








IN THE
TENTH COURT OF APPEALS
 

No. 10-00-278-CV

Â Â Â Â Â MARILYN HEISTER,
Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Appellant
Â Â Â Â Â v.

Â Â Â Â Â WESTERN SHAMROCK CORP. D/B/A
Â Â Â Â Â WESTERN FINANCE AND JIMMY GAMESON,
Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Appellees
 

From the 19th District Court
McLennan County, Texas
Trial Court # 99-3708-1
Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â 
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O P I N I O N
Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â 

Â Â Â Â Â Â Marilyn Heister sued Western Shamrock Corporation and Jimmy Gameson.  Both defendants
filed answers.  Shamrock moved for summary judgment based on limitations and the workers
compensation statute.  Summary judgment was granted.  A judgment was signed that is titled
âFinal Summary Judgment.â  The judgment contains the typical âmother hubbardâ clause that all
relief not expressly granted is denied.  There was no severance of the claims against Shamrock
from the claims against Gameson.
Â Â Â Â Â Â Neither the summary judgment motion filed by Shamrock nor the judgment expressly deal
with Heisterâs claims against Gameson.  Unless a judgment disposes of all issues against all parties
it is interlocutory.  Lucas v. Burleson Publ. Co., 39 S.W.3d 693, 695 (Tex. App.â Waco 2001,
no pet. h.).  The Texas Supreme Court has recently held that a mother hubbard clause no longer
makes a judgment final for appellate purposes.  Lehmann v. Har-Con Corp., 39 S.W.3d 191, 203-204 (Tex. 2001).  Further, the inclusion of a mother hubbard clause in a judgment other than after
a trial on the merits cannot be used as an indication that the trial court intended that the judgment
was final as to all parties on all issues.  Id., 204 
Â Â Â Â Â Â The Court held:
...we conclude that when there has not been a 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. An order that adjudicates only the plaintiff's claims
against the defendant does not adjudicate a counterclaim, cross-claim, or third party
claim, nor does an order adjudicating claims like the latter dispose of the plaintiff's
claims. An order that disposes of claims by only one of multiple plaintiffs or against one
of multiple defendants does not adjudicate claims by or against other parties. 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.
Nor does an order completely dispose of a case merely because it states that it is
appealable, since even interlocutory orders may sometimes be appealable. Rather, there
must be some other clear indication that the trial court intended the order to completely
dispose of the entire case. Language that the plaintiff take nothing by his claims in the
case, or that the case is dismissed, shows finality if there are no other claims by other
parties; but language that "plaintiff take nothing by his claims against X" when there is
more than one defendant or other parties in the case does not indicate finality. 
Â 
To determine whether an order disposes of all pending claims and parties, it may of
course be necessary for the appellate court to look to the record in the case. Thus, in the
example just given, if the record reveals that there is only one plaintiff and only one
defendant, X, the order is final, but if the record reveals the existence of parties or claims
not mentioned in the order, the order is not final. On the other hand, an order that
expressly disposes of the entire case is not interlocutory merely because the record fails
to show an adequate motion or other legal basis for the disposition. The record may help
illumine whether an order is made final by its own language, so that an order that all
parties appear to have treated as final may be final despite some vagueness in the order
itself, while an order that some party should not reasonably have regarded as final may
not be final despite language that might indicate otherwise. 

Id., 205-206.

Â Â Â Â Â Â Because the only possible indications in this judgment that it was intended to be final as to
both defendants are the title of the judgment and one reference to multiple defendantsââPlaintiff
Marilyn Heister, take and recover nothing from Defendantsââwe cannot say with certainty that
the judgment âclearly and unequivocallyâ was intended to dispose of Heisterâs claims against
Gameson.  
Â Â Â Â Â Â Finding that the judgment does not dispose of all claims against all parties, we dismiss this
case for want of jurisdiction.  Costs are assessed against the party incurring same.
Â 
Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â TOM GRAY
Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Justice

Before Chief Justice Davis,
Â Â Â Â Â Â Justice Vance, and
Â Â Â Â Â Â Justice Gray
Dismissed
Opinion delivered and filed June 20, 2001
Publish

to pay for pulling the well, Young would not have
performed the remaining repairs, causing him to sustain an additional $3,750 in
damages.  See Huse v. State, 180 S.W.3d 847, 850-53 (Tex. App.ÂEastland
2005, pet. refÂd).Â  We thus hold that the evidence is legally sufficient to
support HargraveÂs conviction for theft of service.Â  Her sole issue is
overruled, and we affirm the trial courtÂs judgment.
Â 
REX D. DAVIS
Justice
Â 
Before
Chief Justice Gray,
Justice Reyna, and
Justice Davis
Affirmed
Opinion
delivered and filed February 10, 2010
Do
not publish
[CR25]
