Rex M. HUSTON, Trustee, Petitioner, v. FEDERAL DEPOSIT INSURANCE CORPORATION in its capacity as receiver, Respondent, 800 S.W.2d 845

OPINION ON MOTION FOR REHEARING MAUZY, Justice. The Court’s prior opinion delivered on April 18, 1990 is withdrawn and the following substituted. We overrule the respondent’s motion for rehearing. This case involves the issues of (1) whether final orders resolving discrete issues during the course of a state bank receivership must be timely appealed or be waived; and (2) whether interest may be paid on the claims of the creditors of a failed state bank.

The court of appeals held that the Federal Deposit Insurance Corporation (F.D.I.C.) could wait to appeal the trial court’s order denying interest to the claims of the bank’s creditors until the trial court rendered its final termination order of the receivership. 757 S.W.2d 912. We hold that orders which resolve discrete issues in connection with any receivership are appealable. However, because it would be unfair to apply this decision retrospectively as discussed herein, we reverse the judgment of the court of appeals and affirm the trial court’s judgment denying interest claims of the estate’s creditors.

The Bank of Woodson was closed by the Texas Department of Banking on March 1, 1982. The F.D.I.C. accepted appointment as receiver of the insolvent bank on March 11, 1982. The inventory of assets which was filed by F.D.I.C. on March 12, 1982, shows total assets of $3,168,192.75 and liabilities of $3,470,089.54. A surplus was later created, however, by the recovery of more than $600,000.00 from a banker’s blanket bond that the bank had procured insuring it against losses it suffered by reason of dishonest or improper actions of former bank officers and employees.

Upon receipt of the funds from the bond claim, the F.D.I.C. as receiver paid the final principal owing to the creditors of the bank on June 16, 1986. Immediately thereafter, on July 7, 1986, Huston filed an application to compel a final dividend, report and disposition of assets. On Sept. 29, 1986, the receiver filed its final accounting as of Aug. 31, 1986, and a hearing was held to determine who was entitled to the surplus of approximately $298,103.00. On Jan. 15, 1987, the trial court rendered an order on F.D.I.C.’s request, holding that interest was not payable to creditors of the bank.

No appeal was timely pursued from that order. Six months later, the trial court concluded this receivership proceeding pursuant to the Texas state bank receivership statutes [TEX.REV.CIV.STAT. ANN. arts. 342-801 to 342-816], and on July 21, 1987, rendered its termination order. We hold that a trial court’s order that resolves a discrete issue in connection with any receivership has the same force and effect as any other final adjudication of a court, and thus, is appealable. See Gossett v.

Griffin & Kimbrough, 107 S.W.2d 1115 (Tex.Civ.App.—San Antonio 1937, writ dism’d); In re: Marietta State Bank, 35 S.W.2d 767 (Tex.Civ.App.—Texarkana 1931, no writ); and Chapman v. Guaranty State Bank, 267 S.W. 690 (Tex.Comm’n App.1924, opinion adopted). All three of these cases involved trial court orders during the course of the liquidation and receivership of a failed state bank. Nevertheless, the orders were considered to have the same force and effect as any other final adjudication.

In Gossett, a law firm sought to collect on a claim against a failed bank which was in the hands of the state banking commissioner for liquidation. The commissioner allowed only a fraction of the claim. The law firm challenged the commissioner’s decision by intervening in the receivership. Following trial, the court rendered judgment in favor of the law firm for the full amount of its claim.

On appeal the commissioner argued that the trial court order awarding recovery to the law firm, “without also disposing of all the other matters encompassed in the liquidation proceeding, was not a final judgment.” Gossett, 107 S.W.2d at 1116. The court of appeals rejected this argument. Citing Marietta State Bank, the Gossett court held that the trial court order allowing recovery of the law firm’s claim was a final judgment, even though it did not conclude the receivership and liquidation proceedings.

