Opinion
No. 10-09-00053-CV
Opinion delivered and filed January 13, 2010.
Appealed from the 12th District Court, Madison County, Texas, Trial Court No. 08-11626-012-10.
Abated.
Before Chief Justice GRAY, Justice REYNA, and Justice DAVIS.
ABATEMENT ORDER
SignAd, Ltd. appeals an order granting summary judgment. As a preliminary matter, SignAd argues that the judgment entered by the trial court is not a final judgment because it did not dispose of all of its claims against James Bray. Because it is the intent of the trial court that is determinative of the issue of finality, we abate this appeal to the trial court for the trial court to state whether or not the order granting summary judgment was intended to be a final judgment for purposes of appeal.
Jurisdiction
Unless an interlocutory appeal is expressly authorized by statute, we only have jurisdiction over an appeal taken from a final judgment. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001). Our first determination must be whether the order at issue in this appeal constitutes a final judgment. Parks v. Dewitt County Elec. Coop., 112 S.W.3d 157, 161 (Tex. App.-Corpus Christi 2003, no pet.).
Generally, a judgment is final if it disposes of all pending parties and claims in the record. Guajardo v. Conwell, 46 S.W.3d 862, 863-64 (Tex. 2001); Lehmann, 39 S.W.3d at 204. In cases where there is no conventional trial on the merits, such as a summary judgment proceeding, a judgment is final for purposes of appeal only if it either actually disposes of all claims and parties before the court, regardless of its language, or it states with unmistakable clarity that it is a final judgment. Lehmann, 39 S.W.3d at 204. If other claims remain in the case, "an order determining the last claim is final." Lehmann, 39 S.W.3d. at 200. Whether an order is a final judgment for purposes of appeal must be determined from its language and the record in the case. Lehmann, 39 S.W.3d at 204.
The status of an order cannot be conclusively determined by its title, either "final" or "interlocutory." Lehmann, 39 S.W.3d at 200. The intent to finally dispose of the case must be unequivocally expressed in the words of the order itself. Lehmann, 39 S.W.3d at 200. Even the use of a "Mother Hubbard" clause, which includes the language "all relief not expressly granted herein is denied," is no longer determinative of finality, especially without a conventional trial on the merits. Lehmann, 39 S.W.3d at 203-04.
Additionally, a judgment that by its language clearly disposes of all claims by all parties regardless of whether there is an adequate legal basis for it is not interlocutory because it is erroneously granted. Id.; Salas v. State Farm Mut. Auto. Ins. Co., 226 S.W.3d 692, 697 (Tex. App.-El Paso 2007, no pet.). It is not the intent of the parties that is relevant, either, but the intent of the trial court in making its decision. Salas, 226 S.W.3d at 697 (citing Lehmann, 39 S.W.3d at 206).
The Motions for Summary Judgment
The underlying causes of action surround a controversy over the placement of two advertising signs along Interstate 45. A lease was executed between SignAd and Christopher Newman, who was the previous owner of the real property on which the signs were located and who is Bray's predecessor-in-interest, for the placement of these signs. After Newman sold the property to Bray, Bray sent SignAd notice that he believed the lease was unenforceable and demanded removal of the signs within thirty days or he would consider them abandoned. This litigation ensued, with SignAd pleading claims for conversion, a declaratory judgment regarding the ownership of and rights regarding the signs, breach of contract (present and anticipatory), tortious interference, promissory estoppel, with a request for actual and exemplary damages and attorney's fees. SignAd also requested a temporary restraining order, temporary injunction, and permanent injunction regarding the signs. Bray filed a general denial. SignAd and James Bray filed competing traditional motions for summary judgment. Bray's motion for summary judgment was based on the affirmative defense of the statute of frauds, sought a declaratory judgment that the lease was invalid and unenforceable, and for attorney's fees. SignAd's motion sought summary judgment as to its claims for breach of contract, conversion, and tortious interference along with claims for monetary damages and attorney's fees. The trial court, after hearing, granted James Bray's motion for summary judgment and entered an order that stated the following:
It is apparent that request for documents to be included in the clerk's record does not include all of the pleadings. The only pleadings by Bray contained in the clerk's record before this Court are Bray's original answer and his summary judgment pleadings. We cannot ascertain whether Bray filed any counterclaims with the trial court. There was no reporter's record requested or filed.
CAME ON to be heard, Defendant, JAMES A. BRAY'S, Motion for Summary Judgment and the Court having considered the Motion, any responses, the evidence, and the argument of counsel is of the opinion the motion should be GRANTED; it is therefore
ORDERED, ADJUDGED AND DECREED that the alleged lease between SIGN AD, LTD. and JAMES A. BRAY is unenforceable and is void as a matter of law; it is further
ORDERED, ADJUDGED AND DECREED that Defendant, JAMES A. BRAY, is awarded judgment for his costs of court and attorney's fees in the amount of $10,000.00 up and through the granting of the foregoing Motion for Summary Judgment, and additional $3,500.00 attorney's fees for a successful appeal to the court of appeals and in the event of a successful appeal to the Texas Supreme Court, an additional $4,000.00 in attorney's fees.
Signed on the 1st day of December, 2008.
The order signed by the trial court lacks many of the traditional indicia of finality; it is not labeled as a final judgment in its heading, it does not contain a "Mother Hubbard" clause, it does not contain language that SignAd takes nothing on its claims, and it does not state that the order is final or is appealable anywhere within its four corners. The order addresses only James Bray's motion for summary judgment, but does not reference SignAd's motion.
Additionally, SignAd filed a motion for the trial court to determine the finality of its judgment, and SignAd contends and Bray does not dispute that the trial court deferred a ruling on the finality of the judgment pending a determination by this Court as to the finality of the judgment. There is no written order to this effect in the record before us; however, the trial court's docket sheet indicates that this is correct. However, it is not proper for this Court to determine whether the judgment was intended to be final by the trial court. Lehmann requires clarity of the trial court's intent when determining whether this judgment is final. Lehmann, 39 S.W.3d at 206.
Conclusion
We therefore abate this appeal. The trial court is instructed to conduct a hearing within thirty (30) days with the sole purpose of clarifying its intent as to the finality of this judgment. We order that the trial court issue an order and written findings regarding the finality of the judgment. We order that the court reporter transcribe that hearing and that the transcription be filed with the Clerk of this Court within sixty (60) days of this order. We order that the District Clerk file the order and written findings in a supplemental record with the Clerk of this Court within the same sixty (60) days of this order as well.