FRESH COAT, INC., Appellant v. LIFE FORMS, INC., Appellee, 125 S.W.3d 765

OPINION TERRY JENNINGS, Justice. Appellant, Fresh Coat, Inc. (Fresh Coat), challenges the trial court’s rendition of

summary judgment in favor of appellee, Life Forms, Inc. (Life Forms). Prior to the submission of briefing on the merits by either party, Life Forms filed a motion with this Court seeking to dismiss this appeal for want of jurisdiction. In its motion to dismiss, Life Forms contends that Fresh Coat failed to timely appeal from the trial court’s final judgment and that, as a result, this Court lacks jurisdiction over this appeal. We dismiss the appeal for want of jurisdiction. Procedural Background Fresh Coat and Life Forms were originally parties to a class-action lawsuit pending in the trial court below.

The plaintiffs in that lawsuit asserted causes of action for alleged defects in the design of residential and commercial exterior insulation finish systems. Life Forms, a home builder, contracted with Fresh Coat to have Fresh Coat construct and apply such finish systems on Life Forms’s homes. After it was made a party to the class-action lawsuit, Life Forms asserted claims for indemnity against Fresh Coat. On October 30, 2002, the trial court signed an agreed order severing Life Forms’s claims against Fresh Coat into the cause on appeal.

As part of its severance order, the trial court instructed the parties as follows: “Life Forms and Freshcoat [sic] agree that their claims can be decided on the papers with Life Forms fifing its motion on or before 12/2/02 and Freshcoat [sic] filing its response on or before 12/12/02.” In the severed cause, Life Forms subsequently filed its “Second Amended Fourth Party Petition” alleging claims against Fresh Coat for (1) common-law indemnity; (2) contractual indemnity, based on the provisions of the parties’ contract; and (3) statutory indemnity, based on Life Forms’s alleged status as an “innocent retailer.” Life Forms then filed a motion for

summary judgment arguing that, as a matter of law, under the provisions of the parties’ contract,

(1) Fresh Coat was obligated to defend and indemnify Life Forms from the claims against it in the class-action lawsuit,

(2) Fresh Coat’s obligation to indemnify Life Forms was triggered by the claims brought against it in that lawsuit, and

(3) Fresh Coat was obligated to reimburse Life Forms for its attorney’s fees and costs incurred, and settlements paid, as a result of that lawsuit. As exhibits to its motion for

summary judgment, Life Forms attached affidavits and other records documenting its claim for attorney’s fees, costs, and settlements totaling $186,819.48 paid as a result of the claims brought against Life Forms in the class-action lawsuit and incurred in pursuit of its indemnity claims against Fresh Coat. In its motion for

summary judgment, Life Forms did not seek

summary judgment on its common-law and statutory indemnity claims. Fresh Coat filed a response to the motion for

summary judgment and disputed Life Forms’s contractual indemnity claims. On March 7, 2003, the trial court signed a “Final Judgment” which reads as follows: The Court has considered and decided to grant Life Forms Incorporated’s Motion for

Summary Judgment. [Ljife Forms Incorporated’s Motion for

Summary Judgment is granted. It is ADJUDGED that Life Forms, Incorporated have and recover judgment against Fresh[ ]Coat, Inc. for $186,819.43, together with all costs of court and interest on this judgment at the rate of ten percent (10%) per annum from the date of judgment until paid. This is a final judgment disposing of all parties and all issues. All relief not expressly granted is denied.

In June 2003, Fresh Coat filed a “Motion for Entry of Appealable Judgment” in which it argued that, because the trial court’s March 7, 2003 judgment did not dispose of all pending claims, it was not a final, appealable judgment. In its motion, Fresh Coat requested that the trial court sign a judgment that “clearly and unequivocally” disposed of the entire case. Following a hearing, the trial court denied the motion, for want of jurisdiction, on July 7, 2003. The following day, Fresh Coat filed its notice of appeal from the trial court’s March 7, 2003 judgment.

Finality of the Judgment In its motion to dismiss this appeal, Life Forms argues that the trial court’s March 7, 2003 judgment was a final and appealable judgment because it clearly and unequivocally disposed of all parties and claims pending in the trial court. Additionally, Life Forms argues that, to the extent the trial court’s judgment granted more relief than Life Forms was entitled to receive, the judgment was arguably erroneous, but final and appealable nonetheless.

