Opinion
No. 01-01-01154-CV.
Opinion issued March 11, 2004.
On Appeal from the 281st District Court, Harris County, Texas, Trial Court Cause No. 95-22777.
Dov Avni Kaminetzky, Houston, TX; Michael C. Whalen, Houston, TX; Tamar Avni Kaminetzky, Jericho, NY; Ehud Avni, Houston, TX, for Appellant(s).
Marc D. Markel and Clayton R. Hearn, Roberts, Markel Guerry, P.C., Houston, TX, and Cliff Davis, Butley Hailey, P.C., Houston, TX, for Appellee(s).
Panel consists of Justices NUCHIA, JENNINGS, and KEYES.
MEMORANDUM OPINION ON REHEARING
In an opinion issued on September 24, 2003, this Court dismissed this appeal for want of prosecution because appellants, Tamar Avni-Kaminetzky (Tamar) and Dov Avni Kaminetzky a/k/a Dov K. Avni (Dov), failed timely to comply with an order of this Court. In an order dated November 6, 2003, this Court granted appellants' motions for rehearing, vacated its previous judgment, and withdrew its original opinion.
Appellants challenge the trial court's rendition of judgment, entered after a jury trial, awarding appellee, Mission Bend No. 5 Home Association, Inc. (Mission Bend), $147 as an unpaid maintenance assessment on residential property owned by Tamar and $19,322 in attorneys' fees.
Mission Bend is now known as "Mission Bend No. 5 Homeowners Association, Inc."
In four issues, appellants contend that (1) the trial court's judgment was not final because it did not dispose of all pending claims, (2) the trial court erred in "disregarding" the holding of this Court's February 11, 1999 opinion issued in this case, (3) the trial court erred in denying appellants' motions for summary judgment, and (4) the trial court erred in failing to take judicial notice of "findings of fact" contained in this Court's February 11, 1999 opinion. In a fifth issue, Tamar contends that the trial court erred in submitting the charge to the jury because questions concerning necessary elements of Mission Bend's cause of action were omitted from the charge.
Avni-Kaminetzky v. Mission Bend No. 5 Home Ass'n Inc., No. 01-97-00174-CV (Tex. App.-Houston [1st Dist.] Feb. 11, 1999, no writ) (not designated for publication).
Although appellants list several additional issues as "presented for review" in the introductory section of their brief, those additional issues are not discussed in the body of appellants' brief and are not supported by any citations to authority or to the record. Thus, such issues are waived. See Tex.R.App.P. 38.1(h); Tesoro Petroleum Corp. v. Nabors Drilling USA, Inc., 106 S.W.3d 118, 128 (Tex. App.-Houston [1st Dist.] 2002, pet. denied). We note that parties who represent themselves pro se must comply with all applicable laws and rules of procedure and are held to the same standards as are licensed attorneys. See Mansfield State Bank v. Cohn, 573 S.W.2d 181, 185-84 (Tex. 1978); Kanow v. Brownshadel, 691 S.W.2d 804, 806 (Tex. App.-Houston [1st Dist.] 1985, no writ).
We affirm.
Facts and Procedural Background
In May 1994, Mission Bend filed suit against Tamar to collect delinquent maintenance assessments owed for 1993 and 1994 on her residential property located at 7106 Corta Calle. Tamar answered and filed a counterclaim against Mission Bend for "malice." Mission Bend subsequently filed a motion for summary judgment, which was granted by the trial court.
This lawsuit was originally filed in Fort Bend County and, by agreement of the parties, was later transferred to Harris County.
On Tamar's original appeal to this Court, we concluded that, in support of its motion for summary judgment, Mission Bend did not present summary judgment evidence to establish, as matter of law, that the maintenance assessments at issue had been approved by a proper vote of the property owners. See Avni-Kaminetzky v. Mission Bend No. 5 Home Ass'n Inc., No. 01-97-00174-CV, slip op. at 3 (Tex. App.-Houston [1st Dist.] Feb. 11, 1999, no writ) (not designated for publication). Accordingly, this Court held that a disputed, material fact issue precluded summary judgment against Tamar, and we reversed the trial court's summary judgment rendered in favor of Mission Bend and remanded the cause for further proceedings. See id. at 3-4.
On remand, Dov, based on allegations that he was a co-owner of the subject property, intervened in the suit as "an interested party" and filed counterclaims against Mission Bend, its management company, the law firm representing Mission Bend, and attorney Roy D. Hailey, individually, for fraud, conspiracy to commit fraud, and slander of title. Dov also filed three motions for summary judgment on the claims asserted by Mission Bend. The trial court denied these motions.
