Farm Bureau County Mutual Insurance Company v. Cristil Rogers

IN THE SUPREME COURT OF TEXAS
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NO. 14-0279
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FARM BUREAU COUNTY MUTUAL INSURANCE COMPANY,
PETITIONER,

v.

CRISTIL ROGERS, RESPONDENT

════════════════════════════════════════════════════
ON PETITION FOR REVIEW FROM THE
COURT OF APPEALS FOR THE SIXTH DISTRICT OF TEXAS
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PER CURIAM

This case presents the familiar issue of whether a trial court’s order, issued without a full

trial and containing a Mother Hubbard clause, is final for purposes of appeal. In this declaratory

judgment action involving insurance coverage, the court of appeals held that the trial court’s order

denying the insurer’s motion for summary judgment is not final because the insured did not file a

cross-motion for summary judgment. We agree that the order is not final, but for a different reason:

it did not resolve the parties’ competing requests for attorney’s fees. We therefore affirm the court

of appeals’ dismissal of this appeal.

Farm Bureau County Mutual Insurance Company filed this declaratory judgment action

against its insured, Cristil Rogers, seeking a declaration that it had no duty to defend or indemnify

her in an underlying tort action (the Dominguez suit)1 and requesting an award of court costs and

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The plaintiffs in the Dominguez suit sought damages for injuries they sustained when they were thrown
from their horses while riding along FM 906 in Lamar County, Texas. Their petition alleged that, as Rogers drove
past them in a pickup truck, a dog leaped from the bed of the truck and charged at the horses, causing them to buck
and throw the plaintiffs. The plaintiffs alleged that Rogers proximately caused their injuries by negligently failing to
secure her dog. Rogers sought coverage of these claims under her automobile insurance policy with Farm Bureau.
attorney’s fees under the Uniform Declaratory Judgments Act (UDJA). See TEX. CIV. PRAC. &

REM. CODE § 37.009 (authorizing courts in a declaratory judgment action to award “costs and

reasonable and necessary attorney’s fees as are equitable and just”). Rogers answered the suit and

prayed for recovery of her court costs and attorney’s fees under the Texas Deceptive Trade

Practices Act (DTPA), even though she asserted no claims for relief under the DTPA.

Farm Bureau later moved for summary judgment. Rogers opposed the motion but did not

file a cross-motion seeking summary judgment in her favor. After a hearing on Farm Bureau’s

motion, the trial court entered an “Order Denying Plaintiff Farm Bureau[’s] . . . Motion for

Summary Judgment.” The order decreed that (1) Farm Bureau “has a duty to defend [Rogers] in

or as to” the Dominguez suit; (2) Farm Bureau “has a duty to indemnify [Rogers] in or as to” the

Dominguez suit; (3) “[a]ll court costs are taxed against the party incurring same”; and (4) “[a]ny

and all relief sought in this cause which is not expressly granted herein is DENIED.” The order

did not expressly address the parties’ claims for attorney’s fees.

The court of appeals dismissed Farm Bureau’s appeal for want of jurisdiction, holding that

an order denying a motion for summary judgment cannot be final and appealable unless the

opposing party filed a cross-motion for summary judgment. Farm Bureau petitioned for this

Court’s review. Relying on our decision in Lehmann v. Har-Con Corp., 39 S.W.3d 191 (Tex.

2001), Farm Bureau argues that the trial court’s order is a final and appealable judgment because

it disposed of all parties and claims, even though Rogers did not file a cross-motion for summary

judgment seeking that relief. Rogers responds by arguing that the order is not a final judgment

because it did not dispose of the parties’ competing claims for attorney’s fees. In reply, Farm

Bureau argues that Rogers’ request for attorney’s fees under the DTPA was defective and the trial

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court implicitly denied both parties’ requests for attorney’s fees by expressly taxing court costs to

each party and denying “[a]ny and all relief . . . which is not expressly granted herein.” 2

We agree with Farm Bureau that the fact that Rogers did not file a cross-motion for

summary judgment did not preclude the trial court from entering a “final” judgment. As we

explained in Lehmann, “the language of an order or judgment can make it final, even though it

should have been interlocutory, if that language expressly disposes of all claims and all parties.”

Lehmann, 39 S.W.3d at 200. If the trial court’s intent to enter a final judgment is “clear from the

order, then the order is final and appealable, even though the record does not provide an adequate

basis for rendition of judgment.” Id. In that case, “the judgment is final—erroneous, but final.”

Id. But we agree with Rogers that the order at issue here did not dispose of all parties and claims,

because neither the language taxing court costs nor the Mother Hubbard clause disposed of the

parties’ claims for attorney’s fees.

