Opinion issued August 7, 2012




                                      In The
                               Court of Appeals
                                      For The
                          First District of Texas
                          ————————————
                             NO. 01-12-00546-CV
                           ———————————
                         IN RE EDUCAP, INC., Relator



            Original Proceeding on Petition for Writ of Mandamus



                          MEMORANDUM OPINION

      Relator Educap, Inc. has filed a petition for writ of mandamus in this Court.

See TEX. GOV’T CODE ANN. § 22.221 (Vernon 2004); see also TEX. R. APP. P. 52.

Raising one issue, Educap complains of the trial court’s denial of its motion for

entry of final judgment and of the trial court’s failure to render a final appealable

judgment.1 Educap contends that the trial court’s failure to render a final judgment


1
      The respondent is The Honorable Linda Storey of the County Civil Court at Law
      No. 3 of Harris County. The underlying suit is Educap, Inc. v. Jo Anna McCune,
      No. 980350 (County Civil Court at Law No. 3, Harris County, Texas).
prevents it from appealing the trial court’s order granting summary judgment in

favor of real party in interest Jo Anna McCune. Because we agree that the trial has

not rendered a final judgment, we conditionally grant Educap’s petition for writ of

mandamus.

                                   Background Summary

       Educap is the holder of the note on McCune’s unpaid student loans. Educap

sued McCune for breach of contract, alleging that she had defaulted on the loans

totaling $41,666.50.

       McCune answered the suit asserting a general denial and the affirmative

defense of limitations. In the prayer of her answer, McCune also requested that

she recover her attorney’s fees.

       Educap filed a motion for summary judgment on its claims against McCune.

McCune responded to the motion and filed a counter motion for summary

judgment based on the affirmative defense of limitations.       In her motion for

summary judgment, McCune also requested her attorney’s fees. To support her

attorney’s fees claims, McCune attached the affidavit of her attorney. In the

affidavit, the attorney specified the amount of her fees associated with different

stages of the litigation.

       On the same day, the trial court signed two orders. One order denied

Educap’s motion for summary judgment and the other granted McCune’s motion.

                                         2
The order granting McCune’s motion is entitled, “Order Granting Defendant’s

Motion for Final Summary Judge.” The order provides, “[T]he court considered

the DEFENDANT’S MOTION FOR FINAL SUMMARY JUDGMENT, and the

response thereto, and after reviewing the evidence and hearing arguments, the

Court finds that the Motion should be GRANTED.” The order denying Educap’s

motion for summary judgment was similarly phrased, simply denying the motion.

      Educap filed a motion for new trial, asserting that it did not receive a copy of

McCune’s motion for summary judgment or notice of submission of the motion.

The trial court denied Educap’s motion for new trial.

      Educap then filed a Motion for Entry of Final Judgment, asserting, in part,

“[T]he Order Granting Defendant’s Motion for Final Summary Judgment is not a

final and appealable order because it does not dispose of all claims and all parties.

In fact the judgment does not specifically state what relief is granted and refers

back to Defendant’s Motion for Summary Judgment.” Educap pointed out that

McCune’s motion for summary judgment included, inter alia, a request for

attorney’s fees. Although not in the mandamus record, it is not disputed that the

trial court denied Educap’s motion for entry of final judgment at a hearing on the

motion.

      Educap filed its petition for writ of mandamus in this Court complaining, in

one issue, that the trial court improperly denied the motion for entry of final

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judgment and has failed to render a final judgment in this case. Educap asserts that

it desires to appeal the trial court’s order granting McCune’s motion for summary

judgment but cannot do so without a final judgment. Educap requests this Court to

direct the trial court to sign a final, appealable judgment to allow it to proceed with

its appeal. McCune contends that the trial court has rendered a final appealable

judgment.