At trial, Dov non-suited his counterclaims for fraud and conspiracy to commit fraud, and, at the conclusion of the evidence, the trial court granted Mission Bend's motion for a directed verdict on all of appellants' remaining counterclaims. In its answers to the jury charge, the jury found that Tamar had failed "to comply with the restrictive covenant governing homeowner's assessments in connection with her home" with regard to assessments owed to Mission Bend for 1993 and 1994. However, the jury found that Tamar's failure to comply in 1994 was excused. The jury also awarded Mission Bend $904.12 and $1,119.28 as delinquent assessments owed by Tamar for 1993 and 1994, respectively, and $19,322 as Mission Bend's attorneys' fees through trial.
Mission Bend subsequently filed a motion to disregard the jury's answer concerning the amount of the assessment owed by Tamar for 1994, given the jury's answer that the delinquency was excused, and to reduce the jury's answer concerning the amount of assessment owed for 1993 from $904.12 to $147. In its final judgment, the trial court granted Mission Bend's motion and rendered judgment for Mission Bend in accordance with the remaining findings of the jury.
Finality of Judgment
In their first issue, appellants argue that the trial court erred in signing its "Final Judgment" on August 24, 2001 because the judgment did not dispose of a pending counterclaim for "malice" asserted by Tamar against Mission Bend "and its agents."
It is well-established that, in general, an appeal may be taken only from a final judgment, that is, a judgment that disposes of all pending parties and claims. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001). The intent to finally dispose of the case must be unequivocally expressed in the words of the judgment itself. Id. at 200. If that intent is clearly expressed in the judgment, the order is final and appealable, even though the record does not provide an adequate basis for rendition of judgment. Id. In Lehmann, the court stated that, to determine whether an order disposes of all pending claims and parties, an appellate court may also look to the record from the court below. Id. at 205-06.
It is undisputed that, at trial, Dov non-suited his counterclaims against Mission Bend for fraud and conspiracy to commit fraud and proceeded to trial on his counterclaim for slander of title. At the conclusion of the evidence, Mission Bend moved for a directed verdict on Dov's remaining counterclaim, as well as any remaining causes of action contained in "all of the counterclaims" presented by both appellants. The trial court granted Mission Bend's motion for directed verdict. Although the trial court's judgment does not specifically refer to counterclaims asserted by Tamar, the judgment recites that "[a]ll relief requested in this cause and not expressly granted is denied. This judgment finally disposes of all parties and claims and is appealable."
Here, the record indicates that, by granting Mission Bend's motion for directed verdict, the trial court disposed of any pending counterclaims asserted by appellants. Moreover, the Texas Supreme Court has expressly approved the use of language such as that used by the trial court in this case to avoid doubt as to the finality of a judgment. See id. at 206. Accordingly, based on the record presented and the intent of finality expressed in the language of the trial court's judgment, we hold that the trial court's August 24, 2001 judgment was a final and appealable judgment.
We overrule appellants' first issue.
Law of the Case
In their second issue, appellants contend that the trial court "disregarded" and "did not follow the clear instruction" of this Court's February 11, 1999 opinion, which appellants contend constituted the "law of the case" concerning whether, at trial, Mission Bend was required to establish its authority to increase the property assessments owed by appellants and other affected homeowners. Appellants argue that, as a result of the trial court's "disregard" for this Court's previous opinion, the trial court erred in failing to include in the jury charge "any charge or instruction related to the facts needed to establish a proper quorum of property owners, who have [sic] approved the various increases of the annual assessments" in accordance with the applicable deed restrictions.
We note that, under the law of the case doctrine, the decision of a court of last resort on a question of law will govern a case throughout its subsequent stages. Hudson v. Wakefield, 711 S.W.2d 628, 630 (Tex. 1986); Harris County v. Walsweer, 930 S.W.2d 659, 663-64 (Tex. App.-Houston [1st Dist.] 1996, writ denied).
As noted above, in the February 11, 1999 opinion, this Court concluded that, in support of its motion for summary judgment, "Mission Bend presented no summary judgment evidence to establish there was a vote of the property owners to authorize an assessment increase in excess of five percent." Avni-Kaminetzky, slip op. at 3. Accordingly, this Court held that a disputed material fact issue precluded summary judgment against Tamar, reversed the trial court's summary judgment rendered in favor of Mission Bend, and remanded the cause for further proceedings. See id. at 3-4. In the opinion, this Court made no decision concerning any questions of law that would "govern [this] case throughout its subsequent stages," nor did this Court limit the manner in which the parties or the trial court could present the causes of action and relevant questions of fact to the jury. Rather, this Court determined solely that the summary judgment record presented in the previous appeal did not support the trial court's rendition of summary judgment because of the existence of a material issue of fact. Therefore, we hold that, beyond the limits of its specific holding, this Court's February 11, 1999 opinion did not constitute the law of the case as to any of the issues considered in that appeal. See Hudson, 711 S.W.2d at 630.
