Walker v. Sharpe

• Decision Date: 28 March 1991
• Docket Number: No. 13-90-187-CV,13-90-187-CV
• Citation: 807 S.W.2d 442
• Parties: Mary Ellen WALKER, Appellant, v. Thomas G. SHARPE, Jr., Appellee.
• Court: Texas Court of Appeals

Page 442

807 S.W.2d 442

Mary Ellen WALKER, Appellant, v. Thomas G. SHARPE, Jr., Appellee.

No. 13-90-187-CV.

Court of Appeals of Texas Corpus Christi.

March 28, 1991.

Rhett G. Campbell, Morris & Campbell, Houston, for appellant.

Thomas G. Sharpe, Jr., Luke C. Kellogg, Oppenheimer, Rosenberg, Kelleher & Wheatley, San Antonio, for appellee.

Before BENAVIDES, KENNEDY and DORSEY, JJ.

OPINION

BENAVIDES, Justice.

Mary Ellen Walker appeals from the trial court's dismissal of her suit against Thomas G. Sharpe, Jr. for breach of an agreement to pay the full amount for the purchase of Walker's house. We reverse the judgment of dismissal and remand this case to the trial court.

After the death of her husband, Mary Ellen Walker, in her capacity as Independent Executrix of her husband's estate, agreed to sell the couple's home to Thomas G. Sharpe, Jr. for $85,000.00. She claimed that Sharpe had agreed to assume the $40,625.37 mortgage and to pay the balance of the sale price over a three-year period. Sharpe is an attorney who had represented the Walkers in the past and was representing Mary Ellen Walker in a medical malpractice action concerning the care given to her late husband at the time of his final illness. Walker conveyed the house and Sharpe assumed the mortgage. However, Walker subsequently filed suit in district court against Sharpe for breach of contract, breach of the duty of good faith and fair dealing, violation of the Texas Deceptive Trade Practices--Consumer Protection Act, real estate fraud, misrepresentation, and professional malpractice, claiming that Sharpe failed to pay the balance owed.

Sharpe answered that the agreement for sale of the house contemplated that he be credited for the interest payments that he would incur during the period of the mortgage, which would total more than the balance of the purchase price over the term of the mortgage. Sharpe also claimed other off-sets to the amount owed Walker, including the closing costs and the amount of attorney's fees that Walker still owed him for representation in the malpractice action. On these grounds, Sharpe claimed that he owed Walker nothing, and counterclaimed in the alternative for attorney's fees incurred in defending against Walker's claims.

In addition, Sharpe filed separate motions for summary judgment and to dismiss the suit, both based on a claimed res judicata effect of a July 13, 1988 probate court Order Confirming Sale of the property in question. The probate court order had been granted in connection with the administration of the late husband's estate. Sharpe contends that, while the Walker marital estate was still under the control of the probate court, that court had confirmed the sale of the home to Sharpe and held that the purchase price was fair and Sharpe owed Walker nothing further on the purchase of the home. ¹ At a hearing set on both motions, Sharpe argued res judicata under his motion to dismiss, and the trial court accordingly granted an order of dismissal on January 11, 1990, from which Walker brings the present appeal.

After we received the transcript in the present appeal, appellee filed a motion to dismiss in this Court by which he raises an apparent ambiguity in the record concerning whether the trial court's order of dismissal constituted a final, appealable judgment. The finality of the order of dismissal depends upon whether it disposed of certain counterclaims brought by Sharpe. Appellant has responded that the language of the order of dismissal and the surrounding circumstances clearly indicate that a final judgment was intended. We have carried the motion with the case and will now examine the nature of the judgment rendered below.

In his Second Amended Original Answer, Defendant Sharpe generally claimed that the relief requested by the Plaintiff Walker would have the effect of modifying the original agreement for sale of the home. In addition, Sharpe made the following allegations which appear to allege a conditional counterclaim (emphasis added):

XII.

Alternatively, if the Plaintiff is allowed to modify this agreement, Defendant then ... in order to put the parties in the position they were in at the time of the closing, March 12, 1984, [is entitled to recover] all monies paid on behalf of the Plaintiff under the assumption, being $38,800.00 plus interest, and attorneys fees, [and] all monies paid on behalf of Plaintiff, or debt of Plaintiff which merged in the consideration for conveyance to Defendant including cost of closing, and debts of Plaintiff.

XIII.

The Defendant further prays that he ... relied on the [loan assumption] documents provided by United Savings and the Plaintiff and if Plaintiff is now allowed to modify any of the agreements, then defendant should also recover all his costs for improvements made to said property, and attoneys fees.

XIV.

This Court should abate this action since both the Plaintiff and the lender have admitted that Defendant has assumed in excess of $85,000.00 and is bound to pay, and the lender, United Savings is not a party to this suit.

