Gilchrist v. Bandera Electric Cooperative, Inc.

924 S.W.2d 388, 1996 WL 121107

• Court: Court of Appeals of Texas
• Decided: May 16, 1996
• Docket: 04-94-00547-CV
• Status: Published

Opinions

CHAPA, Chief Justice.

Appellant Gilchrist appeals a summary judgment granted in favor of appellee, Band-era Electric Cooperative, Inc., on á contract claim. Under long-standing precedent, the dispositive issue is whether the summary judgment, which purports to be a final ap-pealable order, properly disposed of all issues and parties. Tex.R.App.P. 90(a).

The record reflects a claim made by appel-lee against appellant based on a rental contract, and counterclaims by appellant for breach of contract, deceptive and unfair trade practices, antitrust violations, and coercion. Appellee’s motion for summary judgment stated that it “embraces [appellee’s] entire claim against [appellant].” The motion for summary judgment, however, fails to mention appellant’s counterclaims at all.

The standards for reviewing summary judgment are well settled. They are as follows:

1. The movant for summary judgment has the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law.

2. In deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the non-movant will be taken as true.

3. Every reasonable inference must be indulged in favor of the non-movant and any doubts resolved in its favor.

Goswami v. Metropolitan Sav. & Loan Ass’n, 751 S.W.2d 487, 491 (Tex.1988).

The defendant’s burden of proof in a summary judgment is to show as a matter of law that the plaintiff has no cause of action against him. Citizens First Nat'l Bank v. Cinco Exploration Co., 540 S.W.2d 292, 294 (Tex.1976); Gaddis v. Smith, 417 S.W.2d 577, 582 (Tex.1967). “The trial court may not grant a summary judgment by default for lack of an answer or response to the motion by the non-movant when the movant’s summary judgment proof is legally insufficient.” City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex.1979). Motions for summary judgment “stand or fall on the grounds specifically set forth in the motion(s).” Ortiz v. Spann, 671 S.W.2d 909, 914 (Tex.App.—Corpus Christi 1984, writ ref'd n.r.e.) (op. on reh'g) (emphasis added). The Texas Supreme Court has indicated the urgency of specificity in motions for summary judgments:

It is axiomatic that one may not be granted judgment as a matter of law on a cause of action not addressed in a summary judgment proceeding. In City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex.1979), we wrote, “The movant ... must establish his entitlement to a summary judgment on the issues expressly presented to the trial court by conclusively proving all essential elements of his cause of action or defense as a matter of law.”

Chessher v. Southwestern Bell Tel. Co., 658 S.W.2d 563, 564 (Tex.1983) (emphasis added). In City of Beaumont v. Guillory, 751 S.W.2d 491 (Tex.1988), the supreme court held:

A summary judgment, unlike a judgment signed after a trial on the merits, is presumed to dispose of only those issues expressly presented, not all issues in the case. 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; in the absence of an order of severance, the party against whom an interlocutory summary judgment has been rendered has his right of appeal when and not before such partial summary judgment is merged in a final judgment disposing of all parties and issues.

Id. at 492 (emphasis added); see also, Martinez v. Humble Sand & Gravel, Inc., 875 S.W.2d 311, 312 (Tex.1994) (citing Mafrige v. Ross, 866 S.W.2d 590, 591 (Tex.1993)); Houston Health Clubs, Inc. v. First Court of Appeals, 722 S.W.2d 692, 693 (Tex.1986). “In the absence of a special statute making an interlocutory order appealable, a judgment must dispose of all issues and parties in the ease, including those presented by counterclaims or cross action, to be final and appealable.” New York Underwriters Ins. Co. v. Sanchez, 799 S.W.2d 677, 678 (Tex.1990) (emphasis added).

In Mafrige v. Ross, 866 S.W.2d 590 (Tex.1993), the court stated that “[i]f a summary judgment order appears to be final, as evidenced by the inclusion of language purporting to dispose of all claims or parties, the judgment should be treated as final for purposes of appeal [but] [i]f the judgment grants more relief than requested, it should be reversed and remanded, but not dismissed.” Id. at 592.

