      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                               ON MOTION FOR REHEARING



                                       NO. 03-13-00204-CV



              Mary Smith d/b/a Upscale Child Development Center, Appellant

                                                  v.

                Texas Department of Family and Protective Services, Appellee


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 345TH JUDICIAL DISTRICT
      NO. D-1-GV-12-001705, HONORABLE GUS J. STRAUSS, JR., JUDGE PRESIDING



                             MEMORANDUM OPINION


               The Texas Department of Family and Protective Services (the Department) sued Mary

Smith d/b/a Upscale Child Development Center (Smith), alleging that she was operating an illegal,

unlicensed child-care facility in her home in violation of Chapter 42 of the Human Resources Code

and related regulations. See Tex. Hum. Res. Code §§ 42.001-.210; 40 Tex. Admin. Code §§ 745.31-

.37 (Tex. Dep’t of Family & Protective Servs., Child Care & Other Operations that We Regulate).

The Department sought injunctive relief, penalties, attorney’s fees, and costs. After a hearing on the

merits, the trial court issued a permanent injunction, the terms of which Smith challenges on appeal

as being overly broad, unsupported by sufficient evidence, and in violation of her privacy rights

under the Fourth Amendment of the United States and Texas Constitutions to the extent it grants the
Department the right to conduct reasonable inspections of her premises.1 Because Smith failed to

preserve error as to these issues, we affirm the trial court’s judgment.


                        FACTUAL AND PROCEDURAL BACKGROUND

               After a period of operating a registered child-care facility, Smith applied for a license

to operate a licensed child-care center and was permitted to operate as such under a temporary

permit. See 40 Tex. Admin. Code § 745.37 (identifying differences between registered and licensed

child-care operations). During the probationary period afforded by the temporary permit, the

Department determined that Smith’s operations violated several of its rules for child-care facilities.

The Department therefore denied the requested license and ordered Smith to cease operating an

unlicensed child-care facility. Smith challenged the Department’s decision, but it was upheld in a

separate administrative proceeding.

               Although Smith was not authorized to operate a child-care facility of any kind

thereafter, the Department alleges that its personnel observed, on more than one occasion, multiple

children being delivered and retrieved from Smith’s premises in a manner suggestive of child-care

operations that would be subject to regulation by the Department. The Department asserts that, even

though Smith denied providing such services, both she and her daughter were combative with the

Department’s personnel and hindered their efforts to ascertain whether regulated services were, in

fact, being provided.




       1
         The Department also sued and obtained identical relief against Smith’s son, Jason Smith,
but he did not file a notice of appeal and, thus, is not a party to these appellate proceedings.

                                                  2
                Based on the observations of the Department’s staff, the Department sued

Smith, seeking a permanent injunction to prevent her and her “agents, assigns, and employees”

from (1) operating an illegal child-care facility, (2) operating an unlicensed childcare facility,

(3) advertising child-care services, and (4) collecting compensation for child-care services. The

Department also requested that it be permitted to make reasonable inspections of Smith’s property

“if the Department has reason to believe that [she] is providing illegal childcare” in her home. In

addition to injunctive relief, the Department sought to recover civil penalties, attorney’s fees, and

costs from Smith.

                After filing suit, the Department initially obtained a temporary injunction against

Smith. As required by the rules of civil procedure, the temporary-injunction order established a date

for a trial on the merits with respect to the Department’s request for a permanent injunction. See

Tex. R. Civ. P. 683 (“Every order granting a temporary injunction shall include an order setting the

cause for trial on the merits with respect to the ultimate relief sought.”). An evidentiary hearing

subsequently occurred as scheduled on February 20, 2013.

                Before introducing any evidence at that proceeding, the Department stated that it was

“willing to forego civil penalties, attorney’s fees and costs if we can just get a permanent injunction

issued.” Smith countered that she was not running an illegal day-care operation and was only caring

for children of relatives. Consequently, Smith stated that she “would accept the permanent injunction”

if the wording were modified to identify the correct owners of the business. According to Smith, her

son had been improperly identified as an owner in the temporary injunction and proposed permanent

injunction. The Department pointed out, however, that in the license application filed for the business,



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the owners had been identified as Smith and her son. Although contending that there was an error

in the license application, Smith conceded that the application was filed on her behalf by her daughter,

who she alleged was the true co-owner. Smith made no other objections about the language that had

been used in the temporary injunction or the proposed permanent injunction.

                At the conclusion of the proceeding, the trial court issued a permanent injunction on

substantially the same terms as the temporary injunction. The Department’s claims for civil penalties,

attorney’s fees, and costs were not mentioned in the permanent injunction, either in terms of their

disposition or with respect to reserving those issues for further consideration. There likewise was

no “Mother Hubbard” type language.

                Although Smith now contends that the language in the permanent injunction is

flawed in numerous respects, she never filed any post-judgment motion complaining about the

terms of the permanent injunction or otherwise alerted the trial court to any alleged errors in the

language of either the temporary or permanent injunctions, except complaining at trial about the

identity of the business owners. To the contrary, in March 2013, she executed an “Agreed Final

Judgment” in which the terms of the permanent injunction were incorporated by reference. In the

Agreed Final Judgment, Smith (1) assented to the terms of the permanent injunction, (2) agreed that

the injunction was enforceable by contempt, and (3) acknowledged that violation of the injunction

might prompt additional enforcement actions by the Department that could include penalties, costs,

and fees. In exchange, the Department expressly waived its claims for penalties, costs, and fees in

the underlying matter. Shortly after executing the Agreed Final Judgment, Smith filed a notice that

she was appealing the February 20 permanent injunction. The trial court ultimately signed the

Agreed Final Judgment on April 25, 2013.

