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New York Underwriters Ins. Co. v. Sanchez

Supreme Court of Texas
Dec 5, 1990
799 S.W.2d 677 (Tex. 1990)

Summary

holding that lack of appellate jurisdiction is fundamental error

Summary of this case from In the Interest of J.F.C

Opinion

No. D-0046.

December 5, 1990.

Appeal from the 348th District Court, Tarrant County, John Bradshaw, J.

Anne Gardner, Edward L. Wilkinson, Fort Worth, for petitioners.

Bill Bingham, Fort Worth, for respondent.


This application presents the jurisdictional problem of an attempted appeal from an interlocutory trial court order. Because the lack of appellate jurisdiction is fundamental error, we grant the application, reverse the judgment of the court of appeals, and render judgment as the court of appeals should have, dismissing the appeal for want of jurisdiction.

Raul Sanchez brought the present action against New York Underwriters and David Sampson, the company claims agent handling his worker's compensation claim, for breach of the duty of good faith and fair dealing. Sanchez further alleged he was entitled to recover under Article 21.21 of the Insurance Code and under the Deceptive Trade Practices Act, Tex.Bus. Com. Code Ann. §§ 17.41-.63 (Vernon 1987 Supp. 1990) (DTPA).

New York Underwriters filed a motion for summary judgment. Before the summary judgment motion was set for hearing, it also filed an amended answer and counterclaim. The counterclaim asserted that under section 17.50 of the DTPA it was entitled to defendant's attorneys' fees as to the DTPA cause of action for a groundless and bad faith claim.

The trial court rendered an "Order on Summary Judgment" granting "Defendant's Motion for Summary Judgment" and decreeing "that Plaintiff take nothing by his claims against NEW YORK UNDERWRITERS INSURANCE COMPANY and DAVID SAMPSON, and go hence without day, with costs to be taxed against Plaintiff." The judgment neither mentions nor disposes of New York Underwriter's DTPA § 17.50 counterclaim for attorneys' fees.

Sanchez filed a motion for new trial, which was heard but on which there was no express ruling. Sanchez filed an appeal bond. The court of appeals took jurisdiction of the cause as if there were a final judgment, and reversed and remanded the summary judgment. 788 S.W.2d 916. In fairness to the court of appeals, we note that the parties briefed the case as if the summary judgment were final and appealable, just as they have in this court.

In the absence of a special statute making an interlocutory order appealable, a judgment must dispose of all issues and parties in the case, including those presented by counterclaim or cross action, to be final and appealable. North East Independent School Dist. v. Aldridge, 400 S.W.2d 893, 895 (Tex. 1966). There is no presumption in a partial summary judgment proceeding that the judgment was intended to dispose of all parties and issues. Teer v. Duddlesten, 664 S.W.2d 702, 704 (Tex. 1984). The summary judgment in this case did not dispose of New York Underwriters' counterclaim and was not final and appealable. The court of appeals' assumption of appellate jurisdiction over an interlocutory order when not expressly authorized to do so by statute is jurisdictional fundamental error which this court will notice and correct even though neither party asserts it. Long v. Humble Oil Refining Co., 380 S.W.2d 554 (Tex. 1964); McCauley v. Consolidated Underwriters, 157 Tex. 475, 304 S.W.2d 265 (1957).

Without hearing oral argument and without reference to the merits, a majority of the court grants the application for writ of error, reverses the judgment of the court of appeals, and renders judgment dismissing the appeal for want of jurisdiction. Tex.R.App.P. 170.


Summaries of

New York Underwriters Ins. Co. v. Sanchez

Supreme Court of Texas
Dec 5, 1990
799 S.W.2d 677 (Tex. 1990)

holding that lack of appellate jurisdiction is fundamental error

Summary of this case from In the Interest of J.F.C

holding that court of appeals' assertion of appellate jurisdiction over an interlocutory order “when not expressly authorized to do so by statute is jurisdictional fundamental error”

Summary of this case from Jennings v. Wallbuilder Presentations, Inc.

holding that appellate court's assumption of appellate jurisdiction over interlocutory order when not expressly authorized to do so by statute is jurisdictional fundamental error that supreme court will correct even though neither party asserts it

Summary of this case from In Interest of M.G.T.

holding that in the absence of express statutory authorization, the assumption of appellate jurisdiction over an interlocutory appeal is fundamental error

Summary of this case from Abdel Hakim Labidi v. Sydow

holding that appellate court's assumption of jurisdiction over interlocutory order when not expressly authorized by statute is fundamental jurisdictional error

Summary of this case from Alpert v. Riley

holding that appellate court's assumption of jurisdiction over interlocutory order when not expressly authorized by statute is fundamental jurisdictional error

Summary of this case from Alpert v. Riley

holding that appellate court's assumption of jurisdiction over interlocutory order when not expressly authorized by statute is fundamental jurisdictional error

Summary of this case from Alpert v. Riley

holding that appellate court's assumption of jurisdiction over interlocutory order when not expressly authorized to do so by statute is fundamental jurisdictional error

Summary of this case from LMC Complete Automotive, Inc. v. Burke

holding that summary judgment order that did not dispose of counterclaim for attorneys' fees under the DTPA was not final and appealable

Summary of this case from Ortiz v. Collins

holding that claim for attorney fees omitted from summary judgment motion remained pending so that order granting motion was interlocutory and not appealable

Summary of this case from Parks v. Dewitt Co. Elec

concluding that the Court of Appeals erred by assuming jurisdiction over an appeal in which the defendant's counterclaim for attorney's fees remained pending

Summary of this case from Eaker v. Mangiameli

concluding summary judgment that did not dispose of counterclaim was not final and appealable

Summary of this case from Iacono v. Stanley Black & Decker, Inc.

reversing the court of appeals' judgment and rendering judgment dismissing the appeal for lack of jurisdiction because the trial court had not rendered a final judgment

Summary of this case from Employees Retirement System of Texas v. Duenez

In N.Y. Underwriters Ins. Co. v. Sanchez, 799 S.W.2d 677, 679 (Tex. 1990), the supreme court held that a summary judgment order that did not dispose of a counterclaim for attorney's fees under the Texas Deceptive Trade Practices Act was not final and appealable. A claim pursuant to section 17.50 of the Texas Business and Commerce Code for attorney's fees is a counterclaim.

Summary of this case from Trevino v. Credit Coll. Ser.

In New York Underwriters Insurance Company v. Sanchez, 799 S.W.2d 677 (Tex. 1990), the Court held that a summary judgment which did not dispose of all issues and parties in the case is interlocutory, not final and appealable, and the court of appeals' assumption of jurisdiction over it is jurisdictional fundamental error even though no party asserts it.

Summary of this case from Springer v. First National Bank of Plainview, Texas

In Sanchez, the plaintiff sued the defendants for breach of the duty of good faith and fair dealing and violations of the DTPA.

Summary of this case from Ross v. Arkwright Mut. Ins. Co.
Case details for

New York Underwriters Ins. Co. v. Sanchez

Case Details

Full title:NEW YORK UNDERWRITERS INSURANCE COMPANY and David Sampson, Petitioners, v…

Court:Supreme Court of Texas

Date published: Dec 5, 1990

Citations

799 S.W.2d 677 (Tex. 1990)

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