


 
NUMBER 13-00-509-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG


DANIEL S. PARKS AND SUZANNE PARKS, INDIVIDUALLY AND AS TRUSTEES OF

THE DANIEL S. PARKS, P.C. RETIREMENT TRUST , Appellants,

v.


DEWITT COUNTY ELECTRIC COOPERATIVE, INC. , Appellee.


On appeal from the 267th District Court
of De Witt County, Texas.

OPINION ON MOTION FOR REHEARING
Before Justices Hinojosa, Castillo , and Dorsey (1)
Opinion by Justice Castillo



 In its motion for rehearing, DeWitt County Electric Cooperative, Inc. acknowledges that the instructed
verdict in its favor did not dispose of the Cooperative's counterclaim for attorney fees.  The Cooperative
concedes that the resulting judgment was not final at the time it was initially appealed and remanded. See N.Y.
Underwriters v. Sanchez, 799 S.W.2d 677, 678-79 (Tex. 1990) (holding that claim for attorney fees omitted
from summary judgment motion remained pending so that order granting motion was interlocutory and not
appealable).  Intervening events have not made the judgment any more final.  In this circumstance, even if the
Cooperative had indicated in its motion for rehearing its intention to abandon the counterclaim, which it did
not, no procedure is available to permit it do so on appeal. Procedures for finalizing the judgment are
available, however, at the trial court.  SeeTex. R. Civ. P. 162 (nonsuit); Tex. R. Civ. P. 165 (abandonment);
see also Iacono v. Lyons, 6 S.W.3d 715 (Tex. App.-Houston [1st Dist.] 1999, no pet.) (per curiam).  
 Rule 165 reads as follows:
  A party who abandons any part of his claim or defense, as contained in the pleadings, may have that fact
entered of record, so as to show that the matters therein were not tried.  


Tex. R. Civ. P. 165.  The Cooperative did not avail itself of the abandonment procedure before judgment.  For
this reason and for the reasons stated in our opinion, we deny the motion for rehearing.         
ERRLINDA CASTILLO
Justice



Opinion delivered and filed
this 14th day of August, 2003.
 
1.  Retired Justice J. Bonner Dorsey assigned to this Court by the Chief Justice of the Supreme Court of Texas
pursuant to Tex. Gov't Code Ann. § 74.003 (Vernon 1998).