In Rodriguez v. Gill, 849 S.W.2d 442 (Tex.App.—San Antonio 1993, no writ), this court stated:

Where a summary judgment order is appealed which is clearly interlocutory on its face, in the absence of an order of severance, the appellate courts should dismiss because the order is nonappealable. Pan American Petroleum Corp. v. Texas Pacific Coal & Oil Co., 159 Tex. 550, 324 S.W.2d 200, 200 (1959); see also City of Beaumont, 751 S.W.2d at 492; Teer v. Duddlesten, 664 S.W.2d 702, 704 (Tex.1984). However, where a summary judgment order is appealed which appears to be final on its face, but which should have been partial and interlocutory, in the absence of an order of severance, the appellate courts should reverse the judgment and remand to the trial court for disposal of all remaining parties and issues in a final appealable order. Teer, 664 S.W.2d at 705. But it should be further noted that where the summary judgment appealed appears to be final on its face but should have been partial and interlocutory, the merits of the appeal are not reached because the proper order which should have been entered is not appealable until “when and not before the same is merged in a final judgment disposing of the whole case.” Pan American Petroleum Corp., 324 S.W.2d at 201; see also Teer, 664 S.W.2d at 704.

The judgment is reversed, and the cause remanded to the trial court for disposal of all issues and parties by a proper final and appealable order, or a proper severance order which will make any partial summary judgment final and appealable.

Rodriguez, 849 S.W.2d at 444; see also Qualia v. Qualia, 878 S.W.2d 339, 340-41 (Tex.App.—San Antonio 1994, writ denied); Uribe v. Houston General Ins. Co., 849 S.W.2d 447, 451 (Tex.App.—San Antonio 1993, no writ); Haun v. Steigleder, 830 S.W.2d 833, 834 (Tex.App.—San Antonio 1992, no writ); 410/West Ave. Ltd. v. Texas Trust Sav., 810 S.W.2d 422, 426 (Tex.App.—San Antonio 1991, no writ); Hancock v. City of San Antonio, 800 S.W.2d 881, 890-91 (Tex.App.—San Antonio 1990, writ denied).

Here, the motion for summary judgment failed to address any of the counterclaims, and therefore, the trial court could not have granted judgment as a matter of law on the counterclaims. Chase Manhattan Bank v. Lindsay, 787 S.W.2d 51, 53 (Tex.1990); Baker v. Hansen, 679 S.W.2d 480, 481 (Tex.1984); Chessher, 658 S.W.2d at 564; Clear Creek Basin Auth., 589 S.W.2d at 678; PHB, Inc. v. Goldsmith, 539 S.W.2d 60 (Tex. 1976); Ortiz, 671 S.W.2d at 914. Further, the counterclaims were not severed, which was necessary to render the judgment on the claims expressly addressed in the motion for summary judgment final and appealable. Guillory, 761 S.W.2d at 492; Chessher, 658 S.W.2d at 564. In the event that the counterclaims are not severable, the summary judgment remains interlocutory until the counterclaims are adjudicated. Chase Manhattan Bank, 787 S.W.2d at 53. Consequently, the trial court should have granted only a partial summary judgment on the claims expressly addressed in the motion. See New York Underwriters, 799 S.W.2d at 678; Guillory, 751 S.W.2d at 491; Chessher, 658 S.W.2d at 564; Ortiz, 671 S.W.2d at 914.

However, the judgment granted by the trial court purports to dispose of all parties and issues, which invokes the jurisdiction of this court to a limited extent. Mafrige, 866 S.W.2d at 592. Since the judgment “grants more relief than requested, it should be reversed and remanded.” Id. The trial court can then dispose “of all issues and parties by a proper final and appealable order, or a proper severance order which will make any partial summary judgment final and appealable.” Rodriguez, 849 S.W.2d at 444.

