Court of Appeals of Texas, Eighth District, El Paso
ROBERT G. HOULE, Appellant,
v.
JOSE LUIS CASILLAS, CASCO INVESTMENTS INC. AND JLC VENTURES, INC., Appellees.
Appeal
from the 210th District Court of El Paso County, Texas (TC
#2011-2614)
Before
Rodriguez, J., Palafox, J., and Larsen, J. (Senior Judge)
OPINION
GINA
M. PALAFOX, Justice
Appellant
Robert G. Houle appeals from several different orders by the
trial court which were not subject to review until after the
court finally disposed of all claims. After Appellee Casco
Investments, Inc. (Casco), filed suit against Appellant
Houle, he returned fire by filing a variety of causes of
action against Casco, and asserted those same claims by
cross-claim against Casco's sole owner, Jose Luis
Casillas (Casillas), and against JLC Ventures, Inc. (JLC
Ventures), a second entity Casillas had also established.
Ultimately, the trial court granted judgment in favor of
Casillas, individually, and as a corporate representative of
Casco and JLC Ventures (collectively, "Appellees").
The parties' suit against each other stemmed from
difficulties that arose from a real estate investment and
renovation project that failed to pan out as planned. For the
reasons set forth below, we affirm in part, and reverse and
remand in part.
FACTUAL
AND PROCEDURAL BACKGROUND
The
Parties' Agreement
Most of
the facts regarding when and how the parties first entered
into their business venture in the summer of 2009 are
undisputed. At that time, Houle, an El Paso resident, and
Casillas, a resident of Mexico, had known each other for
approximately 25 years. Houle was then married to
Casillas' sister, Ana Casillas, although they were in the
process of divorcing after 18 years of marriage. The venture
began when Houle-who worked for a bank in El Paso and
harbored an interest in owning real estate-learned of a
large, older home for sale in El Paso that had already been
divided into apartment units. The property was located at
3901 Pershing (the "Pershing Property").
Eventually, Houle met with Casillas and the two orally agreed
to purchase the property. The parties initially intended to
renovate the building for resale, but soon they decided they
would keep it instead and lease out the apartment units after
they were renovated. Before purchasing, the parties inspected
the building during which Houle informed Casillas that he
believed renovations could be accomplished in three to four
months, at a cost amounting somewhere between $40, 000 and
$50, 000.
In
general, the parties agreed that Casillas would provide
financing for purchasing and renovating the property while
Houle would apply his expertise in overseeing renovations;
thereafter, once Casillas had been reimbursed for his initial
investment, the parties would split profits equally
regardless of whether profits arose from selling the
property, or from rental income generated from leasing units.
Houle further claims that the parties agreed he would be
entitled to manage the property after renovations were
completed.
In
furtherance of their agreement, Houle suggested that they
form a limited liability corporation (LLC) to purchase the
Pershing Property with the entity to be known as the Pershing
3901 LLC ("the Pershing LLC").[1] At Houle's
suggestion, Casillas formed a separate corporation to shield
himself from personal liability, which he named Casco
Investments, Inc.[2] Thereafter, Houle and Casco were named as
the two sole members of the Pershing LLC. The parties orally
agreed that Casillas, in his individual capacity, would fund
the project by loaning $100, 000 to the Pershing LLC to
purchase the property, and he would loan additional monies
thereafter to fund renovations as planned.
On July
27, 2009, the Pershing LLC purchased the property for $100,
000, and with Houle's agreement, Casillas took back a
promissory note from the Pershing LLC, secured by a deed of
trust on the property in the principal amount of $100, 000
(the "original deed of trust"). The promissory
note, which was dated July 27, 2009, named Casillas as lender
and the Pershing LLC as borrower with the entire principal
balance and all accrued unpaid interest being due and
payable, in a lump sum, on or before July 31, 2010. The note
indicated that the annual interest rate "shall be the
daily Prime Interest Rate during the term of the Note, with
interest calculated based on the Prime Interest Rate in
effect for each day during the term of the loan." Prime
Interest Rate is further defined as "the annual rate of
interest identified as the 'prime rate' in the
'Money Rates' column published in the Wall Street
Journal." After the note became due and payable, the
interest rate would rise to 18 percent on matured, unpaid
amounts.
