NUMBER 13-13-00691-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG 

 

TEXAS POLITICAL SUBDIVISION, Appellant,

v.

PHARR SAN JUAN ALAMO I.S.D., Appellee.

 

On appeal from the County Court at Law No. 4

of Hidalgo County, Texas.

 

MEMORANDUM OPINION

Before Justices Rodriguez, Benavides, and Perkes

Memorandum Opinion by Justice Perkes

Appellant Texas Political Subdivision (“TPS”) appeals an order denying its motion 

for summary judgment concerning an automobile insurance policy that was issued to 

appellee Pharr San Juan Alamo ISD (“PSJA”). TPS filed the underlying action seeking

a judgment declaring that it did not have a duty to defend or indemnify PSJA in a thirdparty suit alleging personal injuries sustained from the negligent operation of a golf cart. 
2

By two issues, TPS argues the trial court erred in denying its motion for summary 

judgment because: (1) a golf cart is excluded under the definition of “mobile equipment” 

and is not an “auto” under the policy; and (2) the third-party pleading negates both the 

duty to defend and indemnity because it alleges injuries sustained relating to operation of 

a golf cart. We dismiss the appeal for want of jurisdiction.

I. BACKGROUND

TPS issued PSJA an automobile liability and physical damage policy (the “policy”). 

Lorena Flores, as next friend of Alexis Flores, filed a lawsuit against PSJA alleging 

personal injuries resulting from the negligent use of a golf cart by a PSJA employee.1 

Specifically, the Flores lawsuit alleged that “Alexis Flores was severely injured after being 

thrown from a golf cart” operated by a PSJA employee. The employee allegedly “turned 

the golf cart abruptly, thereby, throwing Alexis Flores from the vehicle and resulting in the 

injuries to her knee.”

By written correspondence, PSJA demanded that TPS defend and indemnify the 

school district under the policy. TPS responded in writing that it would not provide a 

defense or indemnify PSJA because the policy did not provide coverage for golf carts. 

TPS later filed the instant declaratory judgment action seeking a “judgment declaring that 

the automobile policy issued by TPS to PSJA does not provide coverage for the type of 

vehicle at issue in [the Flores lawsuit] and theat [sic] [TPS] has no obligation to defend or 

indemnify [PSJA].” TPS also brought a claim for attorney’s fees under Chapter 37 of the 

Texas Practice and Remedies Code. See TEX. CIV. PRAC. & REM. CODE ANN. § 37.009 

 

1 The facts are taken from TPS’s live pleading and the exhibits attached thereto. The policy and 

third-party lawsuit were attached as exhibits to TPS’s live pleading.
3

(West, Westlaw through Chapter 46 2015 R.S.) (“In any proceeding under this chapter, 

the court may award costs and reasonable and necessary attorney's fees as are equitable 

and just.”). PSJA filed an answer asserting a general denial and also raising a claim for 

attorney’s fees under section 37.009. See id.

The trial court held a hearing on October 30, 2013, during which the parties 

presented argument. The trial court entered no orders and made no rulings at the 

hearing. On November 5, 2013, TPS moved for traditional summary judgment. Relying 

on Flores’ petition and the policy, TPS argued that “[t]he duty to defend and the duty to 

indemnify are both negated from the underlying pleading as the golf cart is not covered 

under the policy at issue, regardless of liability.” On November 14, 2013, PSJA filed a 

response opposing TPS’s summary judgment motion. PSJA did not file a cross-motion 

for summary judgment. On that same day, in a “Final Order,” the trial court denied TPS’s 

motion for summary judgment, denied TPS’s request for declaratory judgment, and 

dismissed TPS’s claims against PSJA. The order did not expressly address the parties’ 

claims for attorney’s fees. This appeal followed.

II. FINAL JUDGMENT

As a threshold matter we must determine whether the trial court’s order is a final 

appealable judgment. The trial court’s order in this case reads as follows:

CAME BEFORE THE COURT, the matter of Plaintiff Texas Political 

Subdivisions Property/Casualty Joint Self Insurance Fund's Request for 

Declaratory Judgment and Motion for Summary Judgment, and the Court, 

having considered all pleadings, motions, briefs and other filings and having 

heard arguments of counsel for both Plaintiff and Defendant, is of the 

opinion that the relief requested by Plaintiff should be denied,
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IT IS THEREFORE ORDERED, ADJUDGED and DECREED that Plaintiffs 

Motion for Summary Judgment is in all things DENIED.

IT IS FURTHER ORDERED, ADJUDGED and DECREED that Plaintiff's 

request for Declaratory Judgment is in all things DENIED.

IT IS FURTHER ORDERED, ADJUDGED and DECREED that Plaintiffs 

claims against Defendant Pharr San Juan Alamo Independent School 

District are dismissed with court costs to be borne by the party incurring 

same.

