IN THE
TENTH COURT OF APPEALS
No. 10-05-00127-CV
Falls County Water Control
and Improvement District No. 1,
Appellant
v.
Charles S. Haak and Wife,
Lorena Haak,
Appellees
From the 82nd District Court
Falls County, Texas
Trial Court No. 34,680
dissenting Opinion
The trial court attempted to grant a request for attorney’s fees 202 days after it had signed a final judgment. During that period, it did not vacate or modify the final judgment. The trial court did not grant a new trial. Because the trial court had no jurisdiction to modify its final judgment by awarding attorney’s fees when it did, we should vacate the trial court’s award of attorney’s fees.
Background
Falls County Water Control and Improvement District No. 1 filed a condemnation proceeding against property owned by Charles and Lorena Haak. For reasons that are irrelevant to this appeal, the Water District amended its petition to increase the property interest it was going to take by condemnation. Due to the amendment, Haak sought dismissal and attorney’s fees. Tex. Prop. Code Ann. § 21.019(c) (Vernon 2004). The trial court granted the dismissal but did not award attorney’s fees.
Timeline
Because the timeline of events from the signing of the judgment to the notice of appeal is helpful to a full understanding of the issues, we set out below the events, dates, and days from the date of the order.
|
|
Event Description |
Date |
Days |
|
1 |
Order of Dismissal |
July 23, 2004 |
0 |
|
2 |
Motion for Attorney’s Fees |
September 24, 2004 |
63 |
|
3 |
Response to Motion for Fees |
October 14, 2004 |
83 |
|
4 |
Motion to Enlarge Time |
October 27, 2004 |
96 |
|
5 |
Amended Motion to Recover Fees |
October 27, 2004 |
96 |
|
6 |
Letter from court-will grant enlargement |
October 29, 2004 |
98 |
|
7 |
Order granting enlargement |
November 16, 2004 |
116 |
|
8 |
Date trial court set for ruling |
November 19, 2004 |
119 |
|
9 |
Motion to Reconsider Enlargement |
November 22, 2004 |
122 |
|
10 |
Response to Motion to Reconsider |
December 13, 2004 |
143 |
|
11 |
Further Response to Motion to Reconsider |
January 13, 2005 |
174 |
|
12 |
Letter – will grant attorney’s fees |
January 13, 2005 |
174 |
|
13 |
Order granting attorney’s fees |
February 10, 2005 |
202 |
|
14 |
Notice of Appeal |
February 11, 2005 |
203 |
Finality of July 23, 2004
Order of Dismissal
This entire appeal hinges upon a single determination. Was the “Order of Dismissal” signed July 23, 2004 a final judgment for the purposes of appeal?
To facilitate the review, we believe it is important to have the full text of the order. The full text follows:
ORDER OF DISMISSAL
On the 22nd day of June, 2004, came on to be heard Defendants’ Motion to Dismiss the above cause of action for lack of this Court’s Jurisdiction; and the Court, having considered Defendants’ motion to dismiss, evidence presented, as well as the arguments of counsel is of the opinion that Plaintiff’s failure to make a bonafide offer to Defendants based upon the materially greater taking of property rights in Defendants’ property sought by Plaintiff’s First Amended Petition, the Court finds that Plaintiff failed to meet the procedural requirements of the Texas Property Code for invoking this Court’s jurisdiction in an eminent domain proceeding. It, therefore, appears to the Court that Defendants’ Motion is well taken and should be granted.
IT IS, THEREFORE, ORDERED that the above action be and it is hereby dismissed without prejudice to the Plaintiff’s right to refile it; that it be removed from the docket of the Court; and, that all costs incurred be taxed against the Plaintiff.
SIGNED AND ENTERED this 23 day of July, 2004.
Finality Revisited
The leading case on what constitutes a final judgment for purposes of appeal is Lehmann v. Har-Con Corp., 39 S.W.3d 191 (Tex. 2001). It is important, very important, to note that Lehmann recognizes a distinction between a judgment which is final for purposes of appeal, but erroneous, and a judgment which is final because it does, in fact, dispose of all issues and all parties. A judgment can be final for purposes of appeal but may not properly dispose of all the claims.
But the language of an order or judgment can make it final, even though it should have been interlocutory, if that language expressly disposes of all claims and all parties. It is not enough, of course, that the order or judgment merely use the word “final”. The intent to finally dispose of the case must be unequivocally expressed in the words of the order itself. But if that intent is clear from the order, then the order is final and appealable, even though the record does not provide an adequate basis for rendition of judgment. So, for example, . . . the judgment is final – erroneous, but final.
