Arthur Ware, Individually and as Potter County Judge, Joe Kirkwood v. Leon (Bubba) Smith, Potter County Constable, Precinct 4

NO. 07-03-0391-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

NOVEMBER 7, 2003

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ARTHUR WARE, INDIVIDUALLY AND AS POTTER COUNTY JUDGE; JOE KIRKWOOD, MANNY PEREZ-VILLASENOR, BILL THOMAS, IRIS SANDERS LAWRENCE, INDIVIDUALLY AND AS POTTER COUNTY COMMISSIONERS; THE POTTER COUNTY COMMISSIONERS COURT; AND POTTER COUNTY, TEXAS, APPELLANTS

V.

LEON "BUBBA" SMITH, POTTER COUNTY CONSTABLE, PRECINCT 4, APPELLEE

_________________________________

FROM THE 108^TH DISTRICT COURT OF POTTER COUNTY;

NO. 89,161-E; HONORABLE JACK D. YOUNG, JUDGE

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Before JOHNSON, C.J., and REAVIS and CAMPBELL, JJ.

ORDER ON MOTION TO DISMISS

Appellants have appealed from the trial court's judgment dated August 18, 2003 entered in Cause No. 89,161-E. Pending before this court is appellee's motion entitled Plaintiff's Motion to Dismiss for Lack of Jurisdiction, asking that we dismiss the appeal as premature.

The First Amended Original Petition filed in the trial court by appellee, as plaintiff, requested declaratory relief and attorney's fees under Chapter 37 of the Civil Practice & Remedies Code, and requested issuance of a writ of mandamus. The State filed a plea in intervention asking for relief under Chapter 87 of the Local Government Code. The trial court's August 18 judgment, which was entered following an evidentiary hearing, contains declarations, awards attorney's fees, including set fees conditioned on appeal, and orders that a writ of mandamus issue. By a separate order also signed August 18, the trial court severed the State's claims concerning removal under Chapter 87 of the Local Government Code into a separate cause.

The judgment contains language expressing the court's intention that the judgment be final: "This is intended to be a final judgment, disposing of all parties and claims in this cause. It is therefore, ordered, adjudged and decreed that all relief requested and not expressly granted herein is denied." The judgment goes on to order that the writ of mandamus be made returnable to the trial court at a stated date and time, and further orders that the defendants shall appear at that time and show cause as to the manner in which they have complied with the writ and the court's order. It also goes on to say, in its last sentence, that attorney's fees will be considered "at the time final judgment is entered."

Appellee contends the trial court's judgment is not final and thus not appealable, pointing to the provisions requiring the writ of mandamus to be returnable to the court at a stated date and time and stating that the court would further consider the matter of attorney's fees. We apply the same rules to the construction of a judgment as to other written instruments. Stettner Clinic, Inc. v. Burns, 61 S.W.3d 16, 18 (Tex.App.-Amarillo 2000, no pet.). When considering a judgment that is ambiguous or susceptible to more than one interpretation, we are to consider the entire content of the judgment and the record, and give the judgment the reading that renders it more reasonable, effective and conclusive. State Farm Lloyds, Inc. v. Williams, 791 S.W.2d 542, 546 (Tex.App.-Dallas 1990, pet. denied), see Point Lookout West, Inc. v. Whorton, 742 S.W.2d 277, 278 (Tex. 1987) (per curiam). A judgment entered after a conventional trial on the merits is presumed to dispose of all claims asserted in the case and to be final and appealable. North East Ind. Sch. Dist. v. Aldridge, 400 S.W.2d 893, 897-98 (Tex. 1966). One entered following something less than a trial on the merits is not final for purposes of appeal unless it actually disposes of every pending claim and party or it clearly and unequivocally states that it finally disposes of all claims and all parties. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 205 (Tex. 2001).

Applying those rules to the judgment here, we do not construe the trial court's judgment as interlocutory. We read the provision in the judgment requiring the return of the writ of mandamus at a stated date and time simply as a condition of the writ and not an indication of an intention on the part of the trial court that its judgment be interlocutory. And, although the last sentence of the judgment may inject into it an element of ambiguity, nonetheless, considering the judgment as a whole and considering the record on which it was rendered, we conclude that the trial court intended its judgment to be a final judgment on all claims other than those severed.

Appellee further contends that the case is not yet ripe for appellate review because its outcome "depends on contingent and uncertain events," and that review of the trial court's action is premature until appellants comply with the writ of mandamus by setting a reasonable salary for appellee. Appellants respond that the potential necessity for further proceedings to enforce the writ does not render the appeal unripe. We agree with appellant. Texas appellate courts have on any number of occasions reviewed judgments such as that entered in this case with no indication of prior compliance with the writ of mandamus. Anderson v. City of Seven Points, 806 S.W.2d 791 (Tex. 1991); Yett v. Cook, 115 Tex. 175, 268 S.W. 715 (1925); Harris v. Jones, 8 S.W.3d 383 (Tex.App.-El Paso 1999, no pet.); Commissioners Court of Houston County v. Rodgers, 691 S.W.2d 753 (Tex.App.-Tyler 1985, no writ). Appellee does not present argument or authority requiring a different conclusion here.

For these reasons, appellee's motion to dismiss is overruled.

Per Curiam

y, waived the contention. Alvarado v. State, 912 S.W.2d 199, 210 (Tex. Crim. App. 1995) (holding that one waives an issue if he neither cites authority supporting it or provides substantive analysis explaining it).

Accordingly, the judgment is affirmed.

Brian Quinn

Justice

Do not publish.

1.

That no actual conflict existed distinguishes the situation before us from that in Ramirez v. State, 13 S.W.3d 482 (Tex. App.-Corpus Christi 2000, pet. denied), a case upon which appellant relied. Thus, Ramirez is not controlling.