Justice HECHT delivered the opinion of the Court, in which Chief Justice PHILLIPS, Justice OWEN, Justice ABBOTT, and Justice O'NEILL joined.
In these two consolidated cases we revisit the persistent problem of determining when a judgment rendered without a conventional trial on the merits is final for purposes of appeal. We consider only cases in which one final and appealable judgment can be rendered and not cases, like some probate and receivership proceedings, in which multiple judgments final for purposes of appeal can be rendered on certain discrete issues.
Lehmann v. Har-Con Corp.
Douglas and Virginia Lehmann sued the University of St. Thomas and Har-Con Corp. in the district court in Harris County to recover damages for injuries Douglas suffered in a construction accident. The University cross-claimed against Har-Con for indemnity. The Lehmanns settled with Har-Con and executed a release, agreeing in part to indemnify Har-Con against certain claims which had been or could be asserted by or through them. Virginia then filed an amended petition on behalf of her minor son against both defendants, claiming damages for loss of parental consortium because of his father's injuries. In response, Har-Con filed a counterclaim against Virginia and a third-party petition against Douglas, seeking indemnity from them under the terms of their prior release.
The Lehmanns and Har-Con all moved for summary judgment on Har-Con's indemnity claims. The district court denied the Lehmanns' motion and granted Har-Con's motion. The court's order granting Har Con's motion stated in full:
On this 12 day of March, 1998 came on to be considered the Motion for Summary Judgment of HAR-CON CORPORATION. After considering the motion, the response, the summary judgment evidence and the argument of counsel, the Court is of the opinion that the motion should be in all things granted. It is therefore,
ORDERED, ADJUDGED AND DECREED that the Motion for Summary Judgment by HAR-CON CORPORATION be and it is hereby GRANTED.
All relief not expressly granted herein is denied.
Signed this the 12 day of March, 1998
The order did not reference Virginia's claims on behalf of her son against Har-Con, although it would appear that Har Con's summary judgment on its indemnity claim would effectively bar recovery for Virginia's son. The order also did not reference Virginia's son's claims against the University, which would not appear to be affected by Har-Con's summary judgment. The order contained a "Mother Hubbard" clause stating that "[a]ll relief not expressly granted herein is denied."
The district clerk advised the Lehmanns by postcard that an interlocutory summary judgment order had issued. The record does not reflect whether the parties received a copy of the actual order after it was signed. The Lehmanns tell us that the practice of the district clerk in Harris County is not to send copies of orders to the parties but to give parties notice by postcard when orders are signed. The notice does not completely describe the content of the order.
The Lehmanns appear to have believed that the summary judgment order was interlocutory because they moved to sever it and Har-Con's claims into a separate action, ostensibly to make the summary judgment final. The court granted the motion to sever on the twenty-fifth day after the summary judgment order was signed. Twenty-eight days after the severance
If the summary judgment was not final until the severance order was signed, then the Lehmanns' appeal was timely. But the court of appeals held that the summary judgment order was final when it issued because of the Mother Hubbard clause and that the order was not modified by the severance so as to restart the time for perfecting appeal.
We granted the Lehmanns' petition for review and consolidated it for argument and decision with Harris v. Harbour Title Co.
Harris v. Harbour Title Co.
Melvin and Helena Harris sued five defendants—Greenfield Financial Corp. and Larry J. Greenfield ("the Greenfield defendants"), Tim Rice and Rice Development, Inc. ("the Rice defendants"), and Harbour Title Co.—in the district court in Harris County on breach-of-contract and tort claims arising from a conveyance of real property. The court granted an interlocutory default judgment against Tim Rice on liability only, leaving for later a determination of the damages to be assessed against him. The Harrises nonsuited their claims against the Greenfield defendants. The fifth defendant, Harbour Title Co., moved for summary judgment, which the court granted with the following order:
Order Granting Harbour Title Company's
Motion for Summary Judgment
On August 28, 1998, came on to be heard the Motion for Summary Judgment of one of the defendants, Harbour Title Company, and the Court having considered the Motion, together with any response, and the supplemental briefing filed by the parties to date is of the opinion that said Motion is with merit and should be granted. It is therefore
ORDERED that defendant Harbour Title Company's Motion for Summary Judgment is in all things granted; it is further
ORDERED that the Plaintiffs, Melvin G. Harris and Helena M. Harris take nothing as to any of their claims against Harbour Title Company.
All relief requested and not herein granted is denied.
SIGNED this 15 day of October 1998.
APPROVED AND ENTRY REQUESTED:
Although the order did not reference the Harrises' pending claims against the Rice defendants, it nevertheless contained a Mother Hubbard clause stating that "[a]ll relief requested and not herein granted is denied."
The Harrises assert that they received notice of the order by a postcard that described the order as an interlocutory summary judgment, but the postcard is not in our record. The record does not reflect whether the parties obtained a copy of the order after it was signed. It appears that the district clerk followed her usual procedure of notifying the parties by
The district court apparently did not consider the summary judgment order to be final; forty-six days after it was signed, the court generated a form order setting the case for trial the next year. The Harrises, too, appear to have believed the summary judgment to be interlocutory; two weeks after the order issued setting the case for trial, the Harrises obtained what was captioned a "Final Default Judgment" against the Rice defendants. Twenty-five days later the Harrises noticed their appeal from Harbour Title's summary judgment.
If Harbour Title's summary judgment did not dispose of the Harrises' claims against the Rice defendants, and the default judgment against those defendants was the final order in the case, then the Harrises' appeal was timely. But following Mafrige, as it had done in Lehmann, the court of appeals concluded that the summary judgment order was final and therefore dismissed the appeal as not having been timely perfected. We granted the Harrises' petition for review and consolidated it with Lehmann for argument and decision.
