Opinion
NO. 14-18-00596-CV
08-27-2020
SWEET WATER WELL SERVICE, LLC, Appellant v. WEST HOUSTON AIRPORT CORP., Appellee
On Appeal from the 164th District Court Harris County, Texas
Trial Court Cause No. 2017-12094
MEMORANDUM OPINION
Appellant Sweet Water Well Service, LLC appeals the trial court's judgment against appellee West Houston Airport Corporation. Appellant raises five issues. First, the trial court erred in denying all the motions for summary judgment but granting relief to appellee. Second, the trial court erred in the judgment by granting more relief than appellee requested in its no-evidence motion for summary judgment. Third, because there was no evidence of reasonable attorney's fees, the trial court erred in awarding appellee its attorney's fees. Fourth, the trial court erred in making findings of fact in its summary judgment order. Fifth, the trial court erred in denying appellant's traditional motion for summary judgment. Because we conclude that appellant's first, second, and third issues are meritorious, we reverse the trial court's judgment and remand the case for further proceedings.
I. FACTUAL BACKGROUND
Appellee and Matthew Krause executed a contract for storage of Krause's aircraft at appellee's airport. In 2014, Krause got behind in his payments to appellee under the contract. Appellee filed an affidavit on aircraft storage lien to secure a lien on the aircraft for the unpaid fees owed under the contract. The September 2016 lien states that "[t]he storage provided by [appellee] commenced on January 1, 2014 and had been continuous through October 31, 2016. The amount due for the storage is ($7,177.47). . . . The amount of the Lien is for . . . ($7,177.47)."
In December 2016, appellant contacted appellee to inquire about purchasing the aircraft. Appellee sent appellant a copy of the lien and informed appellant that appellee intended to sell the aircraft at auction. Appellant then went directly to Krause and negotiated a purchase agreement for the aircraft. After acquiring the aircraft under the purchase agreement, appellant contacted appellee to pay off the lien on the aircraft. The parties expostulated over the amount owed under the contract and lien. Shortly thereafter appellant initiated this lawsuit.
II. PROCEDURAL BACKGROUND
In February 2017, appellant filed its original petition asserting claims against appellee for violating the Deceptive Trade Practices-Consumer Protection Act (DTPA) and Chapter 12 of the Civil Practices and Remedies Code. In October 2017, appellee filed a no-evidence motion for summary judgment on all of appellant's claims. The motion also indicated that appellee sought attorney's fees and costs but did not attach any evidence of attorney's fees to the motion. Prior to the hearing on appellee's no-evidence motion, appellant amended its petition to include claims against appellee for violations of Chapter 70 of the Property Code and Chapter 12 of the Civil Practice and Remedies Code, declaratory judgment, and fraud. Appellant did not reassert its claim under the DTPA in the amended petition. A hearing was held in December 2017 on the no-evidence motion, but no order was signed. After the hearing, appellant filed a motion for partial summary judgment on its claim for declaratory judgment against appellee.
On April 3, 2018, appellee filed its first amended counterclaim against appellee asserting claims for declaratory judgment, judicial foreclosure, breach of contract, and attorney's fees. On the same day, appellee filed a supplemental no-evidence motion for summary judgment on appellant's claims for fraud and for violations of Chapter 70 of the Property Code and Chapter 12 of the Civil Practice and Remedies Code. Appellee then filed its response to appellant's motion for summary judgment arguing that appellant's motion should be denied because "genuine issues of material fact exist concerning the amount due."
The parties set both appellee's no-evidence motion for summary judgment and appellant's motion for summary judgment for hearing on April 27, 2018. However, on April 23, 2018, the trial court signed a "Final Judgment." The Final Judgment recited that the trial court had "considered the parties' motions (including motions for summary judgment), the responses, the evidence on file, and the arguments of counsel, if any." The trial court denied all pending motions for summary judgment and rendered judgment in favor of appellee. It further ordered that appellee "shall recover" from appellant "an amount equal to $32,881.66 minus any amount recovered in a sale of the subject aircraft." Of this amount, $18,962.86 is attorney's fees and costs awarded "pursuant to the Contract, § 38.001 Tex. Civ. Prac. & Rem. Code, and § 70.306 Tex. Property Code." The Final Judgment ordered that appellant take nothing by its claims.
