K & S Interests, Inc. v. Texas American Bank/Dallas

Decision Date17 February 1988
Docket NumberNo. 05-87-00222-CV,05-87-00222-CV
Citation749 S.W.2d 887
PartiesK & S INTERESTS, INC., Appellant, v. TEXAS AMERICAN BANK/DALLAS, Appellee.
CourtTexas Court of Appeals

James W. Karel, Jeffrey H. Hubbard, Houston, for appellant.

William B. Finkelstein, Jack F. Williams, Dallas, for appellee.

Before WHITHAM, McCLUNG and STEWART, JJ.

WHITHAM, Justice.

Appellant, K & S Interests, Inc., appeals from a January 27, 1987, order of discharge in favor of appellee-interpleader, Texas American Bank/Dallas. This court raised the issue of its jurisdiction. We conclude that we lack jurisdiction of this appeal. Accordingly, we dismiss the appeal for want of jurisdiction.

K & S Interests brought suit against the bank making claims for wrongful dishonor, breach of contract, conversion and violations of the Texas Deceptive Trade Practices--Consumer Protection Act in connection with the bank's return of a check in the amount of $10.45. The bank, after filing its plea in abatement and first amended answer, moved the trial court for leave to file its original counterclaim, third-party petition, and interpleader. The interpleader was based on the conflicting claims made by K & S Interests, James E. Craig, a third-party defendant, and M. Keitt Wood, a third-party defendant, to the funds in the account. K & S Interests filed no response to the bank's motion but did oppose the motion. Following hearing, the trial court entered an order which granted leave to the bank to file its third-party action and interpleader and further ordered the parties to discharge the bank after joinder of third-party defendants. Pursuant to this order, the bank tendered the funds into the registry of the court and joined third-party defendant Craig and third-party defendant Wood. Third-party defendant Craig filed his original answer disclaiming any interest in the funds previously tendered into the court's registry and, subject thereto, generally denying the third-party action. Counter-defendant K & S Interests filed its original answer denying the bank's capacity to sue and generally denying the claims of the bank. Third-party defendant Wood filed his original answer, counterclaim, cross-claim, and plea in abatement which asserted a claim to the funds interpled and which asserted claims against the other parties seeking the same relief requested in a lawsuit filed in the 190th Judicial District Court of Harris County, Texas, styled Morris Keitt Wood v. K & S Interests, Inc., James E. Craig and Ona Craig, Cause No. 85-65097. The trial court then entered an Our law recognizes that disinterested stakeholders should be afforded a method by which they are able to proceed when they are subjected to conflicting claims. An interpleader suit is authorized by Rule 43, Texas Rules of Civil Procedure, when a stakeholder "is or may be exposed to double or multiple liability." Taliaferro v. Texas Commerce Bank, 660 S.W.2d 151, 153 (Tex.App.--Fort Worth 1983, no writ) (on rehearing). The claims must be such as to place the stakeholder in some real doubt or hazard to entitle him to the remedy of interpleader. Davis v. East Texas Savings & Loan Association, 163 Tex. 361, 365, 354 S.W.2d 926, 930 (1962). Rule 43 provides that a defendant-stakeholder exposed to similar liability may obtain such interpleader by way of cross-claim or counterclaim. TEX.R.CIV.P. 43. In the present case, the bank considers that it occupies the position of a defendant-stakeholder. It has been held that a trial court's order granting the bill of interpleader is not interlocutory, but is a final appealable judgment. Taliaferro, 660 S.W.2d at 152. Thus, we reach the question of whether Taliaferro is dispositive of this appeal. We conclude that Taliaferro is not dispositive of this appeal. We reach this conclusion because we read K & S Interests' brief to complain of the take-nothing judgment against it as disposing of its claims against the bank and to contend that by reason of the transfer nothing remained in the Dallas trial court to be determined and adjudicated in disposing of the parties and their rights. Hence, K & S Interests argues that the order of discharge is a final judgment permitting appeal to this court. Thus, K & S Interests in part insists that it has suffered a take-nothing judgment as to its claims against the bank for wrongful dishonor, breach of contract, conversion and violations of the Texas Deceptive Trade Practices--Consumer Protection Act in connection with the bank's return of a check in the amount of $10.45. We agree that K & S Interests has suffered such a take-nothing judgment in the order of discharge. Therefore, as between K & S Interests and the bank, more is at issue than in the case of a disinterested stakeholder seeking to avoid double or multiple liability. In the present case, the bank, by allegations made by K & S Interests, is a wrongdoer from whom relief is sought over and above access to the funds in the bank's hands. To the contrary, in Taliaferro, once the trial court found that the banks were exposed to multiple liability and granted their bill in interpleader, the only real controverted issue that affected the banks had been adjudicated and finally disposed of. Taliaferro, 660 S.W.2d at 155. Consequently, we treat Taliaferro as inapplicable to the facts of the present case. Therefore, we proceed to determine if the order of discharge is otherwise a final judgment.