Though its origins are obscure and its rationale has varied over time,
From the beginning, however, certainty in determining whether a judgment is final has proved elusive. What has vexed courts in this State and elsewhere is this: must a final judgment dispose of all parties and claims specifically, or may it do so by general language or even by inference? If a specific disposition of each party and
In 1881, after struggling with these problems for many years,
In 1896 we altered course. In Rackley v. Fowlkes,
Three years later we used the rule stated for purposes of res judicata in Rackley to determine whether a judgment was final for purposes of appeal. In Davies v. Thomson,
Neither Rackley nor Davies mentioned Arambould or attempted to reconcile their results with the rule in that case, thereby generating confusion in the appellate courts over how to determine finality in cases involving cross-claims and counterclaims. Some courts treated judgments that merely implicitly disposed of all claims as final, while other courts required that final judgments expressly adjudicate each claim.
In 1966, we reaffirmed Rackley, Davies, and Trammell in North East Independent School District v. Aldridge.
We added: "Of course, the problem [of determining whether judgments are final] can be eliminated entirely by a careful drafting of judgments to conform to the pleadings or by inclusion in judgments of a simple statement that all relief not expressly granted is denied."
The presumption that a judgment rendered after a conventional trial on the merits is final and appealable has proved fairly workable for nearly a century, but we have never thought that it could be applied in other circumstances, as we first explained nearly sixty years ago. In Davis v. McCray Refrigerator Sales Corp.,
Although the judgment did not "merely" sustain the plea in abatement but also decreed that the plaintiff take nothing, the inclusion of the dismissal in the judgment as the first basis for decision was enough to make Trammell's presumptive finality rule inapplicable.
Davis may have departed too far from Trammell. The trial court's decree following a jury trial on the merits that the plaintiff take nothing without mention of the defendant's counterclaim should perhaps have been presumed to deny all relief, despite the alternative ruling that the plaintiff's claim should be dismissed. But regardless of Davis's unusual circumstances, the case makes the point, which we expressly acknowledged in Aldridge, that "[i]t will not be presumed that a judgment dismissing a plaintiff's suit on nonsuit, plea to the jurisdiction, plea in abatement, for want of prosecution, etc., also disposed of the issues in an independent cross-action."
We have since held that "etc." includes default judgments and summary judgments.
A judgment that finally disposes of all remaining parties and claims, based on the record in the case, is final, regardless of its language.
But the language of an order or judgment can make it final, even though it should have been interlocutory, if that language expressly disposes of all claims and all parties. It is not enough, of course, that the order or judgment merely use the word "final". The intent to finally dispose of the case must be unequivocally expressed in the words of the order itself. But if that intent 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. So, for example, if a defendant moves for summary judgment on only one of four claims asserted by the plaintiff, but the trial court renders judgment that the plaintiff take nothing on all claims asserted, the judgment is final—erroneous, but final.
Texas appellate courts, this Court included, have had difficulty determining when a judgment is final on its face—by its own express terms, in other words— even though it should not have been because no sufficient basis for rendering a final judgment was presented. In Schlipf v. Exxon Corp.,
Two years later, in Teer v. Duddlesten, we emphasized that the Aldridge language—all relief not expressly granted is denied—which we termed for the first time a "Mother Hubbard" clause, has no place in partial summary judgments because, by definition, those proceedings do not address all of the facts and issues in a case.
We attempted to clarify matters in Mafrige v. Ross.
We reversed, holding that the "take nothing" language in the eight summary judgment orders disposed of all claims asserted by both plaintiffs against each of the defendants and thus constituted a final judgment. We then explained:
As examples of "language purporting to dispose of all claims or parties," we gave not only the "take nothing" language of the orders before us, and the statement that summary judgment is granted as to all claims asserted, but also the standard Mother Hubbard clause-that all relief not expressly granted is denied.
The ambiguity has persisted in our decisions. In Martinez v. Humble Sand & Gravel, Inc.,
But in Bandera Electric Cooperative, Inc. v. Gilchrist,
Determining the significance of omitting a Mother Hubbard clause in an order has been no easier. In Park Place Hosp. v. Estate of Milo, we suggested that the absence of a Mother Hubbard clause indicated that a summary judgment was intended to be interlocutory.
Finality "must be resolved by a determination of the intention of the court as gathered from the language of the decree and the record as a whole, aided on occasion by the conduct of the parties." 5 Ray W. McDonald, Texas Civil Practice § 27:4[a], at 7 (John S. Covell, ed., 1992 ed.); see Ferguson v. Ferguson, 161 Tex. 184, 338 S.W.2d 945, 947 (1960). In the circumstances described here, we think the district court intended to render a final, appealable judgment.... Neither the parties nor the court of appeals have suggested that the judgment was not final.
The judgment did not include a Mother Hubbard clause, but we did not find its omission significant. We reached a similar conclusion in Inglish v. Union State Bank.
In sum, our opinions have not been entirely consistent on whether the inclusion or omission of a Mother Hubbard clause does or does not indicate that a summary judgment is final for purposes of appeal. This ambivalence has resulted in considerable confusion in the courts of appeals.
Much confusion can be dispelled by holding, as we now do, that the inclusion of a Mother Hubbard clause—by which we mean the statement, "all relief not granted is denied", or essentially those words—
As we have already explained, an order can be a final judgment for appeal purposes even though it does not purport to be if it actually disposes of all claims still pending in the case. Thus, an order that grants a motion for partial summary judgment is final if in fact it disposes of the only remaining issue and party in the case, even if the order does not say that it is final, indeed, even if it says it is not final. (Again, we do not consider here the various kinds of cases in which there may be more than one final judgment for purposes of appeal.) Also, an order can be final and appealable when it should not be. For example, an order granting a motion for summary judgment that addressed all of the plaintiff's claims when it was filed but did not address claims timely added by amendment after the motion was filed may state unequivocally that final judgment is rendered that the plaintiff take nothing by his suit. Granting more relief than the movant is entitled to makes the order reversible, but not interlocutory.