In Lehmann, we held that “a judgment issued without a conventional trial is final for

purposes of appeal if and only if either [1] it actually disposes of all claims and parties then before

the court, regardless of its language, or [2] it states with unmistakable clarity that it is a final

judgment as to all claims and all parties.” Lehmann, 39 S.W.3d at 192–93. We explained that “[a]n

order does not dispose of all claims and all parties merely because it is entitled ‘final’, or because

the word ‘final’ appears elsewhere in the order, or even because it awards costs.” Id. at 205

(emphasis added). “Rather, there must be some other clear indication that the trial court intended

the order to completely dispose of the entire case.” Id. Attempting to resolve decades of confusion,

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We need not consider Farm Bureau’s argument that Rogers’ claim for attorney’s fees is defective because,
even if it is, Farm Bureau’s own claim for attorney’s fees remains pending. See Barshop v. Medina Cnty. Underground
Water Conserv. Dist., 925 S.W.2d 618, 637–38 (Tex. 1996) (holding that failure to “substantially prevail[ ]” on a
declaratory judgment claim does not preclude recovery of attorney’s fees under the UDJA).
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we held 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.” Id. at 203–04. Mother

Hubbard clauses are problematic because they are open to interpretation. Id. at 204. Sometimes a

Mother Hubbard clause “mean[s] 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,” and sometimes it “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.” Id. We thus rejected the notion that a Mother

Hubbard clause gives “any indicia of finality in any order not issued after a conventional trial.” Id.

After Lehmann, we confirmed that the disposition of a claim for court costs does not

dispose of a claim for attorney’s fees, even when doing so would also dispose of all parties and

claims. See McNally v. Guevara, 52 S.W.3d 195, 196 (Tex. 2001). In McNally, the defendants

filed a motion for summary judgment but failed to request summary judgment on their

counterclaim for attorney’s fees. Although the trial court’s order granted the motion and taxed

court costs against the plaintiff, we concluded that “[n]othing in the trial court’s judgment, other

than its award of costs to the defendants, suggests that it intended to deny the defendants’ claim

for attorney fees. The award of costs, by itself, does not make the judgment final.” Id. Consistent

with our statement in Lehmann, we held that the resolution of a claim for court costs did not dispose

of a claim for attorney’s fees and did not serve as an indicium of finality. See id.; Lehmann, 39

S.W.3d at 205.

This case is slightly different from McNally because, although Farm Bureau failed to

expressly request attorney’s fees in its motion for summary judgment, it argues that the Mother

Hubbard clause, not just the disposition of court costs, effectively denied the claim for attorney’s
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fees. However, the reasoning of Lehmann and McNally control our decision here. Interpreting

Mother Hubbard clauses in the manner Farm Bureau urges would necessarily run afoul of

Lehmann because it would allow such clauses to serve as indicia of finality for purposes of

appeal—the very function we prohibited in Lehmann. Thus, Mother Hubbard clauses do not, on

their face, implicitly dispose of claims not expressly mentioned in the order, including claims for

attorney’s fees. Instead, there must be evidence in the record to prove the trial court’s intent to

dispose of any remaining issues when it includes a Mother Hubbard clause in an order denying

summary judgment. See Lehmann, 39 S.W.3d at 205–06; McNally, 52 S.W.3d at 196. To hold

otherwise would simply resurrect the issues we put to rest in Lehmann and McNally, albeit in a

slightly different form.

Like the movant in McNally, Farm Bureau failed to request an award of attorney’s fees in

its motion for summary judgment or to attach evidence supporting its claim for fees. Thus, as in

McNally, there is no reason to presume that the trial court considered the issue when ruling on

Farm Bureau’s motion. The order’s language taxing court costs is of no import because our

decision in McNally established that such language does not, alone, evince a trial court’s intent to

dispose of attorney’s fees. And most importantly, the parties presented no evidence from the record

suggesting that the trial court intended the Mother Hubbard clause to deny attorney’s fees to either

party.3 In the absence of evidence of the trial court’s intent with respect to the parties’ claims for

attorney’s fees, we find that the trial court’s order did not dispose of all parties and claims.

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As noted above, Farm Bureau did not need to “substantially prevail[ ]” in a suit under the UDJA to receive
attorney’s fees. See Barshop, 925 S.W.2d at 637–38. Thus, the trial court did not dispose of the issue simply by ruling
against Farm Bureau with respect to its duty to defend and indemnify Rogers.
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 Accordingly, without hearing oral argument, we affirm the court of appeals’ judgment

dismissing the appeal for want of jurisdiction. TEX. R. APP. P. 59.1.

OPINION DELIVERED: January 30, 2015

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