Although the dissent concedes the counterclaims were not properly disposed of by this summary judgment, it would erroneously affirm what amounts to an interlocutory partial summary judgment, and sever and reverse the counterclaims without regard to whether they may or may not be severable². We recognize that the dissent follows some authority in their interpretation of Mafrige; however, such a holding is erroneous for several reasons.

First, the dissent misinterprets and expands Mafrige without considering the consequences of such a holding. If Mafrige intended to change the appellate procedures of summary judgments as drastically as proposed by the dissent, the Supreme Court would have specifically overruled all of the long-standing precedent which holds otherwise. See Martinez, 875 S.W.2d at 311; New York Underwriters, 799 S.W.2d at 678; Chase Manhattan Bank, 787 S.W.2d at 51; Guillory, 751 S.W.2d at 492; Baker, 679 S.W.2d at 480; Chessher, 658 S.W.2d at 564; Qualia, 878 S.W.2d at 339; Rodriguez, 849 S.W.2d at 444; Uribe, 849 S.W.2d at 451; Haun, 830 S.W.2d at 833; 410/West Ave.Ltd., 810 S.W.2d at 422; Hancock, 800 S.W.2d at 881; Ortiz, 671 S.W.2d at 914. Moreover, if Mafrige intended to authorize the combs of appeal to deal for the first time with the merits of what is actually an unsevered interlocutory partial summary judgment, the Supreme Court would have clearly expressed such intent.

Mafrige, however, neither authorizes the court of appeals to deal with the merits of an unsevered interlocutory partial summary judgment, nor overrules any existing authority to the contrary. Mafrige merely states that “[i]f a summary judgment order appears to be final, as evidenced by the inclusion of language purporting to dispose of all claims or parties, the judgment should be treated as final for purposes of appeal [but] [i]f the judgment grants more relief than requested, it should be reversed and remanded, but not dismissed.” Id. at 592. The dissent improperly utilizes the misreading of Mafrige as authority to impliedly overrule Texas Supreme Court precedent. See, e.g., Martinez, 875 S.W.2d at 311; New York Underwriters, 799 S.W.2d at 678; Chase Manhattan Bank, 787 S.W.2d at 51; Guillory, 751 S.W.2d at 492; Baker, 679 S.W.2d at 480; Chessher, 658 S.W.2d at 564.

Second, without a point of error, a motion to sever, or even an oral request before this court, the dissent would sua sponte sever the counterclaims in order to deal properly with the merits of what is, in fact, an interlocutory partial summary judgment. We can find no authority for such a holding. Furthermore, by sua sponte severing the counterclaims, the dissent would also improperly assume the normal duties of a trial court. Such a holding would require this court to not only assign new cause numbers to the severed counterclaims,³ but to sua sponte consider and evaluate the limitations imposed by law on the granting of such a severance. See, e.g., Tex.R.Civ.P. 97 (requiring that compulsory counterclaims be raised during initial trial involving same transaction or occurrence); Barr v. Resolution Trust Corp, 837 S.W.2d 627, 630-31 (Tex.1992) (requiring all claims in transaction or series of transactions be brought at one time to one final judgment or suffer potential of having claim extinguished under policy of res judicata); Coalition of Cities for Affordable Util. Rates v. Public Util. Comm’n, 798 S.W.2d 560, 564 (Tex.1990) (discussing improper severance), cert. denied sub nom., Gulf States Util. Co. v. Coalition of Cities for Affordable Util. Rates, 499 U.S. 983, 111 S.Ct. 1641, 113 L.Ed.2d 736 (1991); Guaranty Fed. Sav. Bank v. Horseshoe Operating Co., 793 S.W.2d 652, 658 (Tex.1990) (limiting claims that may be properly severed); Wyatt v. Shaw Plumbing Co., 760 S.W.2d 245, 247 (Tex.1988) (defining compulsory counterclaims); Kansas Univ. Endowment Ass’n v. King, 162 Tex. 599, 350 S.W.2d 11, 19 (1961) (stating severance proper only where suit involves two or more separate and distinct causes of action and will be reversed if severance fragments the case instead of splitting it along proper line of cleavage); Mathis v. De La Garza & Assocs., 778 S.W.2d 105, 106 (Tex.App.—Texarkana 1989, no writ) (finding abuse of discretion where compulsory counterclaims were severed); Ryland Group, Inc. v. White, 723 S.W.2d 160, 162 (Tex.App.—Houston [1st Dist.] 1986, no writ) (determining abuse of discretion to sever personal injury and property claims arising from single wrong act); Bohart v. First Nat'l Bank, 536 S.W.2d 234, 236 (Tex.App.—Eastland 1976, writ ref'd n.r.e.) (stating compulsory counterclaims or cross-claims between defendants arising out of and turning on same facts should not be severed); see also McDonald, Texas Civil Practice § 17.25 (1992).