* * *
If a summary judgment order appears to be final, as evidenced by the inclusion of language purporting to dispose of all claims or parties, the judgment should be treated as final for purposes of appeal. . . . litigants should be able to recognize a judgment which on its face purports to be final, and courts should be able to treat such a judgment as final for purposes of appeal.
* * *
As we have already explained, an order can be a final judgment for appeal purposes even though it does not purport to be if it actually disposes of all claims still pending in the case. . . . Also, an order can be final and appealable when it should not be. . . . Granting more relief than the movant is entitled to makes the order reversible, but not interlocutory. . . . the difficulty in determining what does make an order final and appealable remains.
* * *
In the past we have tried to ensure that the right to appeal is not lost by an overly technical application of the law. Fundamentally, this principle should guide in determining whether an order is final. Simplicity and certainty in appellate procedure are nowhere more important than in determining the time for perfecting appeal. From the cases we have reviewed here, we conclude that 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. . . . there must be some other clear indication that the trial court intended the order to completely dispose of the entire case. Language that the plaintiff take nothing by his claims in the case, or that the case is dismissed, shows finality if there are no other claims by other parties[.]
* * *
But if the language of the order is clear and unequivocal, it must be given effect despite any other indications that one or more parties did not intend for the judgment to be final. An express adjudication of all parties and claims in a case is not interlocutory merely because the record does not afford a legal basis for the adjudication. In those circumstances, the order must be appealed and reversed.
Lehmann v. Har-Con Corp., 39 S.W.3d 191, 200, 202, 204-206 (Tex. 2001).
Lehmann Applied Here
Because this was not a judgment after a conventional trial on the merits, we do not presume finality; rather, we examine the judgment for indications that it disposed of all issues and all parties.
First, we note that this suit was not complicated by third-party defendants, third-party plaintiffs, or interpled parties. There was one plaintiff seeking condemnation of property owned by a married couple – one pair of equally situated defendants. The defendants moved for dismissal and attorney’s fees.
The trial court expressly granted the defendants part of the relief they requested – dismissal of the “action,” but did not expressly rule on whether the defendants would be awarded attorney’s fees. Dismissal of an “action” is certainly an indication, possibly not conclusive, of finality. This order disposed of all the relief requested by the plaintiff – a complete dismissal of its pending condemnation case, which was part of the relief requested by the defendants, but the judgment did not expressly address the defendants’ request for the award of attorney’s fees. But the award of attorney’s fees under Texas Property Code Section 21.019(c) is discretionary. Thus, the failure to expressly grant or deny the fees requested, alone, is not dispositive.
There are two other indications of finality. The trial court assessed costs against the plaintiff. This is only an indication of finality and, alone, would not be conclusive.
But any question about the finality of this judgment, whether it was a ruling on all claims of all parties, is put to rest by a single phrase. The trial court expressly ordered “that it [the case] be removed from the docket of the Court ….” There can be no question, on this record, that by the inclusion of this phrase the judgment was final for purposes of appeal. And because no post-trial motion was filed that would extend the appellate timetable, the trial court had no jurisdiction to do anything after 30 days had passed. Tex. R. Civ. P. 329b(g) and (a).
Haak, however, prevailed on the trial court to grant a request for an extension of time under Texas Rule of Civil Procedure 5 in which to renew his request for attorney’s fees and supply the necessary evidence. But by the time the motion was filed, the trial court had already lost jurisdiction. Thus, at that time, the trial court had no jurisdiction in this case to grant a request for an extension of time, even if the trial court could use Rule 5 for that purpose, or grant a request for attorney’s fees after the judgment had become final. Even if we construed the late intervening motion as a request to alter or modify the judgment, these would have been overruled by operation of law 75 days after the date the judgment was signed. Tex. R. Civ. P. 329b(c).
Accordingly, because the trial court had no jurisdiction to grant a request for attorney’s fees 202 days after the final judgment, we should vacate the trial court’s February 10, 2005 order awarding attorney’s fees and affirm the trial court’s July 23, 2004 dismissal of the case. Because the Court does not, I respectfully dissent.
TOM GRAY
Chief Justice
Dissenting opinion delivered and filed February 7, 2007