The
Year-Long Renovation Project
The
renovations began shortly after the purchase and continued
for a year, until July of 2010, with Houle overseeing the
project. From time to time, Houle made purchases himself and
paid renovation workers using a credit card in the LLC's
name, but he sought reimbursement for his expenses from
Casillas. According to Houle, he submitted approximately 16
reimbursements totaling $45, 030.25 in the first year of the
renovations. Although Houle admitted that the project was not
completed within the contemplated timeframe, he claimed that
delays occurred because he ran into unexpected plumbing,
draining, and electrical issues which caused renovations to
require significantly longer time than he had initially
estimated.
The
July 6, 2010 Memo
On July
6, 2010, Casillas sent a detailed email to Houle outlining
the parties' original agreement, i.e., to complete
renovations in three to four months at cost expected to total
$40, 000. Casillas complained that Houle had not fulfilled
his commitment given that a year had already passed, and the
renovations remained incomplete despite Casillas having
already spent around $40, 000, or the total amount originally
expected. Casillas accused Houle of making unilateral
decisions, such as not hiring a general contractor, trying to
do much of the work himself, and taking unauthorized
"draws" in return for his work, despite the fact
that there was no agreement that Houle would be reimbursed
for his services. He further complained that none of the
apartments had been leased and that he had not yet received
any return on his investment.[3]
Expressing
concern over the security of his investment, Casillas
requested an accounting, an updated projected budget and
repair schedule, and an addendum to the promissory note to
increase the interest rate. Casillas expressed that if he
felt more secure in his investment he would not mind if Houle
kept "delaying the project in a reasonable manner."
In addition, Casillas further expressed his opinion that the
property belonged to him, repeatedly referring to the
property as being "mine, " unless and until he
received a reimbursement for his investment.[4]
The
parties disagree over what occurred after the memo was sent.
Houle claimed that he provided some of the requested
information, including a partial proposed budget, but that
Casillas refused to continue funding the renovations in July
of 2010, and instead suggested that they have a meeting in
September of that year. Houle recalled that the parties met,
but apparently did not resolve the matter; he claims that he
nevertheless did additional work on the project for which he
was never compensated.
According
to Casillas, however, Houle did not provide him with the
requested information, and at their September 2010 meeting,
Houle advised him that he no longer intended to work on the
project, and thereafter refused to communicate with him; he
therefore faulted Houle for breaching the agreement. Casillas
recalled that he suggested they try to sell the building at
that time and split any profits they might receive after
Casillas was reimbursed for his investment. Casillas claimed
that Houle refused to cooperate as he did not believe
Casillas would get his money back if the property was sold at
that time.
The
Second Promissory Note and Deed of Trust
Casillas
thereafter contacted a law firm in El Paso (the "Gordon
Law Firm"), to determine how best to protect his
investment. At that point, the parties agree that Casillas
had the right to foreclose on his original promissory note of
$100, 000. However, in order to protect his additional
investment for sums he had advanced for renovations, the law
firm drafted a promissory note that Casillas signed on
November 15, 2010, to "memorialize" the advances
that he had previously made to the Pershing
LLC.[5]
In addition, the law firm drafted a second deed of trust in
which it identified the Pershing, LLC, as the "borrower,
" and Casillas as the "lender, " stating that
the amount owed to Casillas was $45, 030.25. Marcelo Rivera,
a member of the law firm, was designated as the trustee on
the deed of trust. The deed stated that in order to secure
payment of the obligation, the Pershing LLC, as grantor,
conveyed the Pershing Property to the trustee (Rivera) in
trust. The note further stated that if the Pershing LLC
failed to perform any of its obligations, the lender had the
right to declare any unpaid principal balance due and payable
immediately, and to direct the trustee to foreclose the lien
through a duly noticed foreclosure sale. The deed was dated
November 15, 2010, and the maturity date was on that same
date-in essence allowing Casillas to immediately start
foreclosure proceedings on the deed. Casillas signed the
document on December 6, 2010, in the capacity indicated as
follows:
PERSHING 3901, L.L.C.
