Irania Trevino v. Credit Collection Services--Appeal from 206th District Court of Hidalgo County

NUMBER 13-06-481-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG

IRANIA TREVINO, Appellant,

 
v.

CREDIT COLLECTION SERVICES, Appellee.

On appeal from the 206th District Court

of Hidalgo County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Benavides and Vela
Memorandum Opinion by Justice Vela

Appellant, Irania Trevino, filed suit against appellee, Credit Collection Services ("CCS") and Allstate Insurance Company, seeking actual damages, statutory damages, injunctive relief and attorney's fees for violations of the Texas Debt Collection Practices Act, the Texas Finance Code and the Texas Insurance Code. Allstate and CCS each filed motions for summary judgment which the trial court granted. Trevino urges that the trial court's order is not final and that the summary judgment motion was a misnomer for CCS's plea to the jurisdiction. Trevino did not appeal the judgment rendered in favor of Allstate. We dismiss for lack of jurisdiction.

Background

Trevino filed suit against Allstate Insurance Company and CCS, this appellee, urging that she was the subject of an unfair debt collection attempt arising from an automobile accident with an Allstate insured. Allstate engaged CCS to assist with its subrogation efforts. On July 21, 2003, CCS sent a formal collection notice to Trevino informing her that Allstate paid $1,738.20 as a result of the accident and requesting her insurance information or payment of that amount. CCS had no other contact with Trevino.

Trevino, thereafter, filed suit based on this contact. She urged violations of the Unfair Debt Collections Act, the Finance Code and the Texas Insurance Code. CCS urged multiple affirmative defenses and sought attorney's fees based upon a claim that Trevino's consumer based suit was brought in bad faith and for purposes of harassment.

CCS first filed a motion to abate and motion to dismiss for lack of jurisdiction claiming that Trevino had no standing. The trial court denied these motions. CCS filed a traditional summary judgment and a no-evidence motion for summary judgment arguing that Trevino was not a consumer and the underlying debt was not a consumer debt. The trial court granted summary judgment on both the no evidence and traditional motions and ordered that all of Trevino's claims against CCS be dismissed, stating that all relief not granted was denied. The court did not specifically rule on CCS's counterclaim for attorney's fees.

Analysis

On appeal, Trevino urges that the judgment is not final. We agree. The judgment does not dispose of CCS's counterclaim for Attorney's fees. CCS urges that the counterclaim for attorney's fees was, in fact, denied because the order contained a "Mother Hubbard" clause which denied "all relief not requested." However, an order or judgment is not final for appeal purposes unless it actually disposes of all claims and all parties or unless it clearly and unequivocally states that it finally disposes of all parties and all issues. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 205 (Tex. 2001). An order that adjudicates only the plaintiff's claims against the defendant does not adjudicate a counterclaim, cross-claim, or third party claim. Id. Language that the plaintiff take nothing by his claims in the case, or that the case is dismissed, shows finality if there are no other claims by any other parties; but if the record reveals the existence of parties or claims not mentioned in the order, the order is not final. Id. The Lehmann court specifically stated that a Mother Hubbard clause such as the one suggested by appellee, gives no indication of finality because it is inherently ambiguous. Id.

In N.Y. Underwriters Ins. Co. v. Sanchez, 799 S.W.2d 677, 679 (Tex.1990), the supreme court held that a summary judgment order that did not dispose of a counterclaim for attorney's fees under the Texas Deceptive Trade Practices Act was not final and appealable. A claim pursuant to section 17.50 of the Texas Business and Commerce Code for attorney's fees is a counterclaim. Tex. Bus. & Comm. Code Ann. 17.50 (Vernon Supp. 2006); Ortiz v. Collins, 203 S.W.3d 414, 420-21 (Tex. App.-Houston [14th Dist.] 2006, no pet.); see Klein v. Dooley, 949 S.W.2d 307 (Tex. 1997). The language of section 17.50 tracks the language in section 392.403 of the Finance Code which was pleaded by CCS. See Tex. Fin. Code Ann. 392.403 (Vernon 2006). This court has stated that an affirmative claim, in an answer for recovery of attorney's fees for the preparation and prosecution of a defense constitutes a counterclaim. In re Frost Nat. Bank, 103 S.W.3d 647, 650 (Tex. App.-Corpus Christi 2003, no pet.). Accordingly, CCS's claim for attorney's fees in this case is an unadjudicated counterclaim.

Conclusion

The judgment is not final and appealable because it did not dispose of CCS' counterclaim for attorney's fees. Therefore, we dismiss the appeal for lack of jurisdiction.

ROSE VELA

Justice

 

Memorandum Opinion delivered and

filed this 9th day of August, 2007.