The interpretation of Mafrige proposed by the dissent would create additional and unnecessary complications at the trial court level. For example, complications and confusion would ensue in the trial court upon remand if the severed counterclaims were mandatory and not severable in the first place. The dissent justifies the severance by the authority of Tex.R.App.P. 81(c), which provides:

When the judgment or decree of the court below shall be reversed, the court shall proceed to render such judgment or decree as the court below should have rendered, except when it is necessary to remand to the court below for further proceedings.

However, we remind the dissent that “the judgment or decree the court below should have rendered” here was a partial interlocutory summary judgment, which is not final or appealable. See Martinez, 875 S.W.2d at 311; Guillory, 751 S.W.2d at 492; Chessher, 658 S.W.2d at 564.

Third, authorizing the affirmance of interlocutory partial summary judgments as suggested by the dissent would not only revolutionize appellate summary judgment procedures, but also encourage the piecemeal disposition of lawsuits. The mere preparation of a summary judgment order purporting to dispose of all issues and parties, where all issues and parties were not actually addressed in the motion for summary judgment, would automatically provide a party with a severance at will without the inconvenience of dealing with the laws of interlocutory partial summary judgments, severance, compulsory counterclaims, or the transactional approach to claims. Moreover, such a situation would give rise to the specter of innumerable final judgments stemming from a single lawsuit. Accordingly, the possibility of numerous appealed interlocutory partial summary judgments stemming from one ease would become very real. This practice would create enormous judicial confusion in the interpretation of the maze of final judgments stemming from one occurrence or transaction. In short, the purpose behind the laws of interlocutory partial summary judgments, severance, compulsory counterclaims, and the transactional approach to claims would be frustrated and judicial economy would receive a devastating blow.

Recognizing that the Supreme Court failed to overrule all previous holdings to the contrary in Majrige, the dissent justifies it revolutionary interpretation of Majrige by insisting that the previous holdings were overruled by the Supreme Court sub silencio. However, in Park Place Hosp. v. Estate of Milo, 909 S.W.2d 508 (Tex.1995), the supreme court recently cited Majrige as authority for restating the law existing prior to Majrige regarding the finality and appealability of summary judgments:

The defendants argue that the appellate timetable ran from the issuance of the summary judgment rather than from the signing of the severance order. See Tex.R.App.P. 41(a). We disagree. All parties and all issues before the trial court must be disposed of before a summary judgment becomes final and appealable. See Mafrige v. Ross, 866 S.W.2d 590, 591 (Tex. 1993). The summary judgment in this case did not dispose of the claims against Walkes and Badlissi, and it contained no “Mother Hubbard” clause. Thus, it was not a final, appealable order. See id. at 590-91. Although the plaintiffs had filed notice to nonsuit Walkes, the appellate timetable could not be triggered until a signed, written order of the court dismissed him. See Farmer v. Ben. E. Keith Co., 907 S.W.2d 495 (Tex.1995). Until the trial court rendered its severance order, the summary judgment for the hospital, Dr. Zuzukin, and nurse Jones did not become final and appealable. See Mafrige, 866 S.W.2d at 591. Accordingly, the plaintiffs timely perfected their appeal.

