Opinion
No. 05-08-00788-CV
Opinion Filed July 2, 2009.
On Appeal from the County Court at Law No. 5 Dallas County, Texas, Trial Court Cause No. CC-06-14697-E.
Before Justices MORRIS, RICHTER, and LANG-MIERS.
MEMORANDUM OPINION
Marshall Howard d/b/a Four Seasons Automotive appeals the summary judgments entered in favor of The Burlington Insurance Company (BIC) and McClelland Hine, Inc. (MH). Because the summary judgments are not final, appealable orders, we dismiss this appeal for lack of jurisdiction.
Background
Howard purchased garage liability insurance from BIC. MH was the broker on the transaction. Following a fire at Howard's garage, BIC paid third-party claims for damages from the fire, but denied Howard's claim for damages to his personal property. Howard sued both BIC and MH on a number of legal theories seeking to recover his losses.
BIC filed a counterclaim asserting Howard breached the insurance contract by failing to reimburse BIC for the policy deductibles on the third-party claims paid by BIC. BIC sought to recover $2500 in damages plus attorneys' fees. Howard filed a general denial to BIC's counterclaim. Howard also brought a counterclaim against BIC contending BIC violated the Deceptive Trade Practices Act and committed fraud by placing a $500 deductible in the policy after allegedly representing during the procurement process that the policy would have a $250 deductible.
MH filed a motion for sanctions under rule of civil procedure 13 and chapter 10 of the civil practice and remedies code contending Howard's claims were groundless. BIC and MH both filed traditional and no-evidence motions for summary judgment on Howard's claims. BIC also sought summary judgment on its counterclaim against Howard. The trial court entered summary judgment for BIC:
Came on to be considered Defendant The Burlington Insurance Company's First Amended Motion for Summary Judgment and Supplemental Motion for Summary Judgment (Defendant's Motions), Plaintiff Marshall Howard d/b/a Four Seasons Automotive's Responses to same, and argument of counsel. After due consideration, the Court is of the opinion that Defendant's Motions are well taken and should be in all things Granted and the Plaintiff's objections that the no-evidence portion of Defendant's Motions lack specificity are Overruled.
IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that Plaintiff's objections that the no-evidence portion of Defendant's Motions lack specificity are overruled;
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that Defendant's Motions are granted, such that Defendant The Burlington Insurance Company is granted summary judgment on all of Plaintiff's claims, and that Plaintiff shall take nothing from it in this suit.
All relief not granted in this Order is hereby denied with each party to bear its own costs.
The trial court also entered summary judgment for MH:
The Court has considered the Amended and Supplemental Motions for Summary Judgment filed on behalf of Defendant McClelland and Hine, Inc. Having considered the Motions and the responses of Plaintiff as well as arguments of counsel, the Court finds that the Motions are meritorious and grants the requested relief. It is therefore
ORDERED, ADJUDGED AND DECREED that summary judgment hereby is entered in favor of McClelland and Hine, Inc. and against Plaintiff Marshall Howard dba Four Seasons Automotive. Plaintiff shall take nothing from McClelland and Hine, Inc. in this suit.
It is further ORDERED, ADJUDGED AND DECREED that Plaintiff's objections to the no-evidence portions of McClelland and Hine, Inc.'s Motions are overruled.
All relief not granted herein is denied.
BCI and MH subsequently filed a motion to sever Howard's claims against another defendant "so that the summary judgments granted by the court can be converted to final judgments as opposed to interlocutory orders." The trial court granted the motion and Howard appealed.
After the case was submitted, the Court sent a letter to the parties questioning whether the summary judgments were final because the record does not reflect (1) the counterclaims filed by BIC against Howard and by Howard against BIC based on the insurance deductible were resolved by the summary judgment or (2) MH's motion for sanctions was ruled on by the trial court. We specifically requested the parties address the effect, if any, of the Texas Supreme Court's opinion in Crites v. Collins, No. 07-0315, 2009 WL 1383719 (Tex. May 15, 2009) (per curiam) on the finality of the summary judgments in light of the trial court's failure to expressly rule on MH's motion for sanctions.
Howard responded that Crites is distinguishable because, in Crites, "[t]he Supreme Court ruled that the motion [for sanctions] extended the plenary power of the trial court and that statutory sanctions such as [Medical Liability Insurance Improvement Act] sanctions cannot be mooted by nonsuit." Howard argues the summary judgments in this case are final because each order contained a Mother Hubbard clause and BIC's and MH's motion to sever indicate the parties intended the summary judgments to be final and appealable. Finally, Howard asserts BIC and MH "obviously have waived their counterclaim and motion for sanctions."
