading at time of judgment, sought both the removal of the current obstruction and for the court to "permanently enjoin the Defendant from restricting access by the Plaintiff to his property." It asked the court to permanently enjoin Boyce "from placing the fence across the easement to the Plaintiff's property for all time."

2. At oral argument, Appellee's counsel suggested that the $100.00 a day clause of the order constitutes the permanent injunction. We disagree. First, that clause governs interference with removal of the and such obstructions, which grammatically refers to those obstructions elsewhere mentioned, i.e., the obstructions in place at the time of judgment. Second, even if the $100.00 a day clause could be read to govern the placement of future obstructions, it is only effective on some future events or contingencies, namely, the expiration of thirty days and Boyce's interference with Cain's attempts at removal. "A judgment that is to become effective only upon the happening of some future event or contingency is ordinarily not a final judgment." Mackie v. Mackie, 571 S.W.2d 379, 380 (Tex. App.--Texarkana 1978, writ dism'd).

3. "Though appellate review is generally limited to final judgments, a court of appeals may consider an interlocutory order that grants a temporary injunction. Thus, whether jurisdiction was conferred on the court of appeals depends on whether the trial court's order can properly be characterized as a temporary injunction." Del Valle Indep. Sch. Dist. v. Lopez, 845 S.W.2d 808, 809 (Tex. 1992) (internal citations omitted); see also Qwest Commc'ns Corp. v. AT&T Corp., 24 S.W.3d 334, 336 (Tex. 2000).