American Home Assur. Co. v. Hemperley

Court of Appeals of Texas,

Texarkana.

AMERICAN HOME ASSURANCE COMPANY, Appellant

v.

Tiffany S. HEMPERLEY, Appellee.

No. 06-04-00065-CV.

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Submitted Feb. 10, 2005.

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Decided Feb. 11, 2005.

On Appeal from the 102nd Judicial District Court, Bowie County, Texas, Trial Court No. 03C0698-102, John F. Miller, Jr., Judge.

Attorneys & Firms

Michelle D. Lopez, Hoffman Kelley, LLP, Dallas, for appellant.

Kevin McCarter, Jefferson, for appellee.

Before CARTER, JJ.

MEMORANDUM OPINION

Memorandum Opinion by Justice ROSS.

*1 This is an appeal by American Home Assurance Company (AHAC) from a summary judgment. Appellee, Tiffany Hemperley, asks this Court to dismiss the appeal for want of jurisdiction because the summary judgment does not dispose of all the issues to the litigation.

Hemperley was employed at Wal-Mart and filed for worker’s compensation benefits for an injury on the job alleged to have occurred August 5, 2002. AHAC, Wal-Mart’s workers’ compensation insurance carrier, disputed Hemperley’s claim, but not within seven days after receiving written notice of the injury.¹ Hemperley pursued her administrative remedies before the Workers’ Compensation Commission. On November 12, 2002, a benefit review conference² was held to mediate resolution of the disputed issues, but the parties were unable to reach an agreement. A contested case hearing³ was held before a hearing officer January 2, 2003.

AHAC appealed the decision of the hearing officer to an appeals panel.⁴ The appeals panel affirmed the decision of the hearing officer. AHAC filed suit seeking judicial review⁵ April 25, 2003. AHAC and Hemperley filed motions for summary judgment. The trial court granted Hemperley’s motion and denied AHAC’s motion, and ordered a hearing to be set to determine attorney’s fees. AHAC appeals.

The general rule is that a final and appealable judgment must determine the entire controversy, disposing of all the parties and issues in a case. City of Beaumont v. Guillory, 751 S.W.2d 491, 492 (Tex.1988). A summary judgment that fails to dispose expressly 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. Id. In the absence of an order of severance, the party against whom an interlocutory summary judgment has been rendered has his or her right of appeal when, and not before, such partial summary judgment is merged in a final judgment disposing of all parties and issues. Id.

In the present case, the summary judgment against AHAC did not dispose of the issue of attorney’s fees. The record does not show that the trial court ever set a hearing date to decide on the attorney’s fees, nor does the record show the issue was severed for a separate trial. Thus, this is an interlocutory appeal, a nonappealable judgment.

Accordingly, AHAC’s appeal is dismissed for want of jurisdiction.