NO. 07-05-0329-CV IN THE COUR

T OF APPEALS FOR THE SEVEN TH DISTRICT OF TEXAS

AT AMARILLO PANEL D FEBRUARY

16, 2007

______________________________ PATTON C HILDR EN’S T RUST A ND GE RALD U LMER, APPELLANTS V. BILLIE HAMLIN , ELMER CR ISWELL, BRUCE SISK, TONY SO TO, JR., STEVE STEFEE, AND GABRIEL RODR IGUEZ, APPELLEES

_________________________________ FROM THE 64 TH DISTRIC T COURT O F HALE COUN TY; NO. A32568-301; H ONORABLE ROB ERT W. KINKAID, JR., JUD GE

_______________________________ Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
MEMORANDUM OPIN ION
This is an appeal br

ought by t he Patton Child ren’s Trus t (T rust) and Ger ald Ulmer (Ulmer) from a default judgment granted in favor of Billie Hamlin, Elmer Criswell, Bruce Sisk, Ton y Soto , Jr., Steve Stef ee, a nd Ga brie l Rodr iguez ( Appellees) in a declaratory2

judgment

proceeding original ly filed by Ap pellees. By letter dated January 5, 2007, this Courtdirected the Trust and Ulmer to show caus e why t his appeal should not be di smissed for want o f jur isdic tion . For t he re ason s tha t fo llow, we dismiss this appeal. Tex. R. App. P. 42.3(a). Factual Backg round
This cas e con cer ns t he r espe cti ve righ ts o f t he p arties to a 44 acre tract of land in Hale County, Tex

as (hereinafter

“the propert

y”). Appellees arethe owners of land adjacent to the property . The property consists of

railroad pr

operty formerl y owned by the Floydada & Plainvi ew Rail road Company ( F&PRR). When F&PRR fai led to p ay taxes on the prop erty, Ulmer negot iated wit h F&PRR to pay the taxes i n exchange for a de ed to th e prope rty

. In 2002, F&PRR executed a s pecial warranty de ed purporting to transfer the property to the Patton Chi ldren’s Trust. For reas ons that are not explained i n the record, nor releva nt to this deci sion, that deed w as predated to N ovember 1, 1995, and named Scott Say as Trustee of the Trust. The deed w as recorded on August 13, 2002, at Vol. 988, Img. 3432 of the Official Publ ic Recordsof Hale County , Texa s. Th e Trust claims title to the property

by vi rtue of that deed.
On January 13, 2003, Appellees broug ht this suit seekin g a declara tory judg ment that the deed wasinvalid and that Ulmer and the Trust had no ju stici able inte rest in th e pro pert y. Appelleesfurthe r sought in junctive re lief aga inst U lmer seeking to enjoin him or representativ

es of the Trus t from e xercis ing an y dom inio n and cont rol ove r the prop erty.3

Appelleesserved Ulmer in his individual capacity and Say in his capacity as Trustee of the Trust. On January

28, 2003, Jeffrey H . Conne r filed a resp o nse on behalf of Ulmer, and Say filed a pro se general deni al contending he was not the Trustee of the Trust . On March 14, 2003, the trial court entered a te mporaryinjunction en joining th e Trust and Ulmer from commiting certain acts . Neither pa rty soug ht an interloc utory appeal of that order, and the time for doing s o elapsed. Thereafter, on April 30, 2003, Conner filed an answer o n beh alf o f the Trust. On June 29, 2005, App ellees contested that answer by filing a Motion for At torney to Show Authority pursuant to Rule 12 of the Texas Rules of Civil Procedure. O n August 12, 2005 , the trial cour

t struck the answer fil ed by Conner on behalf of the Trust. Thereafter, on August19, 2005, the trial court entered a default judgment decl aring the dee d in questi on was invalid and the Tru st had no jus ticiable i nterest in the property. The judgment also granted a permanent injun ction “enjoi ning the Patton Famil y Trust its representatives, agents, employe es and b enef iciaries f rom ent ering o r exerci sing domini on over the Property. ” The judgment does not mention Ulmer . The Trust an d Ulmer no w seek appellate rev iew of this judgment.
Jurisdict ional Question
Atthe o ut set, this Co urt is obli ged to determi ne, sua sponte, issues affecting our jurisdict ion over an appeal. New York Underwriters Ins. Co. v. Sanchez , 799 S.W.2d 677, 678 (Tex. 1990). As a gener al rul e, a judg ment must be final before i t can be appealed.1 There are statutory exceptionspermitting interlocutor y appeals. See, e.g. Tex. Civ. Prac. & Rem. Code Ann. § 51.1 04 (Vernon Supp. 2006 ). 4 Lehmannv. Har-Con Corp. 39 S.W .3d 191, 195 (Tex. 2001 ). 1 A judgment is not final for purposes of appeal unless i t disposes of all partie s 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 f ails to dispose of the Appellees’ clai ms against U lmer. Even though the judg ment contains a “ Mother Hubbar d“ clause (to-wi t: “All rel ief not expres sly gr anted herein is de nied.”), the Supreme Court has stated thatsuch language in an order or judgment iss ued without a full trial cannot be taken as indicating finality. See Lehmann, 39 S.W.3d at 2 03-04. The Supr eme Courthas further held that a judgment issued without a conventional trial is final for purposes o f appeal if and only if it actually

disposes of all claims and parties then before the Cour t, or it states with unmistakable clarity

that it is a f inal ju dgment as to al l claims and parties. Id. at 192-93. See also Tex. R. Ci v. 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 jud gment as to Ulmer would have been i nappropriate. Be cause the order does not state w ith unm ista kabl e cla rity th at it is a f inal judgm ent a s to a ll par ties , it is inte rlocu tory.
In respon se to this Court’s l etter, the Trust and Ulmer ar

gue that thisCourt has jurisdict ion because this i s an appeal of a temp oraryinjunction as authorized by § 51.014(4)5

of the Texas Civil Practices and Remedies Code. That simply is not the cas e. Th e judgment

at issue grantsa permanent injunc tion, not a tempor

ary inj unction. Secondl y, the T rustand Ulmer argue that this Court should extend its jurisdiction to encompass issue s pertaining to the declaratory judgment because it has jurisdiction to ad dress the temporary injunction. As previously stated, the Trust and Ulmer’s reliance upon th e temporary injunction as a basis for appeal is inapposite. Thirdly, the Trust and Ulmer ask this Court to look to theintent

of the trial court and to the fact that the judgment in questi on addresses all the relief

requested by Appelle es to determine w hether the judg ment is final. N o amount of constructi on of the intent of the trial court or the relief granted by thejudgment in q uestion is going to overcome the fact that the trial court could not enter a default j udgment whil e Ulmer had pleadi ngs on file.
Until such t ime as the claims ag ainst Ulmer have been disp osed of by severance, dismissal, or final adjudication, this Court lacks jurisdiction. Accordingly, this appeal is dismissed for w

ant of jurisdic

tion.

Patrick A. Pirtle

Justice