As a general rule, only the final judgment in a lawsuit can be appealed. With a very few specifically enumerated exceptions, Texas law does not permit appeals from what are known as interlocutory orders (interlocutory orders are orders made during litigation of the case but before entry of final judgment). See generally City of Beaumont v. Guilloroy, 751 S.W.2d 491, 492 (Tex. 1988) (per curiam) (citations omitted). But sometimes it can be difficult to determine whether an order constitutes a final judgment.
A judgment is final for purposes of appeal where it either (1) actually disposes of all parties and claims at issue in the lawsuit, or (2) expressly states that it disposes of all claims and parties in the lawsuit even if it does not actually do so. Farm Bur. Cty. Mut. Ins. v. Rogers, 455 S.W.3d 161, 163 (Tex. 2015); Lehmann v. Har-Con Corp., 39 S.W.3d 191, 192-93 (Tex. 2001). This is true without regard to the label put on the order. In other words, a judgment doesn’t have to be called judgment to be final. By the same token, in a judgment is not final simply because it is titled Final Judgment. Lehmann, 39 S.W.3d at 205.
For example, assume that a plaintiff sues a defendant asserting claims for breach of contract, negligence, and assault. The defendant files a motion for summary judgment seeking dismissal of the claims for negligence and breach of contract. The trial court grants that motion, but states in its order that it is disposing of and dismissing all the claims. That order would be erroneous but final. See, e.g., Jacobs v. Satterwhite, 65 S.W.3d 653, 655 (Tex. 2001).
By way of further example, assume in the same lawsuit that the trial court instead grants summary judgment only on the plaintiff’s claim for negligence. The trial court titles its order Final Judgment, but in the body of the order states that it is dismissing only the negligence claim. Despite its title, this order would not be a final judgment because it does not dispose of all claims at issue in the lawsuit.
As a general rule, only one final judgment may be signed in a lawsuit (note, thought, that this rule does not always apply in probate and family law cases). Tex. R. Civ. P. 301; Logan v. Mullis, 686 S.W.2d 605, 609 (Tex. 1985). So what happens to the interlocutory orders in a case? They generally are merged into the final judgment—even where they are not explicitly referenced in it. Webb v. Jorns, 488 S.W.2d 407, 408-09 (Tex. 1972); Radelow-Gittens Real Prop. Mgmt. v. Pamex Foods, 735 S.W.2d 558, 560 (Tex. App.—Dallas 1987, writ ref’d n.r.e.). So, for example, if a trial court grants partial summary judgment to a defendant on one of the plaintiff’s claims, and later finds for the defendant at trial on the remaining claims and enters final judgment, the earlier summary judgment order is merged into that final judgment.
“If there is any doubt as to a judgment’s finality, the question must be resolved by determining the trial court’s intention as gathered from the language of the order and the record as a whole, ‘aided on occasion by the conduct of the parties.’” American Heritage Capital, LP v. Gonzalez, 436 S.W.3d 865, 870(Tex. App.—Dallas 2014, no pet.) (citing Vaughn v. Drennon, 324 S.W.3d 560, 563 (Tex. 2010) (per curiam)).
A trial court’s specific enumeration of only some parties in an order usually indicates the court did not intend to dispose of all parties. See Taub v. Dedman, 56 S.W.3d 83, 87 (Tex. App.—Houston [14 Dist.] 2001, pet. denied). Indeed, this may be viewed as an “almost conclusive demonstration of such interlocutory intent.” Id. at 86. But there is an important exception to this rule for parties who have not been served with process or appeared in the case. “Where a judgment disposes of all named parties except those who have not been served and have not appeared, the judgment is considered final for purposes of appeal and the case stands as if there had been a discontinuance as to those parties not served.” Ballard v. Portnoy, 886 S.W.2d 445, 446 (Tex. App.—Houston [1st Dist.] 1994, no writ) (citation omitted). So, if a judgment fails to resolve claims against a defendant who has neither been served nor appeared in the action, the judgment is final.
Special Dangers in Family Cases: The “Memorandum Ruling”
In family cases, many judges have fallen into the habit of issuing what commonly are known as memorandum rulings. These rulings usually contain the case name and number at the top, and the judge’s signature at the bottom, and they list—sometimes in cursory fashion but other times in detail—the trial court’s decisions about custody, property, and other matters that may be at issue. Generally, the lawyers for the parties then prepare and obtain entry of a more formal order effectuating the memorandum ruling.
But beware! When a memorandum ruling contains all the requisites of a final judgment, and is signed by the trial judge, the court of appeals likely will hold that it is the final judgment, thereby triggering the 30-day period in which to file an appeal. And this may be the case even if the judge later enters a formal judgment. This may be particularly likely where the memorandum ruling contains a “Mother Hubbard” provision.
That is exactly what happened in In re B.D., No. 05-17-00674-CV, 2017 WL 3765848 (Tex. App.—Dallas 2017, no pet. h.) (mem. op.). The judge issued a memorandum ruling setting forth in very basic terms the rulings in the case. For example, the order did not contain any of the lengthy custody provisions normally found in a judgment resolving a custody dispute. But it did say “Mother and Father will remain joint managing conservators of the child.” Other issues were resolved with similar statements. Five weeks later, the judge signed a formal judgment in the case and mother filed an appeal. The Dallas Court of Appeals dismissed the appeal, holding that the memorandum ruling constituted the final judgment in the case—meaning the later formal judgment was void and mother’s appeal was too late. This is a cautionary tale for family law litigants and lawyers.
Knowing whether a judgment is final isn’t always simple—even for experienced trial lawyers. In the most complex circumstances, an appellate lawyer may need to assist in evaluating finality. The stakes are high; if your order is final, you must file an appeal to avoid waiving your appellate rights. It is better to be safe than sorry—when in doubt, retain an appellate lawyer to analyze finality and ensure you protect yourself.