                                     NO. 07-04-0326-CV

                                IN THE COURT OF APPEALS

                         FOR THE SEVENTH DISTRICT OF TEXAS

                                        AT AMARILLO

                                           PANEL E

                                    NOVEMBER 14, 2005

                            ______________________________


                             LAYNE STANFORD, APPELLANT

                                              V.

                 CITY OF LUBBOCK AND LUBBOCK FIRE FIGHTER
           AND POLICE OFFICER CIVIL SERVICE COMMISSION, APPELLEES


                          _________________________________

              FROM THE 72ND DISTRICT COURT OF LUBBOCK COUNTY;

                NO. 2003-521,215; HONORABLE BLAIR CHERRY, JUDGE

                           _______________________________

Before QUINN, C.J., and REAVIS, J., and BOYD, S.J.1


                                 MEMORANDUM OPINION


      Following submission of this appeal, by letter to the parties dated October 25, 2005,

this Court questioned whether the order granting summary judgment was final. We noted



      1
          John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment.
that the order did not resolve claims for attorney’s fees asserted by all parties. The parties

timely responded contending that all claims raised were disposed of making the order final

for purposes of appeal. For the reasons explained below, we must dismiss the appeal for

want of jurisdiction.


        By his live pleading, appellant Layne Stanford sought, among other relief, attorney’s

fees pursuant to section 143.015(c) of the Texas Local Government Code. Appellees, the

City of Lubbock and Lubbock Fire Fighter and Police Officer Civil Service Commission,

separately filed general denials, affirmative defenses, and requests for statutory attorney’s

fees.


        Competing motions for summary judgment were filed. In his motion, Stanford again

asserted his entitlement to attorney’s fees under the statute. By their joint motion, the City

of Lubbock and Civil Service Commission did not seek attorney’s fees.2 The trial court’s

order provides in relevant part:


        After considering the motions, pleadings, responses, evidence and
        arguments of counsel, this Court is of the opinion that Defendants’ Motion
        should be GRANTED and Plaintiff’s Motion should be DENIED.
              It is therefore ORDERED, ADJUDGED and DECREED that the City
        of Lubbock’s and Lubbock Fire Fighter and Police Officer Civil Service
        Commission’s Motion for Summary Judgment is GRANTED, and Layne
        Stanford’s Motion for Summary Judgment is DENIED.




        2
       Tex. R. Civ. P. 166a(c) requires that a motion for summary judgment shall set forth
the specific grounds therefor.

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       We must sua sponte determine our jurisdiction to consider an appeal. See M.O.

Dental Lab v. Rape, 139 S.W.3d 671, 673 (Tex. 2004). We recognize that in determining

finality, we are to err on the side of preserving appeals by ensuring the right to appeal is

not lost by over-technical application of the law. Lehmann v. Har-Con Corp., 39 S.W.3d

191, 205 (Tex. 2001). However, “a judgment issued without a conventional trial on the

merits 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.” Id. at 192-93. There is no

longer a bright line standard for determining finality.3 Finality is now determined by looking

not only at the four corners of the order, but also the appellate record as a whole to

determine which claims were asserted, addressed, or which the court intended to address.

Id. at 205-06.


       The parties’ response to our inquiry on finality is two-fold. First, they argue that

Stanford’s claim for attorney’s fees in his live pleading and in his motion for summary

judgment was disposed of when the trial court denied his motion for summary judgment.

Second, the City of Lubbock and Civil Service Commission urge that their failure to seek

attorney’s fees in their summary judgment motion waived their claim. We disagree and

address their second argument first.



       3
      See generally Mafrige v. Ross, 866 S.W.2d 590 (Tex. 1993), overruled in part,
Lehmann v. Har-Con Corp., 39 S.W.3d 191, 203-04 (Tex. 2001) (endorsing use of a Mother
Hubbard clause to determine summary judgment finality).

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      A claim is not waived merely because it is not presented in a motion for summary

judgment. See McNally v. Guevara, 52 S.W.3d 195, 196 (Tex. 2001). Also, on appeal we

do not presume that a motion for summary judgment addresses all of a movant’s claims.

See Southwest Investments Divesified, Inc. v. Estate of Mieszkuc, 171 S.W.3d 461, 467

(Tex.App.–Houston [14th Dist.] 2005, no pet.).


      In McNally, the defendants counterclaimed for a declaration on an easement issue

and also sought attorney’s fees. By their motion for summary judgment, they addressed

only the easement issue. On appeal, in an effort to preclude dismissal, the defendants

argued they had abandoned their claim for attorney’s fees by not including it in the motion

for summary judgment. McNally v. Guevara, 989 S.W.2d 380, 382 (Tex.App.–Austin

1999), rev’d, 52 S.W.3d 195, 196 (Tex. 2001). A divided court of appeals found the

judgment final and affirmed the trial court’s judgment. Id. at 383. The Supreme Court

noted that nothing in the trial court’s judgment suggested an intent to deny a claim for

attorney’s fees and concluded the judgment was not final and therefore, not appealable.

52 S.W.3d at 196.


       Additionally, pleadings determine the issues and parameters of a contest. Murray

v. O & A Express, Inc., 630 S.W.2d (Tex. 1982); Jobe v. Lapidus, 874 S.W.2d 764, 765

(Tex.App.–Dallas 1994, writ denied). See also Tex. R. Civ. P. 301 (providing that a

judgment shall conform to the pleadings). A motion is not the functional equivalent of a

pleading and does not carry the same legal significance. See Crain v. San Jacinto Sav.


                                            4
Ass’n, 781 S.W.2d 638, 639 (Tex.App.–Houston [14th Dist.] 1989, writ dism’d). Although

the law does not require that a judgment be in any particular form, Lehmann, 39 S.W.3d

at 195, finality problems can be eliminated by carefully drafting judgments to conform to the

pleadings. See North E. Indep. School Dist. v. Aldridge, 400 S.W. 893, 898 (Tex. 1966).


       By their live pleadings, the City of Lubbock and the Civil Service Commission pled

for attorney’s fees. Their failure to seek attorney’s fees by their motion for summary

judgment did not result in waiver of the claim raised by their pleadings. Although summary

judgment was granted in their favor, the court’s order is silent on disposition of their claim

for attorney’s fees. The unresolved claim precludes finality for purposes of appeal.


       We do not overlook the parties’ reliance on Dallas Fire Fighters Association v. Booth

Research Group, Inc., 156 S.W.3d 188 (Tex.App.–Dallas 2005, pet. denied). It is,

however, distinguishable. In Booth, the defendant affirmatively waived any request for

attorney’s fees by letter to the court prior to the entry of judgment. Reiterating the Supreme

Court’s decision in McNally, a party’s omission of one of his claims from a motion for

summary judgment does not waive the claim. 52 S.W.3d at 196. The City of Lubbock and

Civil Service Commission did not affirmatively waive their claim for attorney’s fees prior to

rendition of the order granting summary judgment. Thus, Booth does not apply.


       Having concluded that the City of Lubbock and the Civil Service Commission’s claim

for attorney’s fees remains unresolved, we need not address the parties’ first argument that




                                              5
the trial court’s denial of Stanford’s motion for summary judgment constituted a denial of

his claim for attorney’s fees.


       Accordingly, the appeal is dismissed for want of jurisdiction.


                                          Don H. Reavis
                                            Justice




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