1 John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sit ting by a ssignmen t. NO. 07-04-0326-CV IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TE XAS

AT AMARILLO PANEL E NOVEMBER 14, 2005

______________________________ LAYNE STANFORD, APPELLANT

V. CITY OF LUBBOCK AND LUBBOCK F IRE FIGHTER AND POLICE OFFICER CIVIL SERVICE COMMISSION, APP ELLEES

_________________________________ FROM THE 72ND DISTRICT COURT OF LUB BOCK COUNTY; NO. 2003- 521,215; HONORAB LE BLAIR CHERRY , JUDGE

_______________________________ Before QUINN, C.J., and REAVIS, J., and BOYD, S.J. 1
MEMORAND UM OPINION Following submission of this appeal, by letter to the partiesdated October 25, 2005, this Court questioned whether the order

granting summary judgment was final. We noted2 Tex. R. Civ. P. 166a(c) requires that a motion for summary judgment shall set forth

the speci fic groun ds therefo r. 2 that the order

did not resolve claims for attorney’s fees asserted by all parties. The parties timelyresponde d contend ing that all clai ms raised were disposed of making the order final for purposes of appeal. For the reasons expl ained below, we mustdismiss the appeal for want of jurisdiction. Byhis live pleading, appellant Layne Stanford sought, among other relief, attorney’s fees pursuant

to section 143.015(c) of the Texas Local Government Code. Appellees, the City of Lubbo ck and Lu bbock Fi re Fighte r and Pol ice Offi c er Civil Service Commission, separatelyfiled general denials, affirmative defenses, and requestsfor statutory attorney’s fees. Competing motions for summary judgment were filed. In his motion, Stanford again asserted his enti tlement to attorney’ s fees un der the statute. By their joi nt motion , the City of Lubbock and Civil Service Commission did not seek attorney’s fees. 2 T he trial court’s order pro vides in relevan t part:
After considering the motions, pleadings, re sponses, evidence and arguments

of counsel, this Cou rt is of the opinion that Defendants’ Motion should be GRANTED and Plaintiff’s Motion should be DENIED. Itis therefore ORDERED, ADJUDGED and DE C REED that the C ity of Lubbock’ s and Lubbock Fire Fighter and Police Officer Ci vil Service Commission’s Motion for Summary Judgment is GRANTED, and Layne Stanford’s Motion for Summary Judgment is DENIED.3 See generally Ma f rige v. Ross, 866 S.W.2d 59 0 (Tex. 1 993), overrule d in part,

Lehmann v. Har-Con Corp., 39 S.W.3d 191, 203-04 (Tex. 2001) (endorsing use of a Mother Hubbard clause to

determin e summary judgment f inality)

. 3 We must sua spon te determine our jurisdiction to consider an appea l

. See M.O. Dental Lab v. Rape, 139 S.W.3d 671, 673 (Tex. 2004). We recognize that in determining finality, we are to err on the side of preserving appea ls by ensuring the right to appeal is notlost by over-techn ical app lication of the law. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 205 (Tex. 2001). However, “a jud gment iss ued without a conventional trial on the merits is final for purposes of appeal if and only if either it actuall y dispo ses of al l claims and parties then before the court, regardless of its language, or it states with unmistakable clarity thatit is a final judgment as to all claims a nd all p arties.” Id . at 192-93. There is no longer a bright line standard for determining finality. 3 Finality is now determined by looki ng notonly at the four corner s of the o rder, but also theappella te record as a who le to determine which claims were asserted, addressed, or which the court intended to address. Id . at 205-0 6.
The parties ’ response to our inquiry on finality is two-fold. First, they a rgue that Stanford’s claim fo r attorney ’s fees i n his li ve plead ing and in his mo tion for s ummary judgment was disposed of when the trial court deni ed his motion for summary judgm ent

. Second, the City of Lubbock and Civil Service Commissi on urge t hat their failureto seek attorney’s fees in their summary judgment motion waived their clai m. We disagree and address t heir seco nd argume nt first.4

