Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg
DRED W. MARTIN III D/B/A ALL SEASONS AIR CONDITIONING, HEATING AND PLUMBING AND DRED W. HONDO MARTIN, INDIVIDUALLY, Appellant,
SERVICE SUPPLY OF VICTORIA, INC., Appellee.
appeal from the 267th District Court of Victoria County,
Justices Rodriguez, Contreras, and Longoria.
V. RODRIGUEZ Justice.
2014, appellee Service Supply of Victoria, Inc., filed suit
against appellant Dred W. Martin III d/b/a All Seasons Air
Conditioning, Heating and Plumbing and Dred W. Hondo Martin
individually ("Martin"). By seven issues, Martin
challenges the summary judgment which was granted in favor of
Service Supply. Because we find that the trial court did not
render a final, appealable judgment, we dismiss for want of
Supply's cause of action was a suit on sworn account; the
petition alleged, among other things, that Martin's
account had an outstanding principal balance of over $22, 000
for goods and services provided. Attached to the verified
petition were various invoices, contracts, and affidavits
intended to substantiate the account. See Tex. R.
Civ. P. 185. Service Supply also served discovery on Martin,
including multiple requests for admissions. The requests
asked Martin to admit or deny the fundamental elements of the
suit on sworn account. Martin timely filed a verified denial,
but he did not respond to the requests for admission at that
time or in the intervening months.
September 2014, Service Supply filed a motion for summary
judgment, arguing that because no timely response to the
requests for admission had been filed, the requests were now
deemed admitted and could form the basis for summary
judgment. The motion was set for hearing on October 31, 2014.
On October 24, Martin filed counterclaims for breach of
contract, usury, and unfair debt collection practices.
Service Supply did not amend its motion for summary judgment
to address the newly raised counterclaims.
trial court granted summary judgment in favor of Service
Supply on January 30, 2015. The summary judgment recited that
Service Supply's motion was, "in all things,
GRANTED" on the basis of the deemed admissions. The
trial court awarded Service Supply $21, 887.88 as principal
for the account, court costs, attorney's fees, and both
pre-judgment and post-judgment interest. The summary judgment
further provided, "It is ORDERED that Plaintiff [Service
Supply] shall have all writs of execution and other process
necessary to enforce this judgment. All relief not expressly
granted herein is denied." The summary judgment did not
otherwise address Martin's counterclaims. This appeal
threshold issue which determines our jurisdiction, we address
the finality of the trial court's judgment. Where, as
here, there is no authority which allows for an interlocutory
appeal, a judgment must be final before it can be appealed.
See Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195
(Tex. 2001). A judicial decree that actually disposes of all
parties and all claims is a final judgment, regardless of the
language used; however, a decree that fails to dispose of all
claims can be final only if the intent to finally dispose of
the case is unequivocally expressed in the decree itself.
See In re Burlington Coat Factory Warehouse of McAllen,
Inc., 167 S.W.3d 827, 830 (Tex. 2005) (orig.
proceeding); Lehmann, 39 S.W.3d at 205. Whether a
decree is a final judgment must be determined from its
language and the record in the case. Lehmann, 39
S.W.3d at 195; Cartwright v. Cologne Prod. Co., 182
S.W.3d 438, 443 (Tex. App.-Corpus Christi 2006, pet. denied).
We conduct a de novo review to determine the finality of the
decree. Parks v. DeWitt Cnty. Elec. Co-op., Inc.,
112 S.W.3d 157, 160 (Tex. App.-Corpus Christi 2003, no pet.);
In re Guardianship of Miller, 299 S.W.3d 179, 184
(Tex. App.-Dallas 2009, no pet.) (en banc).
Rule of Civil Procedure 63 states that any pleadings,
responses, or pleas offered for filing within seven days of
the date of trial or thereafter, or after such time as may be
ordered by the judge under rule 166, shall be filed only
after leave of the judge is obtained. Tex.R.Civ.P. 63;
Sosa v. Cent. Power & Light, 909 S.W.2d 893, 895
(Tex. 1995) (per curiam). A summary judgment proceeding is a
trial within the meaning of rule 63. Goswami v. Metro.
Sav. & Loan Ass'n, 751 S.W.2d 487, 490 (Tex.
1988); Hill v. Tx-An Anesthesia Mgmt., LLP, 443
S.W.3d 416, 422 (Tex. App.-Dallas 2014, no pet.). The last
day counted from the date of the filing may be the date of
the hearing. Sosa, 909 S.W.2d at 895; see
Tex. R. Civ. P. 4. When amended petitions are filed timely,
trial courts must base their decision on the amended
pleading, not a prior, superseded petition. Krainz v.
Kodiak Res., Inc., 436 S.W.3d 325, 328 (Tex. App.-Austin
2013, pet. denied); see Sosa, 909 S.W.2d at 894-95
(reversing summary judgment where plaintiffs amended their
pleading on November 10 and hearing was set for November 17,
holding that amended pleading controlled and was not subject
to same summary disposition as the prior petition).
Martin amended his pleadings to add various counterclaims
exactly one week before a scheduled summary judgment hearing.
These counterclaims were timely filed under rule 4.
See Tex. R. Civ. P. 4; Sosa, 909 S.W.2d at
neither Service Supply's motion nor the resulting summary
judgment addressed the timely counterclaims. While the trial
court's order contained a Mother Hubbard clause-that is,
a recitation that "[a]ll relief not expressly granted
herein is denied"-such clauses are not an effectual way
to dispose of outstanding claims, and including a Mother
Hubbard clause does not indicate that a summary judgment is
final for purposes of appeal. See In re Daredia, 317
S.W.3d 247, 248 (Tex. 2010) (per curiam) (orig. proceeding)
(citing Lehmann, 39 S.W.3d at 203-04). Here, the
summary judgment order does not include any other terms which
would address Martin's counterclaims.
the judgment does not dispose of all the claims, it cannot be
final unless its words unequivocally express an intent to
finally dispose of the case." Burlington Coat,
167 S.W.3d at 830 (internal quotations omitted). We look for
statements such as "[t]his judgment finally disposes of
all parties and all claims and is appealable."
Daredia, 317 S.W.3d at 248. We find no such
statement in the trial court's order, nor any other
unmistakable language which leaves "no doubt about the
court's intention." See Lehmann, 39 S.W.3d
the summary judgment order does not render a complete
disposition or include an unequivocal expression of finality,
we conclude that the order remains interlocutory. See
Burlington Coat, 167 S.W.3d at 830. This leaves only the
question of our disposition. Abatement would be an option if
the obstacle to our jurisdiction could be cleared by a
ministerial act on the part of the trial court, such as
correction of a formal defect. See Lehmann, 39
S.W.3d at 206; Parks, 112 S.W.3d at 163. However,
the adjudication of Martin's counterclaims may
"require evidentiary proceeding and further rulings,
" rather than a ministerial act. See Parks, 112
S.W.3d at 163. In such situations, we have found that we ...