# Ross v. Arkwright Mutual Insurance Co.

> Court of Appeals of Texas · June 18, 1992 · 834 S.W.2d 385

URL: https://www.frixlaw.com/law-library/cases/9640385

## Case

- **Full name:** James E. ROSS and J. Douglas Sutter, Appellants, v. ARKWRIGHT MUTUAL INSURANCE COMPANY Formerly Named Arkwright-Boston Manufacturers Mutual Insurance Co., Mutual Marine Office, Inc., Brice Leon, Felix Salgado, Jr., Gonzalo Sosa, Charles R. Lipcon, Stevens F. Mafrige, Ronald Kormanik, Mafrige & Kormanik, P.C., Thomas N. Thurlow, Thomas A. Brown, G. Byron Sims and Brown, Sims, Wise & White, P.C., Appellees
- **Court:** Court of Appeals of Texas
- **Decided:** June 18, 1992
- **Citations:** 834 S.W.2d 385; 1992 WL 91425
- **Precedential status:** Published
- **Opinion:** On rehearing
- **Judges:** Pressler, Murphy, Cannon
- **Cited by:** 9 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Reversed by Mafrige v. Ross, 866 S.W.2d 590 (1994).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9640385

## Opinion text

OPINION ON MOTION FOR REHEARING
Lipcon, the Brown group, and the Maf-rige group filed motions for rehearing alleging this court’s opinion conflicts with our decision in Merrill Lynch Relocation Management v. Powell, 824 S.W.2d 804 (Tex.App. — Houston [14th Dist.] 1992, orig. proceeding). Appellants are incorrect and the motions for rehearing are overruled.
*395 In Merrill Lynch, this court held that a summary judgment order containing “take nothing” language disposed of a counterclaim not specifically addressed in the motion for summary judgment. Id. at 806 . Appellants argue that this conflicts with our holding in the present case that the phrase “take nothing” does not constitute Mother Hubbard language, which indicates the summary judgment disposed of all issues and parties. Appellants, however, have failed to carefully read the opinion in this case and the court’s opinion in Merrill Lynch, and have selectively quoted from Merrill Lynch. The summary judgment order in Merrill Lynch stated:
[Ajfter considering such Motion, “Defendants ’/Counter-Plaintiffs ’ Opposition to Plaintiff s/Counter-Defendant’s Motion for Summary Judgment” filed herein on July 8, 1988, the deposition transcripts and trial testimony referenced in the Motion and the response thereto, the pleadings, admissions and affidavits of the parties, and the argument of counsel, [the Court] was of the opinion that such Motion was well taken and should be granted.
It is accordingly ordered ... that [Bryan] take nothing by their counterclaim.
Id. (emphasis in the original). After quoting the entire order in Merrill Lynch, this court stated that the order clearly disposed of the causes not addressed in the motion for summary judgment because the order specifically recited that the trial court considered Bryan’s response to the motion for summary judgment. This response referenced and attached as an exhibit, Bryan’s amended answer and counterclaim. Thus, in considering the response, the trial court also considered the amended answer and counterclaim. Accordingly, the summary judgment could and did dispose of all causes of action, even those not addressed in the motion. Id.
In this case, we held that, based on the Supreme Court’s holdings in Teer and Chessher, a summary judgment is final and appealable where the judgment on its face purports to be a final judgment, such as where the summary judgment order specifically refers to all issues and parties, or contains a Mother Hubbard clause. See Teer, 664 S.W.2d at 704-05; Chessher, 658 S.W.2d at 564. The order in Merrill Lynch specifically referred to all issues and parties by referencing motions or responses raising all issues. The order in this case, however, simply recited that plaintiffs should take nothing and should pay costs. There was no specific reference to the unaddressed issues or to any summary judgment documents raising those issues. Furthermore, there was no Mother Hubbard clause. Thus, appellants are incorrect in asserting that this court’s holding in Merrill Lynch conflicts with the holding in this case.
Appellants’ motions for rehearing are overruled.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9640385. Public record. Not legal advice.