Opinion issued June 30, 2015




                                     In The

                             Court of Appeals
                                    For The

                         First District of Texas
                            ————————————
                             NO. 01-14-00870-CV
                           ———————————
          ELISHAH SAWYERS, PAX CRATE & FREIGHT, INC.,
                 AND ROBIN SAWYERS, Appellants
                                       V.
             MARC CARTER AND SALLY CARTER, Appellees


                   On Appeal from the 506th District Court
                            Waller County, Texas
                      Trial Court Case No. 14-07-22604




                         MEMORANDUM OPINION

      Elishah and Robin Sawyers, together with Pax Crate & Freight, Inc.

(collectively, the Sawyers) appeal the trial court’s default judgment in favor of

Marc and Sally Carter. The Sawyers contend that the judgment is an interlocutory
order, or alternatively, that the Carters did not obtain effective service of process

on them before obtaining the judgment. They further contend that the evidence

supporting the trial court’s award of damages is legally and factually insufficient.

We conclude that the challenged judgment is an interlocutory order and thus

dismiss the appeal for want of jurisdiction.

                                    Background

      The Carters and the Sawyers own adjoining lots in Hockley, Texas on

Margerstadt Road.      In July 2014, the Carters sued the Sawyers for private

nuisance, alleging that the Sawyers’ use of dirt bikes on their property interfered

with the Carters’ use and enjoyment of their neighboring property. Pax Crate &

Freight, Inc. is a corporation whose registered agent is Elishah Sawyers. In their

petition, the Carters sought damages for diminution of their property value and a

permanent injunction against the “use of excessively loud dirt bikes or other

ATV’s on the Defendant’s property” and “the construction of Pax Crate & Freight,

Inc. on the Defendants’ property [on] . . . Margerstadt Road.” The Carters also

requested that the trial court award attorney’s fees, court costs, and prejudgment

and postjudgment interest on their claims.

      In August 2014, the Carters moved for a default judgment, asserting that the

Sawyers had not answered or appeared in response to the suit. In September 2014,

the trial court granted the motion.      It awarded actual damages of $480,000,



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attorney’s fees of $3,071.20, court costs, and postjudgment interest, but it did not

award prejudgment interest. The order also purported to grant “an injunction

against unreasonable and excessive noise and dust created by the riding of large

dirt bikes on the Defendants’ property” and “an injunction against moving

Defendants’ crating business, Pax Crate and Freight, Inc., to Defendants’

Margerstadt Road property.” The order does not contain a Mother Hubbard clause

or state that it is a final judgment. The Carters thereafter sought execution of the

judgment.

                                      Discussion

      The Sawyers conditionally appeal the judgment, contending that it is an

interlocutory order. They ask that we remand the case to the trial court to allow it

to address their challenges to service of process and to the order in the first

instance. In the event we hold that the judgment is final and appealable, they ask

that we review the merits of their challenges to the judgment. Because the order

does not dispose of the requests for prejudgment interest and neither the order nor

the record contains evidence that the order was a final order, we conclude that the

trial court’s order is not a final judgment.

      Standard of Review and Applicable Law

      A judgment following a trial on the merits is presumed to be final, but no

similar presumption of finality attaches to a default judgment. In re Burlington



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Coat Factory Warehouse of McAllen, Inc., 167 S.W.3d 827, 829 (Tex. 2005)

(citing Lehmann v. Har-Con Corp., 39 S.W.3d 191, 199–200 (Tex. 2001), and

Houston Health Clubs, Inc. v. First Ct. of App., 722 S.W.2d 692, 693 (Tex. 1986)

(per curiam)). A judgment that disposes of all parties and claims is final. Id. at

830 (citing Lehmann, 39 S.W.3d at 200). “To determine whether an order disposes

of all pending claims and parties, it may . . . be necessary for the appellate court to

look at the record in the case.” Lehmann, 39 S.W.3d at 205–06. A default

judgment that does not dispose of all claims can be final only if the “intent to

finally dispose of the case” is “unequivocally expressed in the words of the order

itself.” Burlington, 167 S.W.3d at 830 (quoting Lehmann, 39 S.W.3d at 200). A

reviewing    court   “cannot    conclude       that   language   permitting   execution

‘unequivocally express[es]’ finality in the absence of a judgment that actually

disposes of all parties and all claims.” Id. at 830–31 (holding that trial court

abused its discretion by permitting execution to issue) (quoting Lehmann, 39

S.W.3d at 200).

      When a default judgment does not dispose of an unresolved request for

prejudgment interest, the judgment is interlocutory, not final. Hunt Oil Co. v.

Moore, 639 S.W.2d 459, 460 (Tex. 1982) (per curiam) (holding that summary

judgment was interlocutory, reasoning that judgment awarded damages requiring a

future accounting and that “judgment did not address [the plaintiff’s] claim for



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prejudgment interest”); Rosedale Parts., Ltd. v. 131st Judicial Dist. Ct., Bexar

Cnty., 869 S.W.2d 643, 648–49 (Tex. App.—San Antonio 1994, no pet.) (holding

that default judgment that did not dispose of claims for prejudgment interest and

attorney’s fees was interlocutory); see also Farm Bureau Cnty. Mut. Ins. Co., v.