By: Casco Investments, Inc.
Its: Manager
BY: Jose Luis Casillas, President
According
to Houle, Casillas signed this second deed of trust, as well
as the promissory note, without his knowledge or consent.
Shortly
thereafter, on April 8, 2011, Casillas signed a substitute
trustee instrument naming another member of the Gordon Law
Firm, Salena Ayoub, as substitute trustee. Casillas signed
the substitute trustee instrument in the same capacity as he
did the deed of trust, i.e., in his capacity as president
and/or manager on behalf of either Pershing LLC or Casco
Investments, Inc., rather than in his individual capacity as
the lender.
On
April 9, 2011, Ayoub signed a Notice of Substitute
Trustee's Sale, dated April 8, 2011, stating that
pursuant to the default on the second deed of trust dated
November 15, 2010, the Pershing Property would be sold on May
3, 2011 at any time beginning at 10 a.m., up to three hours
later, in the El Paso County Courthouse. Houle acknowledges
that he received actual notice of the foreclosure sale from
Casillas on or about March 14, 2011. Houle claims he sought a
temporary restraining order (TRO) to prevent the foreclosure
sale from going through, but after a hearing on April 8,
2011, his request was denied.[6]
On May
3, 2011, Ayoub signed a substitute trustee's deed,
stating that the foreclosure sale took place on that same day
at 11:55 a.m. in the designated area of the courthouse, for a
sale price of $50, 000, and that the buyer was "JLC
Ventures, Inc., " with an address of 833 River Oaks
Drive in El Paso Texas, the same address that Casillas used
as his address as the "lender" in the second deed
of trust. However, as Houle points out, and Casillas admits,
JLC Ventures had not yet been formed; instead, at that time,
the Gordon Law Firm was in the process of forming the
corporation as the entity to hold title to the Pershing
Property upon foreclosure. In addition, Houle claimed that he
was at the courthouse at the appointed time, but did not
observe a sale take place, and alleges that the sale was
therefore a "fiction."
The
Parties' Pleadings
On June
29, 2011, Casco, the corporate entity wholly owned by
Casillas, filed suit against Houle in his individual
capacity. Casco alleged Houle had breached his fiduciary
duties owed to Casco and to the Pershing LLC, had engaged in
wrongful, fraudulent, and unauthorized conduct, and had
impaired Casco with abusive self-dealing. In addition to
damages, Casco sought a declaratory judgment, inspection of
corporate books and records, and an accounting, among his
many claims. Casco further asserted that it intended to wind
up the Pershing LLC.
On
September 22, 2011, Houle filed a denial of Casco's
claims along with a combined counterclaim against Casco and
third-party complaint against Casillas and JLC Ventures.
Seeking affirmative relief, Houle asserted a variety of
claims to include breach of contract, breach of fiduciary
duty, and trespass. In addition to damages, Houle sought a
constructive trust over the subject property, an accounting
of income and expenses, a partition of the property, and an
award of quantum meruit for the reasonable value of his
unpaid labor. Thereafter, on November 15, 2013, Houle filed a
first amended counterclaim and third-party petition, in which
he reasserted his original claims and added claims for
"money had and received, " for "conversion,
" and for a "violation of Texas Business
Organizations Code" arising from unilateral actions by
Casillas, Casco, and/or JLC Ventures, in procuring the second
deed of trust used to foreclose on the property. After he
obtained a new attorney, Houle then filed a second amended
counterclaim and third-party petition on April 19, 2016,
which remained the live pleading of Houle's claims
against Appellees.
