NO. 07-05-0329-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL D

FEBRUARY 16, 2007

______________________________

PATTON CHILDREN’S TRUST AND GERALD ULMER, APPELLANTS

V.

BILLIE HAMLIN, ELMER CRISWELL, BRUCE SISK, TONY SOTO, JR.,

STEVE STEFEE, AND GABRIEL RODRIGUEZ, APPELLEES

_________________________________

FROM THE 64TH DISTRICT COURT OF HALE COUNTY;

NO. A32568-301; HONORABLE ROBERT W. KINKAID, JR., JUDGE

_______________________________

Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.

MEMORANDUM OPINION

This is an appeal brought by the Patton Children’s Trust (Trust) and Gerald Ulmer

(Ulmer) from a default judgment granted in favor of Billie Hamlin, Elmer Criswell, Bruce

Sisk, Tony Soto, Jr., Steve Stefee, and Gabriel Rodriguez (Appellees) in a declaratory
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judgment proceeding originally filed by Appellees. By letter dated January 5, 2007, this

Court directed the Trust and Ulmer to show cause why this appeal should not be dismissed

for want of jurisdiction. For the reasons that follow, we dismiss this appeal. Tex. R. App.

P. 42.3(a). 

Factual Background

This case concerns the respective rights of the parties to a 44 acre tract of land in

Hale County, Texas (hereinafter “the property”). Appellees are the owners of land adjacent

to the property. The property consists of railroad property formerly owned by the Floydada

& Plainview Railroad Company (F&PRR). When F&PRR failed to pay taxes on the

property, Ulmer negotiated with F&PRR to pay the taxes in exchange for a deed to the

property. In 2002, F&PRR executed a special warranty deed purporting to transfer the

property to the Patton Children’s Trust. For reasons that are not explained in the record,

nor relevant to this decision, that deed was predated to November 1, 1995, and named

Scott Say as Trustee of the Trust. The deed was recorded on August 13, 2002, at Vol. 988,

Img. 3432 of the Official Public Records of Hale County, Texas. The Trust claims title to

the property by virtue of that deed. 

On January 13, 2003, Appellees brought this suit seeking a declaratory judgment that

the deed was invalid and that Ulmer and the Trust had no justiciable interest in the property.

Appellees further sought injunctive relief against Ulmer seeking to enjoin him or

representatives of the Trust from exercising any dominion and control over the property.
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Appellees served Ulmer in his individual capacity and Say in his capacity as Trustee of the

Trust. On January 28, 2003, Jeffrey H. Conner filed a response on behalf of Ulmer, and

Say filed a pro se general denial contending he was not the Trustee of the Trust. On March

14, 2003, the trial court entered a temporary injunction enjoining the Trust and Ulmer from

commiting certain acts. Neither party sought an interlocutory appeal of that order, and the

time for doing so elapsed. 

Thereafter, on April 30, 2003, Conner filed an answer on behalf of the Trust. On

June 29, 2005, Appellees contested that answer by filing a Motion for Attorney to Show

Authority pursuant to Rule 12 of the Texas Rules of Civil Procedure. On August 12, 2005,

the trial court struck the answer filed by Conner on behalf of the Trust. Thereafter, on

August 19, 2005, the trial court entered a default judgment declaring the deed in question

was invalid and the Trust had no justiciable interest in the property. The judgment also

granted a permanent injunction “enjoining the Patton Family Trust its representatives,

agents, employees and beneficiaries from entering or exercising dominion over the

Property.” The judgment does not mention Ulmer. The Trust and Ulmer now seek

appellate review of this judgment.

Jurisdictional Question

At the outset, this Court is obliged to determine, sua sponte, issues affecting our

jurisdiction over an appeal. New York Underwriters Ins. Co. v. Sanchez, 799 S.W.2d 677,

678 (Tex. 1990). As a general rule, a judgment must be final before it can be appealed.
1There are statutory exceptions permitting interlocutory appeals. See, e.g. Tex. Civ.

Prac. & Rem. Code Ann. § 51.104 (Vernon Supp. 2006).

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Lehmann v. Har-Con Corp. 39 S.W.3d 191, 195 (Tex. 2001).1

 A judgment is not final for

purposes of appeal unless it disposes of all parties and issues. North E. Indep. School Dist.

v. Aldridge, 400 S.W.2d 893, 895 (Tex. 1966).

The judgment at issue in this case is interlocutory because it fails to dispose of the

Appellees’ claims against Ulmer. Even though the judgment contains a “Mother Hubbard“

clause (to-wit: “All relief not expressly granted herein is denied.”), the Supreme Court has

stated that such language in an order or judgment issued without a full trial cannot be taken

as indicating finality. See Lehmann, 39 S.W.3d at 203-04. The Supreme Court has further

held that a judgment issued without a conventional trial is final for purposes of appeal if and

only if it actually disposes of all claims and parties then before the Court, or it states with

unmistakable clarity that it is a final judgment as to all claims and parties. Id. at 192-93.

See also Tex. R. Civ. P. 306.

The trial court’s order in this case was entered without a conventional trial. Because

Ulmer had pleadings on file which were not struck by the trial court, a default judgment as

to Ulmer would have been inappropriate. Because the order does not state with

unmistakable clarity that it is a final judgment as to all parties, it is interlocutory.

In response to this Court’s letter, the Trust and Ulmer argue that this Court has

jurisdiction because this is an appeal of a temporary injunction as authorized by § 51.014(4)
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of the Texas Civil Practices and Remedies Code. That simply is not the case. The

judgment at issue grants a permanent injunction, not a temporary injunction. Secondly, the

Trust and Ulmer argue that this Court should extend its jurisdiction to encompass issues

pertaining to the declaratory judgment because it has jurisdiction to address the temporary

injunction. As previously stated, the Trust and Ulmer’s reliance upon the temporary

injunction as a basis for appeal is inapposite. Thirdly, the Trust and Ulmer ask this Court

to look to the intent of the trial court and to the fact that the judgment in question addresses

all the relief requested by Appellees to determine whether the judgment is final. No amount

of construction of the intent of the trial court or the relief granted by the judgment in question

is going to overcome the fact that the trial court could not enter a default judgment while

Ulmer had pleadings on file.

Until such time as the claims against Ulmer have been disposed of by severance,

dismissal, or final adjudication, this Court lacks jurisdiction. Accordingly, this appeal is

dismissed for want of jurisdiction.

Patrick A. Pirtle

 Justice