
NUMBER 13-98-459-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI
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SCOTTSDALE INSURANCE COMPANY , Appellant,

v.

SAMUEL M. TIPTON AND  BARBARA M. TIPTON , Appellees.
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On appeal from the County Court at Law No. 1
of Calhoun County, Texas.
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DISSENTING OPINION
ON MOTION FOR REHEARING EN BANC
Before the Court En Banc (1)
Opinion by Justice Dorsey


Because I find that the order appealed from in this case contains a "clear indication that the trial court intended the order to
completely dispose of the entire case," I respectfully dissent from the majority's denial of rehearing on its dismissal of the
case on jurisdictional grounds.  See Lehmann v. Har-Con Corp., 39 S.W.3d 191 (Tex. 2001).  I believe the majority has
extended the Lehmann decision beyond its intended reach.
In this case, the trial court clearly intended to sever the Tiptons' causes of action against Scottsdale based on "bad faith
liability" into a new cause number, as that is exactly what it did.  I do not believe that the fact that the trial court seemed to
grant more relief than was requested in the motion necessitates the conclusion that, therefore, the trial court did not clearly
intend to make that a final judgment by disposing of all causes of action contained therein.
While Lehman has abolished the preclusive effect of the talismanic incantation of the "Mother Hubbard" language--"all
relief not expressly granted herein is denied"-- it does not change some basic rules regarding the finality of judgments. 
Rather, the court in Lehmann backed away from the bright-line test laid down inMafrige v. Ross, that a judgment was final
if it said it was final, regardless of whether all other indications implied that the trial court did not intend for the judgment
to be final.  See Mafrige v. Ross, 866 S.W.2d 590, 590, n.1 (Tex. 1993).  Rather, the court set forth a new rule holding that:
[I]n cases in which only one final and appealable judgment can be rendered, a judgment issued without a conventional trial
is final for purposes of appeal if and only if either it actually disposes of all claims and parties then before the court,
regardless of its language, or 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.  That is, "[a] judgment that finally disposes of all remaining parties and claims, based on
the record in the case, is final, regardless of its language."  Id. at 200.  
Still, this does not mean that the "Mother Hubbard" language has no effect upon the finality of a judgment.  The Lehmann
Court directly addressed this precise issue:
[T]he 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.  A judgment that grants more relief than a party is entitled to is subject to reversal,
but it is not, for that reason alone, interlocutory.
Id. (emphasis added) (footnotes omitted).
I believe the judgment in this case is governed by that passage in Lehmann.  It is final.  It may be erroneous, but it is final. 
The language of the order indicates the trial court clearly intended to dispose of all remaining claims.  If the court went too
far in awarding insurance code damages, it is cause for reversal--not dismissal for lack of jurisdiction--under the clear
language of Lehmann.  


J. BONNER DORSEY,
Justice


Justice Errlinda Castillo joins in this dissent.


Publish .
Tex. R. App. P. 47.3(b).


Opinion delivered and filed
this 26th day of July, 2001.
1. Retired Justice Robert J. Seerden assigned to this Court by the Chief Justice of the Supreme Court of Texas pursuant to
Tex. Gov't Code Ann. § 74.003 (Vernon 1998).
