McClennahan v. First Gibraltar Bank

791 S.W.2d 607, 1990 Tex. App. LEXIS 1791, 1990 WL 100893

• Court: Court of Appeals of Texas
• Decided: June 11, 1990
• Docket: 05-89-01337-CV
• Status: Published

Opinions

OPINION

ENOCH, Chief Justice.

First Texas Savings Association sued Claude R. McClennahan on his guaranty of two promissory notes. First Gibraltar Bank, F.S.B., as successor to First Texas, was substituted as plaintiff. McClennahan asserted several affirmative defenses and counterclaims. The trial court entered summary judgment for First Gibraltar. At oral argument, McClennahan challenged this court’s jurisdiction of this appeal, and argued that the trial court’s summary judgment was not a final judgment because it failed to dispose of his counterclaims. We agree with McClennahan that the trial court’s judgment is interlocutory. Accordingly, we dismiss this appeal for want of jurisdiction.

Because of its fundamental nature, the question of a court’s jurisdiction, once raised, must be addressed. Marshall v. Brown, 635 S.W.2d 578, 580 (Tex.App.—Amarillo 1982, writ ref’d n.r.e.). If this court has no jurisdiction of this appeal, then the appeal must be dismissed. Marshall, 635 S.W.2d at 581.

To he appealable, an order must be final.¹ Teer v. Duddlesten, 664 S.W.2d 702, 703 (Tex.1984) (on motion for reh’g). A judgment is a final judgment if it disposes of all the remaining claims of all the parties involved so that no future action by the trial court is necessary to conclude the case. Id. Having failed to dispose of any pending claim leaves the judgment, no matter how entitled, interlocutory. In re Marriage of Johnson, 595 S.W.2d 900, 902 (Tex.Civ.App.—Amarillo 1980, writ dism’d w.o.j.).

The trial court’s summary judgment reads in relevant part:

FINAL SUMMARY JUDGMENT

On June 30, 1989, came on for consideration the Motion for Summary Judgment of First Gibraltar Bank, F.S.B., and the Court having considered same and the matters on file before the Court and the argument of counsel for both parties, is of the opinion that the Motion is well taken and that Plaintiff First Gibraltar Bank, F.S.B. is entitled to final summary judgment.

IT IS, THEREFORE, ORDERED, ADJUDGED AND DECREED that Plaintiff First Gibraltar Bank, F.S.B. recover of and from Defendant Claude R. McClen-nahan, Jr. the sum of $3,537,322.27, together with prejudgment interest in the sum of $537,554.94, for a total of $4,074,-877.10, all of which shall bear interest at the rate provided by law from this date forward until paid;

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that Plaintiff First Gibraltar Bank, F.S.B. recover of and from Defendant Claude R. McClen-nahan, Jr. the sum of $100,000 in attorneys’ fees; and should this case be appealed to the Texas Court of Civil Appeals, the additional sum of $10,000; and should this case be appealed to the Supreme Court of Texas, the additional sum of $5,000; as well as all costs of court expended herein by Plaintiff. Let execution issue for all of the aforementioned sums.

Although the motion before the court presented all pending claims, the summary judgment grants only the affirmative relief First Gibraltar sought. The summary judgment is silent on McClennahan’s counterclaims.² An order granting summary judgment as to one claim but not disposing of a counterclaim is an interlocutory judgment. Chase Manhattan Bank, N.A. v. Lindsay, 787 S.W.2d 51, 52 (1990) (per curiam on motion for reh’g). We conclude, therefore, that the trial court’s summary judgment is interlocutory and non-appeal-able.

The appeal of First Gibraltar is DISMISSED for want of jurisdiction.

WHITHAM, J., concurs.

1 . Some interlocutory orders are appealable as provided by statute, but we are not presented with such an order in this case.

2 . The concurring opinion agrees with the result reached by the majority and further agrees in toto with the rationale. The point of the concurring opinion is to "reach out and touch” Cockrell v. Central Savings & Loan Association, 788 S.W.2d 221 (Tex.App.—Dallas 1990, no writ). The judgment in Cockrell reads in pertinent part:

IT IS THEREFORE ORDERED, ADJUDGED and DECREED by this court that the Motion for Summary Judgment of the Plaintiff be and the same is hereby granted,....

There is no question that the Cockrell judgment granted plaintiffs motion in its entirety. There is no language in the judgment in this case where the court “grants,” "adjudges,” or “decrees” a judgment on the motion. In fact, the concurring opinion, without any basis in law, has to “assume” that the language in the summary judgment before the Court in this case, which recites that the “motion is well taken and that First Gibraltar is entitled to a final judgment,” has the same force as, "the Motion for Summary Judgment ... is ... granted," in an attempt to get at Cockrell. On this score, we do not equate, nor have we found any other court equating, a recital by a court that “the motion is well taken” with a decree by a court that “the motion is granted.” To the contrary, cases are legion on the difference between recitations in a judgment and its “decrees.” See, e.g., Ellis v. Mortgage & Trust, Inc., 751 S.W.2d 721, 724 (Tex.App.—Fort Worth 1988, no writ); Chandler v. Reder, 635 S.W.2d 895, 897 (Tex.App.—Amarillo 1982, no writ) (op. on reh’g).