                  In the
             Court of Appeals
     Second Appellate District of Texas
              at Fort Worth
           ___________________________
                No. 02-18-00400-CV
           ___________________________

   IN THE INTEREST OF A.S. AND C.S., CHILDREN



        On Appeal from the 158th District Court
                Denton County, Texas
           Trial Court No. 2013-20522-158


     Before Sudderth, C.J.; Womack and Wallach, JJ.
        Memorandum Opinion by Justice Womack
Concurring Memorandum Opinion by Chief Justice Sudderth
                           MEMORANDUM OPINION

                                  I. INTRODUCTION

      In this suit affecting the parent-child relationship, Appellant Father1 attempts

to appeal from an order granting the motion for no evidence summary judgment of

Appellee Mother and dismissing Father’s petition to modify the conservatorship of

the children. In response to the two issues raised by Father, Mother first argues that

the summary judgment entered by the trial court is not final. We agree and dismiss

the appeal for want of jurisdiction.

                                  II. BACKGROUND

      On April 2, 2014, the trial court entered an agreed final decree of divorce

between Father and Mother. More than three years later, Father filed his “Original

Petition to Modify Conservatorship, Possession/Access, and Request for Temporary

Orders.”    Thereafter, Mother filed a “Counterpetition to Modify Parent-Child

Relationship.”   Both Father and Mother amended their pleadings, with Father

requesting modification of joint managing conservatorship and child support and

Mother requesting an increase in child support and the issuance of temporary orders.

      After discovery, Mother filed “Respondent’s Motion for No Evidence

Summary Judgment, and in the Alternative, Motion to Dismiss.” The motion alleged

that, after an adequate time for discovery, there was no evidence to support the

      Because one of the children is still a minor, we refer to the parties as Father
      1

and Mother. See Tex. Fam. Code Ann. § 109.002(d).

                                          2
request of Father for modification of custody. Prior to the October 25, 2018 hearing

on the motion, Father filed his response to the motion. At the hearing, the trial court

granted the motion for no evidence summary judgment.

       In the “Order Granting [Mother’s] Motion to Dismiss” signed on November 7,

2018, the trial court found that “there is no genuine issue of material fact as to

[Father’s] claim for a modification of the prior order[,]” granted the motion for no

evidence summary judgment, and “dismiss[ed] [Father’s] petition to modify the

conservatorship of the children the subject of this suit.” The order added,

       The Court may reconsider attorney fees and court costs if a final hearing
       is necessary to resolve the remaining issues.

              ....

            This judgment disposes of all [Father’s] claims, leaving only
       [Mother’s] claim for modification of support for the final trial. This
       Judgment is final and appealable.

In its “Judicial Docket Entries” on October 25, 2018, the trial court noted:

       Judicial Docket Entry (Relief not timely pursued, including custody
       evaluation. Change in custody dismissed. Child support is live. Attorneys
       admonished that support issue will involve attorney fees if not resolved prior to
       hearing. The court also instructed counsel how the court normally
       calculates child support and the arrearages associated with such.)
       [Emphasis added.]

Father appealed from the November 7, 2018 order. On January 15, 2019, Mother

gave notice that the final trial in the case was reset for March 7, 2019.




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                                   III. DISCUSSION

       In his brief, Father raises two issues attacking the order granting the motion for

no evidence summary judgment. First, he contends that the trial court abused its

discretion when it did not make a record of the hearing. Second, he argues that the

trial court does not have authority to grant a motion for no evidence summary

judgment if a genuine issue of material fact exists. In response, Mother first contends

that the summary judgment is not a final judgment in this case. As Mother notes,

“While the Order Granting Respondent’s Motion to Dismiss stated that the judgment was

final and appealable, the [t]rial [c]ourt expressly reserved the question of child support

and Mother’s request for attorney’s fees for a final trial.” And, she argues, “Since the

judgment did not dispose of all parties or issues, the summary judgment was

interlocutory and therefore not appealable.” Father has not replied to this contention.

We agree with Mother that the summary judgment is not final, and therefore, we lack

jurisdiction over this appeal.

