Kaigler v. General Electric Mortgage Insurance Corp.

961 S.W.2d 273, 1997 WL 297591
CourtCourt of Appeals of Texas
DecidedJanuary 29, 1998
Docket01-95-00566-CV
StatusPublished
Cited by24 cases

This text of 961 S.W.2d 273 (Kaigler v. General Electric Mortgage Insurance Corp.) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kaigler v. General Electric Mortgage Insurance Corp., 961 S.W.2d 273, 1997 WL 297591 (Tex. Ct. App. 1998).

Opinions

OPINION

HEDGES, Justice.

The issue in this appeal is whether a Mother Hubbard clause in a summary judgment [274]*274disposes of all parties and all issues in a case. We conclude that the answer is yes.

Appellant, Floyd Lee Kaigler, appeals a summary judgment rendered in favor of ap-pellee, General Electric Mortgage Insurance Corporation (GEMICO), in a deficiency action on a promissory note after a foreclosure sale. In three points of error, Kaigler contends that the trial court erred in rendering summary judgment in favor of GEMICO. We dismiss the appeal for want of jurisdiction.

FACTS

Floyd Kaigler and his former wife, Katherine Keys Kaigler (now Reeves), executed a promissory note payable to Criterion Financial Corporation (Criterion) in the original principal sum of $94,900 plus interest for a mortgage loan to purchase a residence. They also executed a deed of trust in favor of Criterion covering the real property to secure the debt. General Electric Mortgage Securities Corporation (GEMSCO) later purchased Criterion’s interest in the note and deed of trust. When the Kaiglers defaulted on payment of the note, GEMSCO accelerated the debt. After the Kaiglers did not pay, GEMSCO gave notice of a foreclosure sale and purchased the property at the sale for an amount less than the balance due. GEM-SCO later transferred the property to GEM-ICO for the full amount of the Kaiglers’ debt, thereby giving GEMICO the right to collect the deficiency amount.

GEMICO filed suit for the deficiency amount, and the Kaiglers answered by general denial. Katherine Kaigler later filed a second amended answer, a counterclaim against GEMICO, and a cross-claim against Floyd Kaigler. On January 31,1994, GEMI-CO moved for summary judgment against Floyd Kaigler only. On April 22, 1994, the trial court signed a summary judgment order containing a Mother Hubbard clause in favor of GEMICO.

On August 25, 1994, the court signed an order dismissing defendant Katherine Kai-gler from the original suit without prejudice, dismissing counterdefendant GEMICO without prejudice, and expressly reserving Katherine Kaigleris claims against cross-defendant Floyd Kaigler. The court’s order dated February 3, 1995, severed the summary judgment in favor of GEMICO against Floyd Kaigler from the cross-claim action of Katherine Kaigler against Floyd Kaigler. On March 6, 1995, Floyd Kaigler filed a motion for new trial. After a hearing on April 7, 1995, the trial court overruled his motion. Floyd Kaigler then filed his appeal bond on May 4,1995.

In three points of error, Floyd Kaigler asserts that the trial court erred in rendering summary judgment for GEMICO because: (1) GEMICO’s affidavits in support of the motion for summary judgment were defective and void; (2) he raised questions of fact as to whether GEMICO’s cause of action was barred by limitations; and (3) he raised questions of fact as to whether GEMICO had improperly accelerated the promissory note under the Property Code.

We address appellee’s reply point that this Court has no jurisdiction to consider Floyd Kaigler’s appeal because it was not timely perfected.

Jurisdiction and Timeliness of the Appeal

GEMICO contends that the summary judgment signed by the trial court on April 22, 1994 was a “final” judgment and that because Floyd Kaigler did not file his appeal bond until May 4,1995, his attempt to invoke the jurisdiction of this Court was of no effect. Therefore, it argues, this appeal must be dismissed. See Tex.R. Civ. P. 329(a); Tex. RApp. P. 41(a). We agree.

In order to be a final, appealable summary judgment, the order granting the motion must dispose of all parties and all issues before the court. Mafrige v. Ross, 866 S.W.2d 590, 591 (Tex.1993). If the order does not dispose of all issues and all parties, it is interlocutory and therefore not appeal-able absent a severance. Id. If a summary judgment order appears to be final, however, as evidenced by language purporting to dispose of all claims or parties, the judgment should be treated as final for purposes of appeal. Id. at 592. If the judgment grants more relief than requested and a timely appeal is perfected, the summary judgment should be reversed and the cause remanded [275]*275instead of dismissing the cause for want of jurisdiction. Id,

The supreme court recently reaffirmed that a summary judgment is final and appeal-able even when it erroneously grants more relief than was requested in the motion for summary judgment if the summary judgment contains a Mother Hubbard clause or similar language. Inglish v. Union State Bank, 945 S.W.2d 810, 811 (1997). When the nonmovant for summary judgment is confronted with such an order, the nonmovant must either (1) ask the trial court to correct the erroneous summary judgment while the trial court retains plenary power over its judgment, or (2) perfect a timely appeal. Id,; Sheerin v. Exxon Corp., 939 S.W.2d 227, 228 (Tex.App.—Houston [1st Dist.] 1997, no writ). If the nonmovant does neither, the erroneous summary judgment becomes final and unappealable. Inglish, 945 S.W.2d at 811; Sheerin, 939 S.W.2d at 228.

Before Mafrige, the parties and the appellate courts had to look at the live pleadings, the motion for summary judgment, and the summary judgment order to determine whether the order was final for purposes of appeal. In North East Independent School District v. Aldridge, the supreme court held that the problem in determining whether a summary judgment order is final for purposes of appeal could be eliminated by including a simple statement that “all relief not expressly granted is denied.” North East Indep. Sch. Dist. v. Aldridge, 400 S.W.2d 893, 898 (Tex.1966). Aldridge went on to say:

When a judgment, not intrinsically interlocutory in character, is rendered and entered in a ease regularly set for a conventional trial on the merits ..., it will be presumed for appeal purposes that the Court intended to, and did, dispose of all parties legally before it and of all issues made by the pleadings between such parties.

Id. at 897-98.

In Mafrige, the supreme court made it clear that when a Mother Hubbard clause is included in a summary judgment order, the parties and the appellate courts need look only to the four corners of the summary judgment order to determine finality. Mafrige, 866 S.W.2d at 592. In order to avoid a seemingly harsh result, courts of appeals wrote around Mafrige, refusing to apply it even when it seemed to be clearly applicable.1 This circumvention did nothing but frustrate the purpose of Mafrige and blur its “bright line” test. In Inglish, the supreme court confirmed that Mafrige means what it says. Counsel who fail to perfect timely appeals from summary judgments that contain “Mother Hubbard” language or its equivalent do so at great risk to themselves and their clients.

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961 S.W.2d 273, 1997 WL 297591, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kaigler-v-general-electric-mortgage-insurance-corp-texapp-1998.