Minns v. Minns

DUNN, Justice,

concurring.

I concur only with the results. The majority confuses settled law concerning the presumption of finality of judgment on the merits when all parties are in court, with the law applicable to partial summary judgments and partial default judgments. Both Teer v. Duddlesten, 664 S.W.2d at 702, a partial summary judgment case, and Houston Health Clubs v. First Court of Appeals, 722 S.W.2d at 692, a partial default judgment case, were interlocutory in nature because in those cases, there were issues and/or other defendants that had not been severed from the action and were not addressed in the court’s judgment. Here, all of appellee’s claims against appellant were severed from her claims against all other parties in the personal injury action and redocketed under cause no. 82-09844-A. The judgment entered on July 8, 1987, gives relief on all issues in the appel-lee’s personal injury cause of action but does not refer to appellee’s divorce cause of action and does not contain language that “all relief not expressly granted is denied.” Unless the judgment can fall within one of the exceptions to the presumption of finality of judgment, this Court must analyze this judgment in light of the presumption.

The record reflects that on March 9, 1982, the trial court granted appellant’s motion to bifurcate the divorce action, requesting that “the issue of common law marriage be bifurcated from all other issues in this case and determined on a priority basis.” Thus, by granting the motion, the court, in effect, ordered separate trials of the divorce issues in accordance with Tex.R.Civ.P.Ann. 174, which provides that:

The court in furtherance of convenience or to avoid prejudice may order a separate trial of any claim, cross-claims, counterclaims, third-party claims, or issues. (Emphasis added.)

Further, after both causes of action were consolidated, the court ordered separate trials by ordering that the divorce action be held in abeyance until the personal injury action could be completed. See Tex.R.Civ. P.Ann. 174.

The Texas Supreme Court has held that: When a judgment, not intrinsically interlocutory in character, is rendered and entered in a case regularly set for a conventional trial on the merits, no order for a separate trial of issues having been entered pursuant to Rule 17f Texas Rules of Civil Procedure, it will be presumed for appeal purposes that the court intended to, and did, dispose of all parties legally before it and of all issues made by the pleadings between such parties ... The rule ... will apply to separate claims of the plaintiff_” (Emphasis added.)

Aldridge, 400 S.W.2d at 897-98.

Under this holding, both the order to bifurcate the issues in the divorce cause of action and the order to abate the divorce pending disposition of the personal injury action are exceptions to the application of the presumption of finality that fall within the scope of rule 174. For these reasons, I would hold that the judgment before this court is interlocutory and not a final judgment.