Mikulich v. Perez

• Decision Date: 10 January 1996
• Docket Number: No. 04-94-00509-CV,04-94-00509-CV
• Citation: 915 S.W.2d 88
• Parties: Ella V. Perez MIKULICH, Appellant, v. Raymundo G. PEREZ, Jr.; Rosie Longoria; Maximo Rodriguez; and Yolanda Rodriguez, Appellees.
• Court: Texas Court of Appeals

Page 88

915 S.W.2d 88

Ella V. Perez MIKULICH, Appellant, v. Raymundo G. PEREZ, Jr.; Rosie Longoria; Maximo Rodriguez and Yolanda Rodriguez, Appellees.

No. 04-94-00509-CV.

Court of Appeals of Texas San Antonio.

Jan. 10, 1996.

Jerry Don Evans, Law Office of Jerry Don Evans, Uvalde, for Appellant.

Phillip M. Hughes, Crawford, Crawford & Hughes, Uvalde, Paul J. Tarski, Dulin, Tarski & Davis, Uvalde, Rodolfo R. Flores, Law Office of Rodolfo R. Flores, Uvalde, for Appellee.

Before CHAPA, C.J., and RICKHOFF and LOPEZ, JJ.

OPINION

CHAPA, Chief Justice.

This suit was instituted as a request for a division of property not divided in divorce, and a petition to set aside fraudulent transfers and to partition the subject property. Appellee, Raymundo G. Perez, Jr., filed a motion for summary judgment on the basis of res judicata and on the basis that appellant's prior knowledge of the property transfer in question negated her fraud claim. The trial court granted a general summary judgment to Perez, appellee Rosie Longoria, and appellees Maximo and Yolanda Rodriguez, and this appeal ensued. 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).

Factual Background

Appellant and appellee Perez entered into a common-law marriage in 1976. In 1980 the subject property was conveyed to Perez by general warranty deed. Although record title was solely in appellee Perez's name, he does not dispute the community nature of the property. ¹ Appellant and Perez separated in 1988 and appellant moved to California. In February 1992, without the joinder of appellant, Perez conveyed the property to his sister, appellee Rosie Longoria, by general warranty deed reciting valuable consideration. ² The appellant, as shown in her affidavit and in Perez's summary judgment proof, was aware of this conveyance prior to the entry of the divorce decree. The divorce decree was signed on February 1, 1993. Appellant filed suit in the instant case on June 15, 1994, serving all appellees on June 16; Longoria conveyed the property to appellees Maximo and Yolanda Rodriguez three days later on June 19, 1994, for allegedly insufficient consideration.

Although appellant's Second Amended Original Petition states causes of action against Perez, Longoria, and the Rodriguezes for fraudulent transfers of her homestead community property and for partition of the property, and the certificate of service shows that all four appellees were served, our record contains only the answer of Perez and his motion for summary judgment and a First Supplemental Answer from Longoria. No answer was filed by the Rodriguezes. The trial court's final summary judgment recites that it

heard the motion for summary judgment filed in this cause by RAYMUNDO G. PEREZ, JR. All parties appeared by and through their respective counsel. The Court, after examining the pleadings and the summary judgment evidence and hearing the arguments of counsel, determines that RAYMUNDO G. PEREZ, JR., ROSIE LONGORIA, MAXIMO RODRIGUEZ AND YOLANDA RODRIGUEZ are entitled to summary judgment[.]

Attorneys for all four appellees signed the final judgment.

Standard of Review

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). 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." (emphasis added).

Chessher v. Southwestern Bell Tel. Co., 658 S.W.2d 563, 564 (Tex.1983). 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. "In the absence of a special statute making an interlocutory order appealable, a judgment must dispose of all issues and parties in the case[.]" New York Underwriters Ins. Co. v. Sanchez, 799 S.W.2d 677, 678 (Tex.1990).

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 generally Qualia v. Qualia, 878 S.W.2d 339 (Tex.App.--San Antonio 1994, writ denied); 410/West Ave. Ltd. v. Texas Trust Sav. Bank F.S.B., 810 S.W.2d 422 (Tex.App.--San Antonio 1991, no writ); Hancock v. City of San Antonio, 800 S.W.2d 881 (Tex.App.--San Antonio 1990, writ denied).

Analysis

In the instant case, only appellee Perez moved for summary judgment on the basis that appellant's fraud claims against him were barred by res judicata and by her knowledge of the transaction. The motion wholly fails to address appellant's claims against Longoria and the Rodriguezes, and yet the summary judgment decrees that appellant take nothing against all four appellees. While the record before us indicates that all court papers were served on all appellees and includes interrogatories from Longoria and the Rodriguezes to appellant, the record is devoid of any motion for summary judgment filed by Longoria or the Rodriguezes. ³ Therefore, the trial court could not have granted judgment as a matter of law on any of the claims against Longoria and the Rodriguezes. Chessher, 658 S.W.2d at 564; Clear Creek Basin Auth., 589 S.W.2d at 678; Ortiz, 671 S.W.2d at 914. Further, none of the claims or parties were severed, which was necessary to authorize the trial court to grant a final appealable judgment on only those claims and parties expressly addressed in the motion for summary judgment. Guillory, 751 S.W.2d at 492; see Chessher, 658 S.W.2d at 564. Consequently, under these circumstances, the trial court should have only granted a partial summary judgment on the claims against Perez expressly addressed in the motion. See Sanchez, 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.

However, the judgment granted by the trial court which is the subject of...