Bandera Elec. Co-op., Inc. v. Gilchrist
| Decision Date | 21 March 1997 |
| Docket Number | No. 96-0590,96-0590 |
| Parties | 40 Tex. Sup. Ct. J. 441, 40 Tex. Sup. Ct. J. 738 BANDERA ELECTRIC COOPERATIVE, INC., Petitioner, v. Robert GILCHRIST, Respondent. |
| Court | Texas Supreme Court |
James A. Rindfuss, San Antonio, for Petitioner.
Earle Cobb, Jr., San Antonio, for Respondent.
This case concerns the proper appellate disposition of a summary judgment that purports to be final but grants more relief than the movant requested. The trial court's judgment contained a Mother Hubbard clause 1 that professed to dispose of the plaintiff's claims and the defendant's counterclaims, even though the plaintiff's motion for summary judgment did not address the counterclaims. Concluding that the trial court erred by granting summary judgment on the unaddressed counterclaims, a divided court of appeals reversed and remanded the entire case to the trial court. 924 S.W.2d 388. We hold that the court of appeals should have considered the merits of the appeal. If the summary judgment in favor of the plaintiff on its claims was proper, the court of appeals should affirm the judgment of the trial court in part, reverse in part since only a partial summary judgment should have been rendered, and remand the case to the trial court for further proceedings.
Robert Gilchrist provided cable-television services to the citizens of Concan, Texas. On July 10, 1990, he entered into a contract with Bandera Electric Cooperative, Inc. that allowed him to string cable on Bandera's poles. The contract was to remain "in effect until terminated by either party hereto at the end of one (1) year from the date hereof or thereafter upon the giving of written notice to the other party not less than six (6) months prior to the date of termination."
On June 11, 1992, Bandera notified Gilchrist that it was terminating the contract on December 11, 1992. In late 1993, after Gilchrist did not remove his cable from Bandera's poles, Bandera sued him for breach of contract, seeking unpaid rent, injunctive relief, and attorney's fees. Gilchrist asserted several affirmative defenses as well as counterclaims for breach of contract and DTPA and antitrust violations. Bandera moved for summary judgment on its claims against Gilchrist. However, Bandera's motion contained no mention of Gilchrist's counterclaims.
The trial court rendered summary judgment in Bandera's favor for the unpaid rent and attorney's fees. Because the order contained a Mother Hubbard clause denying all other relief, it also purported to dispose of Gilchrist's counterclaims.
Sitting en banc and relying on Mafrige v. Ross, 866 S.W.2d 590 (Tex.1993), the court of appeals correctly determined that the trial court erroneously included Gilchrist's counterclaims in the summary judgment order. 924 S.W.2d at 390-91. The court then reversed and remanded the entire case to the trial court so that it could make the judgment "final and appealable by proper severance or the disposal of all remaining issues and parties." Id. at 394. In a concurring and dissenting opinion, three justices argued that the judgment should not have been reversed in its entirety, but only "insofar as it disposes of Gilchrist's counterclaims." Id. at 396 (Duncan, J., concurring & dissenting).
In its application for writ of error to this Court, Bandera concedes that because it failed to address Gilchrist's counterclaims in its motion for summary judgment, the trial court erred in disposing of them. Nevertheless, Bandera argues that the court of appeals erred in reversing the entire judgment. Bandera contends that the court of appeals should have affirmed in part and reversed in part, upholding the judgment as it applied to Bandera's claims, and reversing and remanding the judgment as it applied to Gilchrist's counterclaims.
Courts of appeals have reached differing results when a partial summary judgment should have been entered but the judgment purports to be final. See City of Garland v. Booth, 895 S.W.2d 766, 771 (Tex.App.--Dallas 1995, writ denied)( only unaddressed claims); Ross v. Arkwright Mut. Ins. Co., 892 S.W.2d 119, 134 (Tex.App.--Houston [14th Dist.] 1994, no writ)(same); Posey v. Southwestern Bell Yellow Pages, Inc., 878 S.W.2d 275, 281 (Tex.App.--Corpus Christi 1994, no writ)(same); Welch v. McDougal, 876 S.W.2d 218, 226 (Tex.App.--Amarillo 1994, writ denied)(same). But see Rose v. Kober Fin. Corp., 874 S.W.2d 358, 362 (Tex.App.--Houston [14th Dist.] 1994, no writ)( entire case).
In Mafrige, this Court concluded that the inclusion of Mother Hubbard language or its equivalent in an order granting summary judgment makes an otherwise partial...
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