Minns v. Minns ( 1988 )

OPINION ON MOTION FOR REHEARING

EVANS, Chief Justice.

Our prior opinion dated August 31, 1988, is withdrawn, and the following opinion is substituted.

The appellant, Richard L. Minns, seeks review of an amended order of sanctions dated August 5, 1987, striking the appellant’s pleadings and entering a default monetary judgment against him. We conclude that the trial court’s order is interlocutory, and we dismiss the appeal for want of jurisdiction.

The record reflects that on March 2, 1982, the appellee instituted a divorce action, cause no. 82-09844, against the appellant in the 311th District Family Law Court. Thereafter, on June 2, 1982, the appellee instituted a personal injury action, cause no. 82-27539, against appellant and three other individuals in the 151st Civil District Court. The personal injury suit, cause no. 82-27539, was then transferred to the 311th District Family Law Court, and on May 16, 1984, the two actions were consolidated as cause no. 82-09844.

On December 3, 1985, the trial court entered an order of abatement, which recited that the divorce action was “abated and dismissed.” But on December 17,1986, the court entered a nunc pro tunc order correcting the December 3, 1985 order of abatement to reflect that the divorce action was not abated and dismissed, but was abated and stayed pending disposition of the personal injury action. The appellant then filed an application for writ of mandamus in this Court, asserting that the December 3, 1985 order of abatement had become final and that the trial court lacked jurisdiction to enter the nunc pro tunc order. In an unpublished opinion issued February 19, 1987, this Court denied the relator’s application for writ of mandamus, concluding that the trial court had plenary power to correct the clerical error in the earlier order to reflect the true decision of the court. See Minns v. Elliott, No. 01-86-00860-CV (Tex.App. — Houston [1st Dist.], February 19, 1987, orig. proceeding) (not published) [1987 WL 6789]. No appeal has been taken from that ruling.

On August 5, 1987, the court entered an amended order of sanctions, striking the appellant’s pleadings, entering a default judgment against the appellant on “all issues pertaining to liability,” and awarding the appellee past and future damages plus pre-judgment and post-judgment interest. On October 8, 1987, the trial court severed all causes of action asserted by the appel-lee against the appellant from all other causes of action asserted by the appellee against the other defendants, but this order did not sever the divorce action from the personal injury action asserted by the ap-pellee against the appellant.

A judgment is not final and cannot provide a basis for an appeal unless it disposes of all issues and parties in the case. Baker v. Hansen, 679 S.W.2d 480 (Tex.1984). Thus, a judgment that only adjudicates a part of a pending cause and reserves certain claims for later disposition, is not an appealable judgment. See Wilcox v. St. Mary’s Univ., 501 S.W.2d 875, 876 (Tex.1973).

Generally, it will be presumed that all pleaded issues were disposed of by a judgment rendered after a conventional trial on the merits, unless the record shows to the contrary. North East Indep. School Dist. v. Aldridge, 400 S.W.2d 893, 895 (Tex.1966). But this presumption does not apply unless the judgment or order was rendered after a “conventional trial regularly set for trial on the merits.” Teer v. Duddlesten, 664 S.W.2d 702, 704 (Tex.1984). Thus, the Texas Supreme Court has held that the presumption does not apply to judgments that are interlocutory in nature, such as summary judgments or default judgments. Houston Health Clubs v. First Court of Appeals, 722 S.W.2d 692, 693 (Tex.1986); see also Dickerson v. Mack Fin. Corp., 452 S.W.2d 552 (Tex.Civ.App.— Houston [1st Dist.] 1969, writ ref’d n.r.e.).

The order in this case simply awarded monetary sanctions against the appellant for his failure to comply with the trial court’s orders. Clearly, the order was not entered as a result of a “conventional trial regularly set for trial on the merits.” The order did not address the parties’ claims in the pending divorce action and did not order those issues severed from the personal injury action. Indeed, an earlier order in the record expressly abated and stayed the divorce issues pending a determination of the personal injury action. Thus, it could not be presumed, even if a presumption would otherwise be applicable, that the issues were disposed of by the default. See Zellers v. Barthel, 727 S.W.2d 364, 365 (Tex.App. — Fort Worth 1987, no writ).

We overrule the appellant’s arguments that the finality of the judgment should be inferred from the parties’ course of conduct and from statements made by the court and counsel at the hearing on the appellee’s motion for sanctions. The concepts of a partial interlocutory disposition of certain issues, leaving others to be determined at some future date, on the one hand, and a presumption or inference that the court intended to enter a final judgment on the other, are inconsistent. See Teer, 664 S.W.2d at 704.

The appellant’s motion for rehearing is overruled, and the appeal is dismissed for want of jurisdiction.

DUNN, J., concurs.