Belinda Bennett D/B/A Belinda Bennett Designs v. F. Schumacher & Company

In The Court of Appeals Sixth Appellate District of Texas at Texarkana ______________________________ No. 06-03-00002-CV ______________________________ BELINDA BENNETT, d/b/a BELINDA BENNETT DESIGNS, Appellant V. F. SCHUMACHER & CO., Appellee On Appeal from the County Court at Law Gregg County, Texas Trial Court No. 2002-1369-CC Before Morriss, C.J., Ross and Carter, JJ. Memorandum Opinion by Justice Ross MEMORANDUM OPINION Belinda Bennett, d/b/a Belinda Bennett Designs, appeals from a summary judgment rendered in a lawsuit brought against her on a sworn account. The court awarded F. Schumacher & Co. $4,388.32 in damages, as shown by its accounts payable affidavit, and $1,462.78 in attorney's fees pursuant to the affidavit of Schumacher's attorney. Bennett contends that the summary judgment should be reversed because it was not final due to her pending counterclaim and that the judgment was improperly granted because, despite the absence of a response, Schumacher did not provide adequate proof to support its claim. We first address the issue of finality. Schumacher's pleadings and motion for summary judgment are based on allegations Bennett failed to pay for items purchased from Schumacher. The motion for summary judgment is supported by an affidavit and accounting specifying the amount owing. Bennett did not file a response to the motion for summary judgment and thus did not controvert the evidence. She did, however, file a counterclaim in which she claimed that the amount was not due and owing because of her claim she had received defective products in a different and later purchase made from Schumacher, and that she was entitled to offset their claims by the amount for which she was billed for the later purchase, along with the cost of installation of the defective product. As correctly pointed out by Schumacher, Bennett's claim is for a setoff, which is defined as a counterdemand by a defendant against a plaintiff, which arises from a transaction independent of the plaintiff's claim. Black's Law Dictionary 1376 (7th ed. 1999). She did not claim a setoff within the claim raised by Schumacher and has not provided any evidence or argument that the claim is not valid. She claims, instead, that the amount due should be offset by an amount calculated in connection with a separate transaction. The immediate question, however, is not whether the trial court correctly granted judgment on the sworn account, but whether the existence of her counterclaim within the lawsuit prevents the judgment from being final. Appeals are allowed only from final orders or judgments. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001). A judgment is final if it disposes of all pending parties and claims in the record. Jack B. Anglin Co. v. Tipps, 842 S.W.2d 266, 272 (Tex. 1992); see Clark v. Pimienta, 47 S.W.3d 485, 486 (Tex. 2001). A final judgment is not required to be in any particular form, and we therefore must determine whether a decree is a final judgment from its language and the record in the case. Lehmann, 39 S.W.3d at 195. Even a "Mother Hubbard" clause alone does not indicate that a judgment rendered without a conventional trial is final for purposes of appeal. Guajardo v. Conwell, 46 S.W.3d 862, 863-64 (Tex. 2001); Lehmann, 39 S.W.3d at 204. If the judgment is not final, then it is not appealable, and we would have no option but to dismiss the appeal for want of jurisdiction. See Lehmann, 39 S.W.3d at 195. The motion for summary judgment was based solely on Schumacher's sworn account. It did not address the counterclaim; indeed, it could not have, because the counterclaim was filed after the motion. Thus, the motion provides no support for an argument of finality. The judgment itself does not refer to the counterclaim, and we need not parse the possible meaning of a "Mother Hubbard" clause, because there is none. No severance of the counterclaim was requested, and none was granted. We also cannot conclude it was impliedly disposed of by the judgment because the counterclaim does not directly address the correctness of the sworn account, but instead argues that, even if it is correct, a setoff should be applied because of a different transaction between the parties. At the time the court granted summary judgment, there was a counterclaim in place which was not addressed by the judgment and was not severed. Under these circumstances, we must conclude the judgment is not final. We dismiss the appeal for want of jurisdiction. Donald R. Ross Justice Date Submitted: July 8, 2003 Date Decided: August 7, 2003