      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-18-00250-CV1



                          Unity Friendship Baptist Church, Appellant

                                                  v.

                                  Walton Homes LLC, Appellee


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 201ST JUDICIAL DISTRICT
     NO. D-1-GN-15-005374, HONORABLE STEPHEN YELENOSKY, JUDGE PRESIDING



                             MEMORANDUM OPINION


               Appellant Unity Friendship Baptist Church filed this appeal from the trial court’s

order granting summary judgment in favor of appellee Walton Homes LLC. As explained below,

that order is interlocutory, and we therefore have no choice but to dismiss the appeal. See, e.g.,

Tingley v. Northwestern Nat’l Ins. Co., 712 S.W.2d 649, 650 (Tex. App.—Austin 1986, no writ).

               Walton Homes sued Unity for breach of contract, seeking specific performance of a

real estate contract and additional consequential damages of at least $300,000, and for declaratory

relief, seeking certain declarations related to the propriety of the real estate contract. Walton Homes


       1
          The notice of appeal in this case was originally filed in July 2016. The Supreme Court of
Texas ordered the case transferred to the Eighth Court of Appeals pursuant to its docket equalization
authority. See Tex. Gov’t Code § 73.001; Misc. Docket No. 16-9100 (Tex. June 21, 2016). This
Court transferred the case to our sister court in August 2016. In April 2018, the Supreme Court of
Texas ordered that this case, along with certain other cases, be transferred back to this Court from
the Eighth Court, and we consider this appeal pursuant to that order. See Misc. Docket No. 18-9054
(Tex. Apr. 12, 2018).
filed a motion for summary judgment asking the trial court to enforce specific performance of the

contract and to award attorney’s fees.

               On June 30, 2016, the trial court signed an order granting summary judgment. The

order specifically stated that Walton Homes had proved as a matter of law its claim for breach of

contract. The court further ordered Unity to convey the property to Walton Homes in exchange for

$650,000, as provided in the contract, and awarded Walton Homes attorney’s fees through and

including the hearing on the motion for summary judgment. On July 1, Walton Homes filed a

motion to have the sales proceeds deposited into the registry of the trial court, explaining that the

trial court had ruled from the bench during the summary judgment hearing that the funds would be

so held “while the litigation implicating control of the funds was pending” but that the order granting

summary judgment did not include such a provision. The trial court signed an order granting that

motion on July 5, stating that the funds would be held “during the pendency of this above-styled and

numbered cause.” The property was conveyed as ordered, and on July 22, Walton Homes arranged

to have the funds deposited into the trial court’s registry. Unity filed a notice of appeal from that

order on July 22, and on August 23, Versie Smith-Sauls and Willie Sauls filed a petition in

intervention, asserting a right to the funds being held in the trial court’s registry. Meanwhile, on

August 9, this appeal was transferred to the Eighth Court of Appeals pursuant to a transfer order

from the supreme court.

               On August 11, Walton Homes filed a motion to dismiss on grounds that the order

granting summary judgment was interlocutory because there were still claims pending in the trial

court. Unity responded that the trial court’s order disposed of all parties and issues and that the



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status of the case in the trial court was “closed.” Walton Homes replied, explaining that its claim

for breach of contract sought both specific performance and damages and that it requested

declaratory relief to clear title to the property. It noted that its motion for summary judgment sought

only adjudication of Unity’s liability for breach of contract, an order for specific performance, and

attorney’s fees; that the order granting summary judgment did not adjudicate or even mention

Walton Homes’s requests for damages or declaratory relief; and that the order contained no “Mother

Hubbard” clause2 or other indication of finality. Walton Homes further argued that the petition in

intervention had not been addressed and, therefore, that there was a dispute over who should control

the sale proceeds. Unity filed a letter in response, stating that “at this time, the Church is not making

a claim to the funds in the registry for the purported sale of Church property. In the interest of

judicial economy, I am notifying this Court. There are no remaining issues in dispute between

parties in the district court.”

                On November 16, 2016, our sister court issued a per curiam order denying Walton

Homes’s motion to dismiss, stating that it had reviewed the record and “determined that the

summary judgment is final and appealable.” Walton Homes filed a motion for reconsideration,

listing its claims and requests still pending in the trial court—including damages for Walton

Homes’s expectation interest, reliance interest, restitution in an amount to be proven at trial, and

declaratory relief—and again noting that the petition in intervention had not been disposed of. Unity

responded that the summary judgment order “literally granted appellee’s breach of contract claim




        2
         See Lehmann v. Har-Con Corp., 39 S.W.3d 191, 192 & n.4 (Tex. 2001) (“Mother
Hubbard” clause recites that all relief not expressly granted is denied).

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and the damage remedy of specific performance, attorney’s fees, and post-judgment interest thereby

mooting any need for disposition of a declaratory judgment.” Unity also argued that the petition in

intervention was filed after the trial court’s plenary power expired.

