Clay Ammerman and Erin Ammerman v. Johnny Wilson & Angela Wilson ( 2017 )

COURT OF APPEALS FOR THE
FIRST DISTRICT OF TEXAS AT HOUSTON
ORDER
Appellate case name: Clay Ammerman and Erin Ammerman v. Johnny Wilson and
Angela Wilson
Appellate case number: 01-17-00448-CV
Trial court case number: 16-01-23529
Trial court: 506th District Court of Waller County
On June 14, 2017, appellants, Clay and Erin Ammerman, filed a notice of appeal
from the trial court’s order, signed on May 16, 2017, granting appellees Johnny and
Angela Wilsons’ traditional motion for summary judgment under the Texas Uniform
Declaratory Judgments Act.1 See TEX. R. APP. 26.1. On November 16, 2017, appellants
filed their appellate brief.
On December 11, 2017, appellees, Johnny and Angela Wilson, filed this opposed
motion to abate appeal. Appellees note that the trial court had previously granted
summary judgment for the appellees on July 6, 2016, which had disposed of the
appellants’ claims for declaratory judgment and breach of contract. Later, the trial
court granted the appellees’ affirmative claims, on May 16, 2017, against appellants
for their breach of contract and declaratory judgment claims. Appellees seek
abatement because the trial court did not explicitly rule on appellants’ application
for permanent injunction and the trial court should be allowed to clarify with a final
1
The notice also stated that appellants were appealing from the order granting defendants’
second traditional motion for summary judgment, signed on November 21, 2016, which
dismissed all of the appellants’ claims against defendants, the Ranches of Clear Creek
Community Association, Inc., and the Ranches of Clear Creek Architectural Review
Committee (“Clear Creek Defendants”). Appellants filed an earlier notice of appeal on
January 3, 2017, from the order, signed on December 13, 2016, granting severance of the
Clear Creek Defendants’ claims from the Wilsons. That appeal was assigned to appellate
cause number 01-17-00015-CV. Appellants’ notice of appeal in this case contends that
because the Wilsons were the only remaining defendants after severing the Clear Creek
Defendants, the May 16, 2017 order was a final judgment.
judgment denying this claim. See Lehmann v. Har-Con Corp., 39 S.W.3d 191, 206
(Tex. 2001); (citing TEX. R. APP. P. 27.2) (“If the appellate court is uncertain about the
intent of the order, it can abate the appeal to permit clarification by the trial court.”);
TEX. R. APP. P. 27.3.
However, “[a] permanent injunction is an equitable remedy for some other cause
of action and requires a liability finding after a final hearing on the merits.” Livingston v.
Livingston, No. 01-16-00127-CV, 2017 WL 4171903, at *11 (Tex. App.—Houston [1st
Dist.] Sept. 21, 2017, no pet.) (“A permanent injunction cannot be granted absent a
finding of liability on some underlying cause of action.”) (internal quotation marks and
citations omitted). A “permanent injunction is not a cause of action but an equitable
remedy.” Cooper v. Litton Loan Servicing, LP, 325 S.W.3d 766, 769 (Tex. App.—Dallas
2010, no pet.) (citation omitted). Thus, a request for a permanent injunction is not a
cause of action, but ancillary relief to the declaratory judgment claim, which was
denied by the May 16, 2017 order, making it a final judgment. See Lehmann, 39
S.W.3d at 206.
Accordingly, appellees’ motion to abate is denied.
It is so ORDERED.
Judge’s signature: /s/ Evelyn V. Keyes
 for the Court
Date: December 21, 2017