Lehmann v. Har-Con Corp.

• Decision Date: 01 February 2001
• Docket Number: No. 99-0406,99-0461,99-0406
• Parties: (Tex. 2001) Douglas Lehmann and Virginia Lehmann, Petitioners v. Har-Con Corporation, Respondent Melvin G. Harris and Helena M. Harris, Petitioners v. Harbour Title Company, Respondent
• Court: Texas Supreme Court

Page 191

39 S.W.3d 191 (Tex. 2001)

Douglas Lehmann and Virginia Lehmann, Petitioners v. Har-Con Corporation, Respondent Melvin G. Harris and Helena M. Harris, Petitioners v. Harbour Title Company, Respondent

No. 99-0406, 99-0461

IN THE SUPREME COURT OF TEXAS

Argued January 26, 2000

Decided February 1, 2001.

On Petitions for Review from the Court of Appeals for the Fourteenth District of Texas

Justice Hecht delivered the opinion of the Court, in which Chief Justice Phillips, Justice Owen, Justice Abbott, and Justice O'Neill joined.

In these two consolidated cases we revisit the persistent problem of determining when a judgment rendered without a conventional trial on the merits is final for purposes of appeal. We consider only cases in which one final and appealable judgment can be rendered and not cases, like some probate and receivership proceedings, in which multiple judgments final for purposes of appeal can be rendered on certain discrete issues.¹ And we consider a judgment's finality only for purposes of appeal and not for other purposes, such as issue and claim preclusion.² In Mafrige v. Ross,³ we held that a summary judgment is final if it contains language purporting to dispose of all claims and parties. We gave as one example of such language what we have called a "Mother Hubbard" clause⁴ -- a recitation that all relief not expressly granted is denied.⁵ Since then, the routine inclusion of this general statement in otherwise plainly interlocutory orders and its ambiguity in many contexts have rendered it inapt for determining finality when there has not been a conventional trial. We no longer believe that a Mother Hubbard clause in an order or in a judgment issued without a full trial can be taken to indicate finality. We therefore hold that in cases in which only one final and appealable judgment can be rendered, a judgment issued without a conventional trial 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. In the two cases before us, the court of appeals concluded that judgments that do not meet this test were final and dismissed the appeals as having been untimely perfected.⁶ We reverse and remand for consideration of the merits of the appeals.

I

Lehmann v. Har-Con Corp.

Douglas and Virginia Lehmann sued the University of St. Thomas and Har-Con Corp. in the district court in Harris County to recover damages for injuries Douglas suffered in a construction accident. The University cross-claimed against Har-Con for indemnity. The Lehmanns settled with Har-Con and executed a release, agreeing in part to indemnify Har-Con against certain claims which had been or could be asserted by or through them. Virginia then filed an amended petition on behalf of her minor son against both defendants, claiming damages for loss of parental consortium because of his father's injuries. In response, Har-Con filed a counterclaim against Virginia and a third-party petition against Douglas, seeking indemnity from them under the terms of their prior release.

The Lehmanns and Har-Con all moved for summary judgment on Har-Con's indemnity claims. The district court denied the Lehmanns' motion and granted Har-Con's motion. The court's order granting Har-Con's motion stated in full:

[caption]

ORDER

On this 12 day of March , 1998 came on to be considered the Motion for Summary Judgment of HAR-CON CORPORATION. After considering the motion, the response, the summary judgment evidence and the argument of counsel, the Court is of the opinion that the motion should be in all things granted. It is therefore,

ORDERED, ADJUDGED AND DECREED that the Motion for Summary Judgment by HAR-CON CORPORATION be and it is hereby GRANTED.

All relief not expressly granted herein is denied.

Signed this the 12 day of March , 1998

s/___________

JUDGE PRESIDING

[s/ Attorneys for Har-Con Corporation]

The order did not reference Virginia's claims on behalf of her son against Har-Con, although it would appear that Har-Con's summary judgment on its indemnity claim would effectively bar recovery for Virginia's son. The order also did not reference Virginia's son's claims against the University, which would not appear to be affected by Har-Con's summary judgment. The order contained a "Mother Hubbard" clause stating that "[a]ll relief not expressly granted herein is denied."

