Dissenting Opinion Filed December 1, 2022 

S 

In The 

Court of Appeals 

Fifth District of Texas at Dallas 

No. 05-22-01022-CV 

IN RE URBAN 8 LLC AND URBAN 8 MANAGEMENT LLC, RELATORS 

Original Proceeding from the 191st Judicial District Court 

Dallas County, Texas 

Trial Court Cause No. DC-21-08919 

OPINION DISSENTING FROM THE DENIAL OF EN BANC 

RECONSIDERATION 

Opinion by Justice Schenck 

In my opinion, this case presents important and recurring questions 

concerning the right to be heard by appeal, particularly, but not only, from a 

judgment rendered by default and without hearing in the trial court. For that reason, 

I dissent from the Court’s declining to request a response to relators’ motion for 

rehearing en banc and, subject to that response, I would be inclined to grant 

reconsideration. 

We are told that this lawsuit was filed and served on Defendants’ registered 

agent who, for reasons not relevant here, did not receive the notice. Plaintiff alleged 

that she had tripped and fallen on the sidewalk as she approached Defendants’ place 
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of business. She asserted negligence and gross negligence claims and sought relief 

in the form of actual damages generally, and in several specific forms, and separately 

requested “exemplary damages,” presumably associated with her gross negligence 

allegation. 

Following Defendants’ failure to answer timely,1 Plaintiff obtained judgment 

by default and, at a subsequent hearing to prove up damages, was awarded $612,000 

in general “real and actual” and other forms of specified actual damages. That order, 

entitled “Final Order of Default,” did not describe itself as “judgment,” final or 

otherwise and, while it provided for pre-judgment interest from the “date of the 

incident,” it did not specify that date to permit calculation. It also contained no 

resolution of Plaintiff’s pleaded request for exemplary damages and contained 

neither a “Mother Hubbard” clause (once used to signal finality) nor any of the more 

specific language now necessary to render a final judgment. See Lehmann v. HarCon Corp., 39 S.W.3d 191, 192 (Tex. 2001) (“We . . . hold that . . . a judgment issued 

without a conventional trial is final for purposes of appeal if and only if either it 

actually disposes of all claims and parties then before the court, regardless of its 

language, or it states with unmistakable clarity that it is a final judgment as to all 

claims and all parties”) (emphasis added). That order is dated November 18, 2021. 

1 According to the allegations in the record before us, Defendants were not served with notice of the 

default at their last known address in advance of the prove-up hearing. 
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On May 25, 2022, after receiving notice of the suit and default, Defendants 

appeared, answered, and filed a motion for new trial to “to set aside interlocutory 

default.” On August 25, 2022, the trial court signed an order denying that motion for 

new trial and stating the following: 

IT IS FURTHER ORDERED, ADJUDGED, and DECREED that the 

Final Order of Default is the Final Judgment, the Final Order of Default 

disposes of all parties and claims and is appealable; all claim, have been 

adjudicated; no claims or parties remain; and the Final Order of Default 

is the final determination as to all parties, issues, and claims in this case 

and is an appealable order in all respects. 

(emphasis added). 

To be direct, I see no colorable basis to support the notion that the trial court 

would have the authority to determine that an order, not final on its face under the 

rule laid down in Lehmann, can be so made retroactively by the trial court itself after 

the time to appeal has run.2

Whether an order is “appealable” or not under the rule set down in Lehmann 

is a matter of controlling concern to the appellate court’s jurisdiction and is 

ultimately a matter for that court to decide. In keeping with a series of decisions 

meant to protect the right to review and to promote merits resolutions, including and 

especially in the case of default judgments, the Supreme Court has held that we must 

2 Indeed, if this authority existed it would be hard to imagine the jurisdiction by which it would operate. 

If the trial court’s order six months earlier was indeed a “final judgment,” the court’s plenary jurisdiction 

would have long expired prior to its own subsequent “clarification.” As noted below, it would only be in a 

case where the judgment might be read to be final and in response to a request from a superior court 

considering a then pending appeal that such a clarification might be proper. Trial court orders are not 

inherently imbued with the prospect of springing executory finality. 
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read the rules “reasonably, yet liberally, so that the right to appeal is not lost by 

imposing requirements not absolutely necessary to effect the purpose of a rule.” 