All relief requested in this case and not expressly granted is denied. This 

instrument is a final and appealable Order disposing of all parties and claims 

herein.

Generally, this Court has jurisdiction only over appeals from final judgments. See 

Lehmann v. Har–Con Corp., 39 S.W.3d 191, 195 (Tex. 2001). A final judgment is one 

that disposes of all pending parties and claims. Id. Whether a judicial decree is a final 

judgment must be determined from its language and the record in the case. Id. 

In Farm Bureau County Mutual Insurance Company vs. Rogers, an automobile 

insurer brought a declaratory judgment action against its insured seeking a declaration 

that it was not obligated to defend or indemnify the insured and seeking an award of 

attorney’s fees. 455 S.W.3d 161, 162 (Tex. 2015). Although Farm Bureau moved for 

summary judgment, the defendant did not file a cross-motion seeking summary judgment 

in her favor. Id. The trial court denied Farm Bureau’s motion for summary judgment,

and Farm Bureau appealed. Id. The court of appeals subsequently dismissed the 

appeal for want of jurisdiction, holding that an order denying a motion for summary 

judgment could not be final and appealable unless the opposing party filed a cross-motion 

for summary judgment. Id. 
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The Texas Supreme Court affirmed the dismissal, but on other grounds.2Id. at 

163. The court concluded that nothing in the trial court’s judgment suggested that it 

intended to deny the defendant’s claim for attorney fees. Id. The award of court costs, 

by itself, did not make the judgment final. Id. The court held that the resolution of a 

claim for court costs did not dispose of a claim for attorney’s fees and did not serve as an 

indicium of finality. Id. at 163-64 (discussing McNally v. Guevara, 52 S.W.3d 195, 196 

(Tex. 2001)); see also Lehmann, 39 S.W.3d at 200.

Here, while the trial court’s order purports to be a final order, we note that it does 

not explicitly address the parties’ competing claims for attorney’s fees. The order 

dismisses TPS’s claims against PSJA, but makes no reference to PSJA’s claim for 

attorney’s fees. “An order does not dispose of all claims and all parties merely because 

it is entitled ‘final’, or because the word ‘final’ appears elsewhere in the order, or even 

because it awards costs.” Lehmann, 39 S.W.3d at 205. Language that a plaintiff take 

nothing by his claims or that the case is dismissed shows finality only if there are no other 

claims by other parties. Id. Nothing in the trial court’s order suggests that it intended to 

deny PSJA’s claim for attorney’s fees. Because the order at issue does not dispose of 

all claims, it is not a final judgment. See Farm Bureau Cnty. Mut. Ins. Co., 455 S.W.3d 

at 164; McNally, 52 S.W.3d at 196. 

III. DISPOSITION

 

2 The Supreme Court agreed with Farm Bureau and concluded that the insured’s failure to file a 

cross-motion for summary judgment did not preclude the trial court from entering a “final” judgment. Farm 

Bureau Cnty. Mut. Ins. Co. v. Rogers, 455 S.W.3d 161, 163 (Tex. 2015). In the event the trial court’s intent 

to enter a final judgment is “clear from the order, then the order is final and appealable, even though the 

record does not provide an adequate basis for rendition of judgment . . . In that case, the judgment is 

final—erroneous, but final.” Id. (quoting Lehmann v. Har-Con Corp., 39 S.W.3d 191, 200 (Tex. 2001)). 
6

Texas Rule of Appellate Procedure 27.2 and Lehmann authorize appellate courts 

to abate the appeal and remand the case to the trial court for modification of the order or 

clarification of the trial court's intent to enter a final judgment. However, this procedure 

is available only if we are uncertain whether the trial court intended to enter a final 

judgment. Lehmann, 39 S.W.3d at 206. 

In the present case, the trial court's failure to address PSJA’s claims is a clear 

indication that the order is not a final judgment. When there are unaddressed claims 

before the trial court, dismissal—not abatement—is the proper disposition. See Parks v. 

DeWitt County Elec. Co-op., Inc., 112 S.W.3d 157, 163–64 (Tex. App.—Corpus Christi 

2003, no pet.); see also Allein v. Sanders, 13-05-514-CV, 2006 WL 177635, at * 2 (Tex. 

App.—Corpus Christi Jan. 26, 2006, no pet.) (mem. op.); Chapman v. Gary's Pool & Patio, 

No. 13-05-587-CV, 2006 WL 133990, at *2 (Tex. App.—Corpus Christi Jan. 19, 2006, no 

pet.) (mem. op.). The record does not affirmatively demonstrate that a final judgment 

was rendered disposing of all claims. Therefore, dismissal is required. See Parks, 112 

S.W.3d at 163–64.

IV. CONCLUSION

We dismiss the appeal for want of jurisdiction.

GREGORY T. PERKES

Justice

Delivered and filed the 

9th day of July, 2015.