FENCO AERO, INC., Appellant v. AVERILLE B. DAWSON, F/K/A AVERILLE B. BROWNING

Dismissed and Opinion filed September 26, 1989
 
 
S
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-88-01320-CV
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FENCO AERO, INC., Appellant
V.
AVERILLE B. DAWSON, F/K/A AVERILLE B. BROWNING
.................................................................
On Appeal from the 199th District Court
Collin County, Texas
Trial Court Cause No. 199-1190-87
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O P I N I O N
Before Chief Justice Enoch and Justices Baker and Whittington
Opinion By Chief Justice Enoch
        Appellant Fenco Aero, Inc. (Fenco) appeals a trial court judgment granting declaratory and injunctive relief. We conclude that the judgment appeals is not a final judgment. We dismiss this appeal for want of jurisdiction.
        Fenco is the owner of land comprising the runway, taxiway, fixed base service area and certain adjoining property of the Aero County Airport. Appellee Averille Dawson owns property adjoining Fenco's property. Her deed granted her a "nonexclusive license" to use the airport runways and taxiways, and Dawson operated a T-28 aircraft from Fenco's airport and stored it in a hanger on her adjoining property. Fenco promulgated rules and regulations governing use of the airport, effective January 1, 1987. According to Fenco, Dawson's T-28 exceeded the weight limits allowed under the rules.
        Fenco sued Dawson in June 1987, seeking, among other relief, a declaratory judgment that it had the authority to promulgate rules and regulations concerning use of the airport and that its recently promulgated rules were enforceable against Dawson. Dawson and an intervenor filed claims against Fenco which included claims for declaratory and injunctive relief preventing Fenco from restricting their use of the airport through its newly promulgated rules.
        After a bench trial, the court entered a judgment containing the following provisions concerning Fenco's authority to promulgate rules and regulations:
                1.        Plaintiff has the authority to promulgate reasonable rules and regulations concerning the utilization of the airport facility in question; provided, however, that such rules and regulations are uniformly applied and enforced as to all persons using such facility; and further provided that such rules and regulations pertain to the preservation and protection of the runway and taxi-way and adjacent facilities, the safety of the persons and property within the airport facility and any requirements of the Federal Aviation Administration governing the use of the airport facilities and the airspace above it.
 
* * *
                12.        Plaintiff has no authority to poorly maintain or fail to maintain the airport facility in such a manner as to create an excuse for promulgating rules and regulations for the utilization of the airport facility so as to prevent or hinder its use by Defendant or others, beyond those reasonable and uniformly applied rules and regulations of the kind described in No. 1 above.
 
                13.        Because of the poor condition of the runway and taxiways at the airport facility in question, Plaintiff can temporarily restrict its use until repairs and upgrading are made, provided such temporary restrictions are reasonable in duration and are reasonably necessary to protect the lives, safety and property of the persons, including Defendant, using the airport facilities.
 
                14.        Ninety days or less is a reasonable duration for such temporary restrictions of use.
 
The judgment also included a permanent injunction against Fenco, which read in pertinent part:
            IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that Plaintiff . . . immediately cease, refrain and desist from the following:
 
* * *
                3.        Interfering with the usage and access to the airport facilities by Defendant, except that Plaintiff may promulgate rules and regulations concerning the utilization of the airport facilities if such rules and regulations are uniformly applied and enforced as to all persons using the facilities; such rules or regulations pertain to and are demonstrably necessary for the preservation and protection of the airport facilities, the safety of persons and property on, within, or above the airport facilities; and as may be required by the rules and regulations of the Federal Aviation Administration governing the use of the airport facilities or the airspace above it.        
 
