Bever Props., L.L.C. v. Jerry Huffman Custom Builder, L.L.C.

• Decision Date: 16 November 2011
• Docket Number: No. 05–10–00323–CV.,05–10–00323–CV.
• Citation: 355 S.W.3d 878
• Parties: BEVER PROPERTIES, L.L.C. and Jesse M. Taylor, D.D.S., P.A., Appellants, v. JERRY HUFFMAN CUSTOM BUILDER, L.L.C., a/k/a Jerry Huffman Custom Builders, L.L.C.; Plano Parkway Office Condominiums, a/k/a Plano Parkway Office Owners Association; Dr. Mary Ellen Kirwan, d/b/a Kirwan Chiropractic; Dr. JoJo Cheung, D.D.S., d/b/a Esthetic Image Dentistry, Appellees.
• Court: Texas Court of Appeals

355 S.W.3d 878

BEVER PROPERTIES, L.L.C. and Jesse M. Taylor, D.D.S., P.A., Appellants,

v.JERRY HUFFMAN CUSTOM BUILDER, L.L.C., a/k/a Jerry Huffman Custom Builders, L.L.C.; Plano Parkway Office Condominiums, a/k/a Plano Parkway Office Owners Association; Dr. Mary Ellen Kirwan, d/b/a Kirwan Chiropractic; Dr. JoJo Cheung, D.D.S., d/b/a Esthetic Image Dentistry, Appellees.

No. 05–10–00323–CV.

Court of Appeals of Texas, Dallas.

Nov. 16, 2011.

Christopher A. Kalis, Law Office of Christopher Kalis, Plano, TX, Charles J. Crawford, John R. Stooksberry, Abernathy, Roeder, Boyd & Joplin, P.C., McKinney, TX, for Appellants.

John D. Fraser, Shields Britton & Frasher PC, Plano, TX, Zachary Thomas Mayer, C. Jeffrey Novel, Joshua Sandler, Kane Russell Coleman & Logan PC, Lorin M. Subar, McGlinchey Stafford, PLLC, Dallas, TX, Jerry A. Alcorn, The Law Office of Jerry Alcorn, Garland, TX, for Appellees.

Before Justices MORRIS, O'NEILL, and FILLMORE.

OPINION

Opinion By Justice FILLMORE.

Appellants Bever Properties, L.L.C. and Jesse M. Taylor, D.D.S., P.A. appeal the summary judgments granted appellees Jerry Huffman Custom Builder, L.L.C., a/k/a Jerry Huffman Custom Builders, L.L.C.; Plano Parkway Office Condominiums, a/k/a Plano Parkway Office Owners Association; Dr. Mary Ellen Kirwan, d/b/a Kirwan Chiropractic; and Dr. JoJo Cheung, D.D.S., d/b/a Esthetic Image Dentistry, and the denial of appellants' motion for summary judgment. In three issues, appellants contend the trial court erred (1) in granting summary judgment in favor of appellee Huffman on a ground not addressed in appellees' motions and in granting summary judgment in favor of appellees because appellants' summary judgment evidence raised material issues of fact, (2) in granting appellees summary judgment on their requests for attorney's fees because the grounds relied upon by appellees for recovery of attorney's fees cannot support such recovery, and (3) in denying appellants' request for summary judgment on appellees' recovery of attorney's fees because appellees are not entitled to recover attorney's fees as a matter of law. We affirm the trial court's judgment in part, reverse the trial court's judgment in part, and remand to the trial court for further proceedings consistent with this opinion.

Background

This is an appeal of summary judgments granted by the trial court in a lawsuit brought by the owner of an office condominium unit, appellant Bever Properties, L.L.C. (Bever Properties), and the lessee of that unit, appellant Jesse M. Taylor, D.D.S., P.A. (Taylor D.D.S., P.A.), against the developer of the office condominium project, appellee Jerry Huffman Custom Builder, L.L.C., a/k/a Jerry Huffman Custom Builders, L.L.C. (Huffman); the office condominium association, Plano Parkway Office Condominiums, a/k/a Plano Parkway Office Owners Association (PPOC); and office condominium unit owners Dr. Mary Ellen Kirwan, d/b/a Kirwan Chiropractic (Kirwan), and Dr. JoJo Cheung, D.D.S., d/b/a Esthetic Image Dentistry (Cheung).

In April 2003, Huffman purchased real property located in Plano, Texas, for the purpose of developing an office condominium.¹ In September 2003, Huffman filed a condominium declaration (the Declaration).² Huffman sold three condominium units: the first and second units in November 2003 and January 2004 to Kirwan and Cheung, respectively, and the third unit in April 2004 to Bever Properties. Bever Properties was issued a special warranty deed with vendor's lien, which was subject to the Declaration. Bever Properties subsequently leased its condominium unit to Taylor, D.D.S., P.A.

Multiple disputes arose between appellants, on the one hand, and Cheung and Kirwan—the other unit owners and president and treasurer, respectively, of PPOC—and PPOC on the other hand.³ The genesis of the disputes was appellants' desire to construct prominent signage at the location of the office condominium. Appellants filed this case against appellees alleging that Bever Properties purchased the condominium unit based, in part, upon assurances that prominent signage advertising the dental practice of Taylor, D.D.S., P.A. could be placed on the property of the office condominium. Appellants allege that appellees' actions, representations, and failures to disclose information misled appellants regarding signage and thwarted appellants' placement of the desired signage on the office condominium property. Appellants assert claims against appellees for declaratory relief, civil conspiracy, violations of the Deceptive Trade Practices–Consumer Protection Act (DTPA), see Tex. Bus. & Com.Code Ann. § 17.41 (West 2011), conspiracy to violate the DTPA, fraud, conspiracy to defraud, negligent misrepresentation, statutory fraud, and for an accounting by PPOC. In addition, appellants assert claims of breach of fiduciary duty against Cheung and Kirwan and a claim of breach of warranty against Huffman. After appellants filed this case against appellees, PPOC filed suit against Bever Properties seeking an injunction to enjoin appellants from violating use and occupancy restrictions in the Declaration and for attorney's fees, and that lawsuit was consolidated with this case. Kirwan filed a counterclaim against appellants seeking attorney's fees.

In October 2009, PPOC and Cheung filed no-evidence and traditional motions for summary judgment on appellants' claims against them and sought recovery of attorney's fees. Kirwan and Huffman filed joinders of PPOC and Cheung's motions for summary judgment and sought recovery of attorney's fees. On November 30, 2009, the trial court signed an order granting appellees' motions for summary judgment. That order states that appellants take nothing against appellees and the order disposes of all claims made by