Opinion
NUMBER 13-17-00324-CV
10-19-2017
TEXAS LIFE INSURANCE COMPANY, Appellant, v. ESTATE OF DEBRA REED A/K/A DEBRA ANN REED A/K/A DEBRA A. REED, DECEASED, Appellee.
On appeal from the County Court at Law No. 3 of Cameron County, Texas.
MEMORANDUM OPINION
Before Justices Rodriguez, Benavides, and Longoria
Memorandum Opinion by Justice Longoria
Cheryl R. Greenough as the independent executor of the estate of Debra Reed a/k/a Debra Ann Reed a/k/a Debra A. Reed, deceased (Reed), brought suit against Texas Life Insurance Company (Texas Life) for the alleged wrongful distribution of proceeds of a life insurance policy. Thereafter, Reed filed a motion for traditional and no evidence summary judgment against Texas Life. In turn, Texas Life filed a traditional motion for summary judgment and a supplemental motion for summary judgment against Reed. By order entitled "Severance and Partial Summary Judgment," the trial court granted Reed's motion for summary judgment and denied Texas Life's motion for summary judgment. Texas Life filed this notice of appeal.
Reed filed an amended "Motion to Dismiss for Lack of Jurisdiction and Award of Attorney Fees for Frivolous Appeal" through which she contends that the order subject to appeal in this case is interlocutory and that the appeal was brought for purposes of delay. Texas Life filed a response to the motion to dismiss through which it contends that the order subject to appeal is final. The order at issue here is entitled "Severance and Partial Summary Judgment." It expressly states that it is a "partial" summary judgment, grants summary judgment "as to all issues presented . . . other than determination of damages, if any, pursuant to Texas Insurance Code § 541.152(b)," severs claims against another defendant, awards conditional attorney's fees in the event of an appeal, and states that "[a]ll relief not expressly granted . . . is expressly denied."
To be final and appealable, a judgment must dispose of all issues and parties in the case. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001). We review orders "in light of the importance of preserving a party's right to appeal." Id. at 206. "If the appellate court is uncertain about the intent of the order, it can abate the appeal to permit clarification by the trial court." Id. Given the text of the order subject to review here and given the parties' conflicting interpretations of that order, we concluded that the proper course of action was to abate the appeal to permit clarification by the trial court. See id.; TEX. R. APP. P. 27.2, 44.3, 44.4. Accordingly, we abated the appeal and remanded the cause to the trial court for clarification regarding whether it intended the judgment to completely dispose of all claims and all parties. We directed the trial court to file (1) a supplemental clerk's record including its finding and recommendations, together with any orders it may enter regarding the aforementioned issues, and (2) a supplemental reporter's record of any proceedings held on this matter.
We are now in receipt of a supplemental clerk's record containing the trial court's findings of fact and order denying Texas Life's motion to finalize the judgment. Accordingly, we reinstate this appeal. Pursuant to the trial court's findings of fact, the severance and partial summary judgment did not resolve all of Reed's claims and damages, including a claim for additional or treble damages, and those claims remain pending before the trial court. The trial court "intended" to render "a partial summary judgment, not a final and appealable judgment."
The Court, having examined and fully considered the amended "Motion to Dismiss for Lack of Jurisdiction and Award of Attorney Fees for Frivolous Appeal," is of the opinion that it should be granted in part and denied in part. After reviewing the amended motion to dismiss, the response, and the supplemental records, we conclude that the judgment at issue is interlocutory in nature. Therefore, we GRANT the amended motion IN PART, and we DISMISS the appeal. We DENY the motion, IN PART, insofar as it requests an award of attorney's fees for a frivolous appeal.
NORA L. LONGORIA
Justice Delivered and filed the 19th day of October, 2017.