III. FINAL JUDGMENT
A. Trial Court Granted More Relief than Requested
In its second issue, appellant argues that the trial court granted appellee more relief than requested. Appellee contends that any error committed by the trial court was harmless where the omitted ground was intertwined with a ground addressed in the motion. Appellee argues that the trial court had "sufficient information before it" in the form of "pleadings, affidavits, discovery, and other evidence" submitted to the trial court in support of and in response to each party's motions for summary judgment in addition to the "substantial briefing on the issues and affidavits."
1. Applicable Law
"The purpose of a summary judgment is to 'provide a method of summarily terminating a case when it clearly appears that only a question of law is involved and that there is no genuine issue of fact.'" G & H Towing Co. v. Magee, 347 S.W.3d 293, 296-97 (Tex. 2011) (quoting Gaines v. Hamman, 163 Tex. 618, 358 S.W.2d 557, 563 (1962)). However, summary judgments may only be granted upon grounds expressly asserted in the summary judgment motion. Id. at 297; see also McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 341 (Tex. 1993) (holding that summary judgment motion under Rule 166a(c) itself must contain ground upon which it is made, reliance may not be placed on briefs or summary judgment evidence). A trial court may not grant summary judgment in favor of a party that does not properly move for it by motion. Teer v. Duddlesten, 664 S.W.2d 702, 703 (Tex. 1984); Sw. Invs. Diversified, Inc. v. Estate of Mieszkuc, 171 S.W.3d 461, 468 n.15 (Tex. App.—Houston [14th Dist.] 2005, no pet.); Daniels v. Daniels, 45 S.W.3d 278, 282 (Tex. App.—Corpus Christi 2001, no pet.) ("A trial court may not grant a motion for summary judgment in a case where no motion for summary judgment was ever filed."). "When a trial court grants more relief than requested and, therefore, makes an otherwise partial summary judgment final, that judgment, although erroneous, is final and appealable." Magee, 347 S.W.3d at 298.
The purpose of a no-evidence summary judgment motion is to evaluate the evidence to see if a trial is necessary. Benitz v. Gould Group, 27 S.W.3d 109, 112 (Tex. App.—San Antonio 2000, no pet.). A party cannot file a no-evidence motion on a claim or defense on which it has the burden of proof. See Nowak v. DAS Investment Corp., 110 S.W.3d 677, 680 (Tex. App.—Houston [14th Dist.] 2003, no pet.).
2. Analysis
Here, appellee moved for no-evidence summary judgment on appellant's claims for fraud, violations of Chapter 12 of the Civil Practice and Remedies Code, and violations of Chapter 70 of the Property Code, and appellee also sought its attorney's fees. Appellee failed to file a traditional summary judgment motion on its claims against appellant for declaratory judgment and breach of contract, however, the trial court awarded appellee damages and its attorney's fees based on the contract, its declaratory judgment claim, and under Chapter 70 of the Property Code. Aside from attorney's fees, appellee failed to request affirmative relief through a summary judgment motion on the claims for which it had the burden of proof. Thus, it was reversible error for the trial court to enter an award for appellee on its claims for breach of contract and declaratory judgment. See Magee, 347 S.W.3d at 298; Teer, 664 S.W.2d at 703; Young v. Hodde, 683 S.W.2d 236, 237 (Tex. 1984) ("We agree . . . that the trial court erred in rendering a take-nothing judgment . . . in the absence of a motion for summary judgment . . . seeking that relief."); LaGoye v. Victoria Wood Condo Assoc., 112 S.W.3d 777, 784 (Tex. App.—Houston [14th Dist.] 2003, no pet.) ("Because [appellee] did not file a motion for summary judgment, the trial court erred in effectively rendering a summary judgment in its favor by entering the judgment nunc pro tunc.").
Appellee's no-evidence summary judgment motion had a section on attorney's fees and requested an award of appellee's attorney fees. Appellant did not respond to this section of appellee's motion and did not file an objection or special exception to this portion of appellee's motion. Thus, we must determine the nature of this portion of the motion on appeal. Cohen v. Landry's Inc., 442 S.W.3d 818, 823 (Tex. App.—Houston [14th Dist.] 2014, pet. denied). We determine the nature of a motion for summary judgment by its substance, not title or caption. Id.; see also Davis v. Canyon Creek Estates Homeowners Ass'n, 350 S.W.3d 301, 308 (Tex. App.—San Antonio 2011, pet. denied) (court should consider substance of motion rather than categorize by title or form).
