In The
Court of Appeals
Ninth District of Texas at Beaumont
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NO. 09-03-400 CV
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GRADY H. WOODS AND MONROE WOODS, Appellant
V.
MARY ELIZABETH WOODS, Appellee
Newton County, Texas
Trial Court Cause No. 11045
Grady H. Woods and Monroe Woods appeal the trial court's real property partition judgment. Appellee Mary Elizabeth Woods is the step-mother of Grady and is Monroe's mother. Grady and Monroe sued her to obtain a partition of property. Their petition listed five tracts of land. Also included in the petition was a paragraph alleging that appellee converted automobiles and other items of personal property belonging to Monroe.
On June 21, 2001, the trial court conducted an evidentiary hearing on the partition petition at which time the following exchange occurred:
[Counsel for Grady and Monroe]: Oh, Your Honor, there is one other issue. I'm sorry. In the petition there is also reference to some personal property of Monroe Woods that was on the property. We're going to sever that, or not necessarily sever that, but we're going to reserve that for a different proceeding because it's not the same issue essentially.
THE COURT: All right.
[Grady and Monroe Counsel]: And that may be something that we take up after the real property issues are determined.
[Counsel for Mary Elizabeth]: That's my understanding, Your Honor.
THE COURT: You may call your witness.
The only evidence presented to the trial court dealt with the partition of the real property in question. On January 18, 2002, the trial court entered an order entitled, "Decree Ordering Partition and Appointing Commissioners." This order addressed the partition of the five real property tracts in question. It did not refer to the personal property conversion cause of action.
Commissioners were appointed, and they eventually filed their findings and recommendations with the trial court on April 30, 2002. Grady and Monroe filed objections to the commissioners' findings and recommendations on July 15, 2002. Mary Elizabeth filed her response to the objections on July 23, 2002, and argued that because Grady and Monroe did not file their objections within thirty days after the commissioners' report was filed, their objections were not timely and should not be considered. On September 17, 2002, the trial court wrote to counsel for the parties stating: "In my opinion, when objections were not filed in 30 days, the parties are deemed to have accepted the Report."
The trial court signed a judgment, which states the court "adopts the Commissioners' Report as its judgment." There is no language in the judgment expressly ruling on the conversion cause of action. There are no orders in the record severing the real property partition claim from the personal property conversion claim. The judgment does contain a so-called "Mother Hubbard clause," (1) stating: "All relief not expressly granted herein is DENIED." Grady and Monroe contend the judgment was not final as it did not dispose of the conversion claim.
When 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). The inclusion of a "Mother Hubbard clause" does not establish that a judgment rendered without a conventional trial is final for purposes of appeal. Id. at 203-04. The judgment here does not dispose of the conversion cause of action, which the parties expressly reserved for some future proceeding with apparent agreement by the trial court. No conventional trial on the merits occurred here, as the judgment was entered due to a failure to timely object to the commissioner's report. A subsequent evidentiary hearing, stemming from a motion for rehearing and motion to set aside the judgment, is silent as to the conversion claim. The trial court denied the motion to set aside the judgment without comment.
We conclude the trial court's judgment of May 12, 2003, is not a final judgment. We lack jurisdiction to review judgments that are not final. Lehmann, 39 S.W.3d at 195. Accordingly, we dismiss the appeal for lack of jurisdiction.
APPEAL DISMISSED.
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DAVID B. GAULTNEY
Justice
Submitted on April 8, 2004
Opinion Delivered April 29, 2004
Before McKeithen, C.J., Burgess and Gaultney, JJ.
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