Transceiver Corp. of America v. Ring Around Products, Inc., 22800

• Decision Date: 10 April 1979
• Docket Number: No. 22800,22800
• Citation: 581 S.W.2d 712
• Parties: TRANSCEIVER CORPORATION OF AMERICA, Appellant, v. RING AROUND PRODUCTS, INC., Appellee.
• Court: Texas Court of Appeals

Page 712

581 S.W.2d 712

TRANSCEIVER CORPORATION OF AMERICA, Appellant, v. RING AROUND PRODUCTS, INC., Appellee.

No. 22800.

Court of Civil Appeals of Texas, Dallas.

April 10, 1979.

Rehearing Denied May 1, 1979.

J. Robert Fisher, Winstead, McGuire, Sechrest & Trimble, Dallas, for appellant.

Richard L. Jackson, Shuford, Jackson & Miller, Dallas, for appellee.

Before AKIN, ROBERTSON and CARVER, JJ.

AKIN, Justice.

This is a motion to compel our clerk to file an appeal. The sole question is the appealability of an order denying a motion to quash a post-judgment deposition under Tex.R.Civ.P. 621a and denying relief from a prior judgment rendered in 1971. In his motion to quash, appellant sought affirmative relief establishing that he had fully paid the judgment which appellee was seeking to collect. The order overruled the motion to quash and recited a finding that the prior judgment had not been satisfied, but did not specifically deny appellant's affirmative relief. We hold that the trial judge's order is final and thus appealable because it disposed of all the issues between the parties before the court by implication. Accordingly, we direct the clerk to file this appeal.

Appellee filed a notice under Tex.R.Civ.P. 621a to take a deposition to discover assets of appellant to satisfy a judgment taken against appellant in 1971. In response, appellant filed a motion to quash the deposition on the ground that the 1971 judgment had been satisfied and paid in full. Although denominated "Motion to Quash", appellant prayed affirmatively that the court permanently enjoin the appellee from attempting to collect on the judgment and for declaratory relief that the judgment had been paid. The parties stipulated as to the admissibility of the documents of each party and stipulated that the facts contained in the exhibits were all the operative facts upon which the court could make its determination. After taking the record under advisement, the court denied the motion to quash and ordered the deposition to be taken. Appellant then filed this appeal.

Appellant contends that the order is appealable because it finally determined the controversy between the parties, that is, whether the 1971 judgment had been satisfied. Appellee argues, however, that whether the deposition should be quashed is now moot since it has been taken and there is nothing for this court to determine. Appellee further contends that the appellant should not be permitted to use a motion to quash as an independent suit for a declaratory judgment and for a permanent injunction. We cannot agree with appellee's contentions.

The fact that the deposition has been taken does not make the appeal moot since other relief was sought by appellant and denied by the order from which appellant seeks to appeal. The issue raised by appellant's motion to quash and his prayer for injunctive and declaratory relief was whether the 1971 judgment had been satisfied. The trial judge found this sole ultimate issue against appellant, and thus, in effect, disposed of appellant's prayer for affirmative relief by necessary implication. North East Independent School District v. Aldridge, 400 S.W.2d 893, 897 (Tex.1966). This is true because whether appellant was entitled to affirmative relief and to have the motion to quash granted rested upon whether the 1971 judgment had been satisfied. No other issue was in controversy between the parties. As Chief Justice Alexander stated in Davis v. McCray Refrigerator Sales Corp., 136 Tex. 296, 150 S.W.2d 377, 378 (1941): "It is not essential that the judgment in express terms specifically dispose of each issue. That it does dispose of a particular issue may be inferred from other provisions thereof,...