The district clerk advised the Lehmanns by postcard that an interlocutory summary judgment order had issued. The record does not reflect whether the parties received a copy of the actual order after it was signed. The Lehmanns tell us that the practice of the district clerk in Harris County is not to send copies of orders to the parties but to give parties notice by postcard when orders are signed. The notice does not completely describe the content of the order.

The Lehmanns appear to have believed that the summary judgment order was interlocutory because they moved to sever it and Har-Con's claims into a separate action, ostensibly to make the summary judgment final. The court granted the motion to sever on the twenty-fifth day after the summary judgment order was signed. Twenty-eight days after the severance order was signed, the Lehmanns noticed their appeal from the summary judgment order.

If the summary judgment was not final until the severance order was signed, then the Lehmanns' appeal was timely. But the court of appeals held that the summary judgment order was final when it issued because of the Mother Hubbard clause and that the order was not modified by the severance so as to restart the time for perfecting appeal.⁷ Because the Lehmanns did not perfect appeal within thirty days of the signing of the order as prescribed by the rules of appellate procedure,⁸ the court dismissed the appeal for want of jurisdiction. In holding that the summary judgment order was final, the court followed our decision in Mafrige, although the court expressed concerns that the inclusion of a Mother Hubbard clause in an otherwise plainly interlocutory order should not make the order final.

We granted the Lehmanns' petition for review and consolidated it for argument and decision with Harris v. Harbour Title Co.⁹

Harris v. Harbour Title Co.

Melvin and Helena Harris sued five defendants -- Greenfield Financial Corp. and Larry J. Greenfield ("the Greenfield defendants), Tim Rice and Rice Development, Inc. ("the Rice defendants"), and Harbour Title Co. -- in the district court in Harris County on breach-of-contract and tort claims arising from a conveyance of real property. The court granted an interlocutory default judgment against Tim Rice on liability only, leaving for later a determination of the damages to be assessed against him. The Harrises nonsuited their claims against the Greenfield defendants. The fifth defendant, Harbour Title Co., moved for summary judgment, which the court granted with the following order:

[caption]

Order Granting Harbour Title Company's

Motion for Summary Judgment

On August 28, 1998, came on to be heard the Motion for Summary Judgment of one of the defendants, Harbour Title Company, and the Court having considered the Motion, together with any response, and the supplemental briefing filed by the parties to date is of the opinion that said Motion is with merit and should be granted. It is therefore

ORDERED that defendant Harbour Title Company's Motion for Summary Judgment is in all things granted; it is further

ORDERED that the Plaintiffs, Melvin G. Harris and Helena M. Harris take nothing as to any of their claims against Harbour Title Company.

All relief requested and not herein granted is denied.

SIGNED this 15 day of October 1998.

s/_______________

JUDGE PRESIDING

APPROVED AND ENTRY REQUESTED:

[s/ Attorneys for Harbour Title Company]

Although the order did not reference the Harrises' pending claims against the Rice defendants, it nevertheless contained a Mother Hubbard clause stating that "[a]ll relief requested and not herein granted is denied."

The Harrises assert that they received notice of the order by a postcard that described the order as an interlocutory summary judgment, but the postcard is not in our record. The record does not reflect whether the parties obtained a copy of the order after it was signed. It appears that the district clerk followed her usual procedure of notifying the parties by postcard in lieu of providing copies of the order.

The district court apparently did not consider the summary judgment order to be final; forty-six days after it was signed, the court generated a form order setting the case for trial the next year. The Harrises, too, appear to have believed the summary judgment to be interlocutory; two weeks after the order issued setting the case for trial, the Harrises obtained what was captioned a "Final Default Judgment" against the Rice defendants. Twenty-five days later the Harrises noticed their appeal from Harbour Title's summary judgment.

If Harbour Title's summary judgment did not dispose of the Harrises' claims against the Rice defendants, and the default judgment against those defendants was the final order in the case, then the Harrises' appeal was timely. But following Mafrige, as it had done in Lehmann, the court of appeals concluded that the summary judgment order was final and therefore dismissed the appeal as not having been timely perfected. We granted the Harrises' petition for review and consolidated it with Lehmann for argument and decision.¹⁰

II

A

Though its origins are obscure and its rationale has varied over time,¹¹ the general rule, with a few mostly statutory exceptions, is that an appeal may be taken only from a final judgment.¹² A judgment is final for purposes of appeal if it disposes of all pending parties and claims in the record, except as necessary to...