Starnes v. Holloway, 05-88-00706-CV

Citation779 S.W.2d 86
Decision Date15 August 1989
Docket NumberNo. 05-88-00706-CV,05-88-00706-CV
PartiesMichael G. STARNES et al., Appellants, v. Pat S. HOLLOWAY et al., Appellees.
CourtCourt of Appeals of Texas

Thomas V. Murto, III, Mitchell Madden, Edwin E. Wright, III, Dallas, for appellants.

Pat S. Holloway, Austin, pro se.

Wallace A. McLean, Austin, Michael E. Rohde, Dallas, for appellees.

Before STEWART, BAKER and WHITTINGTON, JJ.

BAKER, Justice.

This summary judgment case concerns another chapter in the continuing saga of the multiple litigation between the Browning interests and Holloway. The issue is whether the trial court erred in holding that a 1982 judgment rendered by Judge Dee Brown Walker of the 162nd District Court was void as a matter of law because that judge never legally acquired subject matter jurisdiction of the initial suit. We hold that the trial court did err in so holding, reverse the trial court's judgment, and remand this cause for further proceedings.

The litigation between the parties began in 1979. The Brownings sued Holloway, Humble Exploration Company, and others for damages and for the imposition of a constructive trust on Holloway's and Humble's assets. This suit was filed in the 193rd District Court. Humble and Holloway subsequently filed bankruptcy petitions and removed this case to the bankruptcy court. The Browning v. Holloway case was remanded by the bankruptcy court to the 193rd District Court, which later rendered a judgment on a prior settlement agreement between the parties. However, this Court held that the attempted settlement agreement was unenforceable. 1 In 1982, Fairway Land Company and others sued Holloway and Humble in the 162nd District Court. These plaintiffs were investors who asserted that Humble had wrongfully shut in oil and gas wells jointly owned by these investors and Humble. The Fairway suit sought the appointment of a receiver over these assets. The Brownings were also named as defendants in the Fairway suit because of their claim to ownership of the Holloway/Humble assets. Judge Walker appointed a receiver in the Fairway case over Holloway's and Humble's assets; however, this receivership was later vacated by this Court. 2

After this Court remanded the Browning suit to the 193rd District Court, the Honorable Paul G. Peurifoy, as Presiding Judge of the First Administrative District of the State of Texas, specially assigned retired District Judge Fred S. Harless to the 193rd District Court to try the Browning case. Judge Harless retried the portion of the case involving the settlement agreement and set the remainder of the issues between the Brownings and Holloway for a trial at a later date. In the meantime, the Brownings had filed a cross action in the Fairway case involving the same issues then pending in the Browning v. Holloway case. After a series of orders, which are discussed in greater detail below, the cases then pending in the 193rd and 162nd District Courts were consolidated for trial in the 162nd District Court by Judge Walker, the elected judge of that court. The Brownings secured a severance of the issues between them and Holloway, and Judge Walker tried these issues. This trial resulted in the Brownings obtaining a multi-million dollar judgment against Holloway, Humble, and others. Humble and Holloway appealed that judgment, and this Court ultimately dismissed that appeal. 3

Then, in 1986, Holloway filed this suit as a combined collateral attack and bill of review against Starnes and the Brownings attacking the 1982 Browning judgment. Judge Tom Ryan, sitting as a senior District Judge in this case for the 162nd District Court, granted Holloway's twelfth motion for partial summary judgment. That motion sought summary judgment on the ground that the 1982 Browning judgment was void as a matter of law because the judge who entered it never legally acquired subject matter jurisdiction of the suit. In their first point of error, the Brownings contend that the trial court erred in granting this summary judgment in favor of Holloway.

The function of summary judgment is not to deprive a litigant of his right to a full hearing on the merits of any real issue of fact, but to eliminate patently unmeritorious claims and untenable defenses. Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929, 931 (1952). The standards for reviewing a motion for summary judgment are well established. As mandated by the Supreme Court of Texas, they are: (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 nonmovant will be taken as true; and (3) every reasonable inference must be indulged in favor of the nonmovant and any doubts resolved in its favor. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex.1985). It is not the purpose of the summary judgment rule to provide either a trial by deposition or a trial by affidavit, but rather to provide a method of summarily terminating a case when it clearly appears that only a question of law is involved and that there is no genuine issue of fact. Gaines v. Hamman, 163 Tex. 618, 358 S.W.2d 557, 563 (1962).

