the Housing Authority of the City of McAllen v. Dudley Ward Roberts as Independent of the Estate of Carol Ann Roberts ( 2005 )

                              NUMBER 13-03-351-CV

                         COURT OF APPEALS

                     THIRTEENTH DISTRICT OF TEXAS

                         CORPUS CHRISTI - EDINBURG

THE HOUSING AUTHORITY OF

THE CITY OF MCALLEN,                                                               Appellant,

                                                             v.

DUDLEY WARD ROBERTS AS

INDEPENDENT EXECUTOR OF

THE ESTATE OF CAROL ANN

ROBERTS, DECEASED,                                                                 Appellee.

                       On appeal from the County Court at Law No. 1

                                        of Hidalgo County, Texas.

                               MEMORANDUM OPINION

                       Before Justices Hinojosa, Yañez, and Castillo

                            Memorandum Opinion by Justice Yañez          

Appellant, the Housing Authority of the City of McAllen (AMHA@), appeals the trial court=s order denying its motion for summary judgment and granting the AMotion to Enforce Settlement@ of appellee, Dudley Ward Roberts as Independent Executor of the Estate of Carol Ann Roberts, Deceased.  In three issues, MHA contends: (1) the trial court=s September 26, 2002 judgment is interlocutory because it did not dispose of all claims pending before the court; (2) the trial court erred in granting appellee=s AMotion to Enforce Settlement;@ and (3) the trial court erred in denying appellant=s motion for summary judgment.  We dismiss for want of jurisdiction.

                                                                  Background

On May 31, 2000, appellee, as executor of the estate of his deceased wife, Carol Ann Roberts, sued MHA for payment of unused sick leave and vacation benefits accumulated by Ms. Roberts during her employment with MHA.  Ms. Roberts died on February 19, 1999.  The petition also requested attorney=s fees and costs.

On March 25, 2002, MHA filed a traditional and no-evidence ASecond Amended Motion for Summary Judgment,@ contending, among other things, that (1) pursuant to MHA=s policies, it had no duty to pay Ms. Roberts for accumulated but unused sick leave, and (2) there is no evidence that MHA entered into a contract with Ms. Roberts whereby it agreed to pay her for any accumulated but unused vacation leave or sick leave.  On May 7, 2002, appellee filed a AMotion to Enforce Settlement@ and response to MHA=s motion for summary judgment.  In the motion, appellee argues that prior to Ms. Roberts=s death, she and MHA entered into an Aoral agreement,@ by which MHA agreed to pay her for 155 1/2 days of sick leave.  The motion also (1) argues that MHA is not entitled to summary judgment because a material issue of fact exists as to whether MHA had agreed to pay for accumulated sick leave, and (2) requests attorney=s fees and other appropriate relief. 

On September 19, 2002, the trial court entered an order denying MHA=s motion for summary judgment and granting appellee=s AMotion to Enforce Settlement Agreement.@  The order states that Athe Motion to Enforce Settlement be and is hereby granted.  Counsel for the Plaintiff is directed to prepare a Judgment in appropriate format.  All relief not granted herein is hereby denied.@  On September 26, 2002, the trial court entered a written judgment, which states in its entirety:

This matter came on for hearing on July 21, 2002 and the Court, having considered the Motion to Enforce Settlement Agreement filed herein on behalf of the Plaintiff, and having granted same, hereby orders a Judgment be entered herein.

AND NOW, this 26th day of Sept., 2002, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the Plaintiff, DUDLEY WARD ROBERTS, INDEPENDENT EXECUTOR OF THE ESTATE OF CAROL ANN ROBERTS, DECEASED, have and recover judgment against the Defendant, THE HOUSING AUTHORITY OF THE CITY OF McALLEN, TEXAS, in the amount of Thirty Four Thousand Seven Hundred Thirty Seven Dollars and Sixteen Cents ($34,737.16), together with pre-judgment interest thereon in the amount of Seven Thousand Nine Hundred Seventy Seven Dollars and Seventy Six Cents ($7,977.76), together with post-judgment interest at the legal rate for which let execution issue if not sooner paid.

SIGNED and ENTERED on the 24th day of Sept., 2002.   

MHA timely filed a motion for new trial, which was overruled by operation of law.^[1]  MHA adopted the position that the September 26, 2002 judgment was not a final judgment because it did not address all issues before the court, including appellee=s claim for attorney=s fees.  On April 4, 2003, appellee filed a AMotion for Clarification of Order,@ in which he requested that the trial court hold a hearing and clarify whether it intended the September 26, 2002 judgment to be final. 

On May 15, 2003, approximately eight months after issuing judgment, the trial court held a hearing.  MHA argued that because the September 26, 2002 judgment did not dispose of all issues, including appellee=s claim for attorney=s fees, and did not contain a AMother Hubbard@ clause, the judgment was not final.  MHA also argued that if the trial court intended for the judgment to be final, it should sever appellee=s claims for attorney=s fees and costs, which remain pending before the court.  Appellee argued that because no evidence was presented regarding his claim for attorney=s fees, the issue was Awaived.@  At the conclusion of the hearing, the trial court ruled that A[t]he intent of the court was to resolve all matters.  The judgment that I signed on September the 26th was the final judgment.@  This appeal ensued. 

                                                                   Jurisdiction

Unless otherwise statutorily authorized, an appeal may be taken only from a final judgment or order.^[2]  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.^[3]  AIf the record reveals the existence of parties or claims not mentioned in the order, the order is not final,@ unless it is made final by its own language.^[4] The law does not require that a final judgment be in any particular form; therefore, whether a decree is a final judgment must be determined from its language and the record in the case.^[5]

Here, the September 26, 2002 judgment contains neither a AMother Hubbard@ clause nor any unequivocal language clearly indicating finality.^[6]  It does not dispose of appellee=s claims for attorney=s fees and costs.  Although the judgment awards appellee interest, we conclude such a factor is not dispositive.^[7]  Because the judgment does not dispose of all of appellee=s claims, we conclude that it is interlocutory.^[8]

Accordingly, we dismiss the appeal for want of jurisdiction.

                                                                                                                   LINDA REYNA YAÑEZ

Justice

Memorandum opinion delivered and filed this

the 29th day of September, 2005.

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^[1] See Tex. R. Civ. P. 329. 

^[2] Tex. Civ.  Prac. & Rem. Code Ann. '' 51.012, 51.014 (Vernon 1997 & Supp. 2004‑05).

^[3] Lehmann v. Har‑Con Corp., 39 S.W.3d 191, 205 (Tex. 2001).  

^[4]  Id. at 206.

^[5] Id. at 195.

^[6] Id. at 206.

^[7] See In re Burlington Coat Factory Warehouse of McAllen, Inc., 167 S.W.3d 827, 830 (Tex. 2005) (orig. proceeding) (discussing holding in Houston Health Clubs, Inc. v. First Court of Appeals, 722 S.W.2d 692, 693 (Tex. 1986), that judgment which awarded costs and interest was not final because it did not actually dispose of all of plaintiff=s claims).

^[8] See id. at 831.