# Postive Feed, Inc. v. Guthmann

> Texas Court of Appeals, 1st District (Houston) · October 14, 1999 · 4 S.W.3d 879

URL: https://www.frixlaw.com/law-library/cases/9748874

## Case

- **Full name:** POSTIVE FEED, INC., Appellant, v. Marcus GUTHMANN, Appellee
- **Court:** Texas Court of Appeals, 1st District (Houston)
- **Decided:** October 14, 1999
- **Citations:** 4 S.W.3d 879; 1999 Tex. App. LEXIS 7665; 1999 WL 826205
- **Precedential status:** Published
- **Opinion:** Concurring in part by Hedges
- **Judges:** Tim Taft
- **Cited by:** 38 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9748874

## How later opinions describe it (automated extraction)

- holding that order granting defendant's summary specific reference to one or more parties. 3 In this situation, judgment “in all things” purported to be final
- holding that order granting defendant's summary language operates to render a summary judgment final against judgment “in all things” purported to be final
- holding that order granting defendant's summary judgment "in all things" purported to be final

## Opinion text

ADELE HEDGES, Justice,
concurring and dissenting.
I respectfully dissent from the majority’s disposition of Postive’s tort claim. It is clear that Guthmann did not specifically address Postive’s tort theory “akin to malicious prosecution” in his motion for summary judgment. Therefore, it was error for the trial court to rule on the claim on summary judgment. McConnell v. Southside, 858 S.W.2d 387 , 341 (Tex.1993). What Guthmann should have done was to have filed special exceptions urging that Postive did not state a claim on which relief could be granted. Summary judgment is not a substitute for special exceptions. See In the Interest of B.I.V., 870 S.W.2d 12, 13-14 (Tex.1994).
While it may be true that, as the majority opines, “we think the legislative intent is clear, from the plain language of section 207.007 of the Labor Code, that Postive should not be allowed to circumvent the statute under some new tort theory ‘akin to malicious prosecution,’ ” neither the trial court nor we have the question before us in a proper procedural posture. Therefore, I would sustain Postive’s first and second points of error and reverse and remand the entire case.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9748874. Public record. Not legal advice.