Texas Mutual Insurance Company v. Andrew S. McGahey ( 2015 )

Andrew S. /s
Fourth Court of Appeals
San Antonio, Texas
May 29, 2015
No. 04-15-00175-CV
TEXAS MUTUAL INSURANCE COMPANY,
Appellant
v.
Andrew S. MCGAHEY,
Appellee
From the 131st Judicial District Court, Bexar County, Texas
Trial Court No. 2013-CI-12185
Honorable Richard Garcia, Judge Presiding
ORDER
Texas Mutual Insurance Company filed a notice of appeal following the trial court’s
rulings on cross-motions for summary judgment. The clerk’s record and supplemental clerk’s
record do not demonstrate that a final, appealable, judgment has been signed.
Texas Mutual Insurance Company sued Andrew S. McGahey and the Texas Department
of Insurance, Division of Workers’ Compensation, seeking review of a final decision of the
workers’ compensation division awarding income benefits to McGahey and seeking a
declaratory judgment regarding the Department’s interpretation and application of a section of
the Texas Labor Code. Texas Mutual filed a motion for summary judgment. The Department
filed a plea to the jurisdiction, and both the Department and McGahey filed cross motions for
summary judgment. The trial court referred the case to an associate judge. The record contains
a handwritten associate judge’s report that indicates the judge’s rulings would be rendered in
separate signed orders. Our record contains three orders signed on February 27, 2015: (1) an
order that states Texas Mutual’s motion for summary judgment is “denied”; (2) an order that
states McGahey’s motion for summary judgment is “granted”; and (3) an order requiring Texas
Mutual to pay McGahey $1582 in costs by March 27, 2015. Neither of the orders on summary
judgment dismisses or otherwise disposes of Texas Mutual’s claims against either defendant in
the case and none of the orders contains any finality language. 1
1
The clerk’s record contains an unsigned and undated order granting a nonsuit of Texas Mutual’s claims against the
Department. However, the record does not contain either a notice of nonsuit or a signed order granting nonsuit.
A summary judgment order “is final for purposes of appeal if and only if either it actually
disposes of all claims and parties then before the court … or it states with unmistakable clarity
that it is a final judgment as to all claims and all parties.” Lehmann v. Har-Con Corp., 39 S.W.3d
191, 192-93 (Tex. 2001). Because there has not been a conventional trial on the merits, the
summary judgment orders in the record do not dispose of appellant’s claims, and no order states
“with unmistakable clarity” that it is a final judgment as to all claims and parties, the record does
not contain a final appealable judgment. See id.We ordered appellant to secure a supplemental clerk’s record demonstrating our
jurisdiction or otherwise show cause why this appeal should not be dismissed for lack of
jurisdiction. Appellant has filed a response asking the court to abate the appeal for entry of a
final judgment.
We grant the motion and abate this appeal. If a final appealable order is not filed in a
supplemental clerk’s record by June 29, 2015, the appeal may be dismissed.
_________________________________
Luz Elena D. Chapa, Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said
court on this 29th day of May, 2015.
___________________________________
Keith E. Hottle
Clerk of Court