Aclaim is

not waived merely

becauseit is no t presente d in a mo ti on for summary judgment. See McNally v. Guevara, 52 S.W.3d 195, 196 (Tex. 2001). Also, on appeal we do not pr esume tha t a motion fo r summary j udgment a ddressesall of amovant’s claims. See Southwest Investments Divesified, Inc. v. Estate of Miesz kuc , 171 S.W.3d 461, 467 (Tex.App .–Housto n [14th D ist.] 200 5, no pet .).
In McNally , the defendants counterclaimed for a declaration on an easement issue and also sought attorney’s fees. By their motion for summary judgment, they addressed onlythe easement issue. On appe al, in an eff ort to pre clude di smissal, the defen dants argued theyhad abandoned their claim for attorney’s fees by no t including it in the motion for summary ju dgment. M cNally v . Guevara, 989 S.W. 2d 380, 382 (Tex.App.–Austin 1999), rev’d , 52 S.W.3 d 195, 19 6 (Tex. 2 001). A divided court of appeals found the judgment final and affirmed the trial court’s judgm ent. Id . at 383. The Sup reme Cour t noted that nothing in the trial court’s judgment sugg ested an intent to deny a claim for atto rney’s fees and concluded the judgment was not final and therefore, not appealable. 52 S.W.3d at 196. Additionally, pleadings determine the issues and parameters of a contest. Murray
v. O & A E xpress, Inc., 630 S.W.2d (Tex. 1982); Jobe v. Lapidus, 874 S.W.2d 764, 765 (Tex.App.–Dallas 1994, wr it denie d). See also Te x. R. Ci v. P. 301 (providi ng that a j udgmentshall conform to the plea dings). A motion is not th e functio nal equi valent of a pleading and does not carry the same lega l signif icance. See Crain v. San Jacinto Sav.5

Ass’n, 781 S.W.2d 638, 639 (Tex.App.–Houston [14th Dist.] 1989, writ dism’d). Although the law doe s not requ ire that aju dgment be in any p articula r form, Lehmann , 39 S.W.3d at195, finality problems can be eliminated by carefully drafting judgments to conform to the pleadin gs. See North E. Indep. School Dist. v. Aldridge, 400 S.W. 893, 898 (Tex . 1966). Bytheir live pleadings, the City of Lubbock and the Civil Service Commission pled for attorney’s fees. Their failure to seek attorney’s fees b y their motio n for summa ry judgment did not result in waiver of the cla im raised by their pleadin gs. Alth ough summ ary judgment was granted in their favor, the court’s order is silent on disposition of their claim for attorn ey’s fees . The un resolved claim pr ecludes finality

for purpo ses of ap peal.
We do not o verlook t he partie s’ relia nce on D allas Fi re Fighte rs Association v. Booth Research Group, In c., 156 S .W.3d 188(Tex.Ap p.–Dall as 2005, pet. denied). It is, howeve r, distin guishab le. In Booth , the defendant affirmatively waived any request for attorney’s fees by l etter to the court prior to the entry of judgment. Reiterating the Supr eme Co urt’s decision in McNally , a party’ s omissio n of one of his cl aims from a moti on fo r summary

judgment does not waive the claim. 5 2 S.W.3d a t 196. Th e City of Lubbock and Civil ServiceCommissi on did n ot affirma tively waive the ir claim for attorn ey’s fees prior to renditio n of the o rder gran ting summ ary judgmen t. Thus, Boothdoes not apply. Having concluded that the City of Lubbock and the Civil Service Commission’s claim for attorney’s fees remains unresolved, we need not address the parties’ first argument that6

the trial co urt’s den ial of S tanford ’ s motion for summary judgment constituted a denial of his claim for attorney’s fees. Accordingly, the appeal is dismissed for want of jurisdiction.
Don H. Reavis Justice