Dismissed and Opinion filed December 18, 2018.




                                      In The

                     Fourteenth Court of Appeals

                                 NO. 14-17-00040-CV
                                 NO. 14-18-00419-CV

   MARK YOUNG AND TIM YOUNG A/K/A PAUL TIMOTHY YOUNG,
                        Appellants
                                        V.

                        BELLAPALMA, L.L.C., Appellee

                    On Appeal from the 270th District Court
                            Harris County, Texas
                      Trial Court Cause No. 2013-68322

                                 OPINION


      In one case in this court (cause number 14-17-00040-CV), appellants Mark
Young (Mark) and Tim Young a/k/a Paul Timothy Young (Tim) (incorrectly
identified by appellee BellaPalma, L.L.C. as Timothy G. Young) appeal from the trial
court’s rendition of a purported final judgment, arguing the trial court erred in
granting a final judgment prior to all parties and claims being disposed. In another
case (cause number 14-18-00419-CV), Mark and Tim appeal from the trial court’s
subsequent “clarifying order confirming final judgment.” BellaPalma has filed a
motion to dismiss the second appeal which has been consolidated into this one. For
the reasons set forth below, we grant BellaPalma’s motion to dismiss and dismiss
both appeals for want of jurisdiction because there is no final, appealable order.

                                       I.      Background

       On November 13, 2013, BellaPalma filed suit against brothers Mark and Tim
d/b/a Texcore Construction and Texcore Construction Specialty, seeking a
declaratory judgment to invalidate a lien on real property and money damages arising
from claims of fraud, negligence, breach of warranty, violations of the DTPA, and the
Texas Trust Fund Statute.

       In August 2014, Mark, appearing pro se, filed a motion to quash that included
a “conditional answer,” jury demand, request for attorney’s fees. Mark did not set the
motion for hearing or submission. Tim was not served.1 In September 2014, the trial
court signed a trial preparation order.

       Over the course of two years, the trial court issued numerous orders resetting
the trial. On October 27, 2016, BellaPalma filed its first amended petition, naming
both Mark and Tim under “parties.” The following day, BellaPalma filed its motion
for summary judgment against both Mark and Tim. The trial court conducted an oral
hearing on BellaPalma’s motion for summary judgment on November 21, 2016. No
record of this hearing is before this court.




       1
          BellaPalma served a disinterested third party with its petition. Thus, on February 11, 2014,
BellaPalma filed a notice of nonsuit “as to a specific Tim Young who was served with citation and
whose date of birth is...and whose driver’s license number ends in 2752.” BellaPalma further noted
that it would continue its lawsuit against Timothy G. Young when found and Mark.

                                                  2
      In a “Final Judgment,” issued November 21, 2016, the trial court, after having
considered BellaPalma’s motion for summary judgment, found that judgment should
be entered for BellaPalma and against “Defendants.” The order further provides:

      It is accordingly ORDERED, ADJUDGED AND DECREED that
      judgment is awarded for Bellapalma (“Plaintiff”) and against Mark
      Young dba Texcore Construction and Texcore Construction Specialty
      (“Defendants”).
                                         ***
      All relief not expressly granted herein is denied.        This is a final
      judgment.
The Final Judgment did not mention defendant Timothy G. Young.

      On December 6, 2016, Mark, pro se, set his motion to quash for hearing on
December 16. The trial court granted Mark’s motion to quash on December 16,
2016. On December 21, 2016, a notice of appearance of counsel for Mark was
entered. Mark also filed a motion to vacate judgment.

      BellaPalma filed its response to Mark’s motion to vacate asking for the motion
to vacate be stricken and seeking withdrawal of the trial court’s order granting motion
to Mark’s motion to quash. A hearing was held on January 10, 2017, and the trial
court granted BellaPalma’s motions. In an “Order Granting Plaintiff’s Motions,” the
trial court withdrew it order granting defendant’s motion to quash dated December
16, 2016, stating “[t]he Court previously overruled Defendant’s Motion to Quash as a
matter of law by granting Plaintiff’s Motion for Summary Judgment on November
21, 2016 as this was a preliminary matter.” The trial court’s order also denied
defendants motion to vacate.

      On January 11, 2017, Mark filed a notice of appeal from the judgment signed
November 21, 2016, and the appeal was assigned to this court under our appellate
number 14-17-00040-CV.

                                          3
        On February 7, 2017, Mark filed an emergency motion to reconsider. The next
day, Mark filed a first supplemental original answer and request for disclosure,
original counterclaim, and verified denial.       On February 9, 2017, Tim filed his
original answer and counterclaim, verified denial, request for disclosure, and request
for declaratory judgment. On February 14, 2017, the trial court denied Mark and
Tim’s motion to set aside final judgment.