While the present problems in determining whether an order is a final judgment should be lessened significantly by denying the standard Mother Hubbard clause of any indicia of finality in any order not issued after a conventional trial, the difficulty in determining what does make an order final and appealable remains. One solution would be stricter requirements for the form of a final judgment. Rule 58 of the Federal Rules of Civil Procedure takes this approach by requiring that to be final a judgment must "be set forth on a separate document" and be entered by the clerk on the civil docket. The separate-document requirement was added to the rule in 1963 to remove uncertainty over whether a trial judge's opinion or order constituted a final judgment.
The one recognized exception is a party's failure to object.
The price of certainty, however, as federal rulemakers have come to realize, is that in many cases the failure to comply with Rule 58 means that no final judgment was ever rendered, and the time for appeal remains open.
There may be other solutions to these dilemmas which could be implemented by changes in our own rules, and this Court's Advisory Committee is presently studying the issues. But we do not write rules by opinion.
In the past we have tried to ensure that the right to appeal is not lost by an overly technical application of the law.
To determine whether an order disposes of all pending claims and parties, it may of course be necessary for the appellate court
One may argue after Aldridge and Mafrige that it is perilous to suggest any particular language that will make a judgment final and appealable because that language can then be inserted in orders intended to be interlocutory. But to leave in doubt the degree of clarity required for finality creates its own problems. The Mother Hubbard clause proved to give no indication of finality not just because it found its way into every kind of order, but because it was inherently ambiguous, as we have explained. A statement like, "This judgment finally disposes of all parties and all claims and is appealable", would leave no doubt about the court's intention. An order must be read in light of the importance of preserving a party's right to appeal. If the appellate court is uncertain about the intent of the order, it can abate the appeal to permit clarification by the trial court.
Nothing in the order in Lehmann indicates that it is a final judgment, and it did not dispose of all pending claims and parties. The order in Harris states that plaintiffs take nothing as to "one of the defendants", but that language does not suggest that all of the plaintiffs' claims were denied. As the order recites and as the record demonstrates, the defendant named in the order was not the only defendant remaining in the case. Thus, we conclude that a final and appealable judgment was not rendered in either case.
We are concerned that in neither case were the non-movants provided a copy of the court's signed order but were merely sent notice by postcard that an order had been signed. The Rules of Civil Procedure do not require clerks to send all parties copies of all orders, only final orders.
We must respond briefly to the concurring opinion. It would hold that no "type of conclusory finality language can ever be read to grant more relief than requested by the parties."
The concurring opinion claims as authority for its position pre-Mafrige law, but before Mafrige, this Court repeatedly held that general language in a summary judgment finally disposed of the litigation even though no party had requested final relief. In Schlipf v. Exxon Corp. we held that an order granting the plaintiffs' motion for summary judgment on one of its claims and generally denying all other relief was final, even though no defendant had moved for summary judgment or requested the denial of any relief.
The concurring opinion acknowledges that its position may result in more appeals being taken from orders that look final but are really interlocutory, but it argues that appellate courts can easily deal with such problems by abating appeals to allow trial courts to clarify their orders. What the concurring opinion ignores is that trial courts and parties will assume that orders with general dispositive language mean what they say, only to learn months or years after an appeal should have been taken that no final judgment was ever rendered. Justice Baker would insist that every order granting summary judgment
Any order that failed to meet these requirements would be interlocutory, according to Justice Baker, "regardless of how clearly it states that it is a final judgment disposing of all parties and issues."
For the reasons we have explained, the judgments of the court of appeals in these cases are reversed, and the cases are remanded to that court for further proceedings.
Justice BAKER filed a concurring opinion in which Justice ENOCH joined, except for Part IV and the discussion of Inglish and Bandera, and in which Justice HANKINSON joined, except Part IV.
The Court granted these petitions in Lehmann and Harris to solve the Mafrige problems. The Court fails to do so. Thus, while I concur in the result the Court reaches, I cannot agree with the reasoning it uses to reach that result.
In March 1993, we granted writ in Mafrige v. Ross to resolve the inherent problems in determining finality of summary judgments for purposes of appeal. 866 S.W.2d 590 (Tex.1993). There we recognized that determining finality had "been a recurring and nagging problem throughout the judicial history of this state." Mafrige, 866 S.W.2d at 590. Thus, in a major departure from our prior jurisprudence, we created a new rule providing: "If a summary judgment order appears to be final, as evidenced by the inclusion of language purporting to dispose of all claims or parties, the judgment should be treated as final for purposes of appeal." Mafrige, 866 S.W.2d at 592.
Despite the certainty we intended this bright-line rule to provide, the last seven years have proved that the Mafrige rule has created more problems than it solved—confusing the lower courts, operating as a trap for unwary litigants, and consistently bringing about arguably unjust and oftentimes absurd results. So, in November 1999, we granted the petitions in these cases to resolve the Mafrige problems. Inexplicably, the Court begins its opinion by chronicling the evolution of the rules and presumptions governing finality of orders following a conventional trial on the merits from the middle of the last century to the present.
However, rather than solve, the Court merely perpetuates the problems Mafrige created. The cases grappling to apply Mafrige illustrate that there is but one real solution. We should return to the principle we announced in Teer v. Duddlesten—that a Mother Hubbard clause simply "has no place in a partial summary judgment," and that a summary judgment order is not an appealable, final judgment unless it actually disposes of all parties and issues. 664 S.W.2d 702, 703-04 (Tex. 1984).
