TEXAS ASSOCIATION OF COUNTIES COUNTY GOVERNMENT RISK MANAGEMENT POOL v. HIDALGO COUNTY AND ENRIQUE ESCALON--Appeal from 275th District Court of Hidalgo County

NUMBER 13-03-664-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

TEXAS ASSOCIATION OF

COUNTIES COUNTY GOVERNMENT

 RISK MANAGEMENT POOL,   Appellant,

v.

HIDALGO COUNTY AND ENRIQUE

ESCALON, Appellees.

On appeal from the 275th District Court

of Hidalgo County, Texas.

  MEMORANDUM OPINION[1]

Before Justices Rodriguez, Castillo and Garza

Memorandum Opinion by Justice Castillo

Appellant Texas Association of Counties County Government Risk Management Pool ("TACC"), complains the trial court erred in denying its motion for summary judgment and granting summary judgment in favor of appellees, Hidalgo County and Enrique Escalon. We dismiss for want of jurisdiction.

I. Jurisdiction

Our initial inquiry is always whether we have jurisdiction over an appeal. Garcia v. Comm'rs Court of Cameron County, 101 S.W.3d 778, 779 (Tex. App.BCorpus Christi 2003, no pet.) (citing Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443 (Tex. 1993). We are obligated to determine, sua sponte, our own jurisdiction. Id. (citing N.Y. Underwriters Ins. Co. v. Sanchez, 799 S.W.2d 677, 678, (Tex. 1990) (per curiam)). In determining our jurisdiction, we analyze the claims brought by the parties. Id. Because the question of jurisdiction is a legal question, we follow the de novo standard of review. Id. at 783 (citing Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998)).

A. Procedural History

TACC sought a declaratory judgment and attorney fees against the county and Escalon regarding the parties' status, rights, duties, and obligations under a county public officials liability coverage instrument. The county and Escalon filed a counterclaim for declaratory judgment. The parties filed competing summary-judgment motions. Without stating the grounds, the trial court denied TACC's motion and granted summary judgment in favor of the county and Escalon, and awarded monetary relief as well as pre- and post-judgment interest. Only TACC affirmatively requested statutory attorney fees in its live pleading. The judgment awards attorney fees to the county and Escalon, and does not reference TACC's statutory attorney fee request. This appeal ensued.

B. Finality

Before we consider the issues, we must first determine if the order granting summary judgment is a final judgment. Garcia, 101 S.W.3d at 784. Although a judgment following a trial on the merits is presumed to be final, there is no such presumption of finality following a summary judgment or default judgment. In re Burlington Coat Factory Warehouse of McAllen, Inc., No. 02-1084, 2005 Tex. LEXIS 510, at *4 (Tex. July 1, 2005) (orig. proceeding) (citing Lehmann v. Har Con Corp., 39 S.W.3d 191, 199 200 (Tex. 2001)). "A judgment 'must be read in light of the importance of preserving a party's right to appeal;' if we imply finality from anything less than an unequivocal expression, a party's right to appeal may be jeopardized." Id. at *8 (citing Lehmann, 39 S.W.3d at 206). The law does not require that a final judgment be in any particular form. Garcia, 101 S.W.3d at 784. Therefore, whether a decree is a final judgment must be determined from its language and the record in the case. Id.

Suits for declaratory judgment are intended to determine the rights of parties when a controversy has arisen, before any wrong actually has been committed. Id. The stated purpose of the Declaratory Judgment Act is "to settle and afford relief from uncertainty and insecurity with respect to rights, status, and other legal relations." Tex. Civ. Prac. & Rem. Code Ann. ' 37.002(b) (Vernon 1997). In a declaratory judgment action, the trial court "may award costs and reasonable and necessary attorney's fees as are equitable and just." Tex. Civ. Prac. & Rem. Code Ann. ' 37.009 (Vernon 1997). The law does not require prevailing party status as a prerequisite to an award of attorney fees in a declaratory judgment action. Garcia, 101 S.W.3d at 784 (citing Barshop v. Medina County Underground Water Conservation Dist., 925 S.W.2d 618, 637 38 (Tex. 1996)); see State Farm Lloyds v. C.M.W., 53 S.W.3d 877, 894 (Tex. App.BDallas 2001, pet. denied); Hartford Cas. Ins. v. Budget Rent A Car, 796 S.W.2d 763, 771 (Tex. App.BDallas 1990, writ denied).

We have reviewed the live pleadings of the parties. The judgment does not declare the rights of the parties on any of the requested grounds in their live pleadings. Further, the judgment awards the county and Escalante attorney fees, but it does not address TACC's claim for statutory attorney fees. Accordingly, we conclude that the summary judgment is not a final declaratory judgment. Id. at 785 (citing Lehmann, 39 S.W.3d at 204).

C. Disposition

By its live pleading, TACC requested a declaration of, among other things, the parties' rights under the coverage instrument. Determination of the issues associated with the parties' competing claims for statutory declaratory relief and one party's affirmative claim for attorney fees, which was brought post-competing summary-judgment proceedings, requires more than a determination of perfunctory issues which can be procedurally cured by the trial court entering a clarifying or similar order. Garcia, 101 S.W.3d at 786; see Parks v. Dewitt County Elec. Coop., 112 S.W.3d 157, 163 (Tex. App.BCorpus Christi 2003, no pet.). We have no authority to abate. Id.

II. Conclusion

Accordingly, we hold there is no final, appealable declaratory judgment before this Court over which we have jurisdiction, nor can we merely abate the appeal until a final order is before us. This Court is without power to review the order granting summary judgment. The appeal must be, and hereby is, dismissed for want of jurisdiction. Id.

ERRLINDA CASTILLO

Justice

Memorandum Opinion delivered and filed

this the 31st day of August, 2005.

[1] See Tex. R. App. P. 47.2, 47.4.