With regard to any alleged errors contained in the jury charge, as appellants acknowledge in their brief, to preserve a complaint premised on the jury charge for appellate review, a party must present to the trial court a timely request, motion, or objection, state the specific ground, and obtain a ruling. Tex. R. Civ. P. 272, 274; Tex.R.App.P. 33.1(a); In re B.L.D., 113 S.W.3d 340, 349 (Tex. 2003). The record indicates that, at the charge conference, appellants did not object to the jury charge on the grounds asserted in this issue on appeal. Accordingly, we hold that appellants have waived the arguments presented in this issue concerning the questions and instructions contained in or omitted from the jury charge by failing properly to object at trial and to obtain a ruling. See id.
We overrule appellants' second issue.
Denial of Motions for Summary Judgment
In their third issue, appellants contend that the trial court erred in denying their motions for summary judgment on Mission Bend's claims, which motions appellants assert were based on both "conventional and `no evidence' grounds."
See Tex. R. Civ. P. 166a(c), (i).
When a party moves unsuccessfully for summary judgment and subsequently loses in a conventional trial on the merits, the denial of that motion generally is not subject to review on appeal. See Cincinnati Life Ins. Co. v. Cates, 927 S.W.2d 623, 625 (Tex. 1996); Ackermann v. Vordenbaum, 403 S.W.2d 362, 365 (Tex. 1966); Johns v. Ram-Forwarding, Inc., 29 S.W.3d 635, 638-39 (Tex. App.-Houston [1st Dist.] 2000, no pet.); Shepherd v. Ledford, 926 S.W.2d 405, 408 (Tex. App.-Fort Worth 1996), aff'd, 962 S.W.2d 28 (Tex. 1998). Appellants do not present an explanation, and the record does not support an argument, as to why this Court should not follow the application of the general rule in this case. Accordingly, we hold that appellants have presented nothing for review on this issue.
We overrule appellants' third issue.
Judicial Notice
In their fourth issue, appellants contend that the trial court erred in "failing to take judicial notices [sic] of judicial estoppel affecting [Mission Bend's] claim" following this Court's February 11, 1999 opinion. In that opinion, this Court observed, in relevant part, as follows: "Article V, section 3(b) of the deed restrictions, which are a part of Mission Bend's summary judgment evidence, limits the maximum annual assessment increase to five percent unless a vote of two-thirds of the qualified property owners approves the increase." Avni-Kaminetzky, slip op. at 3. Appellants argue that this statement amounted to a conclusive finding of fact, of which the trial court was required to take judicial notice, and that "once an intermediate reviewing court makes a finding of fact, and no appeal is taken, the finding may not later be disputed."
As noted above, beyond the limits of the specific holding that a material issue of fact existed that was sufficient to defeat Mission Bend's motion for summary judgment, this Court's February 11, 1999 opinion did not create law of the case. See Hudson, 711 S.W.2d at 630. Moreover, none of the comments or observations contained within this Court's opinions may be construed or represented as "findings of fact" because, as an appellate court, we may not make original findings of fact; we can only "unfind" facts. Tex. Nat'l Bank v. Karnes, 717 S.W.2d 901, 903 (Tex. 1986). Accordingly, we hold that appellants' argument presented in this issue is without merit.
We overrule appellants' fourth issue.
Jury Charge
In her fifth issue, Tamar contends that the trial court erred "in disregarding the appellate opinion of 2/11/99 when it presented the jury with ambiguous, ill defined broad form questions on construction of unspecified instruments."
As noted above, to preserve a complaint premised on the jury charge for appellate review, a party must present to the trial court a timely request, motion, or objection, state the specific ground, and obtain a ruling. Tex. R. Civ. P. 272, 274; Tex.R.App.P. 33.1(a); B.L.D., 113 S.W.3d at 349. The record indicates that, at the charge conference, Tamar did not object to any of the questions or instructions included in the jury charge on the grounds alleged under this issue on appeal. Accordingly, we hold that Tamar has waived the arguments presented in this issue by failing to object properly at trial and to obtain a ruling.
We overrule Tamar's fifth issue.
Conclusion
We affirm the judgment of the trial court.