        In February 2018, in cause number 14-17-00040-CV, this court abated the
appeal so that the trial court could clarify whether the November 21, 2016 order was
final, and if the order was not final, so that the parties could obtain a severance order
or a non-suit order to make the November 21, 2016 order final.        In response, the trial
court held a hearing on February 9, 2018. Thereafter, on February 15, 2018, the trial
court signed a “Clarifying Order Confirming Final Judgment,” providing in relevant
part:

               Timothy G. Young had not been served, appeared or answered in
        the 3 years this case was pending before the Final Judgment was signed,
        and all claims against him were considered discontinued.2
               The trial court’s order entitled “Final Judgment” on November 21,
        2016 was intended (1) to be a Final Judgment that was final for all
        purposes, (2) to be appealable, and (3) to dispose of all claims, all parties
        and all claims between the parties.
On March 19, 2018, Mark and Tim filed a motion for new trial, which was overruled
by operation of law.

        Mark and Tim filed a notice of appeal from the February 15, 2018 order, which
was docketed as second appeal in cause number 14-18-00419-CV. In their notice,
Mark and Tim state that they “believe the Clarifying Order issued February 15, 2018
is really a modification order changing the summary judgment itself to a be a new

        2
         After this sentence, the court set forth a footnote stating, “Timothy G. Young was
nonsuited in open court during the hearing on the Motion for Summary Judgment.”

                                             4
summary judgment starting new appellate deadlines.” On May 30, 2018, in cause
number 14-17-00040-CV, the court received a supplemental clerk’s record, which
contained the trial court’s clarifying order signed February 15, 2018.

      Mark and Tim filed a motion to consolidate the two appeals and BellaPalma
filed a motion to dismiss the second appeal (14-18-00419-CV).                The court
consolidated the appeals and carried BellaPalma’s motion to dismiss with the case.

      In their brief to this court, Mike and Tim raise three issues: (1) whether the
trial court erred or abused its discretion when it granted BellaPalma’s motion for
summary judgment on November 21, 2016 and BellaPalma’s motion to withdraw
order granting motion to quash on January 10, 2016 when Mark had not appeared or
answered at the time the summary judgment was granted; (2) whether the trial court
erred in issuing a Final Judgment when it was an interlocutory summary judgment
that did not dispose of all the claims and parties and which leaves the Court of
Appeals without jurisdiction; and (3) whether the trial court erred and/or abused its
discretion in granting BellaPalma’s motion for summary judgment.

                             II.   Jurisdiction Analysis

A.    Finality of judgments

      Because we have an obligation to ensure that we have jurisdiction before
proceeding to the merits of the appeal, we will address initially Mark and Tim’s
second issue. See M.O. Dental Lab v. Rape, 139 S.W.3d 671, 673 (Tex. 2004) (per
curiam); Royal Indep. Sch. Dist. v. Ragsdale, 273 S.W.3d 759, 763 (Tex. App.—
Houston [14th Dist.] 2008, no pet.) (jurisdiction is fundamental in nature and may not
be ignored). “An appellate court lacks jurisdiction to review an interlocutory order
unless a statute specifically authorizes an exception to the general rule, which is that
appeals may only be taken from final judgments.” Qwest Commc’ns Corp. v. AT&T


                                           5
Corp., 24 S.W.3d 334, 336 (Tex. 2000) (per curiam). In cases like this, in which there
is no conventional trial on the merits and no statutory exception applies, a judgment
is final for purposes of appeal only if: (1) it actually disposes of all claims and parties
before the court, regardless of its language; or (2) the order states with unmistakable
clarity that it is a final judgment. See Guajardo v. Conwell, 46 S.W.3d 862, 863–64
(Tex. 2001) (per curiam); Lehmann v. Har–Con Corp., 39 S.W.3d 191, 192 (Tex.
2001).
      One way in which the judgment may actually dispose of all claims and parties
before the court is if the record reflects each of these propositions: (1) the trial court
granted summary judgment expressly disposing of the plaintiff’s claims against all
parties named in the petition except one, (2) so far as can be determined from the
record, the remaining defendant was never served with citation and did not file an
answer, and (3) nothing in the record indicates that the plaintiff ever expected to
obtain service upon the remaining party. See M.O. Dental Lab, 139 S.W.3d at 674;
Youngstown Sheet & Tube Co. v. Penn, 363 S.W.2d 230, 232 (Tex. 1962). If the
record satisfies these three prerequisites, then “the case stands as if there had been a
discontinuance as to [the unserved party], and the judgment is to be regarded as final
for the purposes of appeal.” Id.
      A judgment that does not actually dispose of all parties and claims is
interlocutory and will not be considered final for purposes of appeal unless the intent
to finally dispose of the case is unequivocally expressed in the words of the order
itself. In re Burlington Coat Factory Warehouse of McAllen, Inc., 167 S.W.3d 827,
830 (Tex. 2005) (orig. proceeding); Lehmann, 39 S.W.3d at 200. Such an order
would be erroneous to the extent that it granted more relief than requested, but it
would be considered final for purposes of appeal. See Lehmann, 39 S.W.3d at 200 (a
judgment that grants more relief than requested by a party would not be interlocutory
but would be subject to reversal). In Lehmann, the Texas Supreme Court instructed
                                            6
that appellate courts should review the record in the case and the language of the
order to determine whether the order is final. Id. at 205–06.

