Opinion
NO. 02-15-00201-CV
05-05-2016
SARAH BOTHWELL KING APPELLANT v. REGIONS BANK APPELLEE
FROM THE 236TH DISTRICT COURT OF TARRANT COUNTY
TRIAL COURT NO. 236-245902-10 MEMORANDUM OPINION
See Tex. R. App. P. 47.4.
Appellant Sarah Bothwell King appeals from the trial court's entry of summary judgment in favor of appellee Regions Bank on its claims against her and on King's counterclaim against Regions Bank. Because the trial court reversibly erred by granting judgment based on a superseded motion, we reverse the trial court's judgment and remand the case for further proceedings. See Tex. R. App. P. 43.2(d).
I. BACKGROUND
A. THE UNDERLYING DISPUTE
On August 1, 2001, King created a revocable, living trust—The Sarah Warner Revocable Trust—in which she was the sole settlor and sole beneficiary (the Warner trust). King appointed Regions Bank as the trustee. In 2007 and 2009, King borrowed a total of over $460,000 from Regions Bank, pledging two bank accounts as collateral for the loans: "REGIONS TRUST ACCT # 41-8657-01-7" for the 2007 loan and "Morgan Keegan trust account number 6710000491" for the 2009 loan. The notes went into default, and Regions Bank filed suit against King raising a default claim and an alternative money-had-and-received claim. King answered and raised several affirmative defenses. She also filed a counterclaim for breach of fiduciary duty, arguing that Regions Bank had breached its fiduciary duty to her as trustee in eighteen separate "ways." Regions Bank answered the counterclaim and pleaded the affirmative defenses of contributing cause, ratification, justification, estoppel, and limitations.
B. SUMMARY-JUDGMENT PROCEEDINGS
Regions Bank filed a motion for summary judgment, a first amended motion, a second amended motion, and a third amended motion. King filed a response to the initial motion for summary judgment, a supplemental response to Regions Bank's first amended motion for summary judgment, a "reply" to Regions Bank's second amended motion for summary judgment, and a response to the third amended motion for summary judgment. In addition, after Regions Bank filed replies in support of its second and third amended motions for summary judgment, King filed "replication[s]" to the replies. In her responses to Regions Bank's amended motions and in her second replication, King expressly incorporated each of her prior responses.
In its third amended motion, Regions Bank moved for a "traditional" summary judgment on its claim for default, its alternative claim for money had and received, and its affirmative defenses of estoppel and limitations. See Tex. R. Civ. P. 166a(c). It also moved for a no-evidence summary judgment on King's counterclaim and her affirmative defenses. See Tex. R. Civ. P. 166a(i). Regions Bank's third amended motion for summary judgment differed from the second amended motion in that Regions Bank (1) added one exhibit—King's deposition—that was not attached to the second amended motion; (2) specifically addressed each of King's affirmative defenses after addressing none of them in the second amended motion; (3) greatly expanded its prior, cursory argument that King produced no evidence of a breach of fiduciary duty; (4) added an argument that King had produced no evidence of damages resulting from any breach of fiduciary duty; and (5) increased the amount of attorney's fees it was requesting by approximately $32,000.
King raised these affirmative defenses in her amended answer, which was filed more than a year before Regions Bank filed its second amended motion.
On March 13, 2015, the trial court granted summary judgment in Regions Bank's favor on its claims and on King's counterclaim, awarding Regions Bank $366,923 in damages and $75,663.80 in reasonable and necessary attorney's fees and costs and ordering that King take nothing on her counterclaim. In the final summary judgment, the trial court clearly stated it had considered Regions Bank's third amended motion for summary judgment, but expressly ordered "that the Bank's Second Amended Motion for Summary Judgment is in all things GRANTED." [Emphasis added.]
C. POST-JUDGMENT PROCEEDINGS AND APPEAL
King filed a motion for new trial arguing that the trial court erred by granting Regions Bank's motion for summary judgment because she raised fact issues regarding her authority to enter into "the contract," regarding "the trust officer's charge to make payments on the promissory notes," and regarding "each of the elements of her counterclaim for breach of fiduciary duty." The motion was overruled by operation of law, and King filed a notice of appeal from the trial court's summary judgment.
