Peveto v. D'ENTREMONT

Court of Appeals of Texas

Peveto v. D'ENTREMONT

900 S.W.2d 142, 1995 WL 340639

CourtCourt of Appeals of Texas

DecidedJune 22, 1995

Docket09-93-272 CV

StatusPublished

Cited by3 cases

This text of 900 S.W.2d 142 (Peveto v. D'ENTREMONT) 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.

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Peveto v. D'ENTREMONT, 900 S.W.2d 142, 1995 WL 340639 (Tex. Ct. App. 1995).

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OPINION

BURGESS, Justice.

This is an appeal from a summary judgment. Joseph D’Entremont and Joe W. Bolton, Jr., conveyed a commercial building to Nathalie Peveto, who executed a non-recourse wraparound note and deed of trust. D’Entremont filed suit for injunction and attachment of rents Peveto’s tenants were paying on the property. The live pleadings at the time of the summary judgment hearing consisted of: 1) a tort claim for conversion of rentals collected by Peveto between the date she defaulted on the note by failing to pay the property taxes and the date of entry of an agreed order attaching the rents; 2) a claim for breach of contract, including past due installments on the note, unpaid property taxes, interest, and attorney fees; and 3) Peveto’s counterclaim for attorney fees.

In 1991, the trial court denied motions for summary judgment filed by both parties. D’Entremont filed a second motion for summary judgment in 1993. The trial court granted summary judgment as to the conversion claim. The summary judgment is silent both as to D’Entremont’s breach of contract claim and any pleadings or motions by Peve-to. The court’s summary judgment does not contain a “Mother Hubbard” clause directing that all relief not granted therein is expressly denied. Although D’Entremont’s motion for summary judgment requested judgment on both his contract and tort claim, the judgment, which considered only the “Plaintiffs Second Amended Motion for Summary Judgment,” awarded only the converted rentals. Peveto raises four points of error on appeal.

Since the breach of contract claim and the counterclaim for attorney fees were neither granted in the summary judgment, nor dismissed by the parties, nor tried on their merits, we must conclude that all of the [144]*144issues before the trial court were not brought to a final resolution. An appeal may only be taken from a final judgment which disposes of all issues and parties. The denial of a summary judgment is interlocutory. New York Underwriters Ins. Co. v. Sanchez, 799 S.W.2d 677 (Tex.1990). There is no language in the summary judgment which would render it appealable pursuant to the rule expressed in Mafrige v. Ross, 866 S.W.2d 590 (Tex.1993). We hold the summary judgment entered by the trial court is an interlocutory judgment from which no appeal may be had absent disposition of the remaining issues or an order of severance. Accordingly, we dismiss the appeal for want of jurisdiction.

APPEAL DISMISSED.

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OPINION

BURGESS, Justice.

This is an appeal from a summary judgment. Joseph D’Entremont and Joe W. Bolton, Jr., conveyed a commercial building to Nathalie Peveto, who executed a non-recourse wraparound note and deed of trust. D’Entremont filed suit for injunction and attachment of rents Peveto’s tenants were paying on the property. The live pleadings at the time of the summary judgment hearing consisted of: 1) a tort claim for conversion of rentals collected by Peveto between the date she defaulted on the note by failing to pay the property taxes and the date of entry of an agreed order attaching the rents; 2) a claim for breach of contract, including past due installments on the note, unpaid property taxes, interest, and attorney fees; and 3) Peveto’s counterclaim for attorney fees.

In 1991, the trial court denied motions for summary judgment filed by both parties. D’Entremont filed a second motion for summary judgment in 1993. The trial court granted summary judgment as to the conversion claim. The summary judgment is silent both as to D’Entremont’s breach of contract claim and any pleadings or motions by Peve-to. The court’s summary judgment does not contain a “Mother Hubbard” clause directing that all relief not granted therein is expressly denied. Although D’Entremont’s motion for summary judgment requested judgment on both his contract and tort claim, the judgment, which considered only the “Plaintiffs Second Amended Motion for Summary Judgment,” awarded only the converted rentals. Peveto raises four points of error on appeal.

Since the breach of contract claim and the counterclaim for attorney fees were neither granted in the summary judgment, nor dismissed by the parties, nor tried on their merits, we must conclude that all of the [144]*144issues before the trial court were not brought to a final resolution. An appeal may only be taken from a final judgment which disposes of all issues and parties. The denial of a summary judgment is interlocutory. New York Underwriters Ins. Co. v. Sanchez, 799 S.W.2d 677 (Tex.1990). There is no language in the summary judgment which would render it appealable pursuant to the rule expressed in Mafrige v. Ross, 866 S.W.2d 590 (Tex.1993). We hold the summary judgment entered by the trial court is an interlocutory judgment from which no appeal may be had absent disposition of the remaining issues or an order of severance. Accordingly, we dismiss the appeal for want of jurisdiction.

APPEAL DISMISSED.

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900 S.W.2d 142, 1995 WL 340639, Counsel Stack Legal Research, https://law.counselstack.com/opinion/peveto-v-dentremont-texapp-1995.

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