Strut Cam Dimensions, Inc. v. Sutton

• Citation: 896 S.W.2d 799
• Decision Date: 06 October 1994
• Docket Number: No. 13-93-651-CV,13-93-651-CV
• Parties: STRUT CAM DIMENSIONS, INC., Appellant, v. Joseph H. SUTTON, Appellee.
• Court: Court of Appeals of Texas

Page 799

896 S.W.2d 799

STRUT CAM DIMENSIONS, INC., Appellant, v. Joseph H. SUTTON, Appellee.

No. 13-93-651-CV.

Court of Appeals of Texas,

Corpus Christi.

Oct. 6, 1994.

Opinion Granting Rehearing and

Dismissing Appeal Feb. 9, 1995.

Moises V. Vela, Harlingen, and Larry Warner, Brownsville, for appellant.

Robert E. Scott, Edward P. Watt, Austin, for appellee.

OPINION

PER CURIAM.

The transcript in this case includes a post-answer default judgment that neither addresses the defendants' counterclaims nor contains a Mother Hubbard clause denying all relief not expressly granted. Whether we have jurisdiction over this matter depends on the applicability of the Aldridge presumption to post-answer default judgments. See North East Indep. Sch. Dist. v. Aldridge, 400 S.W.2d 893, 897-98 (Tex.1966) (discussing circumstances under which a judgment will be presumed final and appealable notwithstanding the omission of a Mother Hubbard clause); see also Stoner v. Thompson, 578 S.W.2d 679, 682 (Tex.1979) (defining post-answer default as failure to appear at trial after filing answer).

The Dallas Court of Appeals, the only court to have specifically addressed this issue, has extended the Aldridge presumption of finality to post-answer default judgments. Thomas v. Dubovy-Longo, 786 S.W.2d 506, 507 (Tex.App.--Dallas 1990, writ denied); see also Schnitzius v. Koons, 813 S.W.2d 213, 216 (Tex.App.--Dallas 1991, no writ) (citing Thomas with approval). The Thomas court based its decision on language from Aldridge that applied the presumption of finality to cases "regularly set for a conventional trial on the merits." Thomas, 786 S.W.2d at 507 (quoting from Aldridge, 400 S.W.2d at 897) (emphasis supplied).

Since Aldridge, however, the supreme court has backed away from this language; the court has shifted focus from whether the dispute was set for trial to whether a conventional trial was actually conducted. See, e.g., Martinez v. Humble Sand & Gravel, Inc., 875 S.W.2d 311, 312 (Tex.1994) ("After a conventional trial on the merits, even absent clear language, the appellate court may draw the inference the judgment was meant to be final.") (emphasis supplied); Mafrige v. Ross, 866 S.W.2d 590, 592 (Tex.1993) ("the Mother Hubbard language from [Aldridge ] was limited to conventional trial on the merits"); Houston Health Clubs v. First Court of Appeals, 722 S.W.2d 692, 693 (Tex.1986) ("Following conventional trial on the merits, the judgment is presumed final."); Teer v. Duddlesten 664 S.W.2d 702, 704 (Tex.1984) (disapproving application of Aldridge presumption absent "a conventional trial regularly set for trial on the merits"); accord Walker v. Sharpe, 807 S.W.2d 442, 445 (Tex.App.--Corpus Christi 1991, no writ) ("In determining whether the judgment is final, different presumptions apply depending on whether the judgment follows a conventional trial on the merits or results from default or summary proceedings. Following a conventional trial on the merits, the judgment is presumed final.")

Because the supreme court no longer emphasizes trial setting as the act that attaches the presumption of finality, we must consider whether a post-answer default involves a conventional trial. In Stoner, the supreme court concluded that a post-answer default is not "a judgment upon trial ... [but] a form of 'judgment by default.' " Stoner, 578 S.W.2d at 682 (quoting Mullen v. Roberts, 423 S.W.2d 576, 579 (Tex.1968)). Significantly, the Aldridge presumption does not apply to default judgments. Houston Health Clubs, 722 S.W.2d at 692.

Having considered the Thomas opinion of the Dallas Court of Appeals, we conclude that the presumption of finality does not apply to post-answer default judgments. We agree with the Dallas court that the nondefaulting party in a post-answer default must present evidence "as in a judgment upon a trial." Thomas, 786 S.W.2d at 507 (quoting Stoner, 578 S.W.2d at 682) (emphasis supplied). Nevertheless, post-answer default judgments do not follow a conventional trial on the merits because such judgments are not, in any event, "a judgment upon trial." Stoner, 578 S.W.2d at 682; c.f. Thomas, 786 S.W.2d at 507-08 (Enoch, C.J., concurring) (noting that the Aldridge presumption "should not balance upon so tenuous a fulcrum as whether the case was regularly set for trial" but then focussing on whether there was an "actual" trial rather than a conventional trial on the merits).

The post-answer default judgment in the instant case neither denies the defendants' counterclaims nor contains a Mother Hubbard clause. Absent the Aldridge presumption of finality, therefore, this judgment remains interlocutory until severed from, or modified to address, the defendants' counterclaims. Accordingly, we have no jurisdiction over this appeal.

OPINION ON MOTION FOR REHEARING

In our original per curiam opinion, we concluded that this post-answer default judgment was not final because it did not expressly dispose of the counter-actions or contain the phrase "all relief not expressly granted is denied." We dismissed the appeal for want of jurisdiction because the judgment was not final. Appellee's motion for rehearing raises the additional argument that the judgment is final because it disposes of the defendants' counter-actions by necessary implication. We agree, hold the judgment was final, but nevertheless dismiss the appeal.

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