410/West Ave. Ltd. v. Texas Trust Sav. Bank, F.S.B.

• Decision Date: 24 April 1991
• Docket Number: No. 04-90-00461-CV,04-90-00461-CV
• Parties: 410/WEST AVENUE LTD., David Saks & Doyle Spruill, Appellants, v. TEXAS TRUST SAVINGS BANK, F.S.B., et al., Appellees.
• Court: Texas Court of Appeals

Page 422

810 S.W.2d 422

410/WEST AVENUE LTD., David Saks & Doyle Spruill, Appellants, v. TEXAS TRUST SAVINGS BANK, F.S.B., et al., Appellees.

No. 04-90-00461-CV.

Court of Appeals of Texas San Antonio.

April 24, 1991.

Oliver S. Heard, Jr., Clifton F. Douglass, III, Karl E. Hays, Heard, Goggan, Blair & Williams, San Antonio, for appellants.

Lane D. Thibodeaux, Edward E. Robinson, Shannon M. Sanders, West, Adams, Webb & Allbritton, P.C., Bryan, Ann S. Duross, Colleen B. Bombardier, Richard J. Osterman, Jr., John P. Parker, Washington, D.C., Evelyn N. Howard-Hand, Deitch, Egan, Greenblum & Hamilton, P.C., Scott N. Morse, Brown Maroney & Oaks Hartline, Austin, for appellees.

Before CHAPA, BIERY and CARR, JJ.

OPINION

CHAPA, Justice.

Appellants, 410/West Avenue Ltd., David Saks, and Doyle Spruill, became involved in a transaction with appellees, Peoples Savings and Loan Association of Llano, Texas and Peoples Mortgage Company, which eventually resulted in appellants executing a certain real estate lien note and deed of trust. Appellants sued appellees alleging usury, breach of contract, actual and constructive fraud, breach of the covenant of good faith and fair dealing, breach of an oral promise to lend, violations of the Texas Deceptive Trade Practices and Consumer Protection Act, breach of a fiduciary duty, violations of the Federal Bank Tying Act, violations of the Federal Savings and Loan Act and the Texas Savings and Loan Rules, and violations of the Texas Revised Limited Partnership Act. The appellees answered, and Peoples Savings and Loan countersued on the note. Later, Texas Trust Savings Bank, F.S.B., assignee of the Federal Savings and Loan Corporation and successors in interest to Peoples Savings and Loan Association, intervened. The record reflects that the trial court granted multiple summary judgments which resulted in this appeal.

The dispositive issue is whether the multiple summary judgments are interlocutory and nonappealable. TEX.R.APP.P. 90.

Summary judgment cannot be granted to a party that does not properly move for such relief by proper motion. Teer v. Duddlesten, 664 S.W.2d 702, 704 (Tex.1984). Further, defendant movants for summary judgment have the burden of showing, as a matter of law, that no material issue of fact exists as to all of the plaintiffs' causes of action. Arnold v. National County Mut. Fire Ins. Co., 725 S.W.2d 165, 167 (Tex.1987); see also City of Beaumont v. Guillory, 751 S.W.2d 491, 492 (Tex.1988) (holding that a motion for summary judgment must expressly dispose of all issues presented in a suit). Motions for summary judgment "stand or fall on the grounds specifically set forth in the motions." Ortiz v. Spann, 671 S.W.2d 909, 914 (Tex.App.--Corpus Christi 1984, writ ref'd n.r.e.) (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." (Emphasis added.)

Because [appellee] moved for summary judgment on only one of [appellant's] four causes of action, the court of appeals' affirmation of this judgment was improper as to the other causes of action alleged by [appellant]. (Citations omitted.)

Chessher v. Southwestern Bell Telephone Co., 658 S.W.2d 563, 564 (Tex.1983) (emphasis in original).

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. Teer v. Duddlesten, 664 S.W.2d 702, 704 (Tex.1984).

City of Beaumont, 751 S.W.2d at 492 (emphasis added) (remaining citations omitted).

The record reflects that both appellees filed their first motion for summary judgment on August 18, 1988, which resulted in a partial summary judgment signed much later on November 24, 1989. ¹ The resulting partial summary judgment expressly disposes of only the wrongful foreclosure and the Federal Savings and Loan Tying Act claims; moreover, the partial summary judgment states that summary judgment is denied as to all other claims. Consequently, this is an interlocutory summary judgment which does not dispose of all causes of action and, is nonappealable. City of Beaumont, 751 S.W.2d at 492.

On October 19, 1988, Peoples Savings and Loan filed its second motion for summary judgment which expressly presented the breach of oral commitment to lend cause of action. After a hearing on the 13th day of December, 1988, the trial court granted a partial summary judgment on January 11, 1989, and decreed "that Plaintiffs take nothing against the Defendants on any of Plaintiffs' claims with the exception of Plaintiffs' usury claim, on which no summary judgment shall be granted in favor of either Plaintiffs or Defendants." (Emphasis added.) The judgment does not expressly dispose of both defendants, and since summary judgments are presumed to dispose of only those parties that properly move for summary judgment, no relief could be granted to Peoples Mortgage. Teer, 664 S.W.2d at 704. Therefore, this order does not dispose of all the parties and, is interlocutory. Further, in this summary judgment, the court specifically denied relief on the usury cause of action, and...