Court of Appeals of Texas, Twelfth District, Tyler
FROM THE 273RD JUDICIAL DISTRICT COURT SHELBY COUNTY, TEXAS
consisted of Worthen, C.J., Neeley, J., and Bass, Retired J.,
Twelfth Court of Appeals, sitting by assignment.
Martin appeals a no-evidence summary judgment rendered in
favor of Citizens State Bank (the Bank). The Bank brings one
counter-issue contending John waived his appeal by moving for
the entry of judgment. John brings seven issues contending
the court erred in granting summary judgment. We hold that John
did not waive his appeal by moving for the entry of final
judgment, and we overrule his seven issues. We affirm.
and 2008, John and Teri Lea Martin were husband and wife.
Teri Lea's parents owned Timpson Tamco, Inc. (Timpson),
for which she served as the person in charge of accounting
August 1, 2006, Teri Lea opened a joint checking account with
the Bank in the name of John Martin and wife, Teri Lea Martin
a/k/a Teri Alexander. During 2007 and 2008, Teri Lea
improperly endorsed and deposited into that account checks
totaling $146, 004.67 that were payable to her employer,
Timpson. There is no evidence in the record that John knew of
Teri Lea's deposits of these checks.
the improper endorsements and deposits were discovered, the
Bank paid Timpson $146, 004.67 in reimbursement for the
checks wrongfully deposited by Teri Lea in the joint account.
To forestall civil or criminal action against Teri Lea,
because of her unlawful deposit of the Timpson checks into
the joint account, John and Teri Lea executed a promissory
note payable to the Bank in the amount of $146, 004.67. In
consideration for the execution of this note, the Bank agreed
"to forego any other legal action, civil or criminal,
against the said Teri Lea Alexander Martin, insofar as the
note is timely paid, in full." Both John and Teri Lea
signed the agreement. Immediately before the execution of the
note and agreement, Don Dial, the Bank's president,
allegedly told John that he had to sign the note or
prosecution would result. No payments were ever made on the
and Teri Lea divorced in 2009. In an agreement incident to
the divorce, Teri Lea agreed to pay the $146, 004.67 note to
the Bank and indemnify John therefrom. On August 19, 2010,
the Bank sued John and Teri Lea for $146, 004.67 plus
interest. John filed a counterclaim alleging the Bank
violated the Deceptive Trade Practices Act (DTPA) engaged in
unreasonable collection efforts, breached a fiduciary, and
breach of the duty of good faith and fair dealing. He later
filed an original cross claim against Teri Lea for breach of
the agreement incident to divorce. John subsequently amended
his answer and counterclaim to allege that the Bank not only
violated the DTPA, but also engaged in unreasonable and
illegal collection efforts in violation of the Texas Finance
Code and breached the duty of good faith and fair dealing,
but also committed fraud and usury. The amended counterclaim
no longer alleged a breach of fiduciary duty.
January 2013, the Bank and Teri Lea signed a Rule 11
agreement and memorandum of settlement reciting that all
controversies between them had been resolved in mediation.
Teri Lea agreed to pay the Bank $59, 646.00. The Bank and
Teri Lea filed a joint motion to dismiss all claims against
each other. The Bank subsequently moved for no evidence
summary judgment on John's counterclaims, and on June 20,
2014, the trial court granted the motion. On September 5,
2014, the trial court granted the Bank's motion for
nonsuit of its claims against John. On September 25, John
moved for summary judgment against Teri Lea for
attorney's fees resulting from her failures to pay the
note to the Bank and provide him a defense against the Bank.
January 10, 2017, the trial court entered a final judgment
providing that John recover $20, 000.00 from Teri Lea, and
denied all other relief. This appeal followed.
threshold matter, the Bank contends that John waived his
right to complain about the judgment by moving the court to
enter the final judgment from which he seeks to appeal.
December 22, 2016, John moved the trial court "to enter
a Final Judgment in the form attached hereto as Exhibit
A." On January 10, 2017, the trial court signed the
final judgment as John requested. The judgment was approved
as to form by John's attorney. John's motion for
final judgment contained the following statement:
On June 20, 2014, the court signed [a] judgment Granting
No-Evidence Summary Judgment which dismissed John
Martin's counterclaim against Plaintiff Citizens State
Bank. (Counter-plaintiff John Martin will file an appeal of
the Judgment Granting No-Evidence Summary Judgment on signing
by the Court and entry of the Final Judgment requested in
no-evidence summary, dated June 20, 2014, disposed of only
claims by John against the Bank. The summary judgment was
interlocutory and not appealable. Over the next two years,
all the other claims, cross claims, and counterclaims were
resolved. However, the entry of a judgment disposing of all
claims and parties was necessary before an appeal was
Casu v. Marathon Refining Co., 896 S.W.2d 388 (Tex.
App.-Houston [1st Dist.] 1995, writ denied), the court stated
the general rule: "Where a litigant moves the trial
court to enter a judgment, and the trial court enters the
judgment, the litigant cannot later complain of that
judgment." Id. at 389. However, the Texas
Supreme Court in First Nat'l Bank v. Fojtik, 775
S.W.2d 632 (Tex. 1989), stated: "There must be a method
by which a party who desires to initiate the appellate
process may move the trial court to render judgment without
being bound by its terms." Id. at 633. The
Supreme Court held that a statement in the motion for
judgment that the plaintiff disagreed with the verdict was
sufficient to preserve the right to appeal the judgment.
Glattly v. Air Starter Components, Inc., 332 S.W.3d
620 (Tex. App.-Houston [1st Dist.] 2010, pet. denied), Air
Starter's proposed judgment was submitted to the court
after several hearings on post-trial motions and was intended
to conform to what the trial court had announced as its
judgment at those hearings. Id. at 636. Although
nothing in the proposed judgment indicated Air Starter's
disagreement with the judgment, the court noted that Air
Starter did not move for the entry of judgment. Id.
The court held that merely providing a draft judgment to
conform to what the court had announced would be its judgment
does not result in waiver of the appeal. Id. at
636-37. In Andrew Shebay & Co., P.L.L.C. v.
Bishop, 429 S.W.3d 644 (Tex. App.-Houston [1st Dist.]
2013, pet. denied), the appellant did not file a motion for
judgment, but submitted a judgment to the trial court and
signed "agreed as to substance and form."
Id. at 647. The court held there was no waiver:
A proposed judgment submitted by a party need not note the
submitting party's disagreement with the contents of the
judgment to maintain the right to appeal. Rather, clear
objections in the trial court or posttrial proceedings
evidencing disagreement with the judgment are sufficient.
instant case, John stated in his motion for judgment that he
intended to appeal the judgment. Therefore, no waiver of
appeal resulted. See Fojtik, 775 S.W.2d at 633;
see also Bishop, 429 S.W.3d at 647;
Glattly, 332 S.W.3d at 636. The Bank's
counter-issue is overruled.
of Summary Judgment
contends, in his first issue, that the Bank's motion for
summary judgment failed to explicitly state the element or
elements of the several causes of action for which there is
no-evidence summary judgment rule requires the moving party