Darr v Altman

• Decision Date: 18 May 2000
• Citation: 20 S.W.3d 802
• Parties: <!--20 S.W.3d 802 (Tex.App.-Houston 2000) DAVID DARR, INDIVIDUALLY, and D/B/A HUMBLE AUTOMOTIVE, Appellant v. JAMES E. ALTMAN, Appellee NO. 14-99-00138-CV Court of Appeals, Fourteenth District of Texas
• Court: Texas Court of Appeals

Page 802

20 S.W.3d 802 (Tex.App.-Houston [14th Dist.] 2000)

DAVID DARR, INDIVIDUALLY, and D/B/A HUMBLE AUTOMOTIVE, Appellant v JAMES E. ALTMAN, Appellee

NO. 14-99-00138-CV

Court of Appeals, Fourteenth District of Texas

May 18, 2000.

On Appeal from the County Court at Law No. 3 Harris County, Texas Trial Court Cause No. 650,546

Panel consists of Justices Maurice E. Amidei, Anderson, and Frost.

OPINION

JOHN S. ANDERSON, Justice.

Appellant, David Darr, Individually and d/b/a Humble Automotive, appeals the final judgment dated November 5, 1998, granted in favor of appellee, James E. Altman. Altman filed a motion to dismiss this appeal as untimely. Altman's motion to dismiss is denied and the trial court's judgment dated November 5, 1998, is affirmed.

I. Background

Altman brought his motor home to Humble Automotive for repairs and directed Humble Automotive to prepare an estimate and analysis of the repairs required. After the motor home had been at Humble Automotive for several months, Humble Automotive sent Altman a letter seeking $3,278 for engine tear down and storage costs and further seeking authorization to complete the repair work. When Altman did not pay the bill, Humble Automotive obtained a Texas title for foreclosure pursuant to its mechanic's lien.

Altman sued Darr for conversion, breach of contract, fraud, and violations of the Texas Deceptive Trade Practices Act ("DTPA"). Altman sued Gary Hahne, Darr's trial counsel, claiming Hahne had an interest in the motor home by assignment, and the Texas Department of Transportation (the "Department') for DTPA violations. Altman also sought a temporary injunction to prevent Humble Automotive or Hahne from transferring title of the motor home to another party and to prevent the Department from accepting or processing an application to transfer title. Darr filed a counterclaim against Altman, claiming that Altman's suit was brought in bad faith and asserted affirmative relief for unpaid fees for towing, storage, and repairs.

On April 14, 1997, the trial court entered a "Partial Judgment" (the "April 14, 1997 judgment") on Altman's first amended motion for summary judgment, which sought judgment against Darr and the Department, but not against Hahne or on Darr's counterclaim. ¹ The trial court ordered that Altman: (1) recover $25,000 in damages, plus attorney's fees, from Darr, and (2) take nothing on his claim against the Department. The "Partial Judgment" contained a Mother Hubbard clause, which stated: "All other relief not expressly granted herein is denied."

On April 21, 1997, when Altman failed to appear at a pre-trial conference, the trial court signed a dismissal order (the "April 21, 1997 dismissal order"), which stated:

On the day in the above entitled and numbered cause of action, the parties having been notified of the Trial Date and having failed to appear,

IT IS HEREBY ORDERED that the above entitled and numbered cause of action be DISMISSED FOR WANT OF PROSECUTION. Costs of court are assessed against the party incurring same.

On September 9, 1997, the trial court reinstated the case on the bases that (1) Altman's failure to timely retain this case was neither intentional nor the result of conscious indifference, but was due to an inadvertent error or mistake by the court, and (2) the case was stayed because of Hahne's bankruptcy. ² After reinstating the case, the trial court ordered Hahne and the Department dismissed from the case.

With the case reinstated, Altman again moved for summary judgment. On November 5, 1998, the trial court entered a "Final Judgment," granting summary judgment in favor of Altman: (1) against Darr on Altman's claim that Darr wrongfully took possession of, and foreclosed on, the motor home, and (2) on Darr's counterclaim. The trial court awarded Altman $25,000, plus attorney's fees. It is from the November 5, 1998 judgment that Darr appeals.

II. Altman's Motion to Dismiss Appeal

Pending before this Court is Altman's motion to dismiss this appeal. Altman contends that after the trial court signed the partial summary judgment on April 14, 1997, the only claims remaining were his claims against Hahne, who was in bankruptcy, and Darr's counterclaim against him. Therefore, according to Altman, the April 14, 1997 judgment against Darr became a final judgment when the trial court dismissed the remaining claims and parties on April 21, 1997. Hence, the judgment against Darr was final and became appealable thirty days after June 27, 1997, when Darr withdrew his motion for new trial. Darr did not file his notice of appeal until February 5, 1999, and, therefore, Altman argues, this appeal is not timely.