The Court states: "[W]e do not write rules by opinion." 39 S.W.3d at 205. The Court is right; we should not establish rules by judicial fiat. We should not have done so in Mafrige and we should not have perpetuated the Mafrige problems with Inglish and Bandera. Any new summary judgment finality rule should be achieved by this Court's formally promulgating a new procedure rule. The Court should recognize this, overrule Mafrige and its progeny, and await a recommendation by
MAFRIGE AND ITS PROGENY
Before Mafrige, courts determined summary judgment finality by reviewing the live pleadings, the summary judgment motion, and the summary judgment order. Harris County v. Nash, 22 S.W.3d 46, 49-50 (Tex.App.-Houston [14th Dist.] 2000, pet. filed); Kaigler v. General Elec. Ins. Mortgage Corp., 961 S.W.2d 273, 275 (Tex. App.—Houston [1st Dist.] 1997, no pet.). A summary judgment was deemed final and appealable only if it expressly disposed of all parties and issues or if it was severed from the remainder of the suit. Pan Am. Petroleum Corp. v. Texas Pac. Coal & Oil Co., 159 Tex. 550, 324 S.W.2d 200, 200 (1959) ("[A] summary judgment which does not dispose of all parties and issues in the pending suit is interlocutory and not appealable unless a severance of that phase of the case is ordered by the trial court.").
With Mafrige, this Court attempted to simplify this process by holding that the "magic language" of a Mother Hubbard or similar finality clause conclusively transforms an interlocutory summary judgment into a final, appealable order. Mafrige, 866 S.W.2d at 592. We have twice revisited Mafrige to clarify its scope. See Inglish v. Union State Bank, 945 S.W.2d 810, 811 (Tex.1997) (holding that the Mafrige rule applies even when neither party appeals the erroneous summary judgment); Bandera Elec. Coop., Inc. v. Gilchrist, 946 S.W.2d 336, 337 (Tex.1997) (explaining that when the Mafrige rule renders a partial summary judgment final for purposes of appeal, the appellate court should reverse and remand only the erroneously disposed claims). Unfortunately, Mafrige did little towards alleviating the lower courts' confusion—and Inglish and Bandera only compounded it. The Court's opinion suffers the same problem. Namely, its slightly-modified Mafrige rule falls far short of remedying the myriad of problems the Mafrige fiction and its progeny created.
A. Finality Language
One source of confusion under Mafrige has been uncertainty about what language triggers its finality rule. In Mafrige, we held that a partial summary judgment is treated as final for appeal purposes when the order contains a Mother Hubbard clause stating that "all relief not expressly granted is denied" or other language "purporting to dispose of all claims or parties." 866 S.W.2d at 590 & n. 1, 592. We further clarified that "other" finality language includes "a statement that the summary judgment is granted as to all claims asserted by the plaintiff, or a statement that the plaintiff takes nothing against defendant." Mafrige, 866 S.W.2d at 590 n. 1.; see also Inglish, 945 S.W.2d at 811 (holding statement that "[d]efendant is entitled to summary judgment in this case," and that plaintiff should "take nothing on account of his lawsuit" rendered partial summary judgment final for purposes of appeal); Springer v. Spruiell, 866 S.W.2d 592, 593 (Tex.1993) (holding that summary judgment order reciting plaintiffs "have and recover nothing" purported to dispose of all parties and issues).
Despite these examples, some lower courts have refused to hold orders containing this exact language final for purposes of appeal. E.g., Carey v. Dimidjian, 982 S.W.2d 556, 558 (Tex.App.-Eastland 1998, no pet.) (holding that order containing Mother Hubbard clause was not final and appealable where the motion was labeled "Partial Summary Judgment" and the parties treated the order as interlocutory); Hinojosa v. Hinojosa, 866 S.W.2d 67, 69-70 (Tex.App.-El Paso 1993, no writ) (holding that order containing Mother Hubbard clause did not render judgment final because it did not dispose of counterclaim). Other courts have struggled with what "other" language purports to render a judgment final—often reaching opposite conclusions about identical clauses. Compare
While the Court recognizes that the "routine inclusion of [a Mother Hubbard clause] in otherwise plainly interlocutory orders and its ambiguity in many contexts have rendered it inapt for determining finality," 39 S.W.3d at 192, it ignores the obvious problems courts have faced interpreting other language "purporting to dispose of all claims or parties." Mafrige, 866 S.W.2d at 592. In fact, despite the Court's extensive analysis and discussion, its holding represents but a minor departure from Mafrige.
Its modified rule has two parts. The first represents no change in Texas law. It simply reiterates that a summary judgment order that actually disposes of all parties and issues is final for purposes of appeal. 39 S.W.3d at 192. The second part provides that a Mother Hubbard clause is no longer enough to invoke the fiction that an otherwise interlocutory order is treated as final for purposes of appeal. Instead, to invoke the Mafrige fiction, an interlocutory order must now "clearly and unequivocally state[ ] that it finally disposes of all claims and all parties." 39 S.W.3d at 205. The Court further explains that the statements "plaintiff take nothing by his claims in the case" and "[t]his judgment finally disposes of all parties and all claims and is appealable" clearly and unequivocally state that an order is final. 39 S.W.3d at 205. In essence, the Court's rule does no more than replace one set of magic language with another—while ignoring the reality that courts will likely face the same challenges deciding what language "clearly and unequivocally states" that an order is final, 39 S.W.3d at 205, as they did deciding what other language clearly "purport[s] to dispose of all claims or parties" under Mafrige. 866 S.W.2d at 592.
B. Omitted Parties
Applying Mafrige to omitted parties, like those in both Lehmann and Harris, has also troubled the lower courts. Specifically, they have struggled with deciding when finality language operates to render a summary judgment final against omitted parties. This issue often surfaces when both the summary judgment motion and the resulting order omit any specific reference to one or more parties.
In contrast, other courts have interpreted Mafrige more narrowly, reasoning that an "order that explicitly grants a summary judgment in favor of less than all the defendants does not clearly evidence an intent to dispose of all claims against all defendants, especially those against whom
Here the Court summarily dismisses this omitted parties problem:
39 S.W.3d at 206. Despite the presence of a Mother Hubbard clause, the trial court and parties in Lehmann continued treating the order as interlocutory-even in the face of this Court's admonishment that a Mother Hubbard clause indicates finality.