Shortly after King filed her brief on appeal, Regions Bank filed a motion for judgment nunc pro tunc in the trial court, asking the trial court to correct the "mistake" in the judgment—that the second amended summary-judgment motion was granted and not the third amended motion. The trial court denied this motion. On appeal, King argues that the trial court erred by granting judgment on a superseded pleading, by granting summary judgment on her counterclaim, by granting summary judgment on Regions Bank's claims for default and money had and received, and by implicitly sustaining Regions Bank's objections to King's summary-judgment evidence.
II. DISCUSSION
In her first issue, King argues that because Regions Bank's third amended motion for summary judgment "superseded and replaced" its second amended motion, the summary judgment granting the second amended motion "should be reversed and the case remanded." Regions Bank responds that the reference to the second amended motion was "superfluous," did not harm King, and should result in, at most, this court rendering the judgment the trial court should have rendered.
In Regions Bank's motion for judgment nunc pro tunc, Regions Bank clearly directed the trial court's attention to the discord between its stated consideration of the third amended motion and its express grant of the second amended motion, arguing that this clerical mistake should be corrected. See Tex. R. Civ. P. 316, 329b(f). Regions Bank also submitted a proposed order correcting this "mistake" and noting that the third amended motion was both considered and granted. The trial court denied Regions Bank's motion in an order, stating only that the motion "is denied."
It is clear that an amended motion for summary judgment completely supersedes any prior motion for summary judgment and becomes the controlling motion. See Tex. R. Civ. P. 65; Retzlaff v. Tex. Dep't of Criminal Justice, 135 S.W.3d 731, 737 (Tex. App.—Houston [1st Dist.] 2003, no pet.) (op. on reh'g). Indeed, once a motion is amended, the prior motion becomes "a nullity." Retzlaff, 135 S.W.3d at 737. Accordingly, Regions Bank's third amended motion for summary judgment was the only live motion at the time the trial court rendered judgment in favor of Regions Bank.
We may presume that a trial court considered all relevant motions properly before it if the order either is silent as to what the trial court considered or recites that the trial court reviewed the pleadings and evidence before it. See id. at 737-38; Milam v. Nat'l Ins. Crime Bureau, 989 S.W.2d 126, 129 (Tex. App.—San Antonio 1999, no pet.). In this appeal, which motion the trial court considered is not the issue. The issue is which motion the trial court expressly granted. We may not presume that the trial court intended to grant the third amended motion after the trial court expressly stated that it granted the second amended motion and later declined to correct the final summary judgment in a judgment nunc pro tunc. King is correct that it would be as logical to presume that the second amended motion was considered as it would be to assume that the third amended motion was granted. In light of the express language of the order, we may do neither. As such, we cannot, as Regions Bank urges, render the judgment the trial court should have rendered because it is clear from the record before us that the trial court entered the summary judgment it intended to enter. See Tex. R. App. P. 43.3.
In sum, the express language of the judgment allows us to assume only that the trial court considered a live motion and granted a dead motion, which renders the summary judgment erroneous. See Santos v. Holzman, No. 13-08-00043-CV, 2010 WL 571783, at *3 (Tex. App.—Corpus Christi Feb. 18, 2010, no pet.) (mem. op.). This error caused the rendition of an improper summary judgment. See Tex. R. App. P. 44.1(a). When a summary judgment is erroneous and cross-motions were not filed, the appropriate remedy is to remand to the trial court for consistent proceedings. See Jones v. Strauss, 745 S.W.2d 898, 900 (Tex. 1988); Santos, 2010 WL 571783, at *3-5.
III. CONCLUSION
Because the summary judgment contained error that caused the rendition of an improper judgment, we sustain King's first issue, reverse the trial court's final summary judgment, and remand the case for further proceedings.See Tex. R. App. P. 43.2(d).
Because we sustain King's first issue, we need not address her remaining issues. See Tex. R. App. P. 47.1. --------
/s/ Lee Gabriel
LEE GABRIEL
JUSTICE PANEL: MEIER, GABRIEL, and SUDDERTH, JJ. DELIVERED: May 5, 2016