In his
live pleading, Houle incorporated by reference paragraphs 5
through 76 of his first amended pleading relating to his
denial of Casco's allegations and his affirmative
defenses. The second amended pleading alleged that Casillas
and Houle were partners, and that Casillas-both in his
individual capacity and as president of Casco-owed him a
fiduciary duty and duty of good faith and fair dealing. Houle
alleged that these duties were violated when Casillas ceased
advancing funds to him and when Casillas obtained the second
deed of trust without notice to him, leading to what Houle
labelled as the "fraudulent" and "completely
fictitious" foreclosure sale of the property. Houle
further alleged that Casillas controlled both Casco and JLC
Ventures, and that he used those entities "to perpetrate
fraud and engage in unjust enrichment." Although
Houle's second amended pleading is somewhat vague about
which causes of action are asserted, when construed liberally
Houle appears to allege a claim for breach of contract,
breach of fiduciary duty, breach of the implied covenant of
good faith and fair dealing, fraud, and unjust enrichment.
Houle
claimed that he was damaged as a result of the allegedly
tortious and fraudulent conduct of Casillas "and his
corporate entities, " citing his loss of time, labor and
"business opportunity." He asked for an accounting
of "all receipts, expenses, and profits concerning the
Property since 2010, " and asked the trial court to
"award the past receipt[s] and profits" from the
property to Houle as damages, together with attorney's
fees and punitive damages for the alleged fraud. And finally,
Houle asked the court for a "Declaratory Judgment
declaring the rights of the parties and imposing a
constructive trust [on the subject property, ] if necessary[,
] and for such other and further relief as to which Houle
shall show himself justly entitled."
The
Parties' Motions for Summary Judgment
Houle
filed a motion for partial summary judgment (albeit on a
request for relief not set forth in his second amended
pleading), asking that the trial court "set aside"
the foreclosure sale of the property based on his allegation
that the purported conveyance was "fatally
defective." He argued that the substitute trustee
(Ayoub) had not been properly appointed given that Casillas
had made the appointment in his capacity as president/manager
of Casco rather than as the original lender of the
outstanding debt.[7] Following a hearing held on July 29, 2016,
the trial court denied Houle's motion by written order
signed on August 5, 2016, without elaboration.[8]
Thereafter,
Casillas, as a third-party defendant, filed his first motion
for summary judgment, as both a no-evidence and traditional
motion, arguing that Houle had no evidence to support any of
his causes of action, challenging all elements of Houle's
claims, and arguing that Houle owed no fiduciary duties to
Houle as a matter of law. In his motion, Casillas identified
five causes of action that Houle had alleged in his live
pleading as follows: (1) fraud; (2) unjust enrichment; (3)
breach of contract; (4) breach of fiduciary duty; and (5)
breach of the implied covenant of good faith and fair
dealing.[9] Casillas also requested that the court
sever Houle's claims and causes of action against him
from the balance of the case, to create a final and
appealable order in the event the court granted Casillas'
motion.
Houle
filed his response to Casillas' motion in which he
attached as evidence (1) the memo of July 6, 2010; and (2)
his own affidavit. Houle asserted that a partnership had been
formed between himself and Casillas which gave rise to
fiduciary duties owed to each other. Houle asserted that
Casillas had breached their agreement, had engaged in a
fraudulent course of conduct in foreclosing on the Pershing
Property, and had been unduly enriched by taking sole control
of the property without any compensation to Houle. After a
hearing, the trial court granted Casillas' motion in
part, dismissing Houle's claims for unjust enrichment and
for breach of fiduciary duty and the implied covenant of good
faith and fair dealing; but allowed Houle's breach of
contract and fraud claims to proceed to trial.[10]
The
Recusal and Mistrial
The
matter then went to trial on Houle's two remaining claims
on February 21, 2017. After hearing testimony from several
witnesses, including Houle and Casillas, Houle's attorney
made a motion to recuse the trial court contending that the
court had exhibited "bias" throughout the
proceedings. After a conference held off the record, the
trial court granted Houle's motion to recuse and his
motion for a mistrial. On February 22, 2017, the trial court
issued a written order of recusal and the matter was assigned
to a new judge.