Generally, an appeal may only be taken from a final judgment. See Simmons v. Williams, 976 S.W.2d 361, 362 (Tex. App. Houston [14 th Dist.] 1998, no pet.). To be a final, appealable summary judgment, the order granting the motion must dispose of all parties and issues before the court. See Mafrige v. Ross, 866 S.W.2d 590, 591 (Tex. 1993). A review of Altman's first amended motion for summary judgment reflects that he sought summary judgment only against Darr and the Department. The court's April 14, 1997 judgment, however, contains a Mother Hubbard clause. The inclusion of a Mother Hubbard clause in an order granting summary judgment makes an otherwise partial summary judgment final for purposes of appeal. See Bandera Elec. Co-Op., Inc. v. Gilchrist, 946 S.W.2d 336, 337 (Tex. 1997); Mafrige, 866 S.W.2d at 591. ³ This is true, even when the judgment erroneously grants more relief than was requested in the motion. See Lehmann v. Har-Con Corp., 988 S.W.2d 415, 417 (Tex. App. Houston [14 th Dist.] 1999, pet. granted) (citing Inglish v. Union State Bank, 945 S.W.2d 810, 811 (Tex. 1997)).

Therefore, the Mother Hubbard clause, in this case, converted what was an interlocutory, partial summary judgment, granting more relief than was requested, into a final, appealable judgment. Darr would have been required to appeal this judgment. The trial court, however, dismissed the "above entitled and numbered cause of action" for want of prosecution seven days later, while it still retained plenary power.

A. Effect of April 21 Dismissal Order

Under the Texas Rules of Civil Procedure, the trial court has plenary power to grant a new trial, or vacate, modify, correct, or reform a judgment within thirty days after signing a final judgment. See TEX. R. CIV. P. 329b(d); Lane Bank Equip. Co. v. Smith S. Equip., Inc., 10 S.W.3d 308, 310 (Tex. 2000); Fruehauf Corp. v. Carrillo, 848 S.W.2d 83, 84 (Tex. 1993) (per curiam). The entry of the dismissal order vacated the April 14 judgment.

We must determine, however, whether the dismissal order disposed of all the claims in the case, including Darr's counterclaim against Altman, particularly in light of the trial court's reinstatement of the case without a verified motion to reinstate having been filed within thirty days after the dismissal. See McConnell v. May, 800 S.W.2d 194, 194 (Tex. 1990, orig. proceeding) (finding that in the absence of a verified motion to reinstate, the trial court's plenary power expires thirty days after the date on which it signed a final order of dismissal) (citing TEX. R. CIV. P. 165a(3)). If the dismissal order disposed of only Altman's claims against Darr, Hahne, and the Department, and not Darr's counterclaim, then the judgment is interlocutory and not appealable and the trial could reinstate the case. See Macarangal v. Andrews, 838 S.W.2d 632, 634 (Tex. App. Dallas 1992, orig. proceeding [leave denied]). If, on the other hand, the dismissal order disposed of all claims, including Darr's counterclaim, the judgment is final and appealable and the trial court was without authority to reinstate the case, rendering all orders entered after that time void, including the November 5, 1998 judgment. See id.

To be final, a judgment must dispose of all issues and parties. See North East Indep. Sch. Dist. v. Aldridge, 400 S.W.2d 893, 895 (Tex. 1966). There is a presumption that the trial court "intended to, and did, dispose of all parties legally before it and of all issues made by the pleadings between such parties." Id. at 897-98. The Texas Supreme Court has carved out an exception to this general rule. When the case has been dismissed for want of prosecution, there is no presumption that the dismissal order also disposed of issues in an independent cross-action or counterclaim. See Aldridge, 400 S.W.2d at 895 (citing Davis v. McCray Refrigerator Sales Corp., 136 Tex. 296, 150 S.W.2d 377 (1941)); Dardari v. Texas Commerce Bank Nat'l Ass'n, 961 S.W.2d 466, 469 (Tex. App. Houston [1 st Dist.] 1997, no pet.); Macarangal, 838 S.W.2d at 634; Massey v. Davis, 650 S.W.2d 551, 554 (Tex. App. Eastland 1983, writ ref'd n.r.e.). Here, the dismissal order made no specific mention or reference to Darr's counterclaim; therefore, his counterclaim was not dismissed and the judgment is interlocutory from which no appeal will lie. See Davis, 150 S.W.2d at 378 (holding that where the trial court dismisses the plaintiff's suit, but does not refer to or mention the defendant's cross-action, the judgment does not dispose of the cross- action either expressly or by implication and there is no final judgment).

An exception to the rule stated in Davis arises where the cross-claim or counterclaim is not independent, but is contingent upon the plaintiff's recovery, then the cross-claim or counterclaim is disposed of by implication and the dismissal order is a final judgment. See McClelland v. Partida, 818 S.W.2d 453, 455 (Tex. App. Corpus Christi 1991, writ dism'd w.o.j.). Here, Darr has asserted an affirmative claim for damages for towing, storage, and repair fees. Therefore, his counterclaim is independent and was not disposed of in the dismissal order. Therefore, the dismissal order was interlocutory and the trial court retained jurisdiction to reinstate Altman's case.⁴

B. Effect of...