Texas = Judiciary Online

Harris County,=20 Texas

Trial Court Cause No.=20 2003-04805

MEMORANDUM = OPINION

=20 Maryland Casualty Company (=93Maryland=94) = challenges the=20 trial court=92s rendition of summary judgment in favor of = appellees,=20 American Home Assurance Company and Illinois National Insurance = Company,=20 as subrogees of National Equipment Services (collectively = =93NES=94). Maryland contends (1) = the trial=20 court=92s summary judgment orders are final and appealable, even = though they=20 do not contain finality language and do not dispose of all = parties, and=20 even though the trial court granted NES=92s motion to retain = jurisdiction;=20 (2) the trial court erred in granting summary judgment for NES = because the=20 indemnity clause under which it sued is inconspicuous and = therefore=20 unenforceable as a matter of law, and NES alternatively failed to = prove=20 that it is an additional insured under Maryland=92s insurance = policy or that=20 it complied with all conditions precedent; and (3) in the = alternative, the=20 trial court erred in awarding damages exceeding Maryland=92s = policy=20 limits. We conclude = that the=20 summary judgment orders from which Maryland=20 appeals are interlocutory rather than final, and therefore dismiss = the=20 appeal for want of jurisdiction.

Background

=20 Maryland issued a commercial = general=20 liability policy to Laser Construction (=93Laser=94) in September = 2000. The following month, = Laser began=20 constructing an Office Depot store in Richmond, Texas. Laser leased a trench = box from NES=20 so that it could dig a trench for the store=92s underground sewer=20 system. Pursuant to = the=20 parties=92 lease agreement, Laser agreed to indemnify NES from any = claims=20 for personal injury or death arising out of Laser=92s use or = possession of=20 the trench box. A = few days=20 later, the trench caved in, killing three construction=20 workers.

=20 The decedents=92 families sued NES in Fort Bend County for = negligence, gross negligence, and strict liability (=93the Vasquez = lawsuit=94). NES subsequently filed a = responsible third-party action against Laser. Pursuant to a Rule 11 = agreement[1]=20 between NES and Laser, Laser did not answer the third-party = petition, and=20 NES agreed to re-file the petition in Harris = County. NES settled with the = decedents=92=20 families in the summer of 2002.

=20 A few months later, NES brought an indemnification suit = against=20 Laser; Maryland; Tom Davies and Jim = Thurmon,=20 =93both individually and as each is d/b/a Laser Construction=94; = and=20 Thurmon-Davies, L.L.C. = NES=20 alleged that, pursuant to the lease agreement for the trench box, = it was=20 entitled to indemnity for all sums it had paid to settle the Vasquez lawsuit. NES also alleged that it = was=20 entitled to coverage as an additional insured under Laser=92s = insurance=20 policy with Maryland.[2]

=20 Laser moved for summary judgment on the ground that the = indemnity=20 clause contained in the parties=92 lease agreement was = unenforceable because=20 it was inconspicuous and thus did not satisfy the fair notice = requirements=20 of Texas=20 law. The trial = court granted=20 Laser=92s motion and dismissed all of NES=92s claims against Laser = with=20 prejudice.

=20 Maryland also moved for = summary judgment=20 on the ground that the indemnity clause was unenforceable because = it was=20 inconspicuous. In = the=20 alternative, Maryland argued that NES did = not qualify=20 as an additional insured under its insurance policy with Laser, = and, in=20 any event, recovery should be barred because NES failed to comply = with=20 certain conditions precedent in the policy. NES filed a cross-motion = for=20 summary judgment, asserting that it was entitled to coverage as an = additional insured under the policy. =20 In separate orders, the trial court denied summary judgment = for=20 Maryland=20 and granted summary judgment for NES, awarding it $2.25 million in = damages=20 and over $100,000 in attorney=92s fees. Maryland appeals from these=20 orders.

=20 After Maryland filed its notice of = appeal, NES=20 filed a verified motion to retain, asking the trial court to = retain=20 jurisdiction =93so that the Plaintiffs can obtain a default = judgment and/or=20 attempt service on Tom Davies, Jim Thurmon, and/or Thurmon-Davies, = LLC.=94 The trial = court granted=20 NES=92s motion, thereby retaining the case on its=20 docket.

Finality

=93[T]he general = rule, with a few=20 mostly statutory exceptions, is that an appeal may be taken only = from a=20 final judgment.=94[3] Lehmann v. Har-Con = Corp.,=20 39 S.W.3d 191, 195 (Tex. 2000). =93Although a judgment = following a=20 trial on the merits is presumed to be final, there is no such = presumption=20 of finality following a summary = judgment . . . .=94 In re Burlington Coat = Factory=20 Warehouse of McAllen, Inc., 167 S.W.3d 827, 829 (Tex. 2005) (citing=20 Lehmann, 39 S.W.3d at 199=96200).

[W]hen there has not been a conventional = trial on=20 the merits, an order or judgment is not final for purposes of = appeal=20 unless it actually disposes of every pending claim and party or = unless it=20 clearly and unequivocally states that it finally disposes of all = claims=20 and all parties. . . . = An=20 order that disposes of claims by only one of multiple plaintiffs = or=20 against one of multiple defendants does not adjudicate claims by = or=20 against other parties. = An=20 order does not dispose of all claims and all parties merely = because it is=20 entitled =93final=94, or because the word =93final=94 appears = elsewhere in the=20 order, or even because it awards costs. . . . Rather, there must be = some other=20 clear indication that the trial court intended the order to = completely=20 dispose of the entire case.

To determine whether an order disposes = of all=20 pending claims and parties, it may . . . be necessary for the = appellate=20 court to look to the record in the case. . . . [I]f the record reveals = the=20 existence of parties or claims not mentioned in the order, the = order is=20 not final.

