                                   NO. 07-05-0231-CV

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL D

                               SEPTEMBER 12, 2006
                         ______________________________

                          EDWARDS LIFESCIENCES, L.L.C.,

                                                                Appellant

                                            v.

       COVENANT HEALTH SYSTEMS a/k/a COVENANT MEDICAL CENTER,

                                                                Appellee

                        _________________________________

             FROM THE 72ND DISTRICT COURT OF LUBBOCK COUNTY;

                NO. 2003-523,478; HON. BLAIR CHERRY, PRESIDING
                      _________________________________

                                     Opinion
                        _________________________________


Before QUINN, C.J., and REAVIS and CAMPBELL, JJ.

       Edwards Lifesciences, L.L.C. (Edwards) appeals from an order denying its motion

to strike an order for indemnification. The cause has been briefed and submitted for

disposition. However, we dismiss it for want of jurisdiction.

       Although not raised by the parties, we are obligated to determine sua sponte our

jurisdiction over an appeal. New York Underwriters Ins. Co. v. Sanchez, 799 S.W.2d 677,
679 (Tex. 1990). Save for a few instances not applicable here, courts of appeal have

appellate jurisdiction only over final orders and judgments. Lehmann v. Har-Con Corp., 39

S.W.3d 191, 195 (Tex. 2001). Additionally, a judgment is final only when it disposes of all

claims asserted by or against all parties. M. O. Dental Lab v. Rape, 139 S.W.3d 671, 674

(Tex. 2004); Lehmann v. Har-Con Corp., 39 S.W.3d at 195.

         Next, the record discloses that Dewitt Wilhite, individually and on behalf of various

people, sued Edwards and Covenant to recover damages.1 In response, Covenant moved

for indemnification from Edwards for not only the sums it “may be required to pay to

Plaintiffs” but also for the court costs, attorney’s fees, and other reasonable expenses and

damages incident to being sued by Wilhite. Furthermore, its claim was founded upon

§82.002 of the Texas Civil Practice and Remedies Code.2 The trial court granted the

motion and ordered indemnification as specified in the opening paragraph. Yet, in ordering

indemnification, it stated that the “amount of Edwards[’] . . . liability . . . shall be paid upon

further order of the court.” Thereafter, Wilhite filed a non-suit against Edwards and

Covenant.

         As can be readily seen from the passages quoted above, the trial court did not

completely resolve the claim for indemnification. A portion of it was reserved for later

adjudication. Consequently, all claims of the parties have not been disposed of, and there




         1
           Reco very was founded upon the allegations that 1) Edwards and Covenant sold to Ruth Marjean
W ilhite a contaminated mitral valve, 2) the valve was surgically implanted into Ruth, and 3) as a result of the
con tam ination and efforts to am eliorate it, she died.

         2
          The statute provides that a manufacturer shall “indemnify and hold harmless a seller against loss
arising out of a products liability action . . . for which the seller is indepen dently liable.” T EX . C IV . P RAC . & R EM .
C O D E §82.002(a) (Ve rnon 2005 ).

                                                              2
exists no final order or judgment encompassing the very matter at issue before us.3 See

Dutton-Lainson Co. v. Do It Best Corp., 180 S.W.3d 234, 238-39 (Tex. App.–San Antonio

2005, no pet.) (recognizing that there was no final judgment because the trial court, in

determining that one party was entitled to indemnity, had yet to assess the amount of

indemnity due). And, that Wilhite non-suited his claims against all the defendants does not

change this circumstance.

        It is true that a plaintiff may dismiss or non-suit his claims at any time before he has

introduced all of his evidence, other than rebuttal evidence. TEX . R. CIV. P. 162. Equally

true is that a non-suit vitiates certain interlocutory orders. Hyundai Motor Co. v. Alvarado,

892 S.W.2d 853, 854-55 (Tex. 1995). Yet, it does not vitiate pending claims for affirmative

relief. TEX . R. CIV. P. 162. Nor does it effect “any motion for sanctions, attorney’s fees or

other costs, pending at the time of dismissal. . . . ” Id. (Emphasis added). And, at the time

Wilhite dismissed, through non-suit, his claims against the defendants, the trial court had

pending before it a demand by one of the defendants, i.e. Covenant, for attorney’s fees

and costs against the other defendant.4 Simply put, “any motion” for attorney’s fees and

costs means just that, “any motion” for attorney’s fees and costs, and the demand of

Covenant is “any [such] motion.”

        Nor do we find the case of Le v. Kilpatrick, 112 S.W.3d 631 (Tex. App.–Tyler 2003,

no pet.) controlling. Edwards cites it for the proposition that a claim for indemnification is



        3
            Inde ed, E dwa rds cha racterizes the order for indem nification as interlocutory throug hou t its brief.

        4
            W e note that the word “loss” used in §82.002(a) of the Civil Practice and Remedies Code includes
“court costs and other reasona ble expens es, reasona ble attorney’s fees, and an y reasonable dam ages.” T EX .
C IV . P RAC . & R EM . C ODE A N N . §82.002(b) (Vernon 2005). Thus as an indemnitee, Covenant may be entitled
by statute to attorney’s fees and co urt costs, am ong other relief.

                                                           3
not a claim for affirmative relief and, thus, it is subject to vitiation when a plaintiff files a

non-suit. While Le says as much, id. at 634, we note at least one pivotal circumstance

differentiating the dispute there from that before us. In Le, nothing was said about there

being a pending request for attorney’s fees and costs at the time of the non-suit. In other

words, the second paragraph of Rule 162 specifies two categories of claims that are

shielded from vitiation due to a non-suit. One involves requests for “affirmative relief” while

the other involves “any motion for sanctions, attorney’s fees or other costs, pending at the

time of dismissal . . . .” TEX . R. CIV. P. 162. Le dealt with the former, not the latter, and it

is the latter category that is involved here. Finally, that Covenant may have labeled its

request as one for indemnification, we note the old adage: “a rose is a rose by any other

name.” That is, irrespective of the label appended to the motion, its substance is of import.

See Rush v. Barrios, 56 S.W.3d 88, 93 (Tex. App.–Houston [14th Dist.] 2001, pet. denied)

(requiring courts to afford meaning to the substance of motions not their title). And, the

substance of the motion on file and pending adjudication at the time of non-suit fell within

the parameters of Rule 162.

       In sum, the very order Edwards attempts to attack on appeal is interlocutory.

Because it is interlocutory, we lack jurisdiction over the dispute. And, lacking such

jurisdiction, we dismiss the appeal.

                                                   Brian Quinn
                                                   Chief Justice




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