                                    NUMBER 13-06-138-CV

                                  COURT OF APPEALS

                      THIRTEENTH DISTRICT OF TEXAS

                        CORPUS CHRISTI - EDINBURG


                                IN RE: SHARON HEMPHILL


                            On Petition for Writ of Mandamus


                              MEMORANDUM OPINION

              Before Chief Justice Valdez and Justices Vela and Wittig1
                         Memorandum Opinion Per Curiam

          Sharon Hemphill, relator, seeks mandamus relief prohibiting the trial judge from

imposing sanctions upon her, alleging that the trial court’s plenary power had already

expired. Michael Hummell, a real party in interest, argues that the purported judgment in

this case that relator relies upon, was not and is not a final judgment. We deny mandamus

relief.

                                         1. Background


          1
         Retired Fourteenth Court of Appeals Justice Don W ittig assigned to this Court by the Chief Justice
of the Suprem e Court of Texas pursuant to the governm ent code. See T EX . G O V 'T C OD E A N N . § 74.003
(Vernon 2005).
       Relator was the personal attorney for Andrew Campbell, M.D., an intervenor and

third-party plaintiff in the underlying cause, number 01-3211-D, pending in the 105th

Judicial District Court of Nueces County, Texas. On January 28, 2003, after a minor

settlement hearing, the trial court entered an “Agreed Judgment.” The judgment provided

that the defendant, State Farm Lloyds, would pay money into the registry of the court, and

ad litem fees were taxed to the plaintiff, Spring Gehring, as next friend of K.T., a minor.

The judgment concluded: “Any and all relief prayed for by any party to this cause and not

specifically granted herein is in all things denied.” The previous day, relator had filed an

intervention in the underlying suit on behalf of Dr. Campbell including claims against the

insurance carrier, the law firm of Ackley & Rogers; Michael B. Sheehan and Sheadyn

Rogers, as individuals, and as the firm of Sheehan & Rogers, LLP; Linda J. Burgess;

Winstead, Sechrest & Minick, P.C.; Michael H. Hummell; and the law firm of Huseman &

Pletcher. Hummell answered and requested sanctions. A severance of the Hummell

matter was signed some ten months later, resulting in cause number 03-6257-D, which is

the subject of a companion appeal to this mandamus action. In the severed action, relator

was sanctioned, thus giving rise to her present claim that a final judgment had already

been entered and the trial court was without jurisdiction to award the sanctions against her

in the severed action.

                                   2. Standard of Review

       To be entitled to mandamus relief, a petitioner must show that the trial court clearly

abused its discretion and that the relator has no adequate remedy by appeal. In re

McAllen Med. Ctr., Inc., No. 05-0892, 2008 Tex. LEXIS 456, at *6 (Tex. May 16, 2008, orig.

proceeding); In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135-36 (Tex. 2004) (citing

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Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992)). The Texas Government Code

authorizes this Court to issue writs of mandamus. TEX . GOV'T CODE ANN . § 22.221(b)

(Vernon 2007).

                                      3. Discussion

       In contending that the trial court had lost jurisdiction in this matter, relator primarily

relies upon our holding in In re Cobos, 994 S.W.2d 313, 315 (Tex. App.–Corpus Christi

1999, no pet.). In Cobos, we relied on Mafrige v. Ross, 866 S.W.2d 590, 592 (Tex. 1993),

and Inglish v. Union State Bank, 945 S.W.2d 810, 811 (Tex. 1997), in holding that the

intent of the trial court is not the controlling consideration in determining whether a

judgment is final. Id. “Rather, we look to the four corners of the judgment. The rule, harsh

as it is, remains: If a judgment contains language purporting to grant or deny relief that

disposes of all claims or parties, regardless of the intent of the parties or the trial court, that

judgment is final as to all claims and all parties.” See id. However, the relative clarity of

Mafrige has been replaced by the rule in Lehmann:

       Much confusion can be dispelled by holding, as we now do, that the inclusion
       of a Mother Hubbard clause—by which we mean the statement, ‘all relief not
       granted is denied,’ or essentially those words—does not indicate that a
       judgment rendered without a conventional trial is final for purposes of appeal.
       We overrule Mafrige to the extent it states otherwise.

See Lehmann v. Har-Con Corp., 39 S.W.3d 191, 203-204 (Tex. 2001).

       The minor’s settlement hearing was not a traditional trial. The settlement hearing

was more akin to a motion for partial summary judgment. At the time of the hearing, there

were at least twenty-two parties with multiple claims, third party claims, and counter-claims

pending before the trial court when it heard and approved the minor settlement. Plaintiff

still had pending claims against defendants James Watson, John Jenkins, and Walter

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Dunham, as well as related insurance companies. The order specifically names only two

of the three plaintiffs and only one defendant—the one funding the minor settlement. The

rules of procedure mandate “the judgment shall contain the full names of the parties, as

stated in the pleadings, for and against whom the judgment is rendered.” TEX . R. CIV. P.

