                           NUMBER 13-10-00370-CV

                              COURT OF APPEALS

                      THIRTEENTH DISTRICT OF TEXAS

                        CORPUS CHRISTI - EDINBURG


MIRTA ZORILLA,                                                            Appellant,

                                          v.

THE HOMEOWNERS OF PLAZAS DEL LAGO, INC.,                                   Appellee.


                   On appeal from the 139th District Court
                         of Hidalgo County, Texas.


                           MEMORANDUM OPINION

    Before Chief Justice Valdez and Justices Rodriguez and Perkes
            Memorandum Opinion by Chief Justice Valdez
      Appellant, Mirta Zorilla, challenges the trial court’s summary judgment order on

attorney’s fees in favor of appellee, The Homeowners of Plazas Del Lago, Inc.

(“Homeowners”). In her sole issue on appeal, Zorilla argues that the trial court lacked
jurisdiction to grant the Homeowners’ motion for summary judgment on attorney’s fees.

We affirm.


                                          I.      BACKGROUND

        The dispute in this case stems from actions taken by the Homeowners, an entity

purporting to be the homeowners association for the subdivision in which Zorilla lived, to

prevent Zorilla from building a fence surrounding her property on land that allegedly was

subject to a twenty-five foot express easement. On December 28, 2005, Zorilla filed a

declaratory-judgment action and a request for injunctive relief against the Homeowners

regarding the erection of the fence. The Homeowners subsequently filed an answer

denying the claims made in Zorilla’s December 28, 2005 filing and asserting

counterclaims against Zorilla for: (1) dissolution of a temporary restraining order that

Zorilla procured and a forfeiture of a bond she secured; (2) an abatement of nuisance;

(3) statutory damages for Zorilla’s alleged breach of the restrictive covenants of the

subdivision; (4) a permanent injunction enforcing the subdivision’s restrictive covenants;

and (5) attorney’s fees.

        The Homeowners later filed a traditional motion for summary judgment alleging

that it was entitled to judgment as a matter of law with regard to the claims made by

Zorilla.1    On September 4, 2008, the trial court, after a hearing, granted the

Homeowners’ motion for summary judgment addressing the claims made by Zorilla.

Zorilla appealed the trial court’s September 4, 2008 order, but her appeal was

dismissed for want of prosecution for failing to timely file an appellant’s brief.

        1
         In its first summary-judgment motion, the Homeowners asserted that the trial court should enter
a take-nothing judgment against Zorilla and that she should pay all costs of court. The Homeowners did
not request attorney’s fees in their first summary-judgment motion.


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        Subsequently, on March 24, 2010, the Homeowners filed a motion for summary

judgment on its counterclaims, alleging, among other things, that it had incurred

$54,609.70 in attorney’s fees and expenses.2 On June 17, 2010, the trial court, after a

hearing, granted the Homeowners’ motion for summary judgment. In its order granting

summary judgment, the trial court granted the Homeowners’ attorney’s fees request as

to the Griffith & Garza, L.L.P. law firm but denied attorney’s fees and expenses incurred

by the Passmore Law Firm.              Specifically, the trial court awarded the Homeowners

$7,500 to pay for attorney’s fees and expenses for services provided by Griffith &

Garza, L.L.P.

        Shortly thereafter, the Homeowners filed a motion for new trial, requesting that

the trial court grant a new trial to consider increasing the amount of attorney’s fees

awarded to at least $22,836.49, the amount of attorney’s fees that the Homeowners

claimed it had paid to that point. The Homeowners’ motion for new trial was overruled

by operation of law, see TEX. R. CIV. P. 329b(c), and this appeal ensued.


                                              II.     ANALYSIS


        2
          Of the $54,609.70 in attorney’s fees requested by the Homeowners, $24,470.57 in attorney’s
fees and expenses were allegedly incurred by the Passmore Law Firm, of which the Homeowners’ paid
$14,839.49. The Homeowners asserted that the law firm Griffith & Garza, L.L.P. incurred $28,701 in
attorney’s fees and $523.58 in expenses, of which the Homeowners paid $6,500. The Homeowners
further asserted that it would spend an additional $3,000 in trying to collect attorney’s fees from Zorilla.
The Homeowners attached extensive records documenting the attorney’s fees incurred throughout these
proceedings and an affidavit from John R. Griffith stating his hourly fee and the hourly fee of his
paralegals, describing the novelty and difficulty of the work involved in this case, and noting that the
amount of attorney’s fees requested were necessary and reasonable. See Arthur Andersen & Co. v.
Perry Equip. Corp., 945 S.W.2d 812, 818 (Tex. 1997) (listing a number of factors used to determine the
reasonableness of a request for attorney’s fees).