                                   Standard of Review

      To be entitled to the extraordinary relief of a writ of mandamus, relators

must show the trial court abused its discretion and there is no adequate remedy by

appeal.   In re Team Rocket, L.P., 256 S.W.3d 257, 259 (Tex. 2008) (orig.

proceeding). A trial court abuses its discretion if it reaches a decision so arbitrary

and unreasonable that it constitutes a clear and prejudicial error of law, or if it

clearly fails to correctly analyze or apply the law. In re Cerberus Capital Mgmt.,

L.P., 164 S.W.3d 379, 382 (Tex. 2005) (orig. proceeding); Walker v. Packer, 827

S.W.2d 833, 839 (Tex. 1992) (orig. proceeding).

                                          Analysis

      Here, Educap contends that the trial court abused its discretion by denying

its motion for entry of judgment and by refusing to render a final, appealable

judgment. As it did in the trial court, Educap asserts that the trial court’s order

granting McCune’s motion for summary judgment fails to address all of McCune’s

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claims. It claims that the order is too indefinite to ascertain the relief granted to

McCune. Educap points out that McCune requested attorney’s fees in her answer

and in her motion for summary judgment. The amount of fees requested was

supported by an attorney’s affidavit, appended to her motion for summary

judgment.

      When, as here, 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 unless it 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). In addition, a final judgment must be definite and certain

such that the clerk can ascertain the amount to place in the writ of execution. See

Int’l Sec. Life Ins. Co. v. Spray, 468 S.W.2d 347, 350 (Tex. 1971).

      Here, the trial court’s summary judgment orders taken together form its

judgment. The judgment does not specifically address McCune’s attorney’s fees

claim, which she expressly asserted in her answer and in her motion for summary

judgment.2   We also note that the trial court did not include language in its


2
      McCune contends that she did not plead a counter-claim for attorney’s fees against
      Educap. However, the record shows that she requested attorney’s fees in the
      prayer of her answer and in her motion for summary judgment. Even assuming
      that McCune did not plead an attorney’s fees claim, unpled claims that are tried by
      express or implied consent of the parties are treated as if they had been raised in
      the pleadings. Roark v. Stallworth Oil & Gas, Inc., 813 S.W.2d 492, 495 (Tex.
      1991). Thus, an unpled attorney’s fees claim presented in a motion for summary
                                           5
judgment indicating that it was denying relief not expressly granted.          Had it

included such language, the judgment would arguably reflect that the trial court

was granting McCune’s summary judgment on Educap’s claims but denying any

claim for affirmative relief included in the motion for summary judgment, such as

the attorney’s fees claims. See In re Certain Underwriters at Lloyd’s London, No.

01–09–00851–CV, 2010 WL 184300, at *3 (Tex. App.—Houston [1st Dist.] Jan.

15, 2010, orig. proceeding) (mem. op.) (holding that order granting summary

judgment was final judgment even though attorney’s fees request made in motion

for summary judgment not addressed in the order because order indicated that all

relief not expressly granted was denied; thus, attorney’s fees request was denied by

the order).

      Nor does the trial court’s judgment otherwise indicate that it intended to

dispose of the attorney’s fees claims when it ruled on the competing motions for

summary judgment.       See, e.g., St. Raphael Med. Clinic, Inc. v. Mint Med.

Physician Staffing, LP, 244 S.W.3d 436, 440 (Tex. App.—Houston [1st Dist.]

2007, no pet.) (holding that agreed judgment not specifically addressing claim for

attorney’s fees final because it stated that it “is conclusive, not only on the matters

actually raised and litigated, but it is also conclusive on every other matter that

      judgment proceeding without objection is tried by consent. See, e.g., Emery Air
      Freight Corp. v. Gen. Transp. Sys., Inc., 933 S.W.2d 312, 316 (Tex. App.—
      Houston [14th Dist.] 1996, no writ), disapproved of on other grounds by Evanston
      Ins. Co. v. ATOFINA Petrochemicals, Inc., 256 S.W.3d 660 (Tex. 2008).
                                          6
could have been litigated and decided as an incident to or essentially connected

