Moncrief v. Tate , 1978 Tex. App. LEXIS 2890 ( 1978 )

OPINION

SPURLOCK, Justice.

Plaintiffs were civil service employees of Tarrant County, Texas. They were discharged from their positions as janitors-custodians at the end of 1976 on the theory that such employees’ positions were being abolished, whereas the Commissioners Court at the same time entered into a contract with an independent contracting firm to perform the same duties that had previously been performed by these county employees. The employees attempted, but failed to obtain relief through the Civil Service Commission, then, the employees filed suit in district court. This suit was filed as an appeal from the ruling and order of the Civil Service Commission and sought relief by way of declaratory judgment for reinstatement with back pay.

The trial court rendered judgment in pertinent part that:

“IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that the Plaintiffs . . . (names deleted from this quotation) ... be reinstated to their Civil Service positions with Tarrant County with back pay to be calculated at rates prevailing for their respective classifications and grades during their absence from employment plus interest thereon at six (6%) per cent per annum from date of judgment minus an amount for any pay period earned from other regular employment during that pay period and that the costs of this suit be taxes (sic) against the Defendant, TARRANT COUNTY.” (Emphasis added.) Defendants have attempted an appeal from this judgment.

At the outset, we are confronted with the question as to whether the judgment in this case is a final judgment. This is crucial because there can only be one final judgment in a case from which an appeal will lie (with certain exceptions, none of which apply here). Tex.R.Civ.P. 301.

In dismissing the appeal in McCormick v. Hines, 503 S.W.2d 333 (Tex.Civ.App.—Amarillo 1973, no writ), the court wrote: “[Ojbviously, a judgment disclosing on its face that the court has reserved some issue for further action until a later date is not final.” The court further wrote: “Where, as here, future action by the court will be necessary in order to settle and determine the entire controversy, the judgment is not final.” Id. at 335.

In dismissing the appeal in Howard Gault & Son, Inc. v. First National Bank, 523 S.W.2d 496 (Tex.Civ.App.—Amarillo 1975, no writ), the court wrote:

“A judgment is considered final only if it determines the rights of the parties and disposes of all of the issues .involved so that no future action by the court will be necessary in order to settle and determine the entire controversy. . . . ” (Emphasis added.) Id. at 498.

In Joseph v. City of Ranger, 188 S.W.2d 1013 (Tex.Civ.App.—Eastland 1945, writ ref’d w.o.m.), the court dismissed an appeal from an interlocutory judgment because the judgment attempted to be appealed from was not a final judgment. The Eastland court of civil appeals wrote:

“In this case the declaratory judgment as entered by the court will not end the controversy, for the reason there are a number of other issues involved in the case that will have to be determined before a final judgment can be entered therein. . . . ” Id. at 1014.

We are confronted with the same situation in the case at bar. The judgment discloses on its face that it is not final in that there are still matters unresolved that will require the presentation of evidence in the trial court; i. e., the amount that each employee’s recovery for back pay will be mitigated, depending on each employee’s earnings during the period of his discharge.

We hold that the judgment sought to be appealed from is interlocutory in nature and no appeal will lie to this court based upon the actions taken. Since no final judgment has been entered so as to confer jurisdiction over the attempted appeal, it is our duty to dismiss the appeal on our own motion. This attempted appeal is dismissed without prejudice to the rights of any party to perfect its appeal from any final appeal-able judgment subsequently entered in this cause.

MASSEY, C. J., concurring.