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                                            DISCUSSION

                Smith’s challenges on appeal are principally directed to the terms of the February 20

permanent injunction. Specifically, Smith contends that the trial court abused its discretion in

granting the injunction because (1) the terms of the injunction are overly broad and effectively

preclude her from engaging in lawful child-care activities, such as free babysitting; (2) the terms of

the injunction effectively preclude her from reapplying to the Department for registration, licensing,

or listing as a child-care facility even though the Department’s application for permanent injunction

requested injunctive relief only until the happening of such an event; (3) there is factually and legally

insufficient evidence to support the trial court’s finding that Smith’s child-care facility poses an

immediate threat to the health and safety of the children in its care; and (4) the injunction includes

language violating her constitutional right to be free from unreasonable searches by requiring her to

submit to future inspections of her home if the Department has “reason to believe” she is operating

a child-care facility.

                Among other arguments, the Department asserts that Smith waived her substantive

challenges to the permanent injunction when she agreed to the terms of the injunction as part of the

Agreed Final Judgment. Smith contends, however, that the permanent injunction was a final judgment

and that the trial court lacked jurisdiction to modify or supersede it with the Agreed Final Judgment,

which the court signed more than two months later. Thus, the preliminary issue before us is which

judgment is the trial court’s final judgment for purposes of this appeal.

                Resolution of this question does not affect our jurisdiction because Smith timely

filed her notice of appeal regardless of whether the earlier judgment was final or interlocutory. See



                                                   5
Tex. R. App. P. 26.1. Moreover, our ultimate disposition of the case will be the same regardless

of which judgment is final. However, because we are not authorized to substantively review a

judgment rendered without jurisdiction, we must first determine which of the two judgments is the

trial court’s final judgment.

               A judgment, including a series of separate orders, that neither expressly disposes of

all claims nor includes “Mother Hubbard” type language may nevertheless be considered final for

purposes on appeal. See North E. Indep. Sch. Dist. v. Aldridge, 400 S.W.2d 893, 897-98 (Tex.

1966). When a judgment rendered in a case regularly set for conventional trial on the merits is not

intrinsically interlocutory in character, and no order for a separate trial of issues has been made,

it is presumed that the trial court intended the judgment to be a final judgment, disposing of all

parties legally before it and all of the issues made by the pleadings. Id.; see Vaughn v. Drennon,

324 S.W.3d 560, 563 (Tex. 2010); Moritz v. Preiss, 121 S.W.3d 715, 718-19 (Tex. 2003); John v.

Marshall Health Servs., Inc., 58 S.W.3d 738, 740 (Tex. 2001).

               The Aldridge presumption of finality does not apply to (1) inherently interlocutory

orders, such as partial summary judgments; (2) non-merits dispositions, such as nonsuits, pleas to

the jurisdiction, pleas in abatement, and dismissals for want of prosecution; (3) cases not set for

a conventional trial on the merits, including default judgments and summary judgments; and

(4) judgments that affirmatively reserve an issue for future adjudication. See Houston Health

Clubs, Inc. v. First Court of Appeals, 722 S.W.2d 692, 693 (Tex. 1986) (observing that Aldridge

presumption does not apply to summary judgments or default judgments); Aldridge, 400 S.W.2d at

897-98 (excluding non-merits dispositions from presumption of finality); City of Garland v. Futerfas,



                                                 6
665 S.W.2d 140, 141-42 (Tex. App.—Dallas 1993, no writ) (order on appeal was not final because

it specifically reserved some claims for later hearing before court).

                In the present case, the permanent injunction was rendered after a trial on the merits

and an evidentiary hearing was held. The Department did not request, and the trial court did not

enter, an order for a separate trial against Smith as to those issues or any other. Likewise, the

judgment granting the permanent injunction does not reserve those or any other issue for future

adjudication. Thus, none of the exceptions to the Aldridge presumption applies. Although the

presumption is just that, there is nothing in the record to indicate that the trial court did not intend

to finally dispose of the entire case, especially in light of the Department’s expressed willingness to

abandon its monetary claims in exchange for the permanent injunction. For these reasons, we

conclude that it is appropriate to apply the Aldridge presumption and conclude that the February 20

judgment granting the Department’s request for a permanent injunction against Smith was a final

judgment and that the April 25 Agreed Final Judgment was rendered without jurisdiction. We

therefore sustain Smith’s first appellate issue.

                Although we agree with Smith on this point, Smith’s substantive complaints of error

in appellate issues two through four fail because she did not notify the trial court about any of the

issues she now asserts on appeal. To preserve error for appeal, Smith was required to raise the alleged

errors in the trial court by making a timely request, objection, or motion that complied with the

requirements of the rules of civil procedure. See Tex. R. App. P. 33.1(a). Even though the terms

of the permanent injunction are substantially similar to the terms of the previously imposed

temporary injunction, Smith never raised any of her current complaints about the language of the



                                                   7
injunction by any method in the trial court. Accordingly, we must conclude that Smith did not preserve

error as to those matters and, therefore, overrule her second, third, and fourth appellate issues.


                                          CONCLUSION

               In light of the foregoing, we vacate the April 25, 2013 judgment, which was entered

beyond the trial court’s plenary power, and affirm the trial court’s February 20, 2013 judgment

granting the Department a permanent injunction against Smith.




                                               __________________________________________

                                               David Puryear, Justice

Before Chief Justice Rose, Justices Puryear and Goodwin

Affirmed on Motion for Rehearing

Filed: January 29, 2015




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