Lehmann,=20 39 S.W.3d at 205=9606.

=20 Here, although the orders from which Maryland appeals are = entitled=20 =93Order Denying Final Summary Judgment=94 and =93Order Granting = Final Summary=20 Judgment,=94 they do not contain the type of =93clear and = unequivocal=94=20 finality language that the Texas Supreme Court approved in=20 Lehmann. = See=20 id. (noting that judgment is not final merely because it is = entitled=20 =93final=94; rather, judgment must contain =93clear and = unequivocal=94 finality=20 language). The = Lehmann=20 court =93provided an example of unequivocal language that would = clearly=20 indicate finality, noting that =91a statement like, =93This = judgment finally=20 disposes of all parties and all claims and is appealable=94, would = leave no=20 doubt about the court=92s intention.=92=94 =20 Burlington, 167 S.W.3d = at 830=20 (quoting Lehmann, 39 S.W.3d at 206). The orders at issue here = lack such=20 an unequivocal expression of finality. We therefore must = determine=20 whether, based on the record, the orders dispose of all parties = and all=20 claims. See = Lehmann,=20 39 S.W.3d at 195.

=20 NES=92s petition asserts claims against five defendants: = (1)=20 Maryland, (2) = Laser, (3) Tom=20 Davies, (4) Jim Thurmon, and (5) Thurmon-Davies, L.L.C. The record reflects that = the trial=20 court disposed of all claims against Laser by granting its motion = for=20 summary judgment. = The record=20 also reflects that the trial court disposed of all claims against=20 Maryland by = granting summary=20 judgment for NES. = There is=20 nothing in the record, however, to indicate that the trial court = disposed=20 of NES=92s claims against Davies, Thurmon, and Thurmon-Davies,=20 L.L.C.

=20 Maryland = acknowledges this,=20 but asserts that the summary judgment orders are nonetheless final = because=20 NES did not serve the remaining parties. In M.O. Dental Lab v. = Rape,=20 the Texas Supreme Court reaffirmed the principle that a judgment = may be=20 final, even though it does not dispose of all parties named in the = petition, if the remaining party was never served with citation = and did=20 not file an answer, and nothing in the record indicates that the = plaintiff=20 ever expected to obtain service upon the remaining party. 139 S.W.3d 671, 674=9675 = (Tex. = 2004)=20 (approving of Youngstown Sheet & Tube Co. v. = Penn, 363 S.W.2d 230 = (Tex. 1962)). In such a situation, = =93=91the case=20 stands as if there had been a discontinuance as to [the unserved = parties],=20 and the judgment is to be regarded as final for the purposes of=20 appeal.=92=94 = Id. at 674 (quoting = Penn, 363=20 S.W.2d at 232).

=20 Here, unlike in Rape and=20 Penn, the record = indicates that=20 NES does expect to = obtain=20 service upon the remaining parties. =20 Cf. Rape, 193 = S.W.3d at=20 674 (noting that Rape =93did not indicate in either the trial = court or the=20 court of appeals that she expected to serve Smith=94); Penn, 363 S.W.2d at 232 = (observing=20 that nothing in record indicated that plaintiff ever expected to = obtain=20 service upon remaining party). =20 Specifically, in its post-summary judgment motion to = retain, NES=20 asked the trial court to =93retain this matter on its docket so = that the=20 Plaintiffs can obtain a default judgment and/or attempt service on = Tom=20 Davies, Jim Thurmon, and/or Thurmon-Davies, LLC.=94 The trial court granted = NES=92s=20 motion, thereby retaining the case on its docket and indicating = that it=20 does not view the summary judgment orders as final. Given these = circumstances, we=20 conclude that the summary judgment orders are interlocutory rather = than=20 final. See Wanzer v. Mendoza, No. 04-05-00505-CV, 2005 WL = 2368007, at=20 *1 (Tex.=20 App.=97San=20 Antonio Sept. 28, 2005, no pet.) (mem. op.) = (holding that dismissal orders were interlocutory rather than = final, even=20 though only parties not disposed of in orders had not answered or=20 appeared, because plaintiff filed =93Advisory to the Court=94 = reflecting that=20 he expected to obtain service on remaining parties); see also Cordova v. = Harkins, No.=20 01-05-00495-CV, 2006 WL 1428857, at *2 (Tex. App.=97Houston [1st = Dist.] May=20 25, 2006, no pet.) (mem. op.) (holding that order granting nonsuit = was not=20 final, even though it was entitled =93final judgment,=94 because = it mentioned=20 only one defendant and not other); Joseph v. Mirror Finishes = &=20 Collision of Houston, Inc., No. 01-03-00317-CV, 2004 WL = 2966311, at *2=20 (Tex. App.=97Houston [1st Dist.] Dec. 23, 2004, no pet.) (mem. = op.) (holding=20 that summary judgment orders were interlocutory rather than final = because=20 they did not contain unequivocal finality language and did not = dispose of=20 plaintiff=92s claims against six remaining defendants). Because the case lacks = finality,=20 we lack jurisdiction to hear any direct appeal. Lehmann, 39 S.W.3d at=20 195.

Conclusion

=20 Based on the language of the summary judgment orders and = the record=20 presented, we hold that the summary judgments at issue in this = appeal are=20 neither final nor appealable. =20 We therefore dismiss the appeal for want of=20 jurisdiction.

=20

&nbs= p; = ; = &= nbsp; =20 Jane Bland

&nbs= p; = ; = &= nbsp; =20 Justice

Panel consists of = Chief Justice=20 Radack and Justices Jennings and = Bland.