Summary
In Riner, the judgment awarded $7,500 in damages plus $25.48 "per day for each day after July 12, 2007, that [the appellant] retains possession of the real property."
Summary of this case from In re A.R.J.Opinion
No. 05-07-01053-CV
Opinion issued November 20, 2008.
On Appeal from the 162nd Judicial District Court, Dallas County, Texas, Trial Court Cause No. DC-06-10563.
Before Justices WRIGHT, O'NEILL, and LANG.
MEMORANDUM OPINION
In this trespass to try title action, in which both parties claim a superior title based on a non-judicial foreclosure, appellant Wade Riner appeals from the trial court's summary judgment in favor of appellees Gaylon Ray Neumann and Novastar Mortgage, Inc. We dismiss this appeal for want of jurisdiction.
Because all dispositive issues are clearly settled in law, we issue this memorandum opinion. Tex. R. App. P. 47.1. The facts and procedural history of this appeal are well known to the parties; therefore, we do not relate them here.
In his fourth issue, appellant argues the "final" judgment, as written, makes it impossible to determine the amount he owes appellee. Part of the "final summary judgment" reads as follows:
Accordingly, the Court orders that Plaintiff, GAYLON RAY NEUMANN, recover from Defendant, WADE RINER, the sum of $7,500.00, plus $25.48 per day for each day after July 12, 2007, that WADE RINER retains possession of the real property described below, prejudgment interest on that sum at the rate of 8.25%, postjudgment interest on the total sum of the annual rate of 8.25%, and court costs.
(Emphasis added.) Thus, he asserts the award of such future damages is an improper advisory opinion and fails to resolve the issue. Appellees respond the future damages are akin to a permanent injunction or an award of attorney's fees on appeal. Alternatively, any error is waived by failing to object.
Absent certain exceptions not applicable here, appellate courts can review only final and definite judgments. Hinde v. Hinde, 701 S.W.2d 637, 639 (Tex. 1985); Cooke v. Cooke, 65 S.W.3d 785, 787 (Tex.App.-Dallas 2001, no pet.). A final judgment fully disposes of all issues and all parties in the lawsuit. Cooke, 701 S.W.2d at 787. A judgment must also be sufficiently definite and certain to define and protect the rights of all litigants, or it must provide a definite means of ascertaining such rights, to the end that ministerial officers can carry the judgment to execution without ascertainment of facts not stated in the judgment itself. Hinde, 701 S.W.2d at 639 (citing Steed v. State, 183 S.W.2d 458, 460 (Tex. 1944)). Thus, a judgment cannot condition recovery on uncertain events or base its validity on what the parties might or might not do post-judgment. Hinde, 701 S.W.2d at 639.
Here, by including language awarding a per diem amount as long as Riner retained possession of the property, the trial court conditioned recovery on uncertain events which may occur post-judgment. Such language prevents a ministerial officer from carrying the judgment to execution without ascertainment of facts not included in the judgment because a clerk would have no evidence before him to know how long Riner retained possession of the property. Thus, the trial court failed to enter a final and definite judgment. In reaching this conclusion, we reject Neumann's argument that the per diem language is akin to a conditional, future award of attorney's fees. A conditional, future award of attorney's fees, although not a guaranteed damage amount, is still a definite amount in the judgment that a clerk would be able to determine based on ascertainable facts, such as whether a party won or lost on appeal. Unlike here, the clerk would have no definite information to calculate the per diem award based on the judgment alone.
We further reject appellant's argument that the judgment is similar to a permanent injunction in which the trial court can settle issues in a post-trial or post-appeal hearing. Appellant has failed to provide any case law in support of this argument; therefore, any argument is waived. Tex. R. App. P. 38.1(h).
Because the judgment is not final, it is an interlocutory judgment in which no statutory exception applies. See Tex. Civ. Prac. Rem. Code Ann. § 51.014 (Vernon 2008). Therefore, we lack jurisdiction over this appeal and sustain appellant's fourth issue. Having determined we lack jurisdiction, we are prohibited from considering appellant's remaining issues.
Appellant alleged a fact issue existed as to the status of the lien through which appellees claimed title. Appellant further argued a fact issue existed regarding the amount of damages Neumann incurred based on his occupancy of the property. Finally, appellant challenged the rate of pre-judgment interest awarded in the judgment.
We dismiss appellant's appeal for lack of jurisdiction.
Appellee Neumann contends any argument regarding post-trial damages is waived by appellant's failure to object. Having concluded we lack jurisdiction, Neumann's argument is without merit. See Hubenak v. San Jacinto Gas Transmission Co., 141 S.W.3d 172, 181 (Tex. 2004) (subject matter jurisdiction cannot be waived).