However, the Court's resolution merely sidesteps the real problem. What happens in the next case when, on facts identical to Lehmann, a trial court signs an interlocutory summary judgment with the Court's new magic language rather than a Mother Hubbard clause? We are right back where we started. Substituting one magic phrase for another leads nowhere.
The reality is simply that omitted parties oftentimes do not believe that a summary judgment order that they have not seen, that does not mention them, and that results from a hearing in which they did not participate will operate to dispose of them or their claims. But, under the Court's standard, if these parties do not perfect a timely appeal from the erroneous judgment, their right to appeal is forever lost. This result elevates form over substance and hinders parties' rights to have the merits of their claims considered. See, e.g., Rodriguez v. NBC Bank, 5 S.W.3d 756, 763 n. 4 (Tex.App.-San Antonio 1999, no pet.) (recognizing this Court's "express goal of reaching the merits of a cause of action, instead of dismissing actions on procedural technicalities").
C. Omitted Cross-Claims and Counterclaims
The courts of appeals have also treated omitted cross-claims and counterclaims inconsistently—despite our holding in Bandera. In Bandera, the trial court signed an order with a Mother Hubbard clause that did not mention the defendant's counterclaims. 946 S.W.2d at 337. This Court explained that "[b]ecause the order contained a Mother Hubbard clause denying all other relief, it also purported to dispose of [the defendant's] counterclaims." Bandera, 946 S.W.2d at 337. But several courts have refused to apply Mafrige in this situation, maintaining that a summary judgment that does not mention counterclaims or cross-claims cannot purport to be final-regardless of whether it contains finality language. E.g., Sommers v. Concepcion, 20 S.W.3d 27, 33 (Tex.App.-Houston [14th Dist.] 2000, pet. denied); Hervey v. Flores, 975 S.W.2d 21, 25 (Tex. App.—El Paso 1998, pet. denied); cf. Coleman Cattle Co., Inc. v. Carpentier, 10 S.W.3d 430, 433 n. 2 (Tex.App.-Beaumont 2000, no pet.). Other courts have followed Bandera's mandate, holding that finality language—such as "plaintiff takes nothing"
The Court's rule does not provide a satisfactory remedy for this situation either. The Court states:
39 S.W.3d at 205.
Under its modified finality rule, the lower courts' disagreement in this area will continue because too many questions are left unanswered. For example, should a "final" summary judgment order stating that defendant is granted summary judgment "in all things" dispose of a cross-claim by another defendant as well as the claim by the plaintiff that brought the original claim? In this situation, there is no doubt that the order is unambiguous. However, it is likewise clear, but not from the order, that the third party's claim against the defendant was never considered. Should an order granting summary judgment for a plaintiff that recites it is a final and appealable order be final for counterclaims not mentioned in the motion or order? The order unequivocally states that it is a final, appealable order. Nonetheless there is a counterclaim that has not been considered. The Court states that a summary judgment granted for a plaintiff "does not adjudicate a counterclaim" and then goes on to say that to make the order final there must be "some other clear indication that the trial court intended the order to completely dispose of the entire case." 39 S.W.3d at 205. In the example above, does the additional statement that "this is a final, appealable order" provide this "other clear indication"? These very issues are repeatedly raised in the courts of appeals, and the Court's modified rule simply does not resolve them.
D. Trial Courts' and Parties' Intent
Differing philosophies about the effect the trial courts' and parties' intent should have on how Mafrige applies has created the most confusion and inconsistency. The courts of appeals have taken three approaches. Some courts apply a bright-line test, holding that a Mother Hubbard clause or other finality language always renders an order final for appeal purposes, regardless of any evidence of contrary intent. E.g., Preston v. American Eagle Ins. Co., 948 S.W.2d 18, 20-21 & n. 1 (Tex.App.-Dallas 1997, no writ) (holding that summary judgment purported to be final despite fact it was entitled "partial summary judgment"); cf. In re Cobos, 994 S.W.2d 313, 315 (Tex.App.-Corpus Christi 1999, orig. proceeding) ("As Mafrige and Inglish make clear, the intent of the trial court is not the controlling consideration in determining whether a judgment is final."). Other courts modify this approach, looking only within the four corners of the order and giving effect to any evidence of contrary intent found there. E.g., Rodriguez, 5 S.W.3d at 763-64 (Tex. App.—San Antonio 1999, no pet.) ("Looking within the four corners of the summary judgment order, the plain language of the
Finally, despite our holding in Inglish that the trial court's intent is irrelevant in this context, other courts still refuse to apply Mafrige if there is evidence of contrary intent anywhere in the record. This usually occurs when the parties and court treat an order as interlocutory by continuing with the litigation rather than appealing the erroneous order. E.g., Lowe, 1 S.W.3d at 823-24 (holding that summary judgment could not be final where the record reflected that there were parties who did not participate in the summary judgment proceeding); Carey, 982 S.W.2d at 558 (relying, in part, on court's and parties' treatment of order containing Mother Hubbard clause as interlocutory to conclude judgment was not final).
The Court's solution to this problem is as confusing as the rule it seeks to supplant. It appears to reject the bright-line approach Mafrige espouses and instead adopt a rule combining the second and third approaches. First, the Court notes that an order is final for appeal purposes if it "unequivocally states that it finally disposes of all parties and all claims and is appealable." 39 S.W.3d at 205. It also explains that "[i]f the language of the order is clear and unequivocal, it must be given effect despite any other indications that one or more parties did not intend for the judgment to be final." 39 S.W.3d at 206. From these statements, the Court's new rule walks and talks a lot like a bright-line Mafrige rule, with magic language establishing finality.
However, the Court also states that "[t]o determine whether an order disposes of all pending claims and parties, it may of course be necessary for the appellate court to look to the record in the case." 39 S.W.3d at 205. This sounds more like a pre-Mafrige rule, where a court must look to the record and the order to determine if an order actually disposes of all pending parties and issues.