Casillas'
Second Motion for Summary Judgment
Shortly
thereafter, on March 15, 2017, Casillas filed his second
motion for summary judgment, seeking dismissal of Houle's
two remaining claims for breach of contract and fraud. In the
motion, Casillas challenged all elements of Houle's fraud
claim, arguing that Houle had no evidence to establish that
Casillas had made a material and false representation upon
which he intended for Houle to rely. In addition, Casillas
also contended that Houle had no evidence to establish that
he was "injured or damaged" as a result of
Casillas' allegedly fraudulent conduct. With regard to
the breach of contract claim, Casillas challenged only the
element of damages, claiming that the parties had agreed to
sell the property following the renovations, and that the
undisputed evidence demonstrated that the property was now
worth less than the amount that Casillas was owed.
Houle
responded to the motion attaching a more detailed affidavit
setting forth how he believed he was damaged, primarily
arguing that the parties did not agree to sell the property,
and that instead, they had agreed to keep the property, lease
out the apartment units, then split the profits from the
rental income; further, Houle averred that the parties had
agreed that he would serve as property manager at that time,
thereby characterizing his damages as primarily being the
loss of a business opportunity. In addition, he claimed that
he had been damaged by the fact that he was not compensated
for the work that he performed during the year-long
renovation project. In his affidavit, he provided a detailed
assessment of what he believed the units in the apartment
would have rented for, the amount of money he would have
received for managing the property, and provided his estimate
of the value of the work he performed on behalf of the
alleged partnership. He also attached a spreadsheet
describing the work that had been performed on the project.
Casillas'
Objections to Houle's Second Affidavit
On
April 26, 2017, Casillas filed objections to Houle's
second affidavit, and its attachments, arguing in general,
that Houle was an "interested witness, " and that
his affidavit did not provide testimony that was "clear,
positive, direct, credible, free from contradiction, and
uncontroverted, " as required by Tex.R.Civ.P. 166a(c).
On May 17, 2017, Casillas filed more detailed objections to
Houle's affidavit, objecting with more particularity to
each paragraph in the affidavit, raising various objections
to the affidavit, including hearsay objections, objections
based on the statute of frauds, objections based on
Houle's reference to documents not attached to the
affidavit, objections to statements considered to be
uncorroborated and self-serving "opinions" and/or
impermissible "legal conclusions."
After a
hearing, the trial court issued two orders with both dated
May 30, 2017. First, the court issued evidentiary rulings
granting and denying a variety of objections raised against
Houle's affidavit. Second, the trial court granted
Casillas' second motion for summary judgment dismissing
Houle's two remaining causes of action filed against
Casillas, individually, and in his representative capacity
for Casco and JLC Ventures.
Houle's
Motion for New Trial
On June
28, 2017, Houle filed a motion for new trial, urging the
trial court to reconsider its order granting Casillas'
objections to his affidavit; the two orders granting
Casillas' motions for summary judgment, and the trial
court's earlier order denying Houle's motion for
partial summary judgment. In support of his motion, Houle
attached his response to Casillas' requests for
disclosure, in which he had identified himself as an expert
witness who would testify as to the "value of the real
estate in issue in this case, knowledge of business
procedures, and valuation of damages, " together with
his resume. The trial court held a hearing on Houle's
motion for new trial on July 19, 2017, and at the close of
the hearing denied the motion. Thereafter, the trial court
granted Casillas' motion for non-suit, dismissing its
claims against Houle, thereby leaving no claims pending in
the trial court. This appeal followed.
DISCUSSION
On
appeal, Houle argues that the trial court erred by denying
his motion for partial summary judgment, and by granting two
motions for summary judgment asserted by Casillas,
individually, and in his representative capacity on behalf of
Casco and JLC Ventures (collectively, Appellees). As well,
Houle argues that the trial court erred by granting
Casillas' objections to his second summary judgment
affidavit, and by striking a third amended pleading that he
attempted to file after the mistrial was declared.
For
clarity, we will number each argument then address each in
turn. As a preliminary matter, we first discuss the state of
the parties briefing of this appeal.