Appellee argues that any error by the trial court in rendering judgment in appellee's favor was harmless where the cause of action is precluded as a matter of law by other grounds raised in the case. See Magee, 347 S.W.3d at 297-98. This is a "very limited exception to the general rule" that all grounds for summary judgment must be raised in a motion for summary judgment. See Wilson v. Davis, 305 S.W.3d 57, 73 (Tex. App.—Houston [1st Dist.] 2009, no pet.) quoted in Magee, 347 S.W.3d at 297; see also PAS, Inc. v. Engel, 350 S.W.3d 602, 610 (Tex. App.—Houston [14th Dist.] 2011, no pet.) ("The application of an exception requires 'a very tight fit' between what was proved or disproved in the motion and what elements must be proved or disproved for the unaddressed claim."). In such a case, a party has moved for summary judgment but omitted at least one ground or cause of action. See Wilson, 305 S.W.3d at 74; Engel, 350 S.W.3d at 609; Zarzosa v. Flynn, 266 S.W.3d 614, 620 (Tex. App.—El Paso 2008, no pet.); Vogel v. Travelers Indem. Co., 966 S.W.2d 748, 754 (Tex. App.—San Antonio 1998, no pet.). If the omitted ground shares a common element or is derivative to a cause of action on which summary judgment was properly granted, then the error is harmless and the judgment of the trial court should be affirmed. Magee, 347 S.W.3d at 296-98; Wilson, 305 S.W.3d at 74-75 (concluding exception did not apply because none of the "unaddressed liability theories or claims" was derivative of any other and did not share the same elements as the addressed theories); Engel, 350 S.W.3d at 609-10 (concluding exception did not apply to unaddressed claim of breach of fiduciary duty under "common ground" argument where trial court granted summary judgment for fraud claim); Zarzosa, 266 S.W.3d at 621 ("Since the misrepresentation element of [plaintiff's] fraud and fraudulent inducement claims has been disposed of, reversal of the summary judgment for consideration of those claims would be meaningless in this case.").
Here, unlike in any of the cases cited above, appellee was granted a final judgment on its affirmative claims for relief against appellant even though appellee did not file a motion for summary judgment seeking such relief. Appellee did not simply fail to address one of its claims against appellant but otherwise establish it was entitled to judgment—appellee failed to address any of its claims against appellant and contended that there was a fact question precluding summary judgment on the issue of damages. The cases cited by appellee are distinguishable, and the exception noted by appellee does not apply here. Thus, the trial court's error was not harmless. See Magee, 347 S.W.3d at 297-98.
Appellee next argues that the trial court did not grant it more relief than appellee sought in the case because "throughout the litigation" appellee had requested the relief awarded in the final judgment—citing to appellee's pleadings, Positive Feed, Inc. v. Guthmann, 4 S.W.3d 879 (Tex. App.—Houston [1st Dist.] 1999, no pet.), and Rule 166a(c) of the Rules of Civil Procedure. Rule 166a(c) provides that "[t]he motion for summary judgment shall state the specific grounds therefor. . . . The judgment sought shall be rendered forthwith if . . . there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law . . . ." Tex. R. Civ. P. 166a(c) (emphasis added). Rule 166a(c) specifically provides that a motion state the specific grounds and that the moving party show itself entitled to the judgment sought. See id.
In Guthmann, the trial court erred in granting the defendant more relief than expressly requested in its summary judgment motion. Guthmann, 4 S.W.3d at 881. That portion of the case was reversed and remanded. Id. The court then analyzed whether the trial court properly granted summary judgment on the claim raised in the defendant's motion for summary judgment. Id. Neither Rule 166a(c) nor Guthmann provide support for appellee's contention that it may be granted summary judgment on its pleadings without ever filing a motion. See Magee, 347 S.W.3d at 298; Teer, 664 S.W.2d at 703; Young, 683 S.W.2d at 237; LaGoye, 112 S.W.3d at 784; see also Golden Triangle Energy v. Wickes Lumber, 725 S.W.2d 439, 441 (Tex. App.—Beaumont 1987, no writ) ("Appellee argues that the prayer for general relief in its motion for summary judgment is sufficient to justify the trial court's granting judgment against appellants on their counterclaim. We disagree. The grounds for summary judgment must be specifically stated in the motion.").