Because of the lower courts' confusion and disagreement about the role of intent in determining finality, I am convinced that the Court has not provided a workable rule that clearly defines that role as it applies to determining summary judgment finality.
Mafrige To Non-Summary Judgment Orders
Finally, the question of whether Mafrige applies outside the summary judgment context has confused the lower courts. Courts of appeals have applied Mafrige to a plea to the jurisdiction, Webb v. HCM Mgmt. Corp., No. 07-96-0369-CV, 1998 WL 16033 (Tex.App.-Amarillo Jan. 12, 1998, pet. denied) (not designated for publication) 1998 WL 16033, at *1; an agreed judgment, In re Cobos, 994 S.W.2d at 315-16; a directed verdict, e.g., Polley v. Odom, 957 S.W.2d 932, 943 (Tex.App.-Waco 1997, judgm't vacated); and a severance order, Harris County Flood Control Dist. v. Adam, 988 S.W.2d 423, 427 (Tex. App.—Houston [1st Dist.] 1999, pet. filed). In contrast, at least one court has declined to apply Mafrige to a dismissal for want of jurisdiction. In re Tejas, Nos. 01-98-00688-CV, 01-98-00689-CV, 01-98-00690-CV, 1998 WL 394562 (Tex.App.-Houston [1st Dist.] July 13, 1998, orig. proceeding) (not designated for publication), 1998 WL 394562, at *1 n. 1. And another has expressly refused to extend Mafrige to any order that is not a summary judgment. Biltmore Swim & Racquet Club Recreational Ass'n v. McAbee, No. 05-98-00252-CV, 1998 WL 459819 (Tex.App.-Dallas Aug.10, 1998, no pet.) (not designated for publication), 1998 WL 459819, at *1.
In Aldridge, this Court held that a presumption of finality exists when an order is signed following a traditional trial on the
Mafrige and its progeny are limited to summary judgments—with good reason. No good can come of interjecting additional uncertainty into (1) conventional trials on the merits, to which the majority acknowledges the Aldridge presumption has "proved a fairly workable" rule, 39 S.W.3d at 200, or (2) numerous other types of orders, when even the majority acknowledges that "the ordinary expectation" supporting a finality presumption "simply does not exist when some form of judgment is rendered without such a trial" because "it is quite possible, perhaps even probable these days ... that any judgment rendered prior to a full-blown trial is intended to dispose of only part of the case." 39 S.W.3d at 200.
However, the Court's opinion here implicates finality of all judgments. This expansion into issues not before the Court today can only cause mischief in areas already plagued by confusion. If the Court persists in adhering to Mafrige's principles, it should at least limit its holding, as we did in Mafrige, to summary judgments.
II. POLICY CONSIDERATIONS
Not surprisingly, the post-Mafrige era has given rise to considerable analysis by courts and commentators of both the competing policies Mafrige implicates and suggestions for reform. A few have applauded the bright-line rule. See Kaigler, 961 S.W.2d at 275-76 (recognizing that the rule provides harsh results, but emphasizing that uniform enforcement "encourage[s] attentiveness to correct judgments"); Boyce, Mafrige v. Ross and the Pitfalls of Presumptions, Appellate Advocate, Nov. 1997, at 7 (opining that Mafrige "resolved the confusion created by prior contradictory language and flatly inconsistent holdings").
However, praises have been few and far between. Criticism has been the rule and the comments call for this Court to reconsider our decision:
Harris County Flood Control Dist., 988 S.W.2d at 427-28 (Taft, J., concurring in denial of rehearing en banc); see also, e.g., Lehmann, 988 S.W.2d at 418 ("Mafrige is not as clear to litigants as the supreme court believes it is.... In short, Mafrige has created several problems: 1) it is catching the parties by surprise ...; 2) it exalts form over substance; and 3) in more than a few situations, it ignores common sense."); Carlson & Dunn, Navigating
Strong policies support our practice of adhering to settled rules of law "unless there exists the strongest reasons for chang[e]." Benavides v. Garcia, 290 S.W. 739, 740-41 (Tex. Comm'n App.1927, judgm't adopted). But we have also recognized the "doctrine of stare decisis does not stand as an insurmountable bar to overruling precedent." Gutierrez v. Collins, 583 S.W.2d 312, 317 (Tex.1979). "Generally, we adhere to our precedents for reasons of efficiency, fairness, and legitimacy." Weiner v. Wasson, 900 S.W.2d 316, 320 (Tex.1995). However, when adherence to a judicially-created rule of law no longer furthers these interests, and "the general interest will suffer less by such departure, than from a strict adherence," we should not hesitate to depart from a prior holding. Benavides, 290 S.W. at 740. The lower courts' application of Mafrige over the last seven years illustrates undeniably that this is just such a case.
We intended Mafrige, Inglish, and Bandera to provide certainty to litigants. Instead, they have bred chaos. Most disturbing is that the casebooks are now replete with examples of dismissed cases where the parties and courts clearly intended an order containing finality language to be interlocutory.
39 S.W.3d at 200. Because of this reality, it is difficult to understand why the Court persists in adhering to Mafrige's principles.
The author of the Court's opinion recently opined: "Appellate procedure should not be tricky. It should be simple, it should be certain, it should make sense, and it should facilitate consideration of the parties' argument on the merits...." Lane Bank Equip. Co. v. Smith Southern Equip., Inc., 10 S.W.3d 308, 314 (Tex.2000) (Hecht, J., concurring). This Court has repeatedly refused to adopt positions which elevate form over substance. See, e.g., Phillips v. Beaber, 995 S.W.2d 655, 658 (Tex.1999); Nueces Canyon Consol. Indep. Sch. Dist. v. Central Educ. Agency, 917 S.W.2d 773, 775-76 (Tex.1996). The Court here even recognizes that "[s]implicity and certainty in appellate procedure are nowhere more important than in determining the time for perfecting appeal." 39 S.W.3d at 205. Unfortunately though, the Court declines to embrace this opportunity
III. THE SOLUTION
The Court notes: "[W]e do not write rules by opinion. We must decide what Texas law requires for finality, given the present rules." 39 S.W.3d at 205. Yet, the Mafrige finality rule this Court created represented such a major departure from prior Texas law. In fact, but for the judicially-created Mafrige rule, no one would dispute that "what Texas law requires for finality" of summary judgments is an order actually disposing of all parties and issues.
