Opinion
No. 04-16-00066-CV
04-28-2016
KLLM TRANSPORT SERVICES, Appellant v. HALLMARK COUNTY MUTUAL INSURANCE COMPANY, Appellee
From the 407th Judicial District Court, Bexar County, Texas
Trial Court No. 2015CI10264
Honorable John D. Gabriel, Jr., Judge Presiding
ORDER
The clerk's record has been filed in this appeal. The clerk's record reflects that in its original petition, KLLM Transport Services ("KLLM") sued Hallmark Specialty Underwriters, Inc., Terrance Chapman, and Total Transport Logistics, Inc. In response to the lawsuit, Hallmark County Mutual Insurance Company ("Hallmark") filed an answer, stating that it had been incorrectly named as Hallmark Specialty Underwriters, Inc. KLLM then filed an amended petition that correctly named Hallmark as a defendant. In the amended petition, KLLM still named Terrance Chapman and Total Transport Logistics, Inc. as defendants.
Hallmark then filed a motion to dismiss for lack of jurisdiction. On January 15, 2016, the trial court signed an order granting Hallmark's motion to dismiss for lack of jurisdiction and ordered that all of KLLM's claims against Hallmark were dismissed. On February 8, 2016, KLLM filed a notice of appeal, stating that it intended to appeal the trial court's order granting Hallmark's motion to dismiss. The clerk's record does not reflect that KLLM's claims against Terrance Chapman and Total Transport Logistics, Inc. have been disposed of by the trial court. Thus, the clerk's record reflects that KLLM's claims against Terrance Chapman and Total Transport Logistics, Inc. remain pending in the underlying cause.
"[W]hen there has not been a conventional trial on the merits, an order or judgment is not final for purposes of appeal unless it actually disposes of every pending claim and party or unless 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). On March 24, 2016, we issued an order explaining that the trial court's order granting Hallmark's motion to dismiss did not clearly and unequivocally state that it finally disposed of all pending claims and parties. See id. at 203-04 ("[T]he inclusion of . . . the statement, 'all relief not granted is denied' . . . does not indicate that a judgment rendered without a conventional trial is final for purposes of appeal."). Accordingly, we noted that we could review the record to determine whether the order in fact disposed of all pending claims and parties.
In our March 24, 2016 order, we explained that the clerk's record did not contain an answer or other appearance by Terrance Chapman or Total Transport Logistics, Inc. We noted that in M.O. Dental Lab v. Rape, the supreme court stated that when "[t]he remaining party was never served with citation and did not file an answer, and nothing in the record indicate[s] that the plaintiff in the case ever expected to obtain service upon the remaining party," "the case stands as if there had been a discontinuance as to [the unserved party], and the judgment is to be regarded as final for the purposes of appeal." 139 S.W.3d 671, 674-75 (Tex. 2004) (quoting Youngstown Sheet & Tube Co. v. Penn, 363 S.W.2d 230, 232 (Tex. 1962)). Thus, we concluded that if KLLM served or expected to serve either Terrance Chapman or Total Transport Logistics, Inc., a signed, written order disposing of KLLM's claims against them was necessary for there to be a final, appealable judgment. See id. at 675. We ordered KLLM to show cause why this appeal should not be dismissed for lack of jurisdiction.
KLLM has filed a written response with supporting documentation stating that "it was never the Appellant/Plaintiff's intention to seek service of process against Total Transport Logistics, Inc. and Terrance Chapman in this Cause No. 2015CI10264." We conclude that the trial court's order granting Hallmark's motion to dismiss is a final judgment. See M.O., 139 S.W.3d at 674-75. We therefore retain this cause on the docket of this court.
Because the clerk's and reporter's records have been filed, we order appellant to file its brief on or before May 30, 2016.
/s/_________
Karen Angelini, Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said court on this 28th day of April, 2016.
/s/_________
Keith E. Hottle
Clerk of Court