Anderson v. Bormann, 15092

• Decision Date: 10 January 1973
• Docket Number: No. 15092,15092
• Citation: 489 S.W.2d 945
• Parties: Fred C. ANDERSON et al., Appellants, v. Emil BORMANN et al., Appellees.
• Court: Texas Court of Appeals

Page 945

489 S.W.2d 945

Fred C. ANDERSON et al., Appellants, v. Emil BORMANN et al., Appellees.

No. 15092.

Court of Civil Appeals of Texas San Antonio.

Jan. 10, 1973.

Rehearing Denied Feb. 7, 1973.

Lloyd L. Oubre, San Antonio, for appellants.

R. L. House, House, Mercer, House & Brock, San Antonio, for appellees.

CADENA, Justice.

Plaintiffs, Fred C. Anderson and Gilbert E. Kinder, a partnership, filed this suit against defendants, Emil Bormann, Henrietta Belzung and Edward Belzung, husband of Henrietta Belzung, seeking specific performance of a contract to convey land. Plaintiffs appeal from an order granting defendants' motion for summary judgment.

Plaintiffs first contend that the trial court erred in granting the motion for summary judgment, which was a second motion, because the trial court had previously denied defendants' first motion for summary judgment; and the filing of a second motion for summary judgment, after the first has been overruled, is not authorized.

We find nothing in Rule 166--A, Texas Rules of Civil Procedure, which places a limitation on the number of motions for summary judgment which may be filed. The denial of a motion for summary judgment is merely an interlocutory order and is in no way final. Ackermann v. Vordenbaum, 403 S.W.2d 362 (Tex.1966); Wright v. Wright, 154 Tex. 138, 274 S.W.2d 670 (1955). Such an order does not finally decide any question before the court, and we do not think it has the effect of limiting the power of the trial court in any way. See Allstate Insurance Co. v. Smith, 428 S.W.2d 807 (Tex.1968). Compare Drake v. Texas Dept. of Public Safety, 393 S.W.2d 320 (Tex.Civ.App.--Houston 1965, writ ref'd n.r.e.).

Plaintiffs' second point asserts: 'The Trial Court erred in sustaining Appellees' First Amended Motion for Summary Judgment in that there are numerous fact questions involved, and which are raised in the pleadings of Appellants and Appellees, as well as those raised in the various affidavits, exhibits, and admissions.' Defendants complain that such point is too general to be considered by this Court. In view of the holding in Malooly Bros., Inc. v. Napier, 461 S.W.2d 119, 121 (Tex.1970), it is apparent that we are required to consider plaintiffs' second point.

The Statement and Argument under plaintiffs' second point are directed solely to the contention that fact issues are raised by the Pleadings. The entire thrust of the Statement and Argument under the second point is contained in plaintiffs' sentence in such Statement and Argument: 'These issues are raised in the Appellants' Second Amended Original Petition and in the Appellees' Fourth Amended Original Answer.'

Of course, except in an unusual case, the pleadings of the parties will raise issues of fact, since it is the office of pleadings to frame the issues in the case. If the case before us was one in which summary judgment had been granted strictly on the pleadings, we would be compelled to hold that the trial court erred in granting summary judgment. But the mere fact that, for example, the affirmative defenses urged by defendants in this case involve questions of fact, does not preclude the granting of summary judgment if, by resort to supporting affidavits and other methods of summary judgment 'proof,' defendants establish that there are no genuine issues of material fact, and that they are entitled to judgment as a matter of law.

It is true, as pointed out by Chief Justice Calvert in Gibbs v. General Motors Corp., 450 S.W.2d 827, 828 (Tex.1970), that the question in the trial court, as well as on appeal, is not whether the summary judgment proof raises fact issues with reference to the essential elements of plaintiff's claim or cause of action, '. . . but is whether the summary judgment proof Establishes as a matter of law that there is no genuine issue of fact as to one or more of the essential elements . . .' of the plaintiff's cause of action or, where the movant is defendant relying on affirmative...