Rather than simply amend the Mafrige finality rule and perpetuate the problems the unworkable system Mafrige and its progeny created, the Court should focus on shaping a real solution—one providing the desired certainty and protecting parties' right to appellate review. This requires wiping the slate clean. Mafrige created enough problems with its fictional finality and its holding that trial courts can use magic language to create final summary judgments by granting relief not requested. 866 S.W.2d at 591-92. In Inglish we compounded the problem by confirming that Mafrige applies even when the parties continue litigating rather than appealing a partial summary judgment made final under Mafrige. 945 S.W.2d at 811. We completed the trilogy in Bandera, holding that when a party appeals a summary judgment granting more relief than requested, the court of appeals should address the merits of the appeal, remanding only the part of the judgment that exceeds the relief requested in the summary judgment motion. 946 S.W.2d at 337. Undeniably, these rules were designed to simplify summary judgment finality. But, in application, these cases only demonstrate that we should have adhered to our own admonishments that this Court simply should not make rules by opinion. E.g., Alvarado v. Farah Mfg. Co., 830 S.W.2d 911, 915 (Tex.1992) (explaining that we should not revise rules by opinion); see also Verburgt v. Dorner, 959 S.W.2d 615, 619 (Tex.1997) (Baker, J., dissenting) (noting that this Court's jurisprudence forbids rule amendments by judicial fiat).
Thus, we should overrule Mafrige, Inglish, and Bandera—to the extent they created new rules by judicial fiat—and instead tackle the problems of summary judgment finality through our rulemaking process. Accordingly, we should return to our prior position that a Mother Hubbard clause (or other magic language) has no place in any summary judgment order— final or partial—and that a trial court may not sua sponte grant more relief than the parties request simply by adding conclusory finality language to a summary judgment order. Further, a summary judgment should be entitled to no presumption at all about whether it is final.
Returning to the law as it was pre-Mafrige requires determining the state of the law before Mafrige. Mafrige actually held two things: (1) that "`Mother Hubbard' language or its equivalent in an order granting summary judgment makes an otherwise partial summary judgment final for appeal purposes;" and (2) that if a summary judgment "grants more relief than requested, it should be reversed and remanded, but not dismissed." 866 S.W.2d at 590, 592.
Before Mafrige, this first holding was not the law. In Teer v. Duddlesten we held that:
664 S.W.2d at 704. In Mafrige we recognized this earlier statement in Teer, but rejected it and held that finality language could render a partial summary judgment final for purposes of appeal. 290 S.W.2d at 592.
Mafrige's second holding—that a summary judgment granting more relief than requested should be reversed and remanded, but not dismissed—does not appear to be an entirely new rule. In both Teer and Chessher, another pre-Mafrige case, we reversed and remanded (rather than dismissed) summary judgment orders after determining that they were interlocutory because they granted more relief than requested. See Teer, 664 S.W.2d at 705; Chessher v. Southwestern Bell Tel. Co., 658 S.W.2d 563, 564 (Tex.1983). But see Ross v. Arkwright Mut. Ins. Co., 834 S.W.2d 385, 393 (Tex.App.-Houston [14th Dist.] 1992) (opining that these cases are "in direct contravention of Tex.R. Civ. P. 166a(c)" and discussing disagreement in the courts over whether summary judgment orders granting more relief than requested were interlocutory or appealable, but erroneous, judgments), rev'd sub. nom. Mafrige, 866 S.W.2d at 590. Thus, while the courts were not entirely in agreement, it appears we had already established the rule that a summary judgment order granting more relief than requested is not interlocutory—it is simply erroneous. For this reason, I agree with the Court that if an order actually does dispose of each claim and every party, it is an appealable judgment, even if it grants more relief than requested. This is consistent with the long-standing rule that if an order actually disposes of all parties and issues, it is final for appeal purposes. E.g., Houston Health Clubs, Inc. v. First Court of Appeals, 722 S.W.2d 692, 693 (Tex.1986). However, consistent with my view that we should overrule Mafrige and its progeny and recognize no presumption for or against finality, I do not believe any type of conclusory finality language can ever be read to grant more relief than requested by the parties.
We should determine summary judgment finality by comparing the live pleadings and the summary judgment order. A summary judgment order should only be final if it matches the contents of the pleadings. And, as was the law before Bandera, a court of appeals should summarily reverse any summary judgment granting more relief than requested, without any sua sponte severance of some issues while others are remanded.
Wiping the slate clean by overruling the rules created in Mafrige, Inglish, and Bandera while we study the best method of tackling summary judgment finality through our formal rule-promulgation process is the better solution for several reasons. First, this approach strikes a more reasonable balance between the competing policies of promoting certainty and preserving parties' rights to appellate review. And, under this approach, the trial court and the parties drafting summary judgment orders would have the burden, and the incentive, to ensure that the pleadings, summary judgment motions, and the summary judgment orders match. If a premature appeal is taken, the court of appeals need only compare the pleadings, motions, and order. If the order does not dispose of parties or issues raised in the pleadings, then it is interlocutory and the court must dismiss the appeal.