It is well-established that, in general, an appeal may be taken only from a final judgment; that is, a judgment that disposes of all pending parties and claims. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex.2001). The intent to finally dispose of the case must be unequivocally expressed in the words of the judgment itself. Id. at 200. If that intent is clearly expressed in the judgment, then the order is final and appealable, even though the record does not provide an adequate basis for rendition of judgment. Id.

In Leh-mann, the court conceded that, to determine whether an order disposes of all pending claims and parties, an appellate court may also look to the record from the court below. Id. at 205-06. The judgment at issue here, entitled “Final Judgment,” contains a “Mother Hubbard” clause, e.g., “All relief not expressly granted is denied.” See id. at 203. The Texas Supreme Court has held that the inclusion of such language, standing alone, does not indicate finality in a judgment rendered, as here, without a conventional trial on the merits. Id. at 203-04.

The judgment also clearly states that it “is a final judgment disposing of all parties and all issues.” Fresh Coat argues that this language is not an unequivocal statement of finality, and in support of its argument relies on the Texas Supreme Court’s suggestion in Lehmann that, to avoid any doubt as to the finality of its judgment, a trial court could include a statement such as, “ ‘This judgment finally disposes of all parties and all claims and is appealable.’ ” Id. at 206 (emphasis added).

Here, however, the fact that the trial court did not expressly state that its judgment was “appealable” does not render the court’s intent ambiguous. The issue presented to the trial court by Life Forms’s motion for

summary judgment was whether Fresh Coat was contractually obligated to indemnify Life Forms for the attorney’s fees, costs, and settlements incurred and paid by Life Forms as a result of the class-action lawsuit. In its judgment, the trial court awarded, to the penny, the amount of damages which Life Forms claimed it was entitled to recover from Fresh Coat, and the trial court could not have granted any more relief to Life Forms than it did.

This judgment clearly and finally disposed of all parties and all pending claims because Life Forms could recover no more than the amount awarded in the judgment, which was everything it sought. Moreover, the Texas Supreme Court has suggested that, in a case in which we are uncertain about the trial court’s intent in signing a judgment, we may abate the appeal to permit clarification by the trial court. Id. (citing Tex.R.App. P. 27.2).

We need not do so in this case because, at the hearing on Fresh Coat’s “Motion for Entry of Appealable Judgment,” the trial court stated as follows: “I believe it was a final judgment. You are asking me about my belief. My belief was it was a final judgment.” Additionally, the trial court denied Fresh Coat’s motion “for lack of trial court jurisdiction.” Thus, the record indicates that the trial court clearly and unequivocally expressed its intent to dispose of all parties and pending claims in its March 7, 2003 judgment.

Finally, as the Texas Supreme Court has noted, “An express adjudication of all parties and claims in a case is not interlocutory merely because the record does not afford a legal basis for the adjudication. In those circumstances, the order must be appealed and reversed.” Id. If Fresh Coat had any question as to the finality of the trial court’s judgment, it could have either requested that the trial court clarify its judgment while the court retained plenary power or perfected a timely appeal from the judgment. It did neither.

Based on the language of the trial court’s March 7, 2003 judgment and the record presented, we hold that, as of the date it was signed, the judgment was a final and appealable judgment disposing of all parties and pending claims. Accordingly, because Fresh Coat did not file its notice of appeal within 30 days of the date the judgment was signed, and did not seek an extension of its appellate deadlines, it has not timely perfected its appeal in this cause and has not properly invoked this Court’s appellate jurisdiction. See Tex. R.App. P. 26.1.

Conclusion We grant Life Forms’s motion and dismiss the appeal for want of jurisdiction. . The original matter is styled McCray, et al. v. Parex, Inc., et al., No. 98-25256, in the 295th Judicial District Court of Harris County, Texas. . Fresh Coat did not present any affirmative claims for relief against Life Forms. . See Tex Civ. Prac. & Rem Code Ann. § 82.002 (Vernon 1997); Tex Bus. & Com.Code Ann. § 17.555 (Vernon 2002). . Fresh Coat did not file a motion for new trial or request that the trial court prepare findings of fact and conclusions of law. See Tex.R.App. P. 26.1(a).