B.     “Final Judgment” issued November 21, 2016

       Mark and Tim argue that the underlying judgment issued on November 21,
2016, was interlocutory rather than a final judgment. They contend that in the
judgment, the trial court did not actually dispose of BellaPalma’s claims against Tim.
Although they acknowledge that the final judgment contains a Mother Hubbard
clause,3 however, they argue that such an inclusion does not dispose of the claims
against Tim because they were not expressly mentioned in the order. Additionally,
they contend the evidence in the record does not prove the trial court’s intent to
dispose of any remaining parties.

       In response, BellaPalma maintains that the trial court’s Clarifying Order
Confirming Final Judgment issued on February 15, 2018, conclusively establishes
that the underlying judgment disposed of all parties and claims and, thus, was a final
judgment. For the reasons set forth below, we disagree.

       A review of the record in this case reveals that the Final Judgment issued on
November 21, 2016, does not actually dispose of claims asserted by BellaPalma
against Tim.      The First Amended Petition, filed one day prior to the summary
judgment motion and the live pleading at the time of the Final Judgment, set forth
claims against Tim. At the time the trial court issued the Final Judgment, Tim had
not been served with citation. Similarly, there is no evidence he made a general
appearance or otherwise answered. Moreover, the record does not contain any orders
of severance or nonsuit addressing those claims. The trial court’s final judgment
contains no ruling on BellaPalma’s causes of action against Tim. A plaintiff is not

       3
         A “Mother Hubbard” clause is the inclusion of a clause stating that all relief not expressly
granted was denied, or essentially those words. See Lehmann, 39 S.W.3d at 203-04.

                                                 7
entitled to a judgment against a defendant who has not been served with citation,
appeared, or waived service of citation. We conclude that BellaPalma’s attempt to
obtain a summary judgment against Tim indicates that BellaPalma expected to obtain
service upon Tim and that this court should not conclude under the Youngstown Sheet
& Tube Co. precedent that BellaPalma’s claims against Tim should be considered
discontinued. See Youngstown Sheet & Tube Co. v. Penn, 363 S.W.2d at 232.

       The Final Judgment issued November 21, 2016, does not dispose of all pending
claims and parties, and is not final for purposes of appeal unless the language of the
order unequivocally expresses an intent to dispose of the case. See Farm Bureau Cty.
Mut. Ins. Co. v. Rogers, 455 S.W.3d 161, 163-64 (Tex. 2015). As the Texas Supreme
Court reconfirmed in Farm Bureau, “Mother Hubbard clauses do not, on their face,
implicitly dispose of claims not expressly mentioned in the order...there must be
evidence in the record to prove the trial court’s intent to dispose of any remaining
issues when it includes a Mother Hubbard clause in an order denying summary
judgment.” Id. at 164 (citing McNally v. Guevara, 52 S.W.3d 195, 196 (Tex. 2001);
Lehmann, 39 S.W.3d at 205–06). The fact that the order granting BellaPalma’s
motion for summary judgment states “This is a final judgment” does not make the
order a final judgment. Lehmann, 39 S.W.3d at 192–93. Nor does the Mother
Hubbard clause make the order a final judgment. See id. at 204 (“the standard
Mother Hubbard clause is used in interlocutory orders so frequently that it cannot be
taken as any indication of finality”). In the order, the trial court does not state
with unmistakable clarity that the trial court rendered a final judgment. See id. at
200.