In Marietta State Bank, the banking commissioner presented a list of administrative expenses incurred in connection with the supervision and liquidation of the bank for trial court approval. Certain creditors of the bank filed a protest with the court challenging the expenses as excessive. After hearing evidence on the issue, the court held that the claimed expenses were excessive. Thereafter, the banking commissioner appealed the court’s order. As an initial matter, the appellate court held that the trial court’s order was a final judgment which was appealable. Marietta State Bank, 35 S.W.2d at 769.

In Chapman, the banking commissioner as liquidator of a failed state bank, negotiated a sale of a large part of the bank’s assets. The commissioner presented the proposed sale to the court for approval as required by statute. The court confirmed the sale. Thereafter, the purchaser of the assets attacked the sale in a collateral proceeding. The trial court granted the purchaser relief. The appellate court, however, held that the collateral attack of the sale was invalid.

The court stated: We think it may be stated, as a well-settled proposition, that an order of sale and a decree of confirmation made by a court of competent jurisdiction, and having jurisdiction of the parties and the subject matter, have the same force and effect as any other final adjudication of a court, and are subject to attack only by such methods as may be available to set aside other decrees. Chapman, 267 S.W. at 694.

There are sound policy considerations for requiring a party to appeal from an order of the court during pendency of the liquidation and receivership proceeding instead of allowing an appeal following the final order concluding the receivership. Liquidation and receivership of a failed state bank is often a lengthy proceeding. For example, in this case the liquidation and receivership of the bank lasted over six years. An inequitable delay would result which would prejudice the appellate court as well as the parties in interest when no appeals are allowed from orders of the court until the final order is rendered.

Moreover, allowing appeals from prior orders to be asserted after the concluding order directly conflicts with the underlying goal of finality that the order concluding receivership intends. Tex.Rev.Civ.Stat. Ann. art. 342-815 (Vernon Supp.1989) expressly governs orders concluding receiver-ships.

This statute provides that the final order of approval shall have the force and effect of: forfeiting and canceling the corporate charter of such bank, vesting title to the remaining assets ... in the stockholders of said bank, and releasing and discharging the [Receiver] from any further duty, obligation or liability in connection with the administration of the affairs of such bank ... Permitting appeals like the one in this case conflicts with this statutory liquidation scheme.

There must be some finality to orders which dispose of discrete issues or controverted questions by which the parties are going to be bound. Such orders must have some finality so that the statute can be given affect and so that when the final order is rendered those matters have been resolved. To allow appeals like the one in this case would destroy the necessary finality of the concluding order. The order rendered by the trial court in this case is comparable to final orders rendered by any court exercising original probate jurisdiction.

A probate order or judgment is final if it conclusively disposes of and is decisive of the issue or controverted question for which that particular part of the proceeding was brought, even if the decision does not fully and finally dispose of the entire probate proceeding. Fischer v. Williams, 331 S.W.2d 210, 213 (Tex.1960). See also Rodeheaver v. Alridge, 601 S.W.2d 51, 54 (Tex.Civ.App.—Houston [1st Dist.] 1980, writ ref’d n.r. e.); Estate of Wright, 676 S.W.2d 161 (Tex.Civ.App.—Corpus Christi 1984, no writ); and TEX.PROB.CODE § 5(e).

A probate order is appealable if it finally adjudicates a substantial right, whereas if it merely leads to further hearings on the issue, it is interlocutory. Parr v. White, 543 S.W.2d 445, 449 (Tex.Civ.App.—Corpus Christi 1976, writ ref’d n.r.e.); White v. Pope, 664 S.W.2d 105 (Tex.Civ.App.—Corpus Christi 1983, no writ). The same standards apply to orders rendered during a receivership proceeding.