with the subject matter”). The trial court’s judgment also does not include express

language of finality, indicating that the trial court intended the judgment to be final

and appealable. See Lehmann, 39 S.W.3d at 192–93; cf. Reyes v. Credit Based

Asset Servicing & Securitization, 190 S.W.3d 736, 738–39 (Tex. App.—San

Antonio 2005, no pet.) (holding that summary judgment order not specifically

addressing claim for attorney’s fees was final because of language indicating trial

court intended it to be final and appealable). In the absence of language of finality,

a trial court’s failure to dispose of a pending attorney’s fees claim renders a

judgment interlocutory. See, e.g., McNally v. Guevara, 52 S.W.3d 195, 196 (Tex.

2001) (holding that judgment was not final and appealable, in part, because it did

not dispose of defendant’s attorney’s fees claim).

      Even if we assume that the trial court’s order granting McCune’s motion for

summary judgment includes an attorney’s fees award, the amount of the award is

not included in the order. As mentioned, a judgment is not final unless it is

definite and certain, such that the clerk can ascertain the amount to place in the

writ of execution. See Spray, 468 S.W.2d at 350; see also Harris Cnty. Toll Road

Auth. v. Sw. Bell Tel., L.P., 263 S.W.3d 48, 54 (Tex. App.—Houston [1st Dist.]

2006), aff’d, 282 S.W.3d 59 (Tex. 2009). In other words, “[i]f the amount awarded

by the judgment cannot be determined, the judgment is interlocutory.” Harris

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Cnty. Toll Road Auth., 263 S.W.3d at 54 (quoting Olympia Marble & Granite v.

Mayes, 17 S.W.3d 437, 440 (Tex. App.—Houston [1st Dist.] 2000, no pet.)).

Thus, even assuming that the trial court intended to award McCune her attorney’s

fees by granting her motion for summary judgment, the judgment is nonetheless

interlocutory because the amount of the fees awarded has not been stated in the

judgment. See Chado v. PNL Blackacre, L.P, No. 05–04–00312–CV, 2005 WL

428824, at *1 (Tex. App.—Dallas Feb. 24, 2005, no pet.) (mem. op.) (dismissing

appeal as interlocutory because order granting summary judgment to Blackacre

and awarding it attorney’s fees on appeal failed to specify amount of attorney’s

fees awarded); see also Spray, 468 S.W.2d at 350; Howell v. Mauzy, 774 S.W.2d

274, 276 (Tex. App.—Austin 1989, writ denied). We hold that the trial court did

not render a final judgment and it abused its discretion when it denied Educap’s

motion to render a final judgment.

          We further hold that because there is no final judgment, Educap has no

remedy by appeal. Subject to a few exceptions not applicable here, an appellant

may only appeal from a final judgment. See Lehmann, 39 S.W.3d at 195. Thus,

Educap has met its burden to show it is entitled to the mandamus relief it seeks.

See In re Team Rocket, 256 S.W.3d at 259.

          For the reasons discussed, we conditionally grant the requested mandamus

relief.    We direct the trial court to grant Educap’s motion for entry of final

                                          8
judgment and render a final, appealable judgment in this case.3 We will issue writ

only if the trial court fails to do so.




                                    Laura Carter Higley
                                    Justice



Panel consists of Justices Higley, Sharp, and Huddle.




3
       Educap also complains in his mandamus petition that the trial court did not
       expressly rule on other requests for relief made by McCune in her motion for
       summary judgment. Educap points out that McCune requested costs of court and
       requested the trial court to “[o]rder such other relief, special or general, at law or
       in equity as may be appropriate.” Because we have determined that the judgment
       is not a final judgment, we need not determine whether the lack of language
       addressing the other requested relief affects the finality of the judgment. We are
       confident that the trial court will dispose of any pending claims or otherwise
       indicate with clarity that the judgment is a final, appealable judgment.
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