Ryland Enter. v. Weatherspoon, 355 S.W.3d 664, 665 (Tex. 2011); Republic 

Underwriters Ins. Co. v. Mex–Tex, Inc., 150 S.W.3d 423, 427 (Tex. 2004). One of 

those cases, Bella Palma v. Young, involved an appeal from a default judgment. 601 

S.W.3d 799 (Tex. 2020). In that case, the appellate court, uncertain as to its own 

jurisdiction over a pending, perfected appeal, abated the appeal and requested 

clarification from the trial court as to its intent with respect to the order pending on 

appeal. Reaching back to Lehmann, the court started with the controlling rule that 

“intent to render a final judgment is demonstrated by a ‘clear indication that the trial 

court intended the order to completely dispose of the entire case.’” Id. at 801 (quoting 

Lehmann, 39 S.W.3d at 205). “If the appellate court is uncertain about the intent of 

the order, it can abate the appeal to permit clarification by the trial court.” Id. 

(emphasis added). Being faced with a potentially timely appeal, the appellate court 

“may” ask for guidance from the trial court if clarification from the trial court is 

needed. Id. 

Nothing in Bella Palma can be read to support the notion that the trial court 

might, on its own account, retroactively give clarification or for the first time give a 

“clear indication” that it “intended the order to completely dispose of the case” six 

months earlier. Recognizing such authority would work mischief and prompt parties 

to bombard the courts with protective notices of appeal to guard against subsequent 
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“clarifications” coming after the time to appeal has run, as in this case. Without 

invitation from a superior court, a trial court’s pronouncements with respect its 

earlier unstated intentions cannot apply retroactively without undermining the rules 

and the holding in Lehmann. 

Because the November 18, 2021 order does not, in my view, present any doubt 

as to its finality under Lehmann, I would request a response and, subject to it, would 

be inclined to grant the petition and direct the trial court to substantively entertain 

and dispose of the remaining claims, rather than pronounce on its earlier unstated 

intentions without invitation from a superior court. See In re Ashton, 266 S.W.3d 

602, 604 (Tex. App.—Dallas 2008, orig. proceeding) (mandamus will lie to correct 

a void order). 

Alternatively, and at a minimum, I would accept that the present petition for 

writ of mandamus amounts to “a bona fide attempt to invoke our appellate 

jurisdiction” should the subsequent order of August 25, 2022 amount to a new final 

judgment.3 E.g., Verburgt v. Dorner, 959 S.W.2d 615, 616 (Tex. 1997); Linwood v. 

NCNB Texas, 885 S.W.2d 102, 103 (Tex. 1994); City of San Antonio v. Rodriguez, 

828 S.W.2d 417, 418 (Tex. 1992); Jarrell v, Bergdorf, 580 S.W.3d 463, 465 (Tex. 

App.—Houston [14th Dist.] 2019, no pet.); see also CHM Homes v. Perez, 340 

3 To be clear, as even that instrument, which makes no mention or disposition of the claims still pending 

at the time the November 18, 2021 Order purports to otherwise resolve them—but merely makes post hoc 

declarations as to the finality and appealability of that earlier order—I would not construe that latter order 

as disposing of any extant issue or claim. Thus, I would not treat this order as final either. 
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S.W.3d 444, 452–53 (Tex. 2011); In re 2920 E.R., LLC, 607 Fed. App’x 349, 353– 

54 (5th Cir. 2015) (treating mandamus as notice of appeal). While captioned as a 

mandamus, this matter is nevertheless filed within our jurisdictional reach under rule 

26.3. Garcia v. Kastner Farms, 774 S.W.2d 668, 670 (Tex. 1989); In re D.M., 643 

S.W.3d 758, 760–61 (Tex. App.—Dallas 2022) (Goldstein & Schenck, J.J., 

concurring from denial of motion for en banc reconsideration). 

Regardless of whichever procedural explanation may be utilized to address 

the issue by which Defendants may obtain relief from this Court, I dissent from any 

order that has the effect of permitting a trial court to retroactively negate a party’s 

ability to obtain review of a judgment. 

/David J. Schenck/ 

DAVID J. SCHENCK 

JUSTICE 

Molberg, Pedersen, III, and Nowell, J.J., join in this dissenting opinion. 

221022DF.P05