Zurich American Insurance Company v. Sandra A. Debose ( 2009 )

Opinion issued February 5, 2009

  In The

Court of Appeals

For The

First District of Texas

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NO. 01-08-00717-CV

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ZURICH AMERICAN INSURANCE COMPANY, Appellant

v.

SANDRA A. DEBOSE, Appellee

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On Appeal from the 133rd District Court

Harris County, Texas  

Trial Court Cause No. 2006–54103  

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MEMORANDUM OPINION

          In this case, appellant, Zurich American Insurance Company, filed suit for judicial review of a Texas Department of Insurance, Division of Workers’ Compensation Appeals Panel’s decision, which favored appellee, Sandra A. Debose. Debose answered the suit and filed a counter-claim for attorney’s fees pursuant to Labor Code section 408.221. Zurich American filed a motion for summary judgment asserting that it was entitled to judgment as a matter of law with respect to its challenges to the panel’s decision. Debose also filed a motion for summary judgment in which she contended that Zurich American’s claims should be denied as a matter of law.

          The trial court granted Debose’s motion for summary judgment. The trial court’s order, captioned “Final Judgment,” orders that Zurich American “shall TAKE NOTHING by this action” and awards costs to Debose against Zurich American. The order also contains a Mother Hubbard clause, which provides, “All relief not granted herein is DENIED.” Zurich American appeals the order.

          Debose has filed a motion to dismiss Zurich American’s appeal. Debose contends that the trial court’s order is not a final, appealable judgment because her claim for attorney’s fees is still pending. We agree. Although the trial court’s order granting summary judgment to Debose bears the title “Final Judgment” and expressly states, “Any and all other relief not granted herein is denied[,]” the order addresses only Zurich American’s claims and makes no mention of Debose’s claim for attorney’s fees.

          When there has been no 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 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). A summary judgment order that does not appear final on its face and does not dispose of a pending claim for attorney’s fees is not final. McNally v. Guevara, 52 S.W.3d 195, 196 (Tex. 2001).

          The summary judgment order in this case does not unequivocally state that it finally disposes of all claims and all parties in the underlying case, nor does it otherwise dispose of Debose’s counterclaim for attorney’s fees. Moreover, in moving for summary judgment, Debose did not request disposition of her attorney’s fees claim. Based on the record, we conclude that the order is not appealable. See id.; Lehmann, 39 S.W.3d at 205; see also 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).

          We grant Debose’s motion to dismiss. We dismiss the appeal for lack of jurisdiction.

                                                             Laura Carter Higley

                                                             Justice

Panel consists of Justices Jennings, Keyes, and Higley.