                           NUMBER 13-13-00691-CV

                             COURT OF APPEALS

                    THIRTEENTH DISTRICT OF TEXAS

                      CORPUS CHRISTI - EDINBURG


TEXAS POLITICAL SUBDIVISION,                                                 Appellant,

                                            v.

PHARR SAN JUAN ALAMO I.S.D.,                                                 Appellee.


               On appeal from the County Court at Law No. 4
                        of Hidalgo County, Texas.


                           MEMORANDUM OPINION

            Before Justices Rodriguez, Benavides, and Perkes
                Memorandum Opinion by Justice Perkes
       Appellant Texas Political Subdivision (“TPS”) appeals an order denying its motion

for summary judgment concerning an automobile insurance policy that was issued to

appellee Pharr San Juan Alamo ISD (“PSJA”). TPS filed the underlying action seeking

a judgment declaring that it did not have a duty to defend or indemnify PSJA in a third-

party suit alleging personal injuries sustained from the negligent operation of a golf cart.
By two issues, TPS argues the trial court erred in denying its motion for summary

judgment because: (1) a golf cart is excluded under the definition of “mobile equipment”

and is not an “auto” under the policy; and (2) the third-party pleading negates both the

duty to defend and indemnity because it alleges injuries sustained relating to operation of

a golf cart. We dismiss the appeal for want of jurisdiction.

                                            I. BACKGROUND

        TPS issued PSJA an automobile liability and physical damage policy (the “policy”).

Lorena Flores, as next friend of Alexis Flores, filed a lawsuit against PSJA alleging

personal injuries resulting from the negligent use of a golf cart by a PSJA employee.1

Specifically, the Flores lawsuit alleged that “Alexis Flores was severely injured after being

thrown from a golf cart” operated by a PSJA employee. The employee allegedly “turned

the golf cart abruptly, thereby, throwing Alexis Flores from the vehicle and resulting in the

injuries to her knee.”

        By written correspondence, PSJA demanded that TPS defend and indemnify the

school district under the policy. TPS responded in writing that it would not provide a

defense or indemnify PSJA because the policy did not provide coverage for golf carts.

TPS later filed the instant declaratory judgment action seeking a “judgment declaring that

the automobile policy issued by TPS to PSJA does not provide coverage for the type of

vehicle at issue in [the Flores lawsuit] and theat [sic] [TPS] has no obligation to defend or

indemnify [PSJA].” TPS also brought a claim for attorney’s fees under Chapter 37 of the

Texas Practice and Remedies Code. See TEX. CIV. PRAC. & REM. CODE ANN. § 37.009


        1  The facts are taken from TPS’s live pleading and the exhibits attached thereto. The policy and
third-party lawsuit were attached as exhibits to TPS’s live pleading.
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(West, Westlaw through Chapter 46 2015 R.S.) (“In any proceeding under this chapter,

the court may award costs and reasonable and necessary attorney's fees as are equitable

and just.”). PSJA filed an answer asserting a general denial and also raising a claim for

attorney’s fees under section 37.009. See id.

      The trial court held a hearing on October 30, 2013, during which the parties

presented argument. The trial court entered no orders and made no rulings at the

hearing. On November 5, 2013, TPS moved for traditional summary judgment. Relying

on Flores’ petition and the policy, TPS argued that “[t]he duty to defend and the duty to

indemnify are both negated from the underlying pleading as the golf cart is not covered

under the policy at issue, regardless of liability.” On November 14, 2013, PSJA filed a

response opposing TPS’s summary judgment motion. PSJA did not file a cross-motion

for summary judgment. On that same day, in a “Final Order,” the trial court denied TPS’s

motion for summary judgment, denied TPS’s request for declaratory judgment, and

dismissed TPS’s claims against PSJA. The order did not expressly address the parties’

claims for attorney’s fees. This appeal followed.

                                  II. FINAL JUDGMENT

      As a threshold matter we must determine whether the trial court’s order is a final

appealable judgment. The trial court’s order in this case reads as follows:

      CAME BEFORE THE COURT, the matter of Plaintiff Texas Political
      Subdivisions Property/Casualty Joint Self Insurance Fund's Request for
      Declaratory Judgment and Motion for Summary Judgment, and the Court,
      having considered all pleadings, motions, briefs and other filings and having
      heard arguments of counsel for both Plaintiff and Defendant, is of the
      opinion that the relief requested by Plaintiff should be denied,



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      IT IS THEREFORE ORDERED, ADJUDGED and DECREED that Plaintiffs
      Motion for Summary Judgment is in all things DENIED.

      IT IS FURTHER ORDERED, ADJUDGED and DECREED that Plaintiff's
      request for Declaratory Judgment is in all things DENIED.