       This court has appellate jurisdiction only over final judgments and certain

interlocutory orders. See Rusk State Hosp. v. Black, 392 S.W.3d 88, 92 (Tex. 2012); see,

e.g., Tex. Civ. Prac. & Rem. Code Ann. § 51.014. “[W]hen there has not been a

conventional trial on the merits, an order or judgment is not final for purposes of

appeal unless it actually disposes of every pending claim and party or unless it clearly

and unequivocally states that it finally disposes of all claims and all parties.” Lehmann

v. Har-Con Corp., 39 S.W.3d 191, 205 (Tex. 2001). We have jurisdiction to consider
                                            4
immediate appeals of interlocutory orders only if a statute expressly provides us with

such jurisdiction. Bally Total Fitness Corp. v. Jackson, 53 S.W.3d 352, 352 (Tex. 2001); see

also Dallas Symphony Ass’n, Inc. v. Reyes, 571 S.W.3d 753, 758–59 (Tex. 2019) (noting

that Section 51.014 allows interlocutory appeals in certain listed types of cases and

“from any order that ‘involves a controlling question of law as to which there is a

substantial ground for difference of opinion’ if permitted by the trial court, accepted

by the court of appeals, and ‘an immediate appeal . . . may materially advance the

ultimate termination of the litigation’”).

       In Lehmann, the Texas Supreme Court “revisit[ed] the persistent problem of

determining when a judgment rendered without a conventional trial on the merits is

final for purposes of appeal.” Lehmann, 39 S.W.3d at 192. It also reexamined the

Mother Hubbard clause2 and concluded that it “proved to give no indication of

finality not just because it found its way into every kind of order, but because it was

inherently ambiguous.” Id. at 206. The court stated,

       An order does not dispose of all claims and all parties merely because it
       is entitled “final[,”] or because the word “final” appears elsewhere in the
       order, or even because it awards costs. Nor does an order completely
       dispose of a case merely because it states that it is appealable, since even
       interlocutory orders may sometimes be appealable. . . .

              To determine whether an order disposes of all pending claims and
       parties, it may of course be necessary for the appellate court to look to

       The catch-all statement that “all relief not expressly granted is denied” was
       2

denominated a “Mother Hubbard” clause in Teer v. Duddlesten, 664 S.W.2d 702, 704
(Tex. 1984); accord Lehmann, 39 S.W.3d at 198, 203.

                                             5
       the record in the case. . . . [I]f the record reveals the existence of parties
       or claims not mentioned in the order, the order is not final.

Id. at 205-06. If an “original order’s finality phrase [is] clear, unequivocal, and neither

ambiguous nor absurd,” the record is irrelevant to determining whether the order is

final. In re Elizondo, 544 S.W.3d 824, 829 (Tex. 2018) (orig. proceeding) (per curiam).

However, if the order’s language is ambiguous, we examine the record to determine

finality. See Pope-Nixon v. Howard, No. 05-18-01215-CV, 2019 WL 911745, at *1 (Tex.

App.—Dallas Feb. 25, 2019, no pet.) (mem. op.) (citing Elizondo, 544 S.W.3d at 827–

28).

       Despite the intent of Lehmann to fully address the issue of finality, the problem,

as evident in this case, persists.3 When a trial court adheres to Lehmann and includes

finality language,4 it is incumbent upon the trial court to ensure that the finality

language actually applies. Including language that directly contradicts finality such as

that found in this case leaves the litigants in no better place than did a Mother

Hubbard clause. Finality, and therefore appealability, is unclear and uncertain.

       Mother’s motion for no evidence summary judgment addressed modification

of possession; it did not address the claim for support. While the order granting the

       3
         See, e.g., In re L.T., No. 02-19-00161-CV, 2019 WL 3334618, at *1–2 (Tex.
App.—Fort Worth July 25, 2019, no pet.) (per curiam) (mem. op.) (sorting out finality
of trial court’s “Interlocutory Final Order”).

       “A statement like, ‘This judgment finally disposes of all parties and all claims
       4

and is appealable,’ would leave no doubt about the court’s intention.” Lehmann,
39 S.W.3d at 206.

                                             6
summary judgment and dismissing Father’s petition to modify the conservatorship of

the children contained finality language, the order and the docket sheet entry reflected

that Mother’s claims for modification of support as well as attorney’s fees remained

for trial. The lack of finality is also shown by the notice of trial setting that was filed

after the complained-of order was entered. And, while we have jurisdiction over

appeals from interlocutory orders that by statute are appealable, Father has not shown

that a statute permits an interlocutory appeal of the order granting Mother’s motion

for no evidence summary judgment. For these reasons, we agree with Mother that

the order granting her motion for no evidence summary judgment and dismissing

Father’s claim for modification of the conservatorship of the children is not final and

that this appeal should be dismissed for want of jurisdiction.

                                   IV. CONCLUSION

      Because the order granting the motion for no evidence summary judgment is

not final and no statute authorized an interlocutory appeal from the order, we dismiss

the appeal for want of jurisdiction. See Tex. R. App. P. 42.3(a), 43.2(f).


                                                        /s/ Dana Womack

                                                        Dana Womack
                                                        Justice

Delivered: November 14, 2019




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