Although the F.D.I.C. failed to timely perfect its appeal under our holding today, and because that holding’s application is prospective only, we will address the question of whether interest may be properly paid on the claims of the creditors of a failed state bank. We note that in 1985, the Texas legislature engrafted upon the comprehensive liquidation statutes, the so-called “depositor preference statute,” Tex. Rev.Civ.Stat.Ann. art. § 342-804a (Vernon Supp.1989). The depositor preference statute for the first time devised a priority system for the various creditors of a failed bank.

However, the statute is conspicuously silent on the matter of interest. Without further legislative guidance, a strict

interpretation of the statute would compel the conclusion that no interest should be paid on creditor’s claims. The eases from other jurisdictions as well as the federal cases cited in the dissent in support of allowing the payment of interest do not involve a priority statute. See, e.g. Stein v. Delano, 121 F.2d 975, 978 (3rd Cir.1941), cert. denied, 314 U.S. 655, 62 S.Ct. 106, 86 L.Ed. 525. The dissent’s reliance on Cavnar v. Quality Control Parking, Inc., 696 S.W.2d 549 (Tex.1985), is not persuasive.

In Cavnar, the Court noted “[s]ince no statute controls the award of prejudgment interest in personal injury eases, the Cavnars must rely upon equitable considerations in order to prevail on their prejudgment interest claim.” Id. at 552. In this case, there is a statute which controls the payment of the claims of a failed state bank and the statute does not provide for the payment of interest. Moreover, the facts of this case support the trial court’s denial of interest on the F.D.I.C.’s claims based on equitable principles.

The court of appeals held, “there is evidence to support the trial court’s judgment that some of the fees and expenses were due to the receiver’s mishandling of the claim on the bond.” 757 S.W.2d 912, 915. F.D.I.C. attempted to settle the claim for a fraction of what was ultimately recovered. The surplus in this case is due to Huston’s opposition to the proposed settlement that required the trial court to appoint a special prosecutor.

Unless inconsistent with other general law, the rules of equity govern all matters relating to the appointment, powers, duties, and liabilities of a receiver and to the powers of a court regarding a receiver. See TEX.CIV.PRAC. & REM.CODE ANN. § 64.004 (Vernon 1986). We affirm the trial court’s judgment that interest be denied. Because we hold that the F.D.I.C. did not timely perfect an appeal from the trial court’s January 15, 1987 order, we reverse the judgment of the court of appeals and affirm the judgment of the trial court.

Whether our holding should apply prospectively or retrospectively is a matter within our discretion. Sanchez v. Schindler, 651 S.W.2d 249, 254 (Tex.1983). In Duncan v. Cessna Aircraft Co., 665 S.W.2d 414, 434 (Tex.1984), we stated: Although our decisions usually apply retrospectively, “exceptions are recognized when considerations of fairness and policy” dictate prospective effect only, [citing to Sanchez ]. It could be unfair to apply this decision retrospectively, because litigants and trial courts have understandably misconstrued the somewhat cryptic holdings of the cases relied upon herein.

Accordingly, our holding as to the time of perfecting appeal will govern all orders rendered in receivership proceedings after the date of this opinion. HECHT, J., dissenting joined by PHILLIPS, C.J., and GONZALEZ and COOK, JJ. .

Article 342-804a titled "Priority of Claims— Payment" provides: On liquidation of a state or private bank or on execution of a purchase of certain assets and assumption of certain liabilities of a state bank under

Article 3a of this chapter, claims for payment against that state bank have the following priority: (1) obligations incurred by the Banking Commissioner, fees and assessments due to the Banking Department, and expenses of liquidation, including any taxes due, all of which may be covered by a proper reserve of funds; (2) claims of depositors having an approved claim against the general liquidating account of the bank; (3) claims of salaried employees of the bank for salaries that are earned but unpaid at the time the bank is closed or purchased under

Article 3a of this chapter; (4) claims of general creditors having an approved claim against the general liquidating account of the bank; (5) claims otherwise proper that were not filed within the time prescribed by this Code; (6) approved claims of subordinated creditors; and (7) claims of stockholders of the bank.