John Harvey Crossland and Julieth Crossland v. Anchor Glass Container Corporation--Appeal from 13th District Court of Navarro County

IN THE

TENTH COURT OF APPEALS

No. 10-93-251-CV

JOHN HARVEY CROSSLAND AND JULIETH CROSSLAND,

Appellants

v.

ANCHOR GLASS CONTAINER CORPORATION,

Appellee

From the 13th District Court

Navarro County, Texas

Trial Court # 90-00-00714-CV

O P I N I O N

John and Julieth Crossland (Crossland) attempt to appeal from an order granting Anchor Glass Container's (Anchor) motion for summary judgment. We hold that the summary judgment is interlocutory, and thus non-appealable, because it did not dispose of all claims against the defendant and there is no severance of the unadjudicated claims. Therefore, we will dismiss for want of jurisdiction.

Anchor owned a glass container manufacturing plant in Corsicana. After deciding to move the facility, Anchor contracted with Hag Steel Contractors to move its equipment from Corsicana. Hag hired Crossland, a trucker, to transport a 40,000 pound glass melting machine. Although Crossland initially left the plant with the load during the day, he returned to the Anchor plant that night after he discovered that the weight was not properly distributed. When Hag employees attempted to reposition the machine using a "come-a-long," the "come-a-long" broke and a piece struck Crossland in the head.

Crossland sued Anchor alleging that Anchor was negligent because it (1) created an unreasonably dangerous condition by using the "come-a-long" to attempt to move the machine; (2) failed to protect Crossland from the unreasonably dangerous condition; (3) failed to correct the unreasonably dangerous condition; and (4) failed to warn Crossland of the unreasonably dangerous condition. Anchor moved for a summary judgment on the theory that it was not responsible for the events on the night that Crossland was injured because Hag was an independent contractor. After Anchor filed this motion, Crossland amended his petition to include a claim that Anchor was negligent by failing to provide adequate lighting in the area where the accident occurred. Anchor did not amend its summary judgment motion, relying instead on a reply to Crossland's response to the motion. After a hearing, the court granted Anchor's motion, ordering that the "Motion for Summary Judgment and Brief in Support is hereby GRANTED." //

To be final and appealable, a summary judgment must dispose of all parties and issues. Chase Manhattan Bank, N.A. v. Lindsay, 787 S.W.2d 51, 53 (Tex. 1990). Furthermore, a summary judgment must dispose of all issues within a single cause of action or it is interlocutory. Id. We look only to the motion to determine the grounds for Anchor's request for a summary judgment. See McConnell v. Southside School Dist., 858 S.W.2d 337, 339 (Tex. 1993). If the summary judgment is interlocutory, we do not have jurisdiction to consider the appeal, a fact we will notice even though neither party points this out to us. See New York Underwriters Ins. Co. v. Sanchez, 799 S.W.2d 677, 679 (Tex. 1990).

Anchor never moved for a summary judgment on Crossland's cause of action based on the negligent failure to provide proper lighting in the area where the accident occurred. Without a severance, this unadjudicated claim remains pending before the court. See Lindsay, 787 S.W.2d at 53. Additionally, the order does not contain any "Mother Hubbard" language which would make it final and appealable. See Mafrige v. Ross, 866 S.W.2d 590, 592 (Tex. 1993). Thus, the summary judgment is interlocutory. Accordingly, we dismiss the cause for want of jurisdiction.

BOB L. THOMAS

Chief Justice

Before Chief Justice Thomas,

Justice Cummings, and

Justice Vance

Dismissed for want of jurisdiction

Opinion delivered and filed June 8, 1994

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