Rogers, 455 S.W.3d 161, 161–62 (Tex. 2015) (per curiam) (holding that order

denying summary judgment, which contained Mother Hubbard clause, was

interlocutory because “it did not resolve the parties’ competing requests for

attorney’s fees”); Houston Health Clubs, 722 S.W.2d at 693–94 (holding that

default judgment was interlocutory, as it did not dispose of plaintiff’s claim for

punitive damages); Harris Cnty. Toll Rd. Auth. v. Sw. Bell Tel., L.P., 263 S.W.3d

48, 56 (Tex. App.—Houston [1st Dist.] 2006) (holding that summary judgment

was interlocutory because it left open amount of prejudgment interest and did not

dispose of all claims), aff’d, 282 S.W.3d 59 (Tex. 2009).

      In Rosedale, the San Antonio Court of Appeals reasoned that when the

record presented no “evidence of an amended petition deleting the claims for

prejudgment interest and attorney’s fees, an affidavit explaining when the claim

was abandoned, or any other evidence indicating [the plaintiff’s] intent to abandon

the remaining claims,” it could not determine that the plaintiff had abandoned

those requests at the time of the default judgment. 869 S.W.2d at 648. Because

the judgment in that case did not dispose of the plaintiff’s requested prejudgment



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interest and attorney’s fees, the San Antonio Court of Appeals held that the

judgment was interlocutory. Id. at 649.

      In Hunt Oil, the Texas Supreme Court considered a case in which the parties

contested the finality of a summary judgment order. 639 S.W.2d at 459. In its

summary judgment, the trial court did not dispose of a claim for prejudgment

interest and ordered that one party “render an accounting” of damages. Id. After

the accounting of damages was complete, the trial court entered another judgment,

ordering damages of approximately $377,000. Id. The Texas Supreme Court held

that the summary judgment was interlocutory because it required a future

calculation of damages and did not dispose of a claim for prejudgment interest. Id.

at 460.

      Analysis

      Similar to the facts presented in Rosedale Partners, the default judgment in

this case does not contain any finality language. Thus, we examine the record to

determine whether the judgment disposes of all claims and parties. See Burlington,

167 S.W.3d at 830; Lehmann, 39 S.W.3d at 205–06.

          The Carters requested prejudgment interest in their petition, but the trial

court did not dispose of their request. The record does not contain any evidence

that the Carters abandoned their claim before the trial court rendered its default

judgment. See Rosedale, 869 S.W.2d at 648. Because the judgment does not



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dispose of the Carters’ request for prejudgment interest, we conclude that it is

interlocutory. See id. at 648–49.

      In response, the Carters point to their request for execution of the judgment.

However, the Texas Supreme Court has held that language permitting execution of

a judgment does not unequivocally express finality when the judgment does not

dispose of all parties and claims and the judgment under review is a default

judgment. See Burlington, 167 S.W.3d at 830–31.

      In addition, the trial court’s order purporting to grant injunctive relief lacks

specificity about the acts to be restrained, the reasons for its issuance, and its

duration; it merely states that the Carters’ “Motion for Default Judgment on an

injunction against unreasonable and excessive noise and dust created by the riding

of large dirt bikes on Defendants’ property is granted” and “Motion for Default

Judgment on an injunction against moving Defendants’ crating business, Pax Crate

and Freight, Inc., to Defendants’ Margerstadt Road property is granted.” These

orders are inadequate to grant permanent injunctive relief. See TEX. R. CIV. P. 683

(“Every order granting an injunction . . . shall set forth the reasons for its issuance;

shall be specific in terms; shall describe in reasonable detail and not by reference

to the complaint or other document, the act or acts sought to be restrained . . . .”).

Because the trial court’s default order neither (1) details specific reasons for its

issuance, nor (2) details with any specificity or duration the acts which the Sawyers



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must refrain from doing, nor (3) expresses any indication that it is a permanent

injunction or a final order, we conclude that the purported grant of injunctive relief

by default does not appear on its face to be a final permanent injunction. See Hunt

Oil, 639 S.W.2d at 460.

      Because it lacks indicia of finality, the trial court’s order granting a default

judgment is not a final order. Our appellate jurisdiction is limited to review of

final judgments; we thus dismiss this appeal for want of jurisdiction.            See

Braeswood Harbor Parts. & Prop. Owners ex rel. Patrick O’Connor & Assocs.,

Inc. v. Harris Cnty. Appraisal Dist., 69 S.W.3d 251, 252 (Tex. App.—Houston [1st

Dist.] 2002, no pet.) (“Excluding certain statutory exceptions that do not apply

here, this Court’s appellate jurisdiction is limited to review of final judgments that

dispose of all parties and claims.”). We remand the case to the trial court to

consider the parties’ other arguments raised on appeal. See TEX. R. APP. P. 47.1.




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                                   Conclusion

      We dismiss the appeal for want of jurisdiction. All pending motions are

dismissed as moot.




                                            Jane Bland
                                            Justice

Panel consists of Justices Jennings, Bland, and Brown.




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