        The arguments contained in Zorilla’s response to the Homeowners’ March 24, 2010 summary
judgment motion mirror her argument on appeal that the trial court’s September 4, 2008 summary
judgment order finally disposed of all the claims of the parties, including the Homeowners’ request for
attorney’s fees; thus, the trial court lacked jurisdiction to grant the Homeowners’ March 24, 2010 summary
judgment motion.


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        In her sole issue on appeal, Zorilla contends that the trial court erred in granting

the Homeowners’ motion for summary judgment on attorney’s fees because the trial

court lacked jurisdiction.3 Specifically, Zorilla argues that the trial court’s September 4,

2008 order granting Homeowners’ first motion for summary judgment constituted a final

order that disposed of all claims, including both her claims and the Homeowners’

counterclaims; thus, the trial court no longer had jurisdiction over the attorney’s fees

dispute because it was already disposed of in the first summary judgment order. The

Homeowners counter by arguing that the trial court’s September 4, 2008 order is “not

equivocally clear” as to the trial court’s “intent to finally dispose of all claims”; instead,

the September 4, 2008 order “expressly addresses the dismissal of [Zorilla’s] claims”

but does not address or acknowledge the Homeowners’ counterclaims.

        To address Zorilla’s contentions on appeal, we must closely examine the

language contained in the trial court’s September 4, 2008 summary judgment order to

determine whether the order referenced the Homeowners’ counterclaims and, thus,

constituted a final judgment. See Chase Manhattan Bank, N.A. v. Lindsay, 787 S.W.2d

51, 53 (Tex. 1990) (“If a summary judgment does not refer to or mention issues pending

in a counterclaim, then those issues remain unadjudicated.”) (citing Baker v. Hansen,

679 S.W.2d 480, 481 (Tex. 1984); PHB, Inc. v. Goldsmith, 539 S.W.2d 60, 60 (Tex.

1976) (per curiam)). The order states the following in its entirety:

              On the 4th of September, 2008, came on to be heard
        Defendant/Counter[-]Plaintiff, THE HOMEOWNERS OF PLAZAS DEL
        3
           On appeal, Zorilla does not contend that a genuine issue of fact exists as to the Homeowners’
request for attorney’s fees or that the Homeowners failed to establish entitlement to attorney’s fees as a
matter of law. See Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003) (stating
that when reviewing a traditional motion for summary judgment, we must determine whether a genuine
issue of material fact exists and whether the movant has established entitlement to the relief requested as
a matter of law). Rather, Zorilla’s entire appellate argument centers on whether the trial court had
jurisdiction to enter its June 17, 2010 summary judgment order.

                                                    4
       LAGO, INC. AND INTERVENORS’ Motion for Summary Judgment as to
       Plaintiff, Mirta Zorilla. The Court having considered the pleadings on file
       herein, evidence, and arguments, is of the opinion that said motion should
       be GRANTED.

             IT IS THEREFORE ORDERED, ADJUDGED[,] AND DECREED
       that Defendant/Counter-Plaintiff, THE HOMEOWNERS OF PLAZAS DEL
       LAGO, INC. AND INTERVENORS’ Motion for Summary Judgment, is
       granted on all claims, issues[,] and theories of damages with respect to
       the causes of action filed [by] Plaintiff, Mirta Zorilla.

                IT IS FURTHER ORDERED, ADJUDGED[,] AND DECREED that
       Plaintiff, Mirta Zorilla’s causes of action against Defendant/Counter-
       Plaintiff, THE HOMEOWNERS OF PLAZAS DEL LAGO, INC. AND
       INTERVENORS, are hereby dismissed with prejudice. The Court denies
       all relief not expressly granted in this judgment.

               This judgment is final, disposes of all claims and causes of action of
       Plaintiff, Mirta Zorilla and is appealable.