We sustain appellant's second issue.
B. Trial Court Denied Appellee's No-Evidence Summary Judgment Motion
In its first issue, appellant argues that the trial court erred in both denying all pending motions for summary judgment and rendering a take nothing judgment on all of appellant's claims against appellee. Appellant argues that a denial of appellee's no-evidence motion for summary judgment would result in a trial on the merits of appellant's claims, not a dismissal of those claims. Thus, the trial court's judgment is erroneous and must be reversed and remanded. Appellee contends that any error in the judgment is harmless and the trial court came to the correct resolution of the case in rendering the final judgment.
1. Applicable Law
"The same rules of interpretation apply in construing the meaning of a court order or judgment as in ascertaining the meaning of other written instruments. The entire contents of the instrument and record should be considered. The judgment is to be read as a whole." Lone Star Cement Corp. v. Fair, 467 S.W.2d 402, 404-05 (Tex. 1971). "A judgment should be construed as a whole toward the end of harmonizing and giving effect to all the court has written." Point Lookout W., Inc. v. Whorton, 742 S.W.2d 277, 278 (Tex. 1987) (per curiam). "Conclusive effect is not to be given the use or not at a particular point in the judgment of the commonly employed decretal words, and what the court had adjudicated is to be determined from a fair reading of all the provisions of the judgment. Constance v. Constance, 544 S.W.2d 659, 660 (Tex. 1976).
2. Analysis
There is no explicit indication in the record that appellee's no-evidence motion was granted. The only indication in the final judgment is the trial court's order that appellant "take nothing by its claims" which, along with the next line of the final judgment indicating its finality, could be considered commonly employed decretal words. See Constance, 544 S.W.2d at 660. Earlier in the final judgment the trial court also explicitly states that "all pending motions for summary judgment are denied" which are not commonly employed decretal words in a final judgment. Frequently it is the case where a summary judgment motion is granted either in whole or in part, denied in whole or in part, or some other combination thereof. Thus, given the specific provisions within the judgment itself and the further issues with the relief ordered by the final judgment raised in appellant's second issue discussed above, we construe the final judgment's explicit language as controlling, that the trial court denied appellee's no-evidence motion and supplemental motion. Rodgers v. Williamson, 489 S.W.2d 558, 560 (Tex. 1973) (declining to adopt construction of judgment contrary to express provision within the judgment).
"The trial court should not make, and an appellate court cannot consider, findings of fact in connection with a summary judgment." IKB Indus. (Nigeria) Ltd. v. Pro-Line Corp., 938 S.W.2d 440, 441 (Tex. 1997); see also Linwood v. NCNB Tex., 885 S.W.2d 102, 103 (Tex. 1994) ("[F]indings of fact have no place in a summary judgment proceeding."). We do not consider the trial court's findings of fact or conclusions of law in our review. See Pro-Line Corp., 938 S.W.2d at 441. Even if we did consider them, the findings of fact in the final judgment focus on appellee's affirmative claims for relief—finding that a valid contract exists, the contract permits a statutory lien, the contract permits recovery of attorney's fees, appellant assumed the contract, appellant knew of the lien when it purchased the aircraft, and the amount of the "valid and perfected lien" under the contract. The conclusions of law in the final judgment also focus on appellee's affirmative claims for relief—appellee may sell the aircraft, appellant breached the contract, and the breach resulted in damages to appellee. None of these findings or conclusions support an interpretation that the trial court granted appellee's no-evidence motion or supplement. The no-evidence and supplemental motions specifically argued that there was no evidence that: (1) appellee made or used a fraudulent lien; (2) appellee intended to cause appellant harm; (3) appellant "is entitled to relief under Chapter 70;" and (4) appellee made a misrepresentation to appellant; and (5) appellant failed to specify damages or reliance.
The final judgment also rendered judgment in favor of appellee against third-party defendant Krause. Like appellant, Krause filed a motion for new trial arguing that appellee had never filed a motion for summary judgment on any claims it asserted against Krause.
We sustain appellant's first issue.
IV. ATTORNEY'S FEES
Appellant next contends that the award of attorney's fees should be reversed and remanded because the evidence is legally insufficient to uphold the award. Appellee contends that the award of attorney's fees is not reversible on appeal because appellee provided evidence of its fees that was not disputed. The final judgment awarded attorney's fees to appellee "pursuant to the Contract, § 38.001 Tex. Civ. Prac. & Rem. Code, and § 70.306 Tex. Property Code."
