FARM BUREAU COUNTY MUTUAL INSURANCE COMPANY, Petitioner, v. Cristil ROGERS, Respondent
NO. 14-0279
Supreme Court of Texas.
January 30, 2015
161
George L. Preston, George L. Preston & Associates, Paris, TX, for Respondent.
PER CURIAM
This case presents the familiar issue of whether a trial court‘s order, issued without a full trial and containing a Mother
Farm Bureau County Mutual Insurance Company filed this declaratory judgment action against its insured, Cristil Rogers, seeking a declaration that it had no duty to defend or indemnify her in an underlying tort action (the Dominguez suit)1 and requesting an award of court costs and attorney‘s fees under the Uniform Declaratory Judgments Act (UDJA). See
Farm Bureau later moved for summary judgment. Rogers opposed the motion but did not file a cross-motion seeking summary judgment in her favor. After a hearing on Farm Bureau‘s motion, the trial court entered an “Order Denying Plaintiff Farm Bureau[‘s] ... Motion for Summary Judgment.” The order decreed that (1) Farm Bureau “has a duty to defend [Rogers] in or as to” the Dominguez suit; (2) Farm Bureau “has a duty to indemnify [Rogers] in or as to” the Dominguez suit; (3) “[a]ll court costs are taxed against the party incurring same“; and (4) “[a]ny and all relief sought in this cause which is not expressly granted herein is DENIED.” The order did not expressly address the parties’ claims for attorney‘s fees.
The court of appeals dismissed Farm Bureau‘s appeal for want of jurisdiction, holding that an order denying a motion for summary judgment cannot be final and appealable unless the opposing party filed a cross-motion for summary judgment. Farm Bureau petitioned for this Court‘s review. Relying on our decision in Lehmann v. Har-Con Corp., 39 S.W.3d 191 (Tex. 2001), Farm Bureau argues that the trial court‘s order is a final and appealable judgment because it disposed of all parties and claims, even though Rogers did not file a cross-motion for summary judgment seeking that relief. Rogers responds by arguing that the order is not a final judgment because it did not dispose of the parties’ competing claims for attorney‘s fees. In reply, Farm Bureau argues that Rogers’ request for attorney‘s fees under the DTPA was defective and the trial court implicitly denied both parties’ requests for attorney‘s fees by expressly taxing court costs to each party and denying “[a]ny and all relief ... which is not expressly granted herein.”2
We agree with Farm Bureau that the fact that Rogers did not file a cross-motion for summary judgment did not preclude the trial court from entering a “final” judgment. As we explained in Lehmann, “the language of an order or judgment can make it final, even though it should have been interlocutory, if that language expressly disposes of all claims and all parties.” Lehmann, 39 S.W.3d at 200. If the trial court‘s intent to enter a final judgment is “clear from the order, then the order is final and appealable, even though the record does not provide an adequate basis for rendition of judgment.” Id. In that case, “the judgment is final—erroneous, but final.” Id. But we agree with Rogers that the order at issue here did not dispose of all parties and claims, because neither the language taxing court costs nor the Mother Hubbard clause disposed of the parties’ claims for attorney‘s fees.
In Lehmann, we held that “a judgment issued without a conventional trial is final for purposes of appeal if and only if either [1] it actually disposes of all claims and parties then before the court, regardless of its language, or [2] 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. We explained that “[a]n order does not dispose of all claims and all parties merely because it is entitled ‘final‘, or because the word ‘final’ appears elsewhere in the order, or even because it awards costs.” Id. at 205 (emphasis added). “Rather, there must be some other clear indication that the trial court intended the order to completely dispose of the entire case.” Id. Attempting to resolve decades of confusion, we held that “the inclusion of a Mother Hubbard clause—by which we mean the statement, ‘all relief not granted is denied‘, or essentially those words—does not indicate that a judgment rendered without a conventional trial is final for purposes of appeal.” Id. at 203-04. Mother Hubbard clauses are problematic because they are open to interpretation. Id. at 204. Sometimes a Mother Hubbard clause “mean[s] only that the relief requested in the motion—not all the relief requested by anyone in the case—and not granted by the order is denied,” and sometimes it “may also have no intended meaning at all, having been inserted for no other reason than that it appears in a form book or resides on a word processor.” Id. We thus rejected the notion that a Mother Hubbard clause gives “any indicia of finality in any order not issued after a conventional trial.” Id.
After Lehmann, we confirmed that the disposition of a claim for court costs does not dispose of a claim for attorney‘s fees, even when doing so would also dispose of all parties and claims. See McNally v. Guevara, 52 S.W.3d 195, 196 (Tex. 2001). In McNally, the defendants filed a motion for summary judgment but failed to request summary judgment on their counterclaim for attorney‘s fees. Although the trial court‘s order granted the motion and taxed court costs against the plaintiff, we concluded that “[n]othing in the trial court‘s judgment, other than its award of costs to the defendants, suggests that it intended to deny the defendants’ claim for attorney fees. The award of costs, by itself, does not make the judgment final.” Id. Consistent with our statement in Lehmann, we held that the resolution of a claim for court costs did not dispose of a claim for attorney‘s fees and did not serve
This case is slightly different from McNally because, although Farm Bureau failed to expressly request attorney‘s fees in its motion for summary judgment, it argues that the Mother Hubbard clause, not just the disposition of court costs, effectively denied the claim for attorney‘s fees. However, the reasoning of Lehmann and McNally control our decision here. Interpreting Mother Hubbard clauses in the manner Farm Bureau urges would necessarily run afoul of Lehmann because it would allow such clauses to serve as indicia of finality for purposes of appeal—the very function we prohibited in Lehmann. Thus, Mother Hubbard clauses do not, on their face, implicitly dispose of claims not expressly mentioned in the order, including claims for attorney‘s fees. Instead, there must be evidence in the record to prove the trial court‘s intent to dispose of any remaining issues when it includes a Mother Hubbard clause in an order denying summary judgment. See Lehmann, 39 S.W.3d at 205-06; McNally, 52 S.W.3d at 196. To hold otherwise would simply resurrect the issues we put to rest in Lehmann and McNally, albeit in a slightly different form.
Like the movant in McNally, Farm Bureau failed to request an award of attorney‘s fees in its motion for summary judgment or to attach evidence supporting its claim for fees. Thus, as in McNally, there is no reason to presume that the trial court considered the issue when ruling on Farm Bureau‘s motion. The order‘s language taxing court costs is of no import because our decision in McNally established that such language does not, alone, evince a trial court‘s intent to dispose of attorney‘s fees. And most importantly, the parties presented no evidence from the record suggesting that the trial court intended the Mother Hubbard clause to deny attorney‘s fees to either party.3 In the absence of evidence of the trial court‘s intent with respect to the parties’ claims for attorney‘s fees, we find that the trial court‘s order did not dispose of all parties and claims.
Accordingly, without hearing oral argument, we affirm the court of appeals’ judgment dismissing the appeal for want of jurisdiction.