Teer v. Duddlesten
| Decision Date | 22 February 1984 |
| Docket Number | No. C-1507,C-1507 |
| Citation | 664 S.W.2d 702 |
| Parties | Reggie TEER et al., Petitioners, v. Wayne B. DUDDLESTEN et al., Respondents. |
| Court | Texas Supreme Court |
We grant the motion for rehearing, withdraw our former opinion and judgment of July 20, 1983, substitute this opinion reversing the judgments of the courts below.
In this appeal from a summary judgment, the question is whether the trial court erred in granting a final rather than a partial summary judgment. Plaintiffs Reggie Teer and Andy Hunsicker sued City of Bellaire, Wayne B. Duddlesten, and H-R-D-37, Ltd. Plaintiffs sought a declaratory judgment declaring a city ordinance invalid. Two of the defendants, Duddlesten and H-R-D-37, moved for a summary judgment, which the trial court granted. The judgment was drawn as a final judgment for those two defendants but also included a judgment for the defendant, City of Bellaire. The court of appeals affirmed the trial court judgment. 641 S.W.2d 569. We reverse the judgment of the courts below for their error in rendering a final judgment for City of Bellaire when it had made no motion for summary judgment.
Plaintiffs' suit was an attack upon the validity of City of Bellaire's Ordinance No. 1842 that provided for Planned Development Districts as one class of its zoning districts. Two of City's co-defendants moved for summary judgment, but City filed no motion, gave no notice, produced no affidavits, and made no showing. It did nothing. See Tex.R.Civ.P. 166-A(a), (b). A summary judgment may only be granted in favor of movant whose evidence offered in support of the motion establishes the movant's right to judgment as a matter of law. Gibbs v. General Motors Corporation, 450 S.W.2d 827, 828 (Tex.1970); see Tigner v. First National Bank of Angleton, 153 Tex. 69, 264 S.W.2d 85, 87 (1954). The finality of a declaratory judgment, by the express terms of Rule 166-A, is governed by the same rules as other kinds of judgments. Teer and Hunsicker have not yet confronted City of Bellaire, the main defendant against whom they brought suit, but they have suffered an adverse judgment in favor of City. City was not a party to the summary judgment proceedings either as movant or non-movant, and whether City received a favorable or adverse judgment, the trial court erred in finally adjudicating the rights of that party.
The trial court's judgment ordered that plaintiffs Teer and Hunsicker "recover nothing of, from, and against Defendants, City of Bellaire, Wayne B. Duddlesten, and H-R-D-37, Ltd." It ordered "that Defendants, City of Bellaire, Wayne B. Duddlesten, and H-R-D-37, Ltd., be, and they are hereby, discharged." It then declared the ordinance valid. Plaintiffs Teer and Hunsicker appealed to protect themselves from the final judgment in favor of City of Bellaire and the other defendants. On appeal, however, they urged that the trial court erred in rendering a final judgment in favor of City when that defendant had not asked for a summary judgment.
An appeal lies from a final summary judgment, but for a summary judgment to be final, it must dispose of all issues and parties. Hunt Oil Co. v. Moore, 639 S.W.2d 459 (Tex.1982); Pan American Petroleum Corp. v. Texas Pacific Coal & Oil Co., 159 Tex. 550, 324 S.W.2d 200 (1959). A summary judgment that does not dispose of all the parties or issues is one that is interlocutory. Schlipf v. Exxon Corp., 644 S.W.2d 453 (Tex.1982); Spring Woods Shopping Center v. University Savings Ass'n, 610 S.W.2d 177 (Tex.Civ.App.--Houston [1st Dist.] 1980, writ ref'd n.r.e.); Dixon v. Shirley, 531 S.W.2d 386 (Tex.Civ.App.--Corpus Christi 1975), writ ref'd n.r.e. per curiam, 545 S.W.2d 441 (Tex.1976). A partial or interlocutory summary judgment may be made final if the judgment severs the issues and parties that are left unadjudicated. Pan American Petroleum Corp., 324 S.W.2d at 200-01. There was no severance in this case.
These rules, until recently, were uniformly applied and presented no problems. The problems arise when a trial court erroneously renders a final judgment, when, under the record of the summary judgment proceeding, only a partial and unappealable judgment should be rendered. We confronted that problem in Schlipf v. Exxon Corp., 644 S.W.2d 453 (Tex.1982). In Schlipf, all of the parties were before the court in the summary judgment proceeding, but the trial court did not make an adjudication of all the issues. The trial court erroneously wrote the judgment as a final judgment.
The court of appeals in Schlipf reversed the judgment and remanded the cause to the trial court. Schlipf v. Exxon Corp., 626 S.W.2d 74, 78 (Tex.App.--Houston [14th Dist.] 1981), writ ref'd n.r.e. per curiam, 644 S.W.2d 453 (Tex.1982). One judge dissented, saying that the court of appeals should have dismissed the appeal, because the trial court could not render judgment without adjudicating all the issues. We refused the application and stamped it "no reversible error," because neither party raised the point, and it is not fundamental error. The remand for a trial of the untried issue was the correct judgment. The point of Schlipf was that the trial court, in error, granted a final summary judgment instead of a partial summary judgment. 644 S.W.2d at 454-55.
The court of appeals in this case has confused settled law concerning the finality of judgments in conventional trials on the merits when all parties are in court with the law applicable to partial summary judgments. The court mistakenly relies upon this court's decision in North East Independent School District v. Aldridge, 400 S.W.2d 893 (Tex.1966). In North East, we used these carefully selected words:
When a judgment ... is rendered and entered in a case regularly set for a conventional trial on the merits, ... it will be presumed for appeal purposes that the Court intended to, and did, dispose of all parties legally before it and of all issues made by the pleadings between such parties.... Of course, the problem can be eliminated entirely by ... a simple statement that all relief not expressly granted is denied. [Emphasis added.]
Id. at 897-98. In this case, City of Bellaire was not before the court on the summary judgment and the hearing was not a conventional trial regularly set for trial on the merits.
The settled rule applicable to partial summary judgments is different. This court's decision in Pan American Petroleum Corp. v. Texas Pacific Coal & Oil Co., 159 Tex. 550, 324 S.W.2d 200 (1959), settled the law that applies to all summary judgment cases.
In our opinion a summary judgment which does not dispose 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 [cites omitted]. In the absence of an order of severance, a party against whom an interlocutory summary judgment has been rendered will have his right of appeal when and not before the same is merged in a final judgment disposing of the whole case.
The rule for writing judgments about conventional trials on the merits is different in another way from the rule that applies to partial summary judgments. In North East, this court stated that in a conventional trial regularly set for trial on the merits, it will be presumed that the court intended to dispose of all parties legally before it as well as all of the issues made by the pleadings....
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