BRIEFING
ISSUES
Initially,
Houle's opening brief included inadequate citations to
the record and few citations, if any, to legal authorities
relied on in support of his positions. Citing to Texas Rule
of Appellate Procedure 38.1, the responsive brief filed by
Appellees Casillas, Casco, and JLC Ventures, collectively,
argued almost exclusively that Houle had waived error, if
any, wholly based on inadequate briefing.[11] In reply,
Houle requested permission to file an amended brief, which he
attached with his request. Appellees argued in response that
the amended brief continued to violate Rule 38.1, and, in any
event, it would be unfair to allow Houle to file his amended
brief as Appellees had based their own argument on briefing
waiver. Over Appellees' objection, we granted Houle
permission to file his Amended Appellant's Brief on July
6, 2018. We note here that Appellees never sought permission
to file their own amended response to address the merits of
Houle's arguments, nor did they ask for a reconsideration
of our decision allowing amended briefing by Houle.
Accordingly, we proceed with our discussion without benefit
of a response on the merits from Appellees.
ISSUE
ONE: THE DENIAL OF HOULE'S MOTION FOR PARTIAL SUMMARY
JUDGMENT
On
appeal, Houle argues first that the trial court erred in
denying his motion for partial summary judgment voiding the
substitute trustee's deed. Houle asserts that Ayoub's
appointment as substitute trustee was unlawful and the
foreclosure sale itself was "fatally defective."
Rather than address the merits of these arguments, Appellees
contend that the denial of Houle's motion is not
reviewable on appeal given that Houle had failed to seek a
final judgment in his motion for partial summary judgment. We
agree with Appellees.
Under
Texas law, a cause of action for wrongful foreclosure has
three elements: "(1) a defect in the foreclosure sale
proceedings; (2) a grossly inadequate selling price; and (3)
a causal connection between the defect and the grossly
inadequate selling price." See Sauceda v. GMAC
Mortgage Corp., 268 S.W.3d 135, 139 (Tex.App.-Corpus
Christi 2008, no pet.); see also University Sav.
Ass'n v. Springwoods Shopping Ctr., 644 S.W.2d 705,
706 (Tex. 1982) (a plaintiff seeking damages for wrongful
foreclosure must show that (1) there was an irregularity in
the foreclosure sale and (2) the irregularity caused the
plaintiff damages); Sotelo v. Interstate Financial
Corp., 224 S.W.3d 517, 523 (Tex.App.-El Paso 2007, no
pet.) ("The elements of wrongful foreclosure are (1) an
irregularity at the sale; and (2) the irregularity
contributed to an inadequate price."). "The purpose
of a wrongful foreclosure action is to protect mortgagors
against those sales where, through mistake, fraud, or
unfairness, the sale results in an inequitably low
price." In re Keener, 268 B.R. 912, 921 (Bankr.
N.D. Tex. 2001). To void a foreclosure sale, there must be
both grossly inadequate consideration, and evidence that
there was an irregularity in the sale that contributed to the
inadequate sale price. Am. Sav. & Loan Ass'n of
Houston v. Musick, 531 S.W.2d 581, 587 (Tex. 1975). An
individual who has been dispossessed of property through a
wrongful foreclosure may request that the sale be set aside,
or in the alternative, seek damages equal to the difference
between the value of the property and the indebtedness.
See Pinnacle Premier Prop., Inc. v. Breton, 447
S.W.3d 558, 565 (Tex.App.- Houston [14th Dist.] 2014, no
pet.); Wells Fargo Bank, N.A. v. Robinson, 391
S.W.3d 590, 593– 94 (Tex.App.-Dallas 2012, no pet.);
see also University Savings Ass'n, 644 S.W.2d at
706; UMLIC VP LLC v. T & M Sales and Envtl. Sys.,
Inc., 176 S.W.3d 595, 610 (Tex.App.-Corpus Christi 2005,
pet. denied) (citing Univ. Sav. Ass'n, 644
S.W.2d at 706) (failure to properly foreclose on property
gives rise to a cause of action for either the return of the
property or damages).