Most importantly, this approach alters the consequences of poorly-drafted orders. Specifically, the consequence flowing from a poorly drafted order becomes the risk of a premature appeal rather than an untimely one. This eliminates the greatest risk Mafrige created—that an interlocutory order, contrary to the trial court's and (at least one party's) intent, will be fictitiously made final, starting the appellate and plenary power timetables even while the litigation continues. No one would argue that conducting a trial after the trial court's plenary power has expired is not a waste of judicial resources. Moreover, because overruling Bandera eliminates the benefits of a premature appeal, taking such an appeal would not be a cost-efficient mistake for litigants to make, increasing the incentive to ensure orders are more clearly drafted. If a premature appeal is nonetheless taken, it would not create an onerous burden for the appellate court. The opposing party need only file a brief pointing out that the pleadings, motion, and order do not match, leading to automatic remand or dismissal.
No one disputes that rules governing summary judgment finality could be helpful to the bench and bar and facilitate judicial efficiency. But history, as well as our own precedent, has shown that judicial opinions are not the place to achieve this. Any attempt to adhere to the Mafrige principle or retain parts of it while rejecting others can only lead to more problems. Instead, this Court should overrule Mafrige and its progeny and start anew. As the Court even notes, our rules advisory committee is currently studying summary judgment finality. 39 S.W.3d at 216. Retaining parts of Mafrige, Inglish, Bandera as modified by the Court's less-than-clear opinion today—only to follow with promulgation of a concurrent finality rule—will only lead to more confusion.
I agree that the cases here should be reversed. But, because the Court refuses to fix the problems its judicial rulemaking in Mafrige caused and allow our rulemaking process to work, I cannot join the Court's opinion.
I recognize that the Supreme Court of Texas Advisory Committee on Rules of Civil Procedure has been studying the problem of summary judgment finality. It has proposed an amendment to Rule 166a of the Texas Rules of Civil Procedure:
(j) Statement of Grounds. An order granting summary judgment must state the ground or grounds on which the motion was granted. No judgment may be affirmed on other grounds stated in the motion unless they are asserted by appellee in the appellate court as alternative grounds for affirmance.
I do not believe this proposed amendment goes far enough.
First I would suggest to the committee that they consider requiring each summary judgment order specifically identify: (1) the claims each party brings; (2) the grounds upon which each party seeks summary judgment; (3) each ground upon which the trial court granted summary judgment; and (4) each ground upon which the trial court denied summary judgment.
This solution is intuitive. In the vast majority of cases, this formality, rather than including magic language, would provide notice to parties about what has actually happened. In practice, this procedure alleviates many problems Mafrige's finality rule has caused.
Under this approach, a summary judgment is not final unless the order specifically identifies each claim for relief, the grounds upon which each party seeks summary judgment, and the court's disposition
Most significantly, in practice this would lead to better drafting and fewer erroneous appeals. Specifically, if required to expressly list each ground upon which summary judgment is requested, trial courts are not likely to add grounds to their order that the summary judgment motion did not raise.
Second, I would suggest the committee consider a rule requiring that the prevailing party, who is charged with drafting the court's order, serve copies on all other parties at least ten days before the trial court is to sign and enter the order. Consistent with this suggestion, I agree with the Court's suggestion that the clerk send copies of all the actual signed orders— rather than just a postcard indicating that the court has signed an order.
The majority's author criticizes my first recommendation, asserting that there is a "very real risk" that requiring judges to be explicit in their summary judgment orders would result in "thousands of judgments intended to be final ... remain[ing] interlocutory." 39 S.W.3d at 196. He contends that "[t]his is precisely what has happened in the federal system even though the federal rules impose far fewer requirements on final judgments than the dissent would." 39 S.W.3d at 208. Federal Rule 58, to which he refers, requires that all final judgments "be set forth on a separate document" and be entered by the clerk on the docket. Fed.R.Civ.P. 58.
This criticism only serves to amplify the real dangers of straying outside the summary judgment context in these cases. How finality of different types of judgments is determined must be governed by the nature of the judgment. Houston Health Clubs, Inc., 722 S.W.2d at 693 ("In determining whether a judgment is final, different presumptions apply depending on whether the judgment follows a conventional trial on the merits or results from default or a motion for summary judgment."). Cognizant of this, my recommendation, unlike Federal Rule 58, is limited to summary judgment finality.
The live pleadings define the issues in a case. The issues tried do not always mirror these pleadings. See Vance v. Wilson, 382 S.W.2d 107, 108 (Tex.1964). Nonetheless, we have repeatedly recognized that a presumption should exist that all issues presented by the pleadings are disposed of in a conventional trial on the merits. See Aldridge, 400 S.W.2d at 897-98; Vance, 382 S.W.2d at 108. This presumption can be rebutted by a contrary showing in the record. See Richey v. Bolerjack, 589 S.W.2d 957, 959 (Tex.1979). But absent such a rebuttal, this presumption prevents judgments from languishing after trial based solely on variations in the pleadings and judgment. This presumption has saved us from the types of problems the federal system has experienced.
However, we sensibly limited this presumption to judgments "not intrinsically interlocutory in character." Aldridge, 400 S.W.2d at 897. We have also explained that summary judgments are intrinsically interlocutory and thus they should not be presumed final. Houston Health Clubs, Inc., 722 S.W.2d at 693. Thus, there is nothing illogical about requiring that finality language be explicit. And I respectfully disagree that my recommendation, limited to summary judgments, will cause such
In Texas, the test for determining summary judgment finality has always been whether the judgment disposes of all parties and all issues raised in the pleadings. In Mafrige we created a legal fiction to simplify the process of determining finality. But Mafrige created more problems than it solved. It is beyond me why the Court insists on struggling through pages and pages of history about presumptions, magic language, and Mother Hubbard clauses instead of squarely considering the problems Mafrige caused and providing a solution. Its willingness to cling to this legal fiction, while refusing to recognize that our rulemaking in Mafrige and its progeny was not the correct solution, will only create more problems.
I concur in the judgment in these cases. But, because the Court declines to overrule Mafrige, Inglish, and Bandera, and await our promulgation of a rule governing summary judgment finality, I do not concur in its reasoning.