        The trial court issued a clarifying order confirming final judgment, stating
“Timothy G. Young had not been served, appeared or answered in the 3 years this
case was pending before the Final Judgment was signed, and all claims against him

                                          8
were considered discontinued.”      In its order, the trial court further noted that
“Timothy G. Young was nonsuited in open court during the hearing on the Motion
for Summary Judgment.” BellaPalma argues this “conclusively establishes” finality.
Mark and Tim assert that there is no evidence in the record showing that Tim was
nonsuited during the summary-judgment hearing. Even if there were evidence of a
nonsuit in open court during this hearing, this nonsuit would not make the trial
court’s order final because a court order on the nonsuit is necessary for the court to
have disposed of the nonsuited claims for the purposes of determining finality. See
Park Place Hosp. v. Estate of Milo, 909 S.W.2d 508, 510 (Tex. 1995).

      In Park Place Hospital, the plaintiffs sued six defendants. Id. The plaintiffs
nonsuited two defendants, Fadhli and Walkes, and the trial court signed an order
dismissing only Fadhli. The trial court did not sign an order dismissing Walkes.
Another defendant was never served. The three other defendants then moved for
summary judgment, which the trial court granted. The supreme court determined that
the summary judgment order was not a final judgment because, “[a]lthough the
plaintiffs had filed notice to nonsuit Walkes, the appellate timetable could not be
triggered until a signed written order of the court dismissed him.” Id. Likewise, in
this case, although BellaPalma asserts it nonsuited its claims against Tim in open
court during the summary judgment hearing, the trial court did not sign an order on
the nonsuit that would have disposed of the claims against Tim for finality purposes.
See id.   Thus, even if BellaPalma nonsuited its claims against Tim during the
summary judgment hearing, that action would not make the trial court’s judgment
final. See Park Place Hosp., 909 S.W.2d at 510.

      The clarifying order states the claims against Timothy G. Young were
considered   “discontinued.”   To    the   extent   the   trial   court   invoked   the
Youngstown Sheet & Tube Co. rule by using language similar to the supreme court’s

                                           9
language in that case, we concluded above that the record indicates that BellaPalma
expected to obtain service upon Tim. See Youngstown Sheet & Tube Co. v. Penn,
363 S.W.2d at 232.         In addition, the record does not reflect that BellaPalma
discontinued its claims against Tim. BellaPalma’s first amended petition, filed one
day before the summary judgment motion, continued to list Tim as party against
whom it sought relief.       In its summary judgment motion, BellaPalma sought
judgment against both Defendants.        Both the amended petition and summary
judgment motion are evidence of BellaPalma going forward with its claims against
Tim. See In re Sheppard, 193 S.W.3d 181, 188 (Tex. App.—Houston [1st Dist.]
2006, orig. proceeding).

      In sum, the final judgment issued November 21, 2016, in this case does not
actually dispose of all parties and all claims—there is no reference to BellaPalma’s
claims against Tim. There is no language pertaining to Tim set forth therein. Tim is
never mentioned in the final judgment. In the order, the trial court does not state
with unmistakable clarity that the trial court rendered a final judgment.       See
Lehmann, 39 S.W.3d at 200. The record does not contain an order from the trial
court dismissing BellaPalma’s claims against Tim based on a nonsuit or a severance
order, though the trial court could have issued either order during the abatement
period. The trial court’s November 21, 2016 order is not a final and appealable
judgment. See id; see also Davati v. McElya, 530 S.W.3d 265, 267 (Tex. App.—
Houston [1st Dist.] 2017, no pet.).

      As such, we are without power to review it, and we must dismiss the appeal
from the November 21, 2016 order. See Bison Bldg. Materials, Ltd. v. Aldridge, 422
S.W.3d 582, 585 (Tex. 2012) (“Unless specifically authorized by statute, Texas
appellate courts only have jurisdiction to review final judgments.”).

      Mark and Tim’s second issue is sustained.

                                          10
C.    “Clarifying Order Confirming Final Judgment” issued February 15, 2018
      In their notice of appeal of the Clarifying Order Confirming Final Judgment
issued February 15, 2018 (14-18-00419-CV), Mark and Tim opine that the trial
court’s clarifying order “is really a modification order changing the summary
judgment itself to be a new summary judgment starting new appellate deadlines.”
BellaPalma filed a Motion to Dismiss the appeal, maintaining the trial court’s
clarifying order was an answer to this court’s request and that it did not modify or
reform the final judgment issued November 21, 2016. Through supplementation of
the record in the original appeal (14-17-00040-CV), the clarifying order was made
part of the court’s appellate record. There was no jurisdictional basis for Mark and
Tim to file a new appeal. Accordingly, BellaPalma’s motion to dismiss is granted.


                                 III.     Conclusion

      Accordingly, we dismiss both appeals for want of jurisdiction.


                                        /s/        John Donovan
                                                   Justice



Panel consists of Chief Justice Frost and Justices Donovan and Brown.




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