WHEREFORE, the Defendant prays that all special exceptions should be sustained, that this case be abated, and/or that Defendant recover his legal off-sets in the event of modification, plus attorneys fees and Court costs.

The trial court's order of January 11, 1990, states that (emphasis added):

The motion to dismiss this case filed herein by the Defendant, Thomas G. Sharpe, Jr. came on for a hearing on the 11th day of January, 1990, and the Court, after reviewing the evidence and hearing the argument of counsel is of the opinion this case should be dismissed.

It is hereby ORDERED, ADJUDGED and DECREED that the Plaintiff's case is dismissed and all Court costs are taxed against the Plaintiff, Mary Ellen Walker, for which let execution issue.

The trial court later filed findings and conclusions and signed a January 29, 1990 judgment, reciting that Plaintiff's claims had been earlier dismissed, but that Defendant presented evidence and was entitled to the following judgment:

It is hereby ORDERED, ADJUDGED and DECREED that Thomas G. Sharpe, Jr. has fully satisfied his obligations to pay all sums due and owing Mary Ellen Walker as a result of his assumption of a loan at United Savings of Texas regarding the purchase of Unit 5212, Section V, Ranch Viejo Subdivision, Cameron County, Texas and he is not indebted to Mary Ellen Walker for any sum.

It is further ORDERED, ADJUDGED and DECREED that Mary Ellen Walker failed to provide a title policy to Thomas G. Sharpe, Jr., as required by the assumption agreement executed by Mary Ellen Walker and Thomas G. Sharpe, Jr.

It is further ORDERED, ADJUDGED and DECREED that Thomas G. Sharpe, Jr. recover of and from Mary Ellen Walker the sum of $34,250.00 with interest at the legal rate from date of entry of Judgment, and all costs of Court, for which let execution issue.

Pursuant to Plaintiff's Amended Motion for New Trial or for Reconsideration of Order of Dismissal and Judgment filed February 8, 1990 and complaining of both the dismissal and the later judgment, the trial court on March 26, 1990, signed an order which:

ORDERED that the motion for new trial and for consideration is denied as to the [January 11, 1990] order; and it is further

ORDERED that the JUDGMENT signed and entered on January 29, 1990 and the findings of fact and conclusions of law also signed and entered on January 29, 1990 are entirely and completely set aside....

Therefore, the case presently stands upon the finality of the January 11, 1990 order of dismissal alone. Although the trial court attempted to grant additional relief to Sharpe by the January 29, 1990 judgment, that is of no present effect, and we must determine whether the dismissal alone was sufficient to constitute a final judgment.

A final judgment is one that disposes of all parties and all issues in a lawsuit. Schlipf v. Exxon Corp., 644 S.W.2d 453, 454 (Tex.1982); Higginbotham v. Bemis Co., 722 S.W.2d 511 (Tex.App.--Beaumont 1986, no writ). In determining whether the judgment is final, different presumptions apply depending on whether the judgment follows a conventional trial on the merits or results from default or summary proceedings. Following a conventional trial on the merits, the judgment is presumed final. This presumption, however, does not apply to default judgments and summary judgments, which are merely interlocutory unless they specifically dispose of all pleas for relief either expressly or by necessary implication. See Houston Health Clubs, Inc. v. First Court of Appeals, 722 S.W.2d 692, 693 (Tex.1986); North East Independent School District v. Aldridge, 400 S.W.2d 893, 898 (Tex.1966) . Specifically, it will not be presumed that a judgment dismissing a plaintiff's suit or nonsuit, plea to the jurisdiction, plea in abatement, for want of prosecution, etc., also disposed of the issues in an independent cross-action. Aldridge, 400 S.W.2d at 897; 4 R. McDonald, Texas Civil Practice in District and County Courts § 17.10.5 (rev.1984); see also Chase Manhattan Bank, N.A. v. Lindsay, 787 S.W.2d 51, 53 (Tex.1990).

In the present case, the dismissal of "plaintiff's case" would not ordinarily be presumed to dispose of a remaining counterclaim. However, the counterclaim alleged by Sharpe was conditional upon relief being granted to Walker in the form of a modification of the purchase agreement. Texas Law requires a judgment to conform to the pleadings and the verdict under Tex.R.Civ.P. 301, and a party is limited to recovery upon the precise theory of recovery stated in his pleadings. Wilson v. McCracken, 713 S.W.2d 394, 395 (Tex.App.--Houston [14th Dist.] 1986, no writ); see also Cunningham v. Parkdale Bank, 660 S.W.2d 810, 812 (Tex.1983); Villalon v. Vollmering, 676 S.W.2d 220, 222 (Tex.App.--Corpus Christi 1984, no writ). Therefore, since the order of dismissal denied any relief to Walker, the condition precedent to Sharpe's...