                On April 12, 2018, the appeal was transferred back to this Court from the Eighth

Court of Appeals. In our review of the record, the issue of jurisdiction immediately arose.3

                “Courts always have jurisdiction to determine their own jurisdiction.” Houston Mun.

Emps. Pension Sys. v. Ferrell, 248 S.W.3d 151, 158 (Tex. 2007). “Not only may a reviewing court

assess jurisdiction for the first time on appeal, but all courts bear the affirmative obligation to

ascertain that subject matter jurisdiction exists regardless of whether the parties have questioned it.”

City of Hous. v. Rhule, 417 S.W.3d 440, 442 (Tex. 2013) (cleaned up). Barring specific statutory

permission, we lack jurisdiction over interlocutory orders, including partial summary judgments.

See Texas A&M Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 840 (Tex. 2007); Bass v. Waller Cty.

Sub-Reg’l Planning Comm’n, 514 S.W.3d 908, 912 (Tex. App.—Austin 2017, no pet.). Although

a judgment rendered after a trial on the merits is presumed to be final, there is no such presumption

after the grant of summary judgment. In re Burlington Coat Factory Warehouse of McAllen, Inc.,

167 S.W.3d 827, 829 (Tex. 2005). Thus, “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


       3
         We recognize that the Eighth Court of Appeals considered the issue of jurisdiction and
denied Walton Homes’s motion. However, the record before us does not support such a conclusion.
Moreover, although this case provides a very different procedural posture than the one we usually
confront when disagreeing with a sister court, we are not bound by our sister courts’ decisions. See,
e.g., HWY 3 MHP, LLC v. Electric Reliability Council of Tex., 462 S.W.3d 204, 211 n.4 (Tex.
App.—Austin 2015, no pet.); Satterfield v. Crown Cork & Seal Co., 268 S.W.3d 190, 206 n.17 (Tex.
App.—Austin 2008, no pet.).

                                                   4
court, regardless of its language, or it states with unmistakable clarity that it is a final judgment as

to all claims and all parties.” Lehmann v. Har-Con Corp., 39 S.W.3d 191, 192-93 (Tex. 2001).

                This is not a case in which the trial court granted more relief than Walton Homes had

sought or proven itself entitled to, thus erroneously rendering a final summary judgment, see, e.g.,

G & H Towing Co. v. Magee, 347 S.W.3d 293, 296-97 (Tex. 2011) (“ Granting a summary judgment

on a claim not addressed in the summary judgment motion therefore is, as a general rule, reversible

error.”); Almeter v. Bastrop Cent. Appraisal Dist., No. 03-17-00092-CV, 2017 WL 4478217, at *7

(Tex. App.—Austin Oct. 5, 2017, pet. denied) (mem. op.). This order is not titled “final summary

judgment” or “final judgment,” it does not include Lehmann language or other similar language

explicitly indicating finality, and it does not make reference to Walton Homes’s request for

declaratory relief or additional consequential damages. This order does not contain any indicia of

finality; was entered following a hearing on summary judgment, not a trial on the merits; and did not

dispose of all of Walton Homes’s pending claims. See Lehmann, 39 S.W.3d at 203-04.

                Furthermore, the order being appealed was followed almost immediately by an order

granting Walton Homes’s motion asking that the funds should be deposited into the court’s registry,

which stated that the trial court had ruled from the bench that the funds should be so deposited

“while the litigation implicating control of the funds was pending.” The supreme court recently

observed that “when analyzing orders directing funds deposited into the court's registry of the court

pending a final adjudication of ownership, most courts deem these orders as interlocutory and not

subject to appeal.” Alexander Dubose Jefferson & Townsend LLP v. Chevron Phillips Chem. Co.,

540 S.W.3d 577, 587-88 (Tex. 2018). In that case, because the issue of “competing substantive



                                                   5
ownership rights” was not decided until the trial court issued a release order, that order did more than

merely reaffirm the earlier turnover order and was a final, appealable judgment. Id. at 588. The

depositing of the funds in the court’s registry, where they apparently remain to this day, is further

indication that the trial court’s order granting summary judgment was not a final order. See id.

                We hold that the trial court’s order merely granted partial summary judgment.

Although the declarations sought by Walton Homes might overlap the specific-performance remedy

it has already obtained, those requests are still pending, as are its claims related to other

consequential damages. Further, although Unity sent a letter to the Eighth Court of Appeals stating

that it was not asserting an interest in the funds held in the court’s registry, there is no indication that

any such disclaimer was filed in the trial court or that there has been any disposition of the funds.

Thus, the issue of ownership of the funds remains pending as well. For all of these reasons, we hold

that the order Unity seeks to appeal is interlocutory, and we may not exercise jurisdiction over this

appeal. We have no choice but to disagree with our sister court’s ruling to the contrary. We

therefore dismiss the appeal for want of jurisdiction. See Tex. R. App. P. 42.3(a).



                                                 __________________________________________
                                                 Cindy Olson Bourland, Justice

Before Justices Puryear, Pemberton, and Bourland

Dismissed for Want of Jurisdiction

Filed: July 24, 2018




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