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CMR Construction & Roofing of Austin, Inc. v. Elliott

Court of Appeals of Texas, Sixth District, Texarkana

May 29, 2019


          Submitted: May 16, 2019

          On Appeal from the 201st District Court Travis County, Texas Trial Court No. D-1-GN-10-000937

          Before Morriss, C.J., Burgess and Stevens, JJ.



          M EMOR ANDUM OPINION Larry Elliott sued CMR Construction & Roofing of Austin, Inc., for breach of contract, breach of fiduciary duty, and fraud. After a Travis County jury reached a verdict favorable to Elliott, the trial court entered a final judgment awarding him $22, 000.00 in actual damages, $38, 354.50 in attorney fees for trial counsel, conditional attorney fees for appellate counsel, and $307.00 in court costs.[1] On appeal, CMR argues that the trial court lacked jurisdiction to enter a final judgment and, alternatively, that the evidence is insufficient to support the amount of conditional appellate attorney fees awarded. We overrule both of CMR's points of error and affirm the trial court's judgment.

         I. The Trial Court Had Jurisdiction to Enter Its Final Judgment

         CMR argues that the trial court's entry of a prior partial summary judgment deprived it of jurisdiction. We disagree.

         Among other claims, Elliott sued CMR for its failure to allegedly pay over $100, 000.00 owed under a partnership agreement formed to market construction services. CMR responded to Elliott's lawsuit by filing an affirmative defense of common-law fraud, which alleged that Elliott stole at least $28, 039.98 from CMR by asking customers to pay him directly rather than pay CMR. CMR moved for partial summary judgment on its affirmative defense, which the trial court granted on July 9, 2014, after Elliott failed to respond. The judgment recited that it was a partial summary judgment and did not state that it disposed of all parties and all claims. On July 29, the parties filed an agreed motion to reconsider the ruling because Elliott may not have been properly served with the motion for summary judgment. The next docket notation in our record shows that the trial court entered an August 20 order denying CMR's motion for partial summary judgment on its affirmative defense.

         Although the language of the July 9 order made clear it was only a partial summary judgment, CMR argues that it was a final, appealable order because its motion requested "summary judgment on all issues, all claims, [and] all theories of damages." It also argues that the July 9 judgment was never vacated by the August 20 order.

         "[T]he general rule, with a few mostly statutory exceptions, is that an appeal may be taken only from a final judgment. A judgment is final for purposes of appeal if it disposes of all pending parties and claims in the record, except as necessary to carry out the decree." Twin Creeks Golf Grp., L.P. v. Sunset Ridge Owners Ass'n, Inc., No. 03-15-00763-CV, 2016 WL 368636, at *1 (Tex. App.-Austin Jan. 26, 2016, no pet.) (mem. op.) (alteration in original) (quoting Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001) (footnote omitted)). "Because the law does not require that a final judgment be in any particular form, whether a judicial decree is a final judgment must be determined from its language and the record in the case." Id. (quoting Lehmann, 39 S.W.3d at 195). When making this determination, we will not "imply finality from anything less than an unequivocal expression." Id. (quoting In re Burlington Coat Factory Warehouse of McAllen, Inc., 167 S.W.3d 827, 830 (Tex. 2005) (orig. proceeding) (quoting Lehmann, 39 S.W.3d at 195); see Park Place Hosp. v. Estate of Milo, 909 S.W.2d 508, 510 (Tex. 1995) ("All parties and all issues before the trial court must be disposed of before a summary judgment becomes final and appealable. . . . Although the plaintiffs had filed notice to nonsuit [a certain party], the appellate timetable could not be triggered until a signed, written order of the court dismissed him.").

         Here, as in Twin Creeks Golf Group, "[t]he language of the trial court's partial summary judgment order supports that it is not final." Twin Creeks Golf Grp., L.P., 2016 WL 368636, at *2 (citing Lehmann, 39 S.W.3d at 195). The July 9 judgment does not contain any language stating that it disposes of all parties and claims or that it is a final, appealable order. See id. It was titled as a partial summary judgment and stated, "All relief not expressly granted is DENIED." The trial court did not enter a take-nothing judgment for CMR after entering the July 9 order, and a review of the parties' live pleadings at the time shows that a summary judgment on CMR's fraud defense would not necessarily resolve Elliott's breach of contract claim. Even assuming the July 9 order was a final judgment, the parties timely filed a joint motion for reconsideration of the trial court's ruling, which gave the trial court plenary power to enter the August 20 judgment denying CMR's motion for summary judgment. See Tex. R. Civ. P. 329b(e).

         Because we determine that the July 9 partial summary judgment order was not a final, appealable order, we conclude that the trial court had jurisdiction to proceed to a jury trial and enter the final judgment from which CMR appeals. We overrule CMR's first point of error.[2]

          II. We Presume the Omitted Record Supports the Awards of Conditional Appellate Attorney Fees

         CMR does not contest the trial court's award of $38, 354.50 in attorney fees for trial counsel. Instead, it complains of the following awards of attorney fees for ...

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