DISMISS and Opinion Filed August 8, 2018 

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In The 

## Court of Appeals Fifth District of Texas at Dallas
No. 05-18-00486-CV IN THE INTEREST OF A.R.J., A CHILD On Appeal from the 416th Judicial District Court Collin County, Texas Trial Court Cause No. 416-51874-2013



### MEMORANDUM OPINION Before Chief Justice Wright, J ustice Evans, and Justice Brown Opinion by Chief Justice Wright This Court questioned its jurisdiction over this appeal as it a ppeared the notice of appeal was untimely. We instructed the parties to file letter briefs addressing this Court’s jurisdiction. The parties complied. Generally, appellate courts have jurisdiction only over final j udgments and certain interlocutory orders as permitted by statute. See Lehmann v. Har-Con Corp. , 39 S.W.3d 191, 195 (Tex. 2001). A final judgment is one that disposes of all pend ing parties and claims. Id . A judgment may not condition recove ry on uncertain events or depe nd on what the parties might or might not do pos t-judgment. See Hinde v. Hinde , 701 S.W.2d 637, 639 (Tex. 1985). However, a judgment settling all legal issues and rights between the parti es may be final and appealable even if further proceedings may be necessary for purposes of its exe cution or an incidental or dependent matter remains to be settled. Id . (citing Hargrove v. Ins. Invs. Corp. , 176 S.W.2d 744, 747 (Tex.–2– 1944)). A judgment that disposes of all parties and claims is appealable as long as “it neither conditions nor clouds with uncerta inty the rights and obligatio ns it establishes.” Id

. The trial court signed the Order in Suit to Modify Parent-Child Relationship on June 2, 2017. In that order, the trial court conditionally awarded att orney’s fees as follows: IT IS ORDERED that if [appellant] files a future Petition to Mo dify the ParentChild Relationship seeking a chan ge in conservatorship, possess ion, or access of the child and such modification is not granted, then [appellee] shall be granted a judgment in the sum of $21,375.00 plus the prevailing judgment interest rate accruing from the applicable date against [appellant] for fees incurred up through the rendering of this final order. IT IS FURTHER ORDERED that these orders do not limit either parties’ ability to request fees as a result o f any future modification. Appellee timely filed a motion to modify on June 28, 2017. In his motion, appellee asked that the trial court modify the judgment with respect to attorney’s fees “to enter a specific and definite judgment in the amount of $21,375.00.” On March 14, 2018, the trial court signed a clarified final order that modified the language awarding appellee a judgment f or his attorney’s fees. The trial court conditioned execution of the judgment for attorney’s fees on appellant seeking but being denied modification involving th e conservators hip, possession, or access of the child. The March 14 order is the subject of this ap peal. This Court’s jurisdict ion depends upon whether the June 2 judgment was final and appealable. In her letter brief, appellant agrees that the June 2 judgment is the final judgment and that the March 14 judgment was signed after the trial court’s plenar y power had expired. Appellee, however, disagrees. Relying on Olympia Marble & Granite v. Mayes , 17 S.W.3d 437 (Tex. App.—Houston [1st Dist.] 2000, no pet.), he argues the June 2 j udgment was not final because the attorney’s fee language in that judgment was uncertain. In Olympia Marble , the court held an earlier judgment was interlocutory because it left open the amo unt of prejudgment interest to be awarded. Id . at 443. The court held where it was unclear as to the date p rejudgment interest should accrue and whether any period of delay tolled the accrual of pr ejudgment interest, it was not a–3– mere ministerial act to calc ulate prejudgment interest. Id . at 443. Under these ci rcumstances, the amount of the judgment was uncertain and the judgment was inter locutory. Id . This Court addressed conditional judgment language in Riner v. Neumann , No. 05-07-01053-CV, 2008 WL 4938438 *1 (Tex. App.—Dallas Nov. 20, 2008, no pet.) (mem. op). In Riner , the judgment awarded $7,500 in damages plus $25.48 “per day for each day aft er July 12, 2007, that [the appellant] retains possession of the real property.” Id. This Court held the judgment was not final because the clerk would have no definite information to calcula te the per diem award. Id

. In contrast to the judgments in Riner and Olympia Marble , the attorney’s fee award in the June 2 judgment does not contain the uncertainty that renders a judgment interlocutory. As this Court noted in Riner , a conditional award of attorne y’s fees does not render an oth erwise final judgment interlocutory because such an award is a definite amou nt that a clerk is able to determine based on ascertainable facts. See Riner , 2008 WL 4938438 *1; see also Hargrove Hargrove , 176 S.W.2d at 747 (judgment final that awarded damages for breach o f contract but delayed payment and provided a credit depending on outcome of pending suit invo lving different parties); Ferguson v. Ferguson , 338 S.W.2d 945, 948 (Tex. 1960) (judgment awarding wife one-h alf of husband’s business profits and ordering husband to furnish accounting to decide amount of profits was final; rendering of accounting and profits was “ministerial act incide nt to the final judgment”). Here, the language in the June 2 judgment is clear — if appellant fil es a future petition seeking a change in conservatorship, possession, or access of the child and the modification is not granted, then appellee is entitled to a judgment in the amount of $21,375.00. We hold the June 2 judgment was final and appealable. Having determined the June 2, 2017 judgment was final, the tri al court’s plenary power expired on September 15, 2017, thirty days after appellee’s mot ion to modify was overruled by operation of law. See T EX
. R. C IV
. P. 329b(c), (e). Accordingly, the clarified final order signed–4– on March 14, 2018 is void because the trial court signed it aft er its plenary power had expired. See State ex rel. Latty v. Owens , 907 S.W.2d 484, 486 (Tex. 1995). With the June 2 judgment being the final judgment, the notice o f appeal was due August 31, 2017, ninety days after the date the judgment was signed. See T EX
. R. A PP
. P. 26.1(a). Appellant filed a notice of appeal on April 30, 2018. Because the notice of appeal was untimely, we lack jurisdiction over the appeal. See T EX
. R. A PP
. P. 25.1(b). Accordingly, we vacate the trial court’s March 14, 2018 orde r as void and dism iss the appeal for want of jurisdiction. See T EX
. R.
A PP
. P. 42.3(a).

180486F.P05 /Carolyn Wright/ CAROLYN WRIGHT CHIEF JUSTICE–5– 

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Court of Appeals Fifth District of Texas at Dallas JUDGMENT
IN THE INTEREST OF A.R.J., A CHILD
No. 05-18-00486-CV On Appeal from the 416th Judicial District Court, Collin County, Texas Trial Court Cause No. 416-51874-2013. Opinion delivered by Chief Justice Wright. Justices Evans and Brown participating. In accordance with this Court’s opinion of this date, the tria l court’s March 14, 2018 Clarified Final Order in Suit to Modify Parent-Child Relationsh ip is VACATED and this appeal is DISMISSED

. It is ORDERED that the parties bear the ir own costs of this appeal.
Judgment entered August 8, 2018.