Id. at 510. This gives rise to yet another undesirable consequence of applying the holding of the dissent. Under the «holding of the dissent, an unnecessary confusion would be created regarding the proper application of the appellate timetables which would appear to conflict with the language of the supreme court in Park Place Hospital. Id.; see also Martinez, 875 S.W.2d at 313-14 (discussing application of appellate timetables in situations involving interlocutory summary judgments).

The dissent attempts to distinguish Park Place Hospital by pointing out the existence of a “Mother Hubbard” clause in the present case. The dissent suggests that the inclusion of a “Mother Hubbard” clause in a summary judgment amounts to an all-encompassing procedural safeguard, operating to make any summary judgment final and appealable as to all parties and causes of action, notwithstanding the fact that such relief was not requested. However, subsequent to Majrige, the Supreme Court determined that in spite of a “Mother Hubbard” clause, the order at issue was interlocutory not only as to the defendants who were not included in the original motion for summary judgment, but as to the original movants as well. Martinez, 875 S.W.2d at 313-14. As such, the court determined that the appellate court “should not have taken jurisdiction of the appeal”. Id. at 312. Although the facts of Martinez are not identical to those in the present case, the results are instructive. As demonstrated by Martinez, a “Mother Hubbard” clause does not always in and of itself create a final and appealable summary judgment.

Apparently confused by the holding of the majority, the dissent laments that as a result of the majority opinion, appellees will somehow be deprived of the partial summary judgment which should have been granted by the trial judge. We remind the dissent that the majority opinion clearly points out to the trial court that a partial summary judgment is the judgment which should have been entered, that such a judgment is not final or appealable, and that it can be made final and appealable by proper severance or the disposal of all remaining issues and parties. There is no reason why a simple reading of this opinion by the trial court would necessarily result in a deprivation of the partial summary judgment which should have been rendered in the first place. The trial court retains jurisdiction to enter a final and ap-pealable judgment which may, if proper, include the same partial summary judgment and a severance or the same partial summary judgment and a final judgment disposing of all remaining issues and parties.

The judgment is reversed and remanded to the trial court to dispose of all the issues and parties in a proper final and appealable judgment. Mafrige, 866 S.W.2d at 590.

2 . The dissent attempts to suggest nonexistent inconsistencies between Stroud v. VBFSB Holding Corp., 901 S.W.2d 657, 661 (Tex.App.—San Antonio 1995), superseded on rehearing by, 917 S.W.2d 75 (Tex.App.—San Antonio, 1996, n.w.h.), Rosales v. H.E. Butt Groc. Co., 905 S.W.2d 745 (Tex.App.—San Antonio 1995, writ denied), and the majority opinion in this case.

In Stroud, this court held that where the finality of a summary judgment depended entirely on an improper severance, it was an unappealable interlocutory summary judgment which should be dismissed for lack of jurisdiction. Upon rehearing, the court determined the summary judgment final and appealable after taking notice of a judgment dismissing the improperly severed issues. The court then disposed of the summary judgment on its merits.

Rosales involved the granting of an improper change of venue and a subsequent summary judgment purporting to dispose of all issues and parties. Following Mafrige, this court assumed jurisdiction, concluded that the initial motion for a change venue was improperly granted, and reversed without reaching the issue of the summary judgment.

We are unable to detect any inconsistencies between these holdings and the present majority opinion.

3 . The assignation of new cause numbers would be mandatory as the law is clear that there can be only one final and appealable judgment in a single cause of action. Tex.R.Civ.P. 301; see also Wang v. Hsu, 899 S.W.2d 409, 411 (Tex.App.—Houston [14th Dist.] 1995, writ denied); Ferguson v. Naylor, 860 S.W.2d 123, 127 (Tex.App.—Amarillo 1993, writ denied); State v. $2,000,000, 822 S.W.2d 721, 725 (Tex.App.—Houston [1st Dist.] 1991, no writ). Therefore, if the courts of appeal are to address the merits of what amounts to a partial summary judgment and remand the unaddressed issues and parties to the trial court for further proceedings, severance must necessarily take place.