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By JoAnn Storey

Lehmann continues to haunt—and trip up—the unwary practitioner. Recall that the supreme court in Lehmann told us that a “judgment rendered without a conventional trial on the merits is final for purposes of appeal” if it “actually disposes of all claims and parties then before the court, regardless of its language, or it states with unmistakable clarity that it is a final judgment as to all claims and all parties.” Lehmann v. Har-Con Corp., 39 S.W.3d 191, 192-93 (Tex. 2001). The court gave us an example of clear and unequivocal language that leaves no doubt the trial court entered a final judgment: “This judgment finally disposes of all parties and all claims and is appealable.” Id. at 206.

Lehmann thus taught us to perfect an appeal of an order that is final, even if it is erroneous because it grants more relief than was sought or intended.

The First Court recently applied Lehmann and held that: (1) an order granting a “summary motion” seeking a partial judgment to remove a lien placed on property that contained Lehmann’s finality language was final, and appealable; and (2) because no appeal had been perfected, the trial court’s amended order that sought to “correct” the final order signed outside the court’s plenary power was void and subject to mandamus relief. In re M & O Homebuilders, Inc., ___ S.W.3d ___, No. 01–16–00602–CV, 2017 WL 444445, at *5, 7 (Tex. App.—Houston [1st Dist.] Feb. 2, 2017, no pet. h.).

It’s possible the supreme court could take up the issue to determine if the First Court’s holding is a proper application of Lehmann or if it runs counter to the supreme court’s caution that it has “tried to ensure that the right to appeal is not lost by an overly technical application of the law.” Lehmann, 39 S.W.3d at 205.