order discharging the bank from the lawsuit and ordering that the parties (including K & S Interests) take nothing against the bank. The trial court also entered an order directing transfer, which transferred the cause from the 101st Judicial District Court of Dallas County, Texas, to the 190th Judicial District Court of Harris County, Texas. In this connection, we note that our record is silent as to any action taken in the transferred cause by the 190th Judicial District Court of Harris County, Texas.

We conclude that even a cursory review of the order of discharge reveals that further proceedings on issues remained. At the time of entry of the order of discharge, third-party defendant Wood had filed his answer, counterclaim and cross-claim. By this pleading, Wood made claims and raised issues against both K & S Interests and Craig. The order of discharge does not speak to or mention these claims. Nor is there any order of severance as to these claims. Therefore, we conclude that since the claims of Wood against the other parties were not disposed of or resolved by the order of discharge, it cannot be a final judgment from which an appeal might be allowed. Moreover, the order of discharge was not entered following Furthermore, we conclude that the trial court did not view the order of discharge as a final judgment. On February 10, 1987, the trial court entered an order directing transfer of the cause to the 190th Judicial District Court in Harris County, Texas. The act of entry of the order to transfer clearly shows that the trial court believed that issues remained to be resolved between some of the parties. We conclude that the fact that certain issues may have been resolved among some of the parties by the order of discharge no more makes it a final judgment from which an appeal might be prosecuted than the entry of a summary judgment rendered for one of several defendants makes that summary judgment an appealable final judgment. See Cherokee Water Co. v. Ross, 698 S.W.2d 363, 365 (Tex.1985). Indeed, we conclude that in the present case, K & S Interests suffered something akin to an adverse partial summary judgment in the trial court's January 27, 1987, order of discharge. We quote the order:

                any trial on the merits of this cause.  Since this order did not follow or arise from proceedings in a case regularly set for trial on the merits, no inference of disposition of the other claims may be made.   See Etter's Welding, Inc. v. Gainesville National Bank, 687 S.W.2d 521, 522 (Tex.App.--Fort Worth 1985, no writ)
                

Came on to be heard the Motion to Discharge Texas American Bank/Dallas, Defendant and Third Party Plaintiff in the above matter and the Court, having reviewed the pleadings, having previously heard argument of counsel on this issue and having previously Ordered the parties to discharge Texas American Bank/Dallas following joinder of Third-Party Defendants,

IT IS THEREFORE ORDERED that Texas American Bank/Dallas be discharged from the referenced cause of action, that the parties take nothing by their action against Texas American Bank/Dallas and that Texas American Bank/Dallas shall take nothing by its interpleader action.

(emphasis added). Consequently, we conclude that in the present cause, as between the bank and K & S Interests, it was necessary that a district court render a final judgment disposing of the bank's disinterested stakeholder claims as well as K & S Interests' claims against the bank for wrongful dishonor, breach of contract, conversion and violation of the Texas Deceptive Trade Practices--Consumer Protection Act. In this connection, we express no opinion as to the propriety of the trial court's disposition of K & S Interests' claims against the bank--procedurally or substantively. In addition, the order of transfer is devoid of any resolution of the claims asserted by third-party defendant Wood against K & S Interests or third-party defendant Craig. Not only is the appellate record silent on these questions, but any action taken by the 190th Judicial District Court of Harris County to render the order of discharge appealable would require an appeal to be prosecuted in another court of appeals. Hence, any attempt to appeal the order of discharge before action was taken by the 190th Judicial District Court to enter a final judgment would be an attempted...

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