                In this connection, Plaintiff may impose temporary rules and regulations governing the use of the airport facilities for a period of not more than 90 days, which rules and regulations do or could interfere with or restrict Defendant's use and access of the airport facilities if such temporary rules and regulations are necessary to enable repairs to be made to the airport facilities without jeopardizing the lives or property of persons using the airport facilities, however:
 
                4.        Plaintiff shall in no way completely and totally restrict the usage and access to the airport facilities by Defendant, even temporarily.
        A final judgment is one which disposes of all the parties and issues in a case, so that no further action by the court will be necessary in order to settle and determine the entire controversy. Wagner v. Warnasch, 156 Tex. 334, 295 S.W.2d 890, 892 (1956). A judgment must be sufficiently definite and certain to define and protect the rights of all litigants or it should provide a definite means of ascertaining such rights to the end that ministerial officers can carry the judgment into execution without the ascertainment of facts not there stated. Taylor v. Hicks, 691 S.W.2d 839, 840 (Tex. App.--Fort Worth 1985, no writ). To be final, a judgment may not leave undetermined an issue essential to determination of the controversy between the parties or rest on what may or may not occur after its rendition. Taylor, 691 S.W.2d at 841.
        The issue presented here is whether the quoted provisions preclude the judgment's being final because they require future judicial determinations of the issue of Fenco's regulatory authority. Fenco contends that they do not. Fenco points out that the issues presented in this case included Fenco's ability to promulgate rules and that the specific rules promulgated were made part of the trial. Fenco argues that the trial court's judgment addressed and finally determined the issue of its authority to regulate. Fenco contends that, particularly in a declaratory judgment action, the trial court's judgment concerning Fenco's authority to regulate should not be considered interlocutory simply because the regulatory process is inherently dynamic and subsequent amendments to the promulgated rules may be challenged.
        We agree that the trial court could issue a final judgment concluding that Fenco had authority to regulate and concluding that its current regulations were enforceable, but this is not what the trial court did. The trial court's judgment allows Fenco to make temporary and permanent regulations upon the condition that those regulations meet the standards set forth in the judgment. Other than to conclude that the current weight limit is reasonable (but may not be applied to Dawson's T-28 aircraft), the judgment does not explicitly address whether the current regulations meet the standards set out in the judgment or are otherwise enforceable. Nor does the judgment finally determine the issue of Fenco's authority to regulate. Instead the judgment grants Fenco conditional authority to make only those regulations that meet the standards of reasonableness and the other criteria set out in the judgment. Thus, the judgment appears to contemplate continued judicial monitoring and to require future judicial determinations of Fenco's compliance with those criteria. The trial court's judgment does not finally dispose of the issue of Fenco's regulatory authority and, consequently, is not final. See State v. Producers Utilities Corp., 602 S.W.2d 367, 369 (Tex. App.--Amarillo 1980, no writ) (judgment requiring utility to relocate pipe and state to reimburse uitility for its expenses not final because further hearing required to determine compliance and amount of expenses); Roloff Evangelistic Enterprises, Inc. v. State, 598 S.W.2d 697, 701 (Tex. Civ. App.--Austin 1980, no writ) (judgment ordering children's homes closed unless child care license granted by specified date not final because subsequent hearing needed to determine if license granted); Perkins v. Springstun, 557 S.W.2d 343, 344 (Tex. Civ. App.--Austin 1977, writ ref'd n.r.e.) (judgment decreeing that plaintiff owned one half partnership interest in business and requiring defendant to file accounting only determined the principles upon which the parties' rights might be judicially determined in some future proceeding and was not final).
        Dawson also contends that the judgment is final, citing Northeastern Independent School District v. Aldridge, 400 S.W.2d 893 (Tex. 1966). In Aldridge, the Supreme Court held that a judgment entered in a case regularly set for a conventional trial on the merits is presumed final. Aldridge, 400 S.W.2d at 897. That presumption is not applicable in cases such as this one, however, where the judgment shows on its face that the trial court reserved issues for later determination. Roloff, 598 S.W.2d at 701.
        Because the judgment is not final, we dismiss this appeal.
 
                                                          
                                                          CRAIG TRIVELY ENOCH
                                                          CHIEF JUSTICE
 
 
DO NOT PUBLISH
TEX. R. APP. P. 90
 
881320.U05
 
 
File Date[09-26-89]
File Name[881320]