1 John T. Boyd, Chi ef Justice (R et.), Se venth Co urt of Appeals, si tting by

assignment. NO. 07-06-0181-CV IN THE COUR

T OF APPEALS FOR THE SEVEN TH DISTRICT OF TEXAS

AT AMARILLO PANEL E OCTOBER 5, 2006

______________________________ JOHNNY RODRIGUEZ, JR., APPELLANT

V. JOHN LEZA, APPELLEE

_________________________________ FROM THE 2 37TH DI STRICT COURT OF LU BBOCK COU NTY; NO. 2005-532,015; HONORABLE SAM MEDINA, J UDGE

_______________________________ Before QUINN, C.J., and CAMPBELL , J. and BOYD, S.J. 1
ON MOTION TO DISMISS Appellee John Leza fil ed suit agai nst appellant J ohnny Rodri guez, Jr . alleging breach of a mediation agr eement in an underl ying l awsuit and seeking r ecovery of2

attorney’s fees. Rodrig uez filed a g eneral denial and counterclaim for attorne y’s fees. By motion for

summ ary

jud gmen t, Le za r

equ este d, am ong othe r re lie f, future attorney ’s fees from the period of the fil ing of the motion to completion. The t rial court entered an order entitled “Order Gr

ant i ng Partial Motion for Summary Judgment,” w hich Rodrig uez appealed. Pending before us is L eza ’s motion to di smiss this appeal for want of jurisdict ion. We grant the motion. By his motion to dismiss, Leza maintains th e tri al cou rt’s order is not a final, appealable order for several reasons . He contends the order does not dispose of every pending claim; it g ranted on ly one port ion of his motion and denied the remainder; it is entitled a partial s ummary judg ment; and it did no tdispose of Rodriguez’s counterclai m for attorney’s

fees. By his responseto the motion to di smiss, Rodr iguez as serts tha t under Lehmann
v. Har-Con Corp ., 39 S.W .3d 191 (Tex. 2001), the trial court’s order is final and appeal able. He argues the or

der di sposesof all claim s with r egard to all parties and th at the inclusi on of the word “ partial” i n the title i s not relevant.
We recogniz e that in determi ning finalit y we a re to err on the s ide of preserv ing appeals by ensuri ng the right to appeal is not lost b y overly t echn ical a ppli cati on of the l aw. Id. at 205

. This princi ple should gu ide in determi ning whe ther an order is final. Id. “A judgment

issued w ithout

a conventio nal trial o n the meritsis final for pur poses of appeal if and o nly ifeith er it a ctua lly d isposes of all claims a nd parties then before the court,3

regardles s of its lang uage, or it states with unmistakable clarity that it is a final ju dgment
as to all claims and all parties.” Id . at 192-93. In other wor ds, there must be som e indication that the trial court intended the order todispose of the enti re case. Id. at 205. Adetermination of final ity may require looking not only at the four corners of the order, but also at the appellate record as a whole to dete rmine whic h claims were asserted o r addressed, or which the court intended to address. Id . at 205-06.
The trial cour

t’s order pr

ovides in relevant pa rt: Upon cons ide ration, the C ourt is of the opi nion that the motio n should be GRANTE D IN PART and DENIE D IN PART. THE COURT GRANTS Plaintiff’s motion and finds that the Mediation Ag reemen tentered into on September 30, 2003, i s enforceable and tha t D efendant’s failure to compl y wi th the Mediati on Agreement has produ ce d damages to Plai ntiff in the way of attorney’s

fees. IT IS THEREF ORE OR DERED, ADJ UDGED, ANDDECREED t hat Plai ntif f be awarded attorney’s fees in the am ount of Seven Thousand Seventy-Eight

and 30/100 Do llars ($7 ,078 .30) , which reflect those a ttorney’s fees that wer e incurred from the date of the mediation of the underlyin g case through the date ofthe fil ing of P laintiff’s Moti on for Summary Judgment. The Court fin ds that such attorney’s fees incurred were reasonable and necessary an d were a direct and p roximate r esult of Defendant’s failure to abideby the terms of the Mediation Agreement in question. With regard to Plaintiff’s cla im for future attorney ’s fees incurr ed after the filing of Plaintiff ’s motion for summa ry judgment, at this t im e, the Court DENIES that claim pendi ng any act ion taken by D efendantwith r egard to an appeal of this Order.
The order concl udes that “[a]l l other rel ief not specifical ly gr anted herein is

denied.”4

The order was signed on March 31, 2006. Ro driguez filed a notice of appea l on April 28, 2006, and on May 17, 2006, by N otice of

Intent to Dis miss – No Fi nal Order, t he trial court notified t he parties that the case was subject to dismissal for want of prosecution.
Althou gh the order contai ns a Mother H ubbard clause, Lehmannheld that incl usion of such a clausedoes not indicate finality for ap pellate purpo ses where a judgment is rendered without a conventional trial on the merits. 39 S.W.3d at 192, 203-04. The order does not dispose of Rodriguez’ s counterclai m for attorney’ s fees. See McNally v. Guevara , 52 S.W.3d 195, 196 (Tex. 2001) (per curiam) ( defendant’s counterc laim for attorney’s fees notdisposed of in trial court’s judgment). Neither does it recite w ith unmistakabl e clarity that it is final as to all claims and al l parties. Additionally , the trial court’s noti ce of intent to dismiss for want of prosecutio n demonstrates it did not inte nd for the order to dispose of the entire case . Our rev iew of the enti re record, the languageof the order gr anting partial summary judgment, and the claim s ass erted by both parti es demonstrates t he March 31, 2006 order was interloc utory and thu s not appealable. See generally Parking Co. of Am. v. Wilson , 58 S.W.3d 742 (Tex. 2001) (per curiam) ( concluding the trial court’s order granting partial summar y judgment which in cluded a Mother Hubbard claus e was interlocutor

y). Accordingl y, we dismiss thi s appeal for want of jurisdic tion. James T. Campbell Justi ce Quinn, C.J., not particip ating.