306. The apparent intent of the order was to approve only the minor settlement involving

only a few of the parties and a fraction of the claims then in the ligation before the court.

       The Texas Supreme Court language in Lehmann concerning the Mother Hubbard

clause is instructive:

       [In] an order on an interlocutory motion, such as a motion for partial summary
       judgment, the language is ambiguous. It may mean only that the relief
       requested in the motion—not all the relief requested by anyone in the
       case—and not granted by the order is denied. The clause may also have no
       intended meaning at all, having been inserted for no other reason than that
       it appears in a form book or resides on a word processor. For whatever
       reason, the standard Mother Hubbard clause is used in interlocutory orders
       so frequently that it cannot be taken as any indication of finality.

Lehmann, 39 S.W.3d at 203-04.

       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.” Id. at 205. If only a plaintiff’s claim against a defendant is adjudicated, other

counterclaims, cross-claims or third party claims are not adjudicated. Id. A judgment is

final if it disposes of all pending parties and claims in the record. Guajardo v. Conwell, 46

S.W.3d 862, 863-64 (Tex. 2001). The law does not require that a final judgment be in any

particular form. Lehmann, 39 S.W.3d at 195. Therefore, whether a decree is a final

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



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       The argument that the agreed judgment following the minor settlement is a final

judgment is belied by many factors. First, the “Agreed Judgment” was only agreed to by

Michael Sheehan, counsel for plaintiffs, and Rodney Handel, counsel for the defendant

State Farm Lloyds. None of the multiple other counsel of record signed off or agreed to

the judgment, nor did relator agree to the judgment. On the same date as the agreed

judgment, January 28, 2003, an order of dismissal with prejudice was signed by the trial

court, dismissing the claims of Spring Gehring, as next friend of K.T., a minor, against five

State Farm and related entities. Yet a third order of dismissal was entered that day against

Jana Flores-Jon. Relator also filed that day a first amended petition in intervention on

behalf of Campbell naming nine third-party defendants. Five third-party defendants

counter-claimed against Campbell on January 28, 2003. Hummell answered and filed an

answer and counterclaim and sought sanctions. A rule 11 settlement agreement was filed

February 18, 2003, between Campbell, State Farm Lloyds, and most of the third-party

lawyer-defendants. An agreed take-nothing judgment was signed and entered February

13, 2003, specifically stating that Campbell take nothing against State Farm Lloyds. That

document also contained a Mother Hubbard clause. A sanction order against Campbell

and Hemphill was signed April 14, 2003, but later set aside.

       Attorney Brent Chesney had previously intervened on an attorney’s fee claim. This

claim was not dismissed until September 25, 2003. On May 6, 2005, the court entered yet

another order granting dismissal with prejudice on the Campbell/law firms’ disputes. At the

time the real party in interest filed his brief in response to relator’s petition for mandamus

in 2006, the District Clerk’s office still showed the suit pending against Watson, Jenkins,

and Dunham, although those claims were apparently settled.             None of the various


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“judgments” or dismissal orders before February 18, 2003, addressed the interventions of

Chesney and Campbell, or the counterclaims of the law firms and Hummell, or the

requested sanctions by Hummell and State Farm Lloyds.                       The May 6, 2005 order

dismissing the Campbell/law firms’ disputes was specifically approved by relator, Sharon

Hemphill, as attorney for intervenor.2

        In sum, the agreed judgment of January 28, 2003 dealt only with the claims and

parties therein stated. It was the court’s formal approval of a minor’s settlement between

plaintiff Spring Gehring, as next friend of K.T., a minor, and State Farm Lloyds. At least

eight original claims by the plaintiffs remained, two interventions remained, and multiple

counter-claims and third party actions were not disposed of.

        Because the judgment in question did not unequivocally dispose of all pending

claims and parties in the record, we determine it is not final and not appealable. See

Garcia v. Comm'rs Court of Cameron County, 101 S.W.3d 778, 784 (Tex. App.–Corpus

Christi 2003, no pet); Lehmann, 39 S.W.3d 201.

                                                 4. Conclusion

        Because the trial court’s plenary power had not expired as relator contends, we

conclude that the relator has not demonstrated that the trial court clearly abused its

discretion. We deny mandamus relief.

                                                                          PER CURIAM


Memorandum Opinion delivered and
filed this the 31st day of July, 2008.



        2
         Relator’s signature is not lim ited by the typical language “Approved as to Form Only.” It states:
“Approved.”

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