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Martin v. Citizens

Court of Appeals of Texas, Twelfth District, Tyler

November 8, 2017



          Panel consisted of Worthen, C.J., Neeley, J., and Bass, Retired J., Twelfth Court of Appeals, sitting by assignment.


          Bill Bass, Justice.

         John 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.[1] 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.


         In 2007 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 and finance.

         On 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.

         When 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 note.

         John 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.

         In 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.

         On 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.

         Waiver of Complaint

         As a 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.

         On 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 this motion).

         The 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 possible.

         In 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. Id.

         In 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.


         In the 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.

         Specificity of Summary Judgment Grounds

         John 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.

         Applicable Law

         The no-evidence summary judgment rule requires the moving party to ...

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