Associated Ready Mix, Inc. v. City National Bank--Appeal from 13th District Court of Navarro County

IN THE

TENTH COURT OF APPEALS

No. 10-91-022-CV

ASSOCIATED READY MIX, INC.,

Appellant

v.

CITY NATIONAL BANK,

Appellee

From the 13th District Court

Navarro County, Texas

Trial Court # 232-88

MEMORANDUM OPINION

Associated Ready Mix, Inc. sued two of its shareholders, Floyd Kirk, Sr. and Floyd Kirk, Jr., for damages and the appointment of a receiver. Subsequently, Associated joined City National Bank as a defendant in the suit. Associated's claims against City National included fraud, deceptive trade practices, conversion, wrongful foreclosure, and breach of the duty of good faith. City National filed a counterclaim seeking to recover attorney's fees and expenses, claiming that Associated's DTPA claim was filed in bad faith and only for the purpose of harassment. //

On October 18, 1990, City National was granted a partial summary judgment that all of Associated's claims, except the fraud cause of action, be dismissed with prejudice. A summary judgment dismissing with prejudice Associated's fraud claim was entered on November 13.

Associated has appealed, claiming that the court erroneously granted the summary judgments. City National filed a motion to dismiss the appeal for want of jurisdiction, alleging that the judgments are interlocutory. We agree. Although City National received summary judgments dismissing with prejudice all of Associated's claims, City National's counterclaim is still pending before the court and has not been severed from Associated's causes of action.

Generally, an appeal is proper only from a final judgment. Tex. Civ. Prac. & Rem. Code. Ann. 51.012 (Vernon 1986). An interlocutory judgment, however, may be appealable in certain instances. See id. at 51.014 (Vernon Supp. 1991). All other interlocutory judgments are nonappealable. See Baker v. Yeager, 728 S.W.2d 895, 897 (Tex. App. Houston [1st Dist.] 1987, no writ).

A final judgment disposes of all parties and issues in the suit. Houston Health Clubs v. First Court of Appeals, 722 S.W.2d 692, 693 (Tex. 1986). Although a judgment following a trial on the merits is presumed to be final, that presumption does not apply in summary judgment cases. Id. A summary judgment which leaves a counterclaim unresolved is interlocutory and nonappealable. New York Underwriters Ins. Co. v. Sanchez, 799 S.W.2d 677, 678-79 (Tex. 1990); Tingley v. Northwestern Nat. Ins. Co., 712 S.W.2d 649, 650 (Tex. App. Austin 1986, no writ).

Because the summary judgments entered in this case did not dispose of City National's counterclaim, they are interlocutory and nonappealable. Accordingly, we dismiss the appeal for want of jurisdiction.

PER CURIAM

Before Chief Justice Thomas,

Justice Cummings and

Justice Vance

Dismissed

Opinion delivered and filed October 15, 1991

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