Chase Manhattan Bank, N.A. v. Lindsay, C-9303

• Decision Date: 04 April 1990
• Docket Number: No. C-9303,C-9303
• Citation: 787 S.W.2d 51
• Parties: The CHASE MANHATTAN BANK, N.A., Relator, v. The Honorable Tony LINDSAY, Judge of the 280th Court of Harris County, Texas, et al., Respondents.
• Court: Texas Supreme Court

Page 51

787 S.W.2d 51

The CHASE MANHATTAN BANK, N.A., Relator, v. The Honorable Tony LINDSAY, Judge of the 280th Court of Harris County, Texas, et al., Respondents.

No. C-9303.

Supreme Court of Texas.

April 4, 1990.

Steve Stewart, Collyn A. Peddie, Patricia B. Lehtola, Brett A. Perlman, Houston, for relator.

Joe H. Reynolds, Thomas D. Cordell, Houston, J. Bruce Bennett, Austin, W. James Kronzer, Jr., Houston, for respondents.

ON MOTION FOR REHEARING

PER CURIAM.

Respondents' motions for rehearing are overruled. The per curiam opinion of February 28, 1990 is withdrawn and the following is substituted.

The question in this original mandamus proceeding is whether a trial court's order granting summary judgment of an initial claim also disposed of all issues pending in a counterclaim not addressed in the order. A majority of this court answers no and holds that an order granting summary judgment as to one claim but not disposing of all issues presented in a counterclaim is an interlocutory judgment.

The lawsuit underlying this mandamus proceeding arose when the real parties in interest, Greenbriar North Section II, Fred Rizk Construction Company, Peninsula Trade Corporation, N.V., Ibrahim Trade Corporation, N.V., and Fred Rizk (Greenbriar), defaulted on a note held by Chase Manhattan Bank (Chase). After foreclosure and sale of the property securing the note, Chase brought a deficiency action against Greenbriar. Greenbriar filed a general denial and counterclaim alleging wrongful foreclosure, breach of contract, and breach of the duty of good faith and fair dealing. Greenbriar moved for summary judgment on Chase's deficiency claim. On December 30, 1988, the trial court granted Greenbriar's motion and signed the summary judgment which did not mention or refer to Greenbriar's counterclaims.

After the trial court overruled Chase's motion to sever Greenbriar's counterclaims, Chase filed a notice of intent to take Fred Rizk's deposition. Rizk failed to appear. Chase filed a motion to compel appearance at the deposition and for sanctions. The trial court denied Chase's motion to compel stating that the December 30 order had disposed of all parties and issues before the court, and that the court had lost its plenary jurisdiction. ¹ The trial court's order conflicts with Houston Health Clubs, Inc. v. First Court of Appeals, 722 S.W.2d 692 (Tex.1986), PHB, Inc., v. Goldsmith, 539 S.W.2d 60 (Tex.1976), and Pan American Petroleum Corp. v. Texas Pacific Coal & Oil Co., 159 Tex. 550, 324 S.W.2d 200 (1959).

To be final, a summary judgment must dispose of all parties and issues in a lawsuit. Teer v. Duddlesten, 664 S.W.2d 702, 703 (Tex.1984). The presumption that a final judgment disposes of all parties and issues before the court after a trial on the merits does not apply to default judgments and summary judgments. Houston Health Clubs, Inc. v. First Court of Appeals, 722 S.W.2d 692, 693 (Tex.1986). If a summary judgment does not refer to or mention issues pending in a counterclaim, then those issues remain unadjudicated. Baker v. Hansen, 679 S.W.2d 480, 481 (Tex.1984); PHB, Inc. v. Goldsmith, 539 S.W.2d 60 (Tex.1976). Because the present order granting summary judgment does...