Here,
Houle's petition neither raises a claim for wrongful
foreclosure, expressly nor impliedly, nor does he seek the
remedy of setting aside the foreclosure sale. Unlike his
motion, his petition does not allege irregularities either in
Ayoub's appointment or in the foreclosure sale itself.
Moreover, Houle did not ask that the foreclosure sale be set
aside. Instead, it appears that Houle first raised a
complaint about Ayoub's appointment in his motion for
partial summary judgment. Even in his motion, however, Houle
does not explain how Ayoub's appointment- whether
improper or not-resulted in an inadequate selling price. This
failure is significant in several respects.
By the
very nature of a summary judgment proceeding, a plaintiff may
only move for summary judgment on a cause of action that has
been actually pleaded. See Tex. R. Civ. P. 166a(a)
("A party seeking to recover upon a claim, counterclaim,
or cross-claim or to obtain a declaratory judgment may, at
any time after the adverse party has appeared or answered,
move with or without supporting affidavits for a summary
judgment in his favor upon all or any part thereof.");
see generally Cullins v. Foster, 171 S.W.3d 521, 530
(Tex.App.-Houston [14th Dist.] 2005, pet. denied)
(recognizing that a plaintiff moving for summary judgment
must conclusively prove all essential elements of its claim)
(citing MMP, Ltd. v. Jones, 710 S.W.2d 59, 60 (Tex.
1986); see Geiselman v. Cramer Fin. Group, Inc., 965
S.W.2d 532, 535 (Tex.App.-Houston [14th Dist.] 1997, no
writ)). Moreover, it is fundamental that the motion for
summary judgment must be supported by the pleadings on file,
and the final judgment of the court must conform to those
pleadings. See, e.g., 68 Tex. Jur. 3d Summary
Judgment § 60 n.4 (citing Galtex Property Investors,
Inc. v. City of Galveston, 113 S.W.3d 922
(Tex.App.-Houston 14th Dist. 2003, no pet.); Elite
Towing, Inc. v. LSI Financial Group, 985 S.W.2d 635
(Tex.App.-Austin 1999, no pet.)). Therefore, a trial
court's order denying a motion for summary judgment on a
claim that was not raised by the pleadings in effect leaves
nothing for this court to review. See generally Morriss
v. Enron Oil & Gas Co., 948 S.W.2d 858, 871–72
(Tex.App.-San Antonio 1997, no writ) (where even the most
liberal reading of the plaintiff's petition supports the
conclusion that he has never asserted a claim for breach of
contract, irrespective of the partial summary judgment
granted on that basis, thus, any complaint on appeal with
regard to contractual breaches is inappropriate, and presents
nothing for review on appeal).
Moreover,
as Appellees point out, the denial of a motion for summary
judgment is not typically considered reviewable as it is not
considered a final judgment. See, e.g., Cincinnati Life
Ins. v. Cates, 927 S.W.2d 623, 625 (Tex. 1996) (citing
Novak v. Stevens,596 S.W.2d 848, 849 (Tex. 1980)).
The only exception to this rule is when the parties have
filed competing and/or cross-motions seeking summary
judgment, and the trial court grants one and denies the
other; in that instance, an appellate court may review both
motions and render the judgment the trial court should have
rendered. See, e.g., Holmes v. Morales, 924 S.W.2d
920, 922 (Tex. 1996) (citing Jones v. Strauss, 745
S.W.2d 898, 900 (Tex. 1988) (recognizing that when both
parties move for summary judgment, the non-prevailing party
may appeal both the prevailing party's motion as well as
its own)); see also Southern Crushed Concrete, LLC v.
City of Houston,398 S.W.3d 676, 678 (Tex. 2013) (when
both parties move for summary judgment and the trial court
grants one motion and denies the other, an appellate court
reviews both sides' summary judgment evidence and renders
the judgment the trial court should have rendered);
Lopez-Franco v. Hernandez, 351 S.W.3d 387, 391
(Tex.App.-El Paso 2011, pet denied) (when both sides move for
summary judgment and the trial court grants one motion and
denies the other, the court of appeals reviews the summary
judgment proof presented by both sides and ...