A Mother Hubbard clause is "a recitation that all relief not expressly granted is denied." Lehmann v. Har-Con Corp., 39 S.W.3d 191, 192 (Tex. 2001).
BIC and MH agree the summary judgments are final "because the Record unequivocally establishes the parties' intent to obtain a final disposition of the case and that the counterclaims and Motion for Sanctions were resolved by the summary-judgment orders, each of which contained a Mother Hubbard clause." BIC, however, contends the summary judgment order in its favor "granted [BIC's] Counterclaim for the $2,500.00 deductible and dismissed [BIC's] claim for attorneys' fees, thereby completely resolving [BIC's] Counterclaim." BIC further argues the order granted summary judgment to BIC on Howard's counterclaims. Both BIC and MH contend Crites is distinguishable and applies only to mandated statutory sanctions such as those under the Medical Liability Insurance Improvement Act. MH further argues that it waived its motion for sanctions by failing to take any action in the trial court to obtain a ruling on the motion.
Jurisdiction
We are required to review sua sponte issues affecting jurisdiction. M.O. Dental Lab. v. Rape, 139 S.W.3d 671, 673 (Tex. 2004) (per curiam). Unless a statute specifically authorizes an interlocutory appeal, appellate courts have jurisdiction over final judgments only. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001). When there has not been a conventional trial on the merits, an order or judgment is not final for the purposes of appeal unless it actually disposes of all parties and all claims pending in the case or it states with "unmistakable clarity" that it is a final judgment as to all claims and all parties. Lehmann, 39 S.W.3d at 192-93. No presumption of finality attaches to a summary judgment order. In re Burlington Coat Factory Warehouse of McAllen, Inc., 167 S.W.3d 827, 829 (Tex. 2005) (orig. proceeding); Lehmann, 39 S.W.3d at 199-200.
An interlocutory appeal is allowed only in specific circumstances, as outlined in the Texas Civil Practice and Remedies Code. See Tex. Civ. Prac. Rem Code Ann. § 51.014 (Vernon 2008). None of these circumstances apply to this case.
A judgment, including a summary judgment order, dismissing all of a plaintiff's claims against a defendant does not necessarily dispose of any cross-actions, unless specifically stated within the order. Id. at 199-200, 205. If other claims remain in the case, "an order determining the last claim is final." Id. at 200. To determine whether an order actually disposes of all pending claims and parties, we may look to the record in the case. Lehmann, 39 S.W.3d at 205-06.
We first consider whether the summary judgment for BIC disposed of all claims between BIC and Howard. Howard, BIC, and MH all argue the judgment is final because it contains a Mother Hubbard clause and the record reflects the parties intended the judgment to be final. However, the inclusion of a Mother Hubbard clause in a summary judgment order is not dispositive as to the order's finality. Lehmann, 39 S.W.3d at 203-04 (inclusion of Mother Hubbard clause "does not indicate that a judgment rendered without a conventional trial is final for purposes of appeal"); Braeswood Harbor Partners Prop. Owners v. Harris County Appraisal Dist., 69 S.W.3d 251, 252 (Tex.App.-Houston [1st Dist.] 2002, no pet.) (dismissing appeal from order granting summary judgment because order did not dispose of certain claims, even though order was entitled "Final Judgment" and contained Mother Hubbard clause).
Looking to the order itself, we first note it states BIC's motion for summary judgment "should in all things be granted." In the decretal portion of the order, however, the trial court ordered that BIC's "Motions are granted, such that Defendant The Burlington Insurance Company is granted summary judgment on all of Plaintiff's claims, and that Plaintiff shall take nothing from it in this suit." See Nelson v. Britt, 241 S.W.3d 672, 676 (Tex.App.-Dallas 2007, no pet.) (decretal provisions in judgment control). The order, therefore, addresses only Howard's claims against BIC. It does not grant BIC summary judgment on its counterclaim and does not award BIC damages. Accordingly, the summary judgment order, on its face, resolves only Howard's claims against BIC.
The summary judgment order does not state with unmistakable clarity that it is a final judgment as to all claims and all parties and does not actually dispose of all claims between BIC and Howard. Further, the record contains no other orders disposing of BIC's claims against Howard. Accordingly, the summary judgment orders are not final, appealable orders. Because we conclude there is no final judgment due to BIC's pending counterclaims against Howard, we need not determine whether, under Crites, the trial court's failure to rule on MH's motion for sanctions prevented the judgment from being final.
After fully reviewing the record and considering the briefing of the parties, we conclude that we lack jurisdiction over Howard's appeal from the two summary judgment orders. We dismiss the appeal for lack of jurisdiction.