Pierce v. Reynolds

• Citation: 160 Tex. 198,329 S.W.2d 76
• Decision Date: 07 October 1959
• Docket Number: No. A-7221,A-7221
• Parties: J. W. PIERCE, DBA Pierce Pump Company, Petitioner, v. John B. REYNOLDS, Respondent.
• Court: Texas Supreme Court

Page 76

329 S.W.2d 76

160 Tex. 198

J. W. PIERCE, DBA Pierce Pump Company, Petitioner, v. John B. REYNOLDS, Respondent.

No. A-7221.

Supreme Court of Texas.

Oct. 7, 1959.

Rehearing Denied Nov. 4, 1959.

Malone, Lipscomb & Seay, Robert A. Gwinn, of firm, Dallas, for petitioner.

Fritz & Vinson, Dallas, for respondent.

WALKER, Justice.

Writ of error was granted in this case primarily for the purpose of determining whether a summary judgment which adjudicates a severed part of a single cause of action is appealable. The suit was brought by John B. Reynolds, plaintiff, against J. W. Pierce, defendant, pursuant to Section 16(b) of the Fair Labor Standards Act of 1938, 29 U.S.C.A. § 216(b), to recover minimum wages and overtime compensation claimed to be owing for the period from January 16, 1955, to May 18, 1956. Defendant's motion for summary judgment as to all amounts alleged to have accrued after August 20, 1955, was sustained. Judgment was thereupon entered by the trial court decreeing that plaintiff take nothing for that portion of the period covered by his petition, and ordering that this part of the case be severed and given a new number on the docket. Plaintiff appealed to the Court of Civil Appeals, and defendant moved to dismiss the appeal on the ground that the judgment entered by the trial court is interlocutory and not appealable. The motion to dismiss was overruled, and the judgment for defendant was reversed and the cause remanded to the district court for trial. 320 S.W.2d 376.

Defendant contends that the decree denying a recovery from and after August 20th is not a final judgment because it does not fully adjudicate the entire controversy between the parties. Whether or not this contention is sound depends upon the effect of the severance, because the judgment as entered undoubtedly purports to be a final determination of plaintiff's right to recover for the latter portion of the period he was employed by defendant.

The filing of a motion for partial summary judgment cannot be taken as an indication that the moving party regards the cause as severable. Rule 166-A, Texas Rules of Civil Procedure, authorizes the court to dispose on motion for summary judgment of part of the issues raised by the pleadings without adjudicating the rights of the parties on the entire case. When that occurs, the initial order sustaining the motion is usually interlocutory and may not be made the basis of an appeal. Even when all issues involved in an independent and severable cause of action are determined thereby, the order is not appealable unless a severance is granted by the trial court. Pan American Petroleum Corp. v. Texas Pacific Coal & Oil Co., Tex., 324 S.W.2d 200. On the other hand, a judgment which effectively disposes of a severed and severable phase of the case is final for the purposes of an appeal. See Carter v. Skelly Oil Co., Tex.Civ.App., 317 S.W.2d 227 (no writ); Associated Growers v. Smith, Tex.Civ.App., 244 S.W.2d 348 (original mandamus proceeding); Thompson v. A. J. Tebbe & Sons Co., Tex.Civ.App., 241 S.W.2d 633 (no writ). Also see Boone v. Hulsey, 71 Tex. 176, 9 S.W. 531. The present case does not fall squarely into either of these categories.

Although plaintiff might have brought suit at the end of each week to recover the amount owing for that week, his petition as filed does not allege several distinct causes of action. All claims for compensation that had accrued and were owing at the time of instituting the present proceeding were merged into and constitute but one cause of action. Upon proper plea by the defendant invoking the rule against splitting causes of action, plaintiff would not be allowed to divide this cause of action so as to maintain several suits thereon when a single action would suffice. If he had attempted to do so, the pendency of the first suit could have been pleaded in abatement of all subsequent actions, and a judgment on the merits in one would bar a recovery in the others. See Eastland County v. Davisson, Tex.Com.App., 13 S.W.2d 673; Sovereign Camp, W.O.W. v. Helm, Tex.Civ.App., 94 S.W.2d 521 (wr. ref.); D. & L. Production Co. v. Cuniff, Tex.Civ.App., 180 S.W.2d 205 (wr. dis.); Keen v. Mid-Continent Petroleum Corp., D. C., 63 F.Supp. 120 affirmed 8 Cir., 157 F.2d 310; 1 C.J.S. Actions § 102 et seq.; 1 Am.Jur. Actions § 96 et seq.

It has often been said that our Rules of Civil Procedure bestow upon the trial courts broad discretion in the matter of consolidation and severance of causes, and that action in such matters will not be disturbed on appeal except for abuse of discretion. See Hamilton v. Hamilton, 154 Tex. 511, 280 S.W.2d 588. They do not, however, contemplate the severance of one cause of action into two or more parts. Rule 41 provides that any claim against a party may be severed and proceeded with separately, but as pointed out in Rose v. Baker, 143 Tex. 202, 183 S.W.2d 438, this refers to a claim that is a severable part of a controversy which involves more than one cause of action. A single cause of action may not properly be divided into a number of different causes, and the severance ordered by the trial court in this case is at least erroneous.

Defendant did not object to the severance, and is therefore not in position to complain of a mere error in granting the same. The narrow question then is whether a court has the power to sever one entire cause of action into two or more parts and render a separate final judgment disposing of each part. At least one court has held, in effect, that an order severing a single cause of action is wholly ineffective and that a judgment which does not dispose of the entire controversy is not appealable. Texas Cities Gas Co. v. Dickens, Tex.Civ.App., 133 S.W.2d 810 (no writ). We do not agree.

The rule against splitting causes of action, which is simply a branch of the broader doctrine of res adjudicata, is not directly involved in this appeal. We note, however, that it is for the benefit of and may be waived by the defendant, and does not in any way limit the power of a court to hear and determine several suits instituted by a plaintiff for the recovery of different parts of a single cause of action. See Lloyds America v. El Paso-Hudspeth Counties Road Dist., Tex.Civ.App., 107 S.W.2d 1008 (wr. ref.); 36 Tex.Law Rev. 475; 1 C.J.S. Actions § 102g; 1 Am.Jur. Actions § 101; Annotation, 62 A.L.R. 263. Whether a judgment in one severed phase of the present case would make a plea of res adjudicata available with respect to the other action is not considered or decided here.

As stated in Pan American Petroleum Corp. v. Texas Pacific Coal & Oil Co., supra, we do not think the appealability of a judgment should be made to turn upon whether the action is severable. The confusion and uncertainty involved in the application of such a rule...