Court of Appeals of Texas, Sixth District, Texarkana
Submitted: May 16, 2019
Appeal from the 201st District Court Travis County, Texas
Trial Court No. D-1-GN-10-000937
Morriss, C.J., Burgess and Stevens, JJ.
E. STEVENS JUSTICE
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. 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.
The Trial Court Had Jurisdiction to Enter Its Final
argues that the trial court's entry of a prior partial
summary judgment deprived it of jurisdiction. We disagree.
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.
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.
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
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).
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.
II. We Presume the Omitted Record Supports the Awards
of Conditional Appellate Attorney Fees
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 ...