Houle v. Casillas

          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 ...