In its summary judgment motion and supplemental motion appellee only sought fees pursuant to sections 37.009 and 38.001 of the Civil Practice and Remedies Code, and section 70.306 of the Property Code. Because appellee did not request or seek an award of attorney's fees under the contract, the award of attorney's fees cannot be upheld on this basis. See Magee, 347 S.W.3d at 298; Teer, 664 S.W.2d at 703; Young, 683 S.W.2d at 237; LaGoye, 112 S.W.3d at 784; see also Peterson Group, Inc. v. PLTQ Lotus Group, L.P., 417 S.W.3d 46, 61 (Tex. App.—Houston [1st Dist.] 2013, pet. denied) (holding attorney's fee award could not be upheld under contract where pleading only sought attorney's fees under section 38.001 and not under the contract).
Further, only a "prevailing party" is entitled to an award of attorney's fees under section 70.306 of the Property Code and section 38.001 of the Civil Practice and Remedies Code. See Tex. Prop. Code § 70.306 (trial court may award reasonable attorney's fees to prevailing party); Green Int'l, Inc. v. Solis, 951 SW.2d 384, 390 (Tex. 1997) ("To recover attorney's fees under section 38.001, a party must (1) prevail on a cause of action for which attorney's fees are recoverable, and (2) recover damages."). Because we concluded that appellee is not entitled to judgment on any of its other claims for relief and its no-evidence summary judgment motion was denied, there is no basis in the judgment on which to uphold the award of appellee's attorney's fees under either section 70.306 or section 38.001. See Tex. Ear Nose & Throat Consultants, PLLC v. Jones, 470 S.W.3d 67, 97 (Tex. App.—Houston [14th Dist.] 2015, no pet.).
We sustain appellant's third issue.
V. APPELLANT'S MOTION FOR PARTIAL SUMMARY JUDGMENT
In its fifth issue, appellant argues that the trial court erred in denying its motion for partial summary judgment. Appellant sought a partial summary judgment while appellee sought partial summary judgment on appellant's claims. Generally, the review of the denial of a motion for summary judgment is not available because it is an interlocutory ruling and not a final judgment. Frankoff v. Norman, 448 S.W.3d 75, 87 (Tex. App.—Houston [14th Dist.] 2014, no pet.). However, "[w]hen both sides file motions for summary judgment, each litigant in support of his own motion necessarily takes the position that there is no genuine issue of material fact in the case and that he is entitled to judgment as a matter of law." Ackermann v. Vordenbaum, 403 S.W.2d 362, 364 (Tex. 1966); see also Bowman v. Lumberton Indep. Sch. Dist., 801 S.W.2d 883, 889-90 (Tex. 1990). For this exception to the general rule to apply, both sides must have sought final summary judgment in their cross-motions. CU Lloyd's of Tex. v. Feldman, 977 S.W.2d 568, 569 (Tex. 1998); Cont'l Cas. Co. v. Am. Safety Cas. Ins. Co., 365 S.W.3d 165, 172 (Tex. App.—Houston [14th Dist.] 2012, pet. denied).
Here, neither party moved for final summary judgment. Appellee also contended in its response to appellant's motion that a genuine issue of material fact existed. The exception to the rule that a denial of a summary judgment motion is not appealable does not apply in this case. See Frankoff, 448 S.W.3d at 87 (denial of cross-motions for partial summary judgment not appealable); Cont'l Cas. Co., 365 S.W.3d at 172 (same).
We overrule appellant's fifth issue.
VI. CONCLUSION
Because we have concluded that appellant's first, second, and third issues are meritorious and overruled appellant's fifth issue, we do not reach appellant's fourth issue which is an alternative basis to overrule the trial court's judgment. See Tex. R. App. P. 47.1. We reverse the trial court's judgment as to appellee's claims against appellant for breach of contract, declaratory judgment, judicial foreclosure, Chapter 70 of the Property Code, and attorney's fees and remand to the trial court. See Jones v. Strauss, 745 S.W.2d 898, 900 (Tex. 1988).
/s/ Ken Wise
Justice Panel consists of Justices Wise, Jewell, and Poissant.