NO. 07-05-0231-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL D
SEPTEMBER 12, 2006
______________________________
EDWARDS LIFESCIENCES, L.L.C.,
Appellant
v.
COVENANT HEALTH SYSTEMS a/k/a COVENANT MEDICAL CENTER,
Appellee
_________________________________
FROM THE 72ND DISTRICT COURT OF LUBBOCK COUNTY;
NO. 2003-523,478; HON. BLAIR CHERRY, PRESIDING
_________________________________
Opinion
_________________________________
Before QUINN, C.J., and REAVIS and CAMPBELL, JJ.
Edwards Lifesciences, L.L.C. (Edwards) appeals from an order denying its motion
to strike an order for indemnification. The cause has been briefed and submitted for
disposition. However, we dismiss it for want of jurisdiction.
Although not raised by the parties, we are obligated to determine sua sponte our
jurisdiction over an appeal. New York Underwriters Ins. Co. v. Sanchez, 799 S.W.2d 677,
679 (Tex. 1990). Save for a few instances not applicable here, courts of appeal have
appellate jurisdiction only over final orders and judgments. Lehmann v. Har-Con Corp., 39
S.W.3d 191, 195 (Tex. 2001). Additionally, a judgment is final only when it disposes of all
claims asserted by or against all parties. M. O. Dental Lab v. Rape, 139 S.W.3d 671, 674
(Tex. 2004); Lehmann v. Har-Con Corp., 39 S.W.3d at 195.
Next, the record discloses that Dewitt Wilhite, individually and on behalf of various
people, sued Edwards and Covenant to recover damages.1 In response, Covenant moved
for indemnification from Edwards for not only the sums it “may be required to pay to
Plaintiffs” but also for the court costs, attorney’s fees, and other reasonable expenses and
damages incident to being sued by Wilhite. Furthermore, its claim was founded upon
§82.002 of the Texas Civil Practice and Remedies Code.2 The trial court granted the
motion and ordered indemnification as specified in the opening paragraph. Yet, in ordering
indemnification, it stated that the “amount of Edwards[’] . . . liability . . . shall be paid upon
further order of the court.” Thereafter, Wilhite filed a non-suit against Edwards and
Covenant.
As can be readily seen from the passages quoted above, the trial court did not
completely resolve the claim for indemnification. A portion of it was reserved for later
adjudication. Consequently, all claims of the parties have not been disposed of, and there
1
Reco very was founded upon the allegations that 1) Edwards and Covenant sold to Ruth Marjean
W ilhite a contaminated mitral valve, 2) the valve was surgically implanted into Ruth, and 3) as a result of the
con tam ination and efforts to am eliorate it, she died.
2
The statute provides that a manufacturer shall “indemnify and hold harmless a seller against loss
arising out of a products liability action . . . for which the seller is indepen dently liable.” T EX . C IV . P RAC . & R EM .
C O D E §82.002(a) (Ve rnon 2005 ).
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exists no final order or judgment encompassing the very matter at issue before us.3 See
Dutton-Lainson Co. v. Do It Best Corp., 180 S.W.3d 234, 238-39 (Tex. App.–San Antonio
2005, no pet.) (recognizing that there was no final judgment because the trial court, in
determining that one party was entitled to indemnity, had yet to assess the amount of
indemnity due). And, that Wilhite non-suited his claims against all the defendants does not
change this circumstance.
It is true that a plaintiff may dismiss or non-suit his claims at any time before he has
introduced all of his evidence, other than rebuttal evidence. TEX . R. CIV. P. 162. Equally
true is that a non-suit vitiates certain interlocutory orders. Hyundai Motor Co. v. Alvarado,
892 S.W.2d 853, 854-55 (Tex. 1995). Yet, it does not vitiate pending claims for affirmative
relief. TEX . R. CIV. P. 162. Nor does it effect “any motion for sanctions, attorney’s fees or
other costs, pending at the time of dismissal. . . . ” Id. (Emphasis added). And, at the time
Wilhite dismissed, through non-suit, his claims against the defendants, the trial court had
pending before it a demand by one of the defendants, i.e. Covenant, for attorney’s fees
and costs against the other defendant.4 Simply put, “any motion” for attorney’s fees and
costs means just that, “any motion” for attorney’s fees and costs, and the demand of
Covenant is “any [such] motion.”
Nor do we find the case of Le v. Kilpatrick, 112 S.W.3d 631 (Tex. App.–Tyler 2003,
no pet.) controlling. Edwards cites it for the proposition that a claim for indemnification is
3
Inde ed, E dwa rds cha racterizes the order for indem nification as interlocutory throug hou t its brief.
4
W e note that the word “loss” used in §82.002(a) of the Civil Practice and Remedies Code includes
“court costs and other reasona ble expens es, reasona ble attorney’s fees, and an y reasonable dam ages.” T EX .
C IV . P RAC . & R EM . C ODE A N N . §82.002(b) (Vernon 2005). Thus as an indemnitee, Covenant may be entitled
by statute to attorney’s fees and co urt costs, am ong other relief.
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not a claim for affirmative relief and, thus, it is subject to vitiation when a plaintiff files a
non-suit. While Le says as much, id. at 634, we note at least one pivotal circumstance
differentiating the dispute there from that before us. In Le, nothing was said about there
being a pending request for attorney’s fees and costs at the time of the non-suit. In other
words, the second paragraph of Rule 162 specifies two categories of claims that are
shielded from vitiation due to a non-suit. One involves requests for “affirmative relief” while
the other involves “any motion for sanctions, attorney’s fees or other costs, pending at the
time of dismissal . . . .” TEX . R. CIV. P. 162. Le dealt with the former, not the latter, and it
is the latter category that is involved here. Finally, that Covenant may have labeled its
request as one for indemnification, we note the old adage: “a rose is a rose by any other
name.” That is, irrespective of the label appended to the motion, its substance is of import.
See Rush v. Barrios, 56 S.W.3d 88, 93 (Tex. App.–Houston [14th Dist.] 2001, pet. denied)
(requiring courts to afford meaning to the substance of motions not their title). And, the
substance of the motion on file and pending adjudication at the time of non-suit fell within
the parameters of Rule 162.
In sum, the very order Edwards attempts to attack on appeal is interlocutory.
Because it is interlocutory, we lack jurisdiction over the dispute. And, lacking such
jurisdiction, we dismiss the appeal.
Brian Quinn
Chief Justice
4