      IT IS FURTHER ORDERED, ADJUDGED and DECREED that Plaintiffs
      claims against Defendant Pharr San Juan Alamo Independent School
      District are dismissed with court costs to be borne by the party incurring
      same.

      All relief requested in this case and not expressly granted is denied. This
      instrument is a final and appealable Order disposing of all parties and claims
      herein.

      Generally, this Court has jurisdiction only over appeals from final judgments. See

Lehmann v. Har–Con Corp., 39 S.W.3d 191, 195 (Tex. 2001). A final judgment is one

that disposes of all pending parties and claims. Id. Whether a judicial decree is a final

judgment must be determined from its language and the record in the case. Id.

      In Farm Bureau County Mutual Insurance Company vs. Rogers, an automobile

insurer brought a declaratory judgment action against its insured seeking a declaration

that it was not obligated to defend or indemnify the insured and seeking an award of

attorney’s fees. 455 S.W.3d 161, 162 (Tex. 2015). Although Farm Bureau moved for

summary judgment, the defendant did not file a cross-motion seeking summary judgment

in her favor. Id. The trial court denied Farm Bureau’s motion for summary judgment,

and Farm Bureau appealed.       Id. The court of appeals subsequently dismissed the

appeal for want of jurisdiction, holding that an order denying a motion for summary

judgment could not be final and appealable unless the opposing party filed a cross-motion

for summary judgment. Id.



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        The Texas Supreme Court affirmed the dismissal, but on other grounds.2 Id. at

163. The court concluded that nothing in the trial court’s judgment suggested that it

intended to deny the defendant’s claim for attorney fees. Id. The award of court costs,

by itself, did not make the judgment final. Id. The court held that the resolution of a

claim for court costs did not dispose of a claim for attorney’s fees and did not serve as an

indicium of finality. Id. at 163-64 (discussing McNally v. Guevara, 52 S.W.3d 195, 196

(Tex. 2001)); see also Lehmann, 39 S.W.3d at 200.

        Here, while the trial court’s order purports to be a final order, we note that it does

not explicitly address the parties’ competing claims for attorney’s fees.                      The order

dismisses TPS’s claims against PSJA, but makes no reference to PSJA’s claim for

attorney’s fees. “An order does not dispose of all claims and all parties merely because

it is entitled ‘final’, or because the word ‘final’ appears elsewhere in the order, or even

because it awards costs.” Lehmann, 39 S.W.3d at 205. Language that a plaintiff take

nothing by his claims or that the case is dismissed shows finality only if there are no other

claims by other parties. Id. Nothing in the trial court’s order suggests that it intended to

deny PSJA’s claim for attorney’s fees. Because the order at issue does not dispose of

all claims, it is not a final judgment. See Farm Bureau Cnty. Mut. Ins. Co., 455 S.W.3d

at 164; McNally, 52 S.W.3d at 196.

                                            III. DISPOSITION



        2 The Supreme Court agreed with Farm Bureau and concluded that the insured’s failure to file a
cross-motion for summary judgment did not preclude the trial court from entering a “final” judgment. Farm
Bureau Cnty. Mut. Ins. Co. v. Rogers, 455 S.W.3d 161, 163 (Tex. 2015). In the event the trial court’s intent
to enter a final judgment 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 . . . In that case, the judgment is
final—erroneous, but final.” Id. (quoting Lehmann v. Har-Con Corp., 39 S.W.3d 191, 200 (Tex. 2001)).
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       Texas Rule of Appellate Procedure 27.2 and Lehmann authorize appellate courts

to abate the appeal and remand the case to the trial court for modification of the order or

clarification of the trial court's intent to enter a final judgment. However, this procedure

is available only if we are uncertain whether the trial court intended to enter a final

judgment. Lehmann, 39 S.W.3d at 206.

       In the present case, the trial court's failure to address PSJA’s claims is a clear

indication that the order is not a final judgment. When there are unaddressed claims

before the trial court, dismissal—not abatement—is the proper disposition. See Parks v.

DeWitt County Elec. Co-op., Inc., 112 S.W.3d 157, 163–64 (Tex. App.—Corpus Christi

2003, no pet.); see also Allein v. Sanders, 13-05-514-CV, 2006 WL 177635, at * 2 (Tex.

App.—Corpus Christi Jan. 26, 2006, no pet.) (mem. op.); Chapman v. Gary's Pool & Patio,

No. 13-05-587-CV, 2006 WL 133990, at *2 (Tex. App.—Corpus Christi Jan. 19, 2006, no

pet.) (mem. op.). The record does not affirmatively demonstrate that a final judgment

was rendered disposing of all claims. Therefore, dismissal is required. See Parks, 112

S.W.3d at 163–64.

                                     IV. CONCLUSION

       We dismiss the appeal for want of jurisdiction.


                                                 GREGORY T. PERKES
                                                 Justice

Delivered and filed the
9th day of July, 2015.




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