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Newman v. Sivam

Court of Appeals of Texas, Tenth District

January 8, 2020

BILLY NEWMAN, RHONDA C. NEWMAN AND JASMINE MARIE BILLINGS, Appellants
v.
THANGAVEL P. SIVAM, MAHESWARI SIVAM AND SENTHIL SIVAN, Appellees

          From the 414th District Court McLennan County, Texas Trial Court No. 2018-1898-5.

          Before Chief Justice Gray, Justice Davis, and Justice Neill [*]

          MEMORANDUM OPINION

          John E. Neill Justice.

         In two issues, appellants, Billy Newman, Rhonda C. Newman, and Jasmine Marie Billings (collectively "the Newmans"), complain that the trial court erred by: (1) granting summary judgment in favor of appellee, Thangavel P. Sivam; and (2) dismissing the Newmans' claims. Because we overrule both of the Newmans' issues, we affirm the judgment of the trial court.[1]

         I. Background

         This dispute centers on a lease agreement for a commercial building that was intended to be used as a daycare facility for children, including physically-disabled children. According to their original petition, the Newmans leased a commercial building located in Hewitt, Texas, from Thangavel. Apparently, the daycare facility was never opened because the Newmans claimed that the building was not suitable and that Thangavel would not make necessary repairs for occupation. As such, the Newmans sued Thangavel for fraud and conspiracy to commit fraud.

         Thangavel filed an original answer denying all of the allegations contained in the Newmans' original petition and asserting an affirmative defense and a counterclaim against the Newmans for $23, 000 in past-due and future rent. The Newmans filed an answer generally denying the allegations contained in Thangavel's counterclaim and subsequently amended their original petition to add Maheswari Sivam and Senthil Sivam as parties and to request a jury trial.[2] Thangavel, Maheswari, and Senthil jointly filed a first amended answer and counterclaim for past-due and future rent.

         Thereafter, the Newmans answered the Sivams' joint counterclaim and filed a traditional motion for summary judgment as to the Sivams' counterclaim for past-due and future rent. In their traditional motion for summary judgment, the Newmans argued that the Sivams' counterclaim for past-due and future rent should be dismissed under the theory of res judicata because the claim has been adjudicated in a related eviction action.

         Thangavel responded by filing a traditional motion for summary judgment on his own behalf, asserting that he is entitled to past-due and future rent and reasonable and necessary attorney's fees as a matter of law and that the Newmans should recover nothing by their fraud and conspiracy-to-commit-fraud claims. Thangavel, Maheswari, and Senthil then filed a joint response to the Newmans' traditional motion for summary judgment pertaining to the Sivams' counterclaim for past-due and future rent. The Newmans did not respond to Thangavel's motion for summary judgment. However, Billy Newman executed and filed a pro se affidavit addressing the Sivams' counterclaim for past-due and future rent.

         The trial court granted summary judgment in favor of the Newmans as to the counterclaim for past-due and future rent based on the theory of res judicata. However, in its order, the trial court only referenced Thangavel and ordered that Thangavel take nothing by his counterclaim. The trial court also granted summary judgment in favor of Thangavel as to the Newmans' fraud and conspiracy-to-commit-fraud claims and ordered the dismissal of the Newmans' claims. The Newmans filed a motion for new trial, which was denied by the trial court. This appeal followed.

         II. Jurisdiction

         In their notice of appeal, the Newmans listed Thangavel, Maheswari, and Senthil as appellees. As mentioned above, Maheswari and Senthil were named as parties to this suit in the Newmans' first amended petition. In response, Thangavel, Maheswari, and Senthil jointly filed a first amended answer and counterclaim for past-due and future rent. The Newmans answered and filed a traditional motion for summary judgment as to the Sivams' joint counterclaim. Thangavel later filed a traditional motion for summary judgment on his own behalf addressing the Sivams' counterclaim, as well as the Newmans' claims. Thangavel, Maheswari, and Senthil then filed a joint response to appellants' traditional motion for summary judgment. The trial court granted the Newmans' traditional motion for summary judgment as to the Sivams' counterclaim. However, in this order, the trial court only referenced Thangavel. Next, the trial court granted summary judgment in favor of Thangavel himself with regard to appellants' claims for fraud and conspiracy-to-commit-fraud claims. The trial court's orders do not appear to resolve any claims as to Maheswari and Senthil. In its order granting summary judgment in favor of Thangavel, the trial court noted the following:

IT IS THEREFORE, ORDERED, ADJUDGED AND DECREED by the Court that Defendant [Thangavel] have, and hereby is granted a Summary Judgment dismissing Plaintiffs' [the Newmans'] claims against the Defendant. As the Court has previously entered its Order dismissing Defendant's ...

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