After rendition of this summary judgment, the trial court, at the Brownings' request, entered findings of fact and conclusions of law. In response to the Brownings' contention that the trial court erred in entering summary judgment in Holloway's favor, Holloway contends that the trial court's findings of uncontested facts and conclusions of law are controlling since they were not controverted or objected to by the Brownings and they support the trial court's ruling. We disagree.

If it is necessary for the trial court to resolve factual issues to enter judgment, then the summary judgment rendered is neither authorized by the summary judgment procedure nor proper. See Smith v. Bolin, 153 Tex. 486, 271 S.W.2d 93, 94 (1954); TEX.R.CIV.P. 166a(c). As stated, the summary judgment procedure is designed to eliminate patently unmeritorious claims and untenable defenses when there is no genuine issue of material fact; therefore, it is unavailable for the adjudication of the merits of any material issue of fact. See In re Estate of Price, 375 S.W.2d 900, 904 (Tex.1964). Findings of fact and conclusions of law have no place in a summary judgment proceeding. State v. Easley, 404 S.W.2d 296, 297 (Tex.1966). Where a summary judgment is granted, if findings are made at the request of a party, they are not controlling on appeal. City of Grand Prairie v. City of Irving, 441 S.W.2d 270, 273 (Tex.Civ.App.--Dallas 1969, no writ). 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 his action or defense as a matter of law. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex.1979). Summary judgments are not to be granted on default of the opponent, but only on the merit of the summary judgment proof offered by the movant. Swilley v. Hughes, 488 S.W.2d 64, 68 (Tex.1972). Our task is to determine if Holloway is entitled to his summary judgment as a matter of law for the reasons asserted in his motion. See City of Houston, 589 S.W.2d at 679.

The events that are pertinent to Holloway's assertion that the active judge of the 162nd District Court never legally acquired subject matter jurisdiction of the Browning case involved a series of orders. The date and nature of each of these relevant orders are:

                  Date                               Nature of Order
                12/18/81  The Honorable Paul G. Peurifoy, as Presiding Judge of the First
                            Administrative District of Texas, specially assigned retired
                            District Judge Fred S. Harless to the 193rd District Court to try
                            the Browning case.
                6/10/82   The Honorable Hugh Snodgrass, the elected and presiding judge of the
                            193rd District Court, entered an order in the Browning v. Holloway
                            case ordering that case to be transferred to the docket of the
                            162nd Judicial District Court.
                6/10/82   The Honorable Dee Brown Walker, the elected and presiding judge of
                            the 162nd District Court, entered an order consolidating the
                            Browning v. Holloway case with the Fairway v. Humble case then
                            pending in the 162nd District Court.
                6/11/82   The Honorable John J. Mead, Jr., the acting Presiding Judge of the
                            Dallas County District Courts, entered an order that all claims and
                            causes of actions of the parties in the Browning case and the
                            Fairway case be transferred back to the 193rd Judicial District
                            Court, with Judge Fred S. Harless presiding.  This order also held
                            the order of consolidation signed by Judge Walker of the 162nd
                            District Court on June 10, 1982, to be void and of no effect.  This
                            order further held that the order by Judge Hugh Snodgrass entered
                            on the 10th day of June, 1982, was also void and of no effect.
                6/11/82   Judges Snodgrass and Walker jointly entered an order that both the
                            Browning and Fairway cases would be heard before Judge Walker in
                            the 162nd District Court.
                6/12/82   The Honorable Dan Gibbs, the elected Presiding Judge of the Dallas
                            County District Courts, entered an order vacating the order entered
                            by Judge Mead on June 11, 1982, and also ordered that no further
                            proceedings should be filed or presented in the causes without
                            leave of Judge Walker of the 162nd District Court and without leave
                            of Judge Gibbs as Presiding Judge of the Dallas County District
                            Courts.
                

Holloway's position is that the special assignment of the Browning...

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