       With regard to the finality of judgments, the Texas Supreme Court, in

Lehmann v. Har-Con Corp., 39 S.W.3d 191 (Tex. 2001), has expressed the

following:

                A judgment that finally disposes of all remaining parties and claims,
       based on the record in the case, is final, regardless of its language. . . .
       But 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. It is not enough, of course, that the order or
       judgment merely use the word “final.” The intent to finally dispose of the
       case must be unequivocally expressed in the words of the order itself. But
       if that intent 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. So, for example, if a defendant moves for summary
       judgment on only one of four claims asserted by the plaintiff, but the trial
       court renders judgment that the plaintiff take nothing on all claims
       asserted, the judgment is final—erroneous, but final.

Id. at 200 (emphasis in original). The Lehmann Court further noted that:

       Much confusion can be dispelled by holding, as we now do, 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


                                             5
        purposes of appeal. . . . For whatever reason, the standard Mother
        Hubbard clause is used in interlocutory orders so frequently that it cannot
        be taken as any indication of finality.

Id. at 203-04.

        In the present case, the September 4, 2008 summary judgment order

unequivocally disposes of all of Zorilla’s claims and causes of action, but it does not

reference the Homeowners’ counterclaims. As such, we cannot say that the trial court’s

September 4, 2008 summary judgment order clearly disposed of all pending claims and

parties. Essentially, the September 4, 2008 summary judgment amounted to a partial

summary judgment that was not final for purposes of appeal.4                      See Lindsay, 787

S.W.2d at 53 (stating that a partial summary judgment “is a decision on the merits

unless set aside by the trial court” and holding that the partial summary judgment only

“becomes final upon the disposition of the other issues of the case”). The fact that

Zorilla filed an appeal is of no consequence because it was dismissed for want of

prosecution. In fact, it could have also been rejected on the basis that the summary

judgment order was not final. See Lehmann, 39 S.W.3d at 200, 203-04; see also TEX.

CIV. PRAC. & REM. CODE ANN. § 51.012 (Vernon Supp. 2010) (providing that appellate

courts have jurisdiction over judgments that are final and such interlocutory orders as

the Legislature specifies are appealable), id. § 51.014 (Vernon 2008) (delineating the

interlocutory orders that are appealable). Moreover, the inclusion of the word “final” and

the incorporation of the Mother Hubbard clause in the September 4, 2008 summary

        4
             The record does not contain an order severing Zorilla’s claims from the unadjudicated
counterclaims of the Homeowners. See Chase Manhattan Bank, N.A. v. Lindsay, 787 S.W.2d 51, 53
(Tex. 1990) (“A summary judgment may be granted on separate issues within a single cause of
action. . . . Such a summary judgment is partial and interlocutory until all of the issues are either
adjudicated or order[ed] severed by the trial court.”) (citing TEX. R. CIV. P. 166a(a); Pan Am. Petroleum
Corp. v. Tex. Pac. Coal & Oil Co., 159 Tex. 550, 324 S.W.2d 200, 200-01 (1959) (per curiam)); see also
Farmer v. Ben E. Keith Co., 907 S.W.2d 495, 496 (Tex. 1995) (per curiam); Hyundai Motor Co. v.
Alvarado, 892 S.W.2d 853, 854-55 (Tex. 1995) (per curiam).

                                                   6
judgment order cannot convert the order into a final, appealable order, because the

Homeowners’ counterclaims against Zorilla were still pending.           See Lehmann, 39

S.W.3d at 200, 203-04. Therefore, because the September 4, 2008 summary judgment

order did not dispose of all pending claims, the trial court retained jurisdiction over the

Homeowners’ counterclaims. See Lindsay, 787 S.W.2d at 53; Baker, 679 S.W.2d at

481; PHB, Inc., 539 S.W.2d at 60. As such, we cannot say that the trial court lacked

jurisdiction to enter its June 17, 2010 summary judgment order.          See Lindsay, 787

S.W.2d at 53; Baker, 679 S.W.2d at 481; PHB, Inc., 539 S.W.2d at 60. Accordingly, we

overrule Zorilla’s sole issue on appeal.


                                     III.   CONCLUSION

       We affirm the judgment of the trial court.


                                                    ________________________
                                                    ROGELIO VALDEZ
                                                    Chief Justice


Delivered and filed the
10th day of February, 2011.




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