Gilchrist v. Bandera Elec. Co-op., Inc.

• Decision Date: 20 March 1996
• Docket Number: No. 04-94-00547-CV,04-94-00547-CV
• Parties: Robert GILCHRIST, Appellant, v. BANDERA ELECTRIC COOPERATIVE, INC., Appellee.
• Court: Texas Court of Appeals

Page 388

924 S.W.2d 388

Robert GILCHRIST, Appellant, v. BANDERA ELECTRIC COOPERATIVE, INC., Appellee.

No. 04-94-00547-CV.

Court of Appeals of Texas,

San Antonio.

March 20, 1996.

Rehearing Overruled May 16, 1996.

Earle Cobb, Jr., San Antonio, for Appellant.

James A. Rindfuss, San Antonio, for Appellee.

Before CHAPA, C.J., and RICKHOFF, LPEZ, STONE, HARDBERGER, GREEN and DUNCAN ¹, JJ.

CHAPA, Chief Justice.

Appellant Gilchrist appeals a summary judgment granted in favor of appellee, Bandera Electric Cooperative, Inc., on a contract claim. Under long-standing precedent, the dispositive issue is whether the summary judgment, which purports to be a final appealable order, properly disposed of all issues and parties. TEX.R.APP.P. 90(a).

The record reflects a claim made by appellee against appellant based on a rental contract, and counterclaims by appellant for breach of contract, deceptive and unfair trade practices, antitrust violations, and coercion. Appellee's motion for summary judgment stated that it "embraces [appellee's] entire claim against [appellant]." The motion for summary judgment, however, fails to mention appellant's counterclaims at all.

The standards for reviewing summary judgment are well settled. They are as follows:

1. The movant for summary judgment has the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law.

2. In deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the non-movant will be taken as true.

3. Every reasonable inference must be indulged in favor of the non-movant and any doubts resolved in its favor.

Goswami v. Metropolitan Sav. & Loan Ass'n, 751 S.W.2d 487, 491 (Tex.1988).

The defendant's burden of proof in a summary judgment is to show as a matter of law that the plaintiff has no cause of action against him. Citizens First Nat'l Bank v. Cinco Exploration Co., 540 S.W.2d 292, 294 (Tex.1976); Gaddis v. Smith, 417 S.W.2d 577, 582 (Tex.1967). "The trial court may not grant a summary judgment by default for lack of an answer or response to the motion by the non-movant when the movant's summary judgment proof is legally insufficient." City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex.1979). Motions for summary judgment "stand or fall on the grounds specifically set forth in the motion(s)." Ortiz v. Spann, 671 S.W.2d 909, 914 (Tex.App.--Corpus Christi 1984, writ ref'd n.r.e.) (op. on reh'g) (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."

Chessher v. Southwestern Bell Tel. Co., 658 S.W.2d 563, 564 (Tex.1983) (emphasis added).

In City of Beaumont v. Guillory, 751 S.W.2d 491 (Tex.1988), the supreme court held:

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.

Id. at 492 (emphasis added); see also, Martinez v. Humble Sand & Gravel, Inc., 875 S.W.2d 311, 312 (Tex.1994) (citing Mafrige v. Ross, 866 S.W.2d 590, 591 (Tex.1993)); Houston Health Clubs, Inc. v. First Court of Appeals, 722 S.W.2d 692, 693 (Tex.1986). "In the absence of a special statute making an interlocutory order appealable, a judgment must dispose of all issues and parties in the case, including those presented by counterclaims or cross action, to be final and appealable." New York Underwriters Ins. Co. v. Sanchez, 799 S.W.2d 677, 678 (Tex.1990) (emphasis added).

In Mafrige v. Ross, 866 S.W.2d 590 (Tex.1993), the court stated that "[i]f a summary judgment order appears to be final, as evidenced by the inclusion of language purporting to dispose of all claims or parties, the judgment should be treated as final for purposes of appeal [but] [i]f the judgment grants more relief than requested, it should be reversed and remanded, but not dismissed." Id. at 592.

In Rodriguez v. Gill, 849 S.W.2d 442 (Tex.App.--San Antonio 1993, no writ), this court stated:

Where a summary judgment order is appealed which is clearly interlocutory on its face, in the absence of an order of severance, the appellate courts should dismiss because the order is nonappealable. Pan American Petroleum Corp. v. Texas Pacific Coal & Oil Co., 159 Tex. 550, 324 S.W.2d 200, 200 (1959); see also City of Beaumont, 751 S.W.2d at 492; Teer v. Duddlesten, 664 S.W.2d 702, 704 (Tex.1984). However, where a summary judgment order is appealed which appears to be final on its face, but which should have been partial and interlocutory, in the absence of an order of severance, the appellate courts should reverse the judgment and remand to the trial court for disposal of all remaining parties and issues in a final appealable order. Teer, 664 S.W.2d at 705. But it should be further noted that where the summary judgment appealed appears to be final on its face but should have been partial and interlocutory, the merits of the appeal are not reached because the proper order which should have been entered is not appealable until "when and not before the same is merged in a final judgment disposing of the whole case." Pan American Petroleum Corp., 324 S.W.2d at 201; see also Teer, 664 S.W.2d at 704.

The judgment is reversed, and the cause remanded to the trial court for disposal of all issues and parties by a proper final and appealable order, or a proper severance order which will make any partial summary judgment final and appealable.

Rodriguez, 849 S.W.2d at 444; see also Qualia v. Qualia, 878 S.W.2d 339, 340-41 (Tex.App.--San Antonio 1994, writ denied); Uribe v. Houston General Ins. Co., 849 S.W.2d 447, 451 (Tex.App.--San Antonio 1993, no writ); Haun v. Steigleder, 830 S.W.2d 833, 834 (Tex.App.--San Antonio 1992, no writ); 410/West Ave. Ltd. v. Texas Trust Sav., 810 S.W.2d 422, 426 (Tex.App.--San Antonio 1991, no writ); Hancock v. City of San Antonio, 800 S.W.2d 881, 890-91 (Tex.App.--San Antonio 1990, writ denied).

Here, the motion for summary judgment failed to address any of the counterclaims, and therefore, the trial court could not have granted judgment as a matter of law on the counterclaims. Chase Manhattan Bank v. Lindsay, 787 S.W.2d 51, 53 (Tex.1990); Baker v. Hansen, 679 S.W.2d 480, 481 (Tex.1984); Chessher, 658 S.W.2d at 564; Clear Creek Basin Auth., 589 S.W.2d at 678; PHB, Inc. v. Goldsmith, 539 S.W.2d 60 (Tex.1976); However, the judgment granted by the trial court purports to dispose of all parties and issues, which invokes the jurisdiction of this court to a limited extent. Mafrige, 866 S.W.2d at 592. Since the judgment "grants more relief than requested, it should be reversed and remanded." Id. The trial court can then dispose "of all issues and parties by a proper final and appealable order, or a proper severance order which will make any partial summary judgment final and appealable." Rodriguez, 849 S.W.2d at 444.

                Ortiz, 671 S.W.2d at 914.   Further, the counterclaims were not severed, which was necessary to render the judgment on the claims expressly addressed in the motion for summary judgment final and appealable.  Guillory, 751 S.W.2d at 492;  Chessher, 658 S.W.2d at 564.   In the event that the counterclaims are not severable, the summary judgment remains interlocutory until the counterclaims are adjudicated.  Chase Manhattan Bank, 787 S.W.2d at 53.   Consequently, the trial court should have granted only a partial summary judgment on the claims expressly addressed in the motion.  See New York Underwriters, 799 S.W.2d at 678;  Guillory, 751 S.W.2d at 491;  Chessher, 658 S.W.2d at 564;  Ortiz, 671 S.W.2d at 914
                

Although the dissent concedes the counterclaims were not properly disposed of by this summary judgment, it would erroneously affirm what amounts to an interlocutory partial summary judgment, and sever and reverse the counterclaims without regard to whether they may or may not be severable ². We recognize that the dissent follows some authority in their interpretation of Mafrige; however, such a holding is erroneous for several reasons.

First, the dissent misinterprets and expands Mafrige without considering the consequences of such a holding. If Mafrige intended to change the appellate procedures of summary judgments as drastically as proposed by the dissent, the Supreme Court would have specifically overruled all of the long-standing precedent which holds otherwise. See Martinez, 875 S.W.2d at 311; New York Underwriters, 799 S.W.2d at 678; Chase Manhattan Bank, 787 S.W.2d at 51; Guillory, 751 S.W.2d at 492; Baker, 679 S.W.2d at 480; Chessher, 658 S.W.2d at 564; Qualia, 878 S.W.2d at 339; Rodriguez, 849 S.W.2d at 444; Uribe, 849 S.W.2d at 451; Haun, 830 S.W.2d at 833; 410/West Ave.Ltd., 810 S.W.2d at 422; Hancock, 800 S.W.2d at 881; Ortiz, 671 S.W.2d at 914. Moreover, if Mafrige intended to authorize the courts of appeal to deal for the first time with the merits of what is actually an unsevered interlocutory partial summary judgment, the Supreme Court would have clearly expressed such intent.

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