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Court of Appeals of Texas, Dallas.


No. 05-09-00826-CV

Decided: January 28, 2010

Before Justices Bridges, Lang, and Lang-Miers


Opinion By Justice Bridges

Old American County Mutual Fire Insurance Company filed its notice of appeal following a judgment entered in favor of F.C.O.R.P. Carriers, Inc. and Preferred Insurance Agency.   Thereafter, Old American filed a motion to remand to the trial court, arguing this Court lacks jurisdiction over the appeal because it has additional claims for fraud and material misrepresentations pending.   After reviewing the record, we agree with Old American that there is no final judgment in this case and dismiss for want of jurisdiction.

Because the question of jurisdiction is a legal question, we follow the de novo standard of review.  Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex.1998).   Appellate jurisdiction is never presumed.  Brashear v. Victoria Gardens of McKinney, L.L.C., No. 05-07-01269-CV, 2009 WL 4827862, *2 (Tex.App.-Dallas Dec. 19, 2009, n.p.h.).   Unless the record affirmatively shows the propriety of appellate jurisdiction, we must dismiss.  Id. The jurisdiction of this Court is established exclusively by constitutional and statutory enactments.   See, e.g., Tex. Const. art.   V, § 6;  Tex. Gov't Code Ann. § 22.220 (Vernon Supp.2009).   Unless one of the sources of our authority specifically authorizes an interlocutory appeal, we only have jurisdiction over an appeal taken from a final judgment.  Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex.2001);  N.E. Indep.   Sch. Dist. v. Aldridge, 400 S.W.2d 893, 895 (Tex.1966);  see Tex. Civ. Prac. & Rem.Code Ann. § 51.014 (Vernon Supp.2008).

A judgment is final if it disposes of all pending parties and claims in the record.  Guajardo v. Conwell, 46 S.W.3d 862, 863-64 (Tex.2001) (per curiam);  Lehmann, 39 S.W.3d at 195.   In cases in which only one final and appealable judgment can be rendered, a judgment issued without a conventional trial is final for purposes of appeal if either it (1) actually disposes of all claims and parties then before the court, regardless of its language, or (2) states with unmistakable clarity that it is a final judgment.  Lehmann, 39 S.W.3d at 204.   The law does not require that a final judgment be in any particular form.  Id. at 195.

Here, the record shows Old American issued a policy of insurance to F.C.O.R.P., an interstate trucking company, based upon an application processed by Preferred, the agent for F.C.O.R.P. Thereafter, Sergio Garza, a truck driver for F.C.O.R.P, was involved in an accident in which Man Lin Wang was killed.   Wang's husband, Mark Sperling, filed suit for wrongful death against F.C.O.R.P F.C.O.R.P, in turn, requested a defense and potential indemnification from Old American.

Old American filed this suit seeking a declaration that the policy in question did not cover Garza or F.C.O.R.P. and requesting attorney's fees pursuant to section 37.009 of the Texas Civil Practices and Remedies Code. Old American also alleged the policy was void from its inception because of false misrepresentations by F.C.O.R.P. and/or Preferred (claiming only a single tractor when F.C.O.R.P. had a number of tractors) that Old American relied upon in determining to issue the policy and to set the premiums.   F.C.O.R.P. filed a counter-claim seeking a declaration that Old American and Preferred owe a duty to defend and, if necessary, to indemnify F.C.O.R.P. in Sperling's underlying suit.   F.C.O.R.P. also sought attorney's fees.   After a hearing, the trial court granted Sperling's motion to intervene and join F.C.O.R.P.'s petition for declaratory relief.

Sperling then filed a no-evidence and traditional summary judgment motion alleging that because the policy contains a “MCS-90” endorsement, Old American is required to pay any final judgment recovered against F.C.O.R.P. for Wang's death.   In his motion, Sperling also maintained that Old American cannot assert misrepresentation as a defense to prevent his recovery.   Sperling did not address Old American's duty to defend Preferred.   Old American responded, claiming Sperling lacked standing to contest coverage available under the policy until he obtains a judgment against Preferred and the issue regarding the MCS-90 endorsement was not ripe for review.   Old American also asserted its summary judgment evidence presents a material issue of fact regarding whether the policy in question applies in this case because the identified truck was insured under another policy.

After a hearing, the trial court signed an interlocutory order granting Sperling's motion “in least at part” and declared Old American was obligated to pay, within the limits of liability contained in the policy, any judgment rendered against F.C.O.R.P as a result of the accident in which Wang was killed nowithstanding the fact that F.C.O.R.P. violated the terms of the policy, the truck was not described in the policy, or the policy was procured by fraud and/or misrepresentations.

Thereafter, Old American amended its petition.   In that petition, Old American asked the court “either through trial or by dispositive motion,” to order and declare it owed no duty to defend or indemnify and that the policy be voided back to its inception “because of the material intentional misrepresentations made by F.C.O.R.P. and Preferred.   Old American further sought attorney's fees and damages for fraud as well as asserting the affirmative defenses of laches, waiver, estoppel, and quasi-estoppel to F.C.O.R.P.'s counterclaim for declaratory relief.

Several months later, apparently without further pleadings or trial, the trial court rendered a judgment finding that the policy issued by Old American did not provide coverage to F.C.O.R.P. and that Old American had no duty to defend or provide indemnity to F.C.O.R.P. The trial court further determined that because the policy contained an MCS-90 endorsement and was in effect at the time of the accident that killed Wang, Old American is required to pay any final judgment recovered against F.C.O.R.P. for public liability resulting from negligence in the Sperling lawsuit.   Finally, the trial court found that in the event Old American was required to pay a final judgment against F.C.O.R.P, Old American would have the right to recover against F.C.O.R.P as set forth in the MCS-90 endorsement.

The trial court's judgment does not dispose of either Old American's or F.C.O.R.P.'s request for attorney's fees.   Nor does the judgment resolve Old American's claim for damages for fraud.   Moreover, the judgment does not contain a “Mother Hubbard” clause or otherwise state it is a final judgment.   Thus, the judgment does not (1) dispose of all claims before the court, or (2) state with unmistakable clarity that it is a final judgment.   Therefore, we conclude it is not a final judgment.   See Lehmann, 39 S.W.3d at 204.   Because the record does not affirmatively demonstrate our jurisdiction, we must dismiss this appeal.   See Brashear, 2009 WL 4827862 at*2.

Accordingly, we dismiss this appeal for want of jurisdiction.



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