gene-wochner-individually-and-as-next-friend-of-bryan-wochner-v-troy-and ( 1993 )

Wochner v. Johnson

IN THE

TENTH COURT OF APPEALS

No. 10-93-051-CV

     GENE WOCHNER, INDIVIDUALLY AND

     AS NEXT FRIEND OF BRYAN WOCHNER,

                                                                                              Appellant

     v.

     TROY AND GERLENE JOHNSON AND SAM D.

     SATTERWHITE, INDIVIDUALLY AND D/B/A

     SATTERWHITE LOG HOMES,

                                                                                              Appellees

From the 13th District Court

Navarro County, Texas

Trial Court # 92-00-01564-CV

O P I N I O N

      Gene Wochner appeals the granting of a summary judgment in favor of Troy and Gerlene Johnson and Sam D. Satterwhite, doing business as Satterwhite Log Homes. We will dismiss the appeal for want of jurisdiction.

      In January 1992 Wochner filed suit on behalf of himself and his minor son to recover damages for the wrongful death of his wife, Imogene Wochner. On February 12, 1990, Imogene and her three-year-old son, Bryan, were visiting her twin sister, Gerlene, in the Johnson's log home. The home was built by the Johnsons from plans and lumber purchased from Satterwhite Log Homes. After helping Gerlene move a couch from the second floor to the first floor of the log house, Imogene turned to get Bryan, who was on the second floor. Gerlene was walking toward the kitchen when she heard a noise. She turned around to find Imogene lying still between the foot of the stairs and the front door and Bryan sitting on the top step of the stairs. Imogene, who never regained consciousness, died on February 21, 1990.

      On August 28, 1992, the Johnsons filed a motion for summary judgment asserting that, as a matter of law, they did not breach a duty owed to Imogene and that there was no evidence that her injuries were proximately caused by a breach of that duty or a defect in the stairs. On September 10, 1992, Satterwhite also filed a motion for summary judgment on Wochner's negligence causes of action. Specifically, Satterwhite asserted that Wochner failed to establish that Satterwhite had a duty to Imogene because the plans sold to the Johnsons contained no specifications for the staircase and that there was no issue of material fact on proximate cause. However, Wochner's amended petition, filed on February 16, 1993, also asserts a strict-liability cause of action, alleging that Satterwhite's failure to warn the purchasers of its plans that the stairs could be dangerous if not constructed properly and his failure to instruct builders on the proper construction of the stairs were producing causes of Wochner's injuries.

      On February 22, 1993, the court held a hearing on both motions for summary judgment. A "Final Judgment" was signed by the trial court on March 2, 1993. The judgment granted by the court disposed of all causes of action except the strict-liability cause of action against Satterwhite. A summary judgment that fails to dispose expressly of all parties and issues in the pending suit is interlocutory and not appealable unless a severance of that phase of the case is ordered by the trial court; in the absence of an order of severance, the party against whom an interlocutory summary judgment has been rendered has his right of appeal when, and not before, the partial summary judgment is merged in a final judgment disposing of all parties and issues.

      Although the court's final judgment stated that "all relief not specifically granted in this order be, and is hereby, denied," such a "Mother Hubbard" provision does not convert an intrinsically interlocutory summary judgment into a final appealable judgment disposing of claims concerning which no motion for summary judgment has been filed. Because Satterwhite did not move for summary judgment on Wochner's strict-liability cause of action, the summary judgment disposes of only the negligence causes of action and is, therefore, interlocutory. As a result, we are without jurisdiction to consider Wochner's points of error.

      The appeal is dismissed.

                                                                                 BOBBY L. CUMMINGS

                                                                                 Justice

Before Chief Justice Thomas,

          Justice Cummings, and

          Justice Vance

Dismissed

Opinion delivered and filed September 1, 1993

Do not publish

serif">      Justice Vance, and

      Justice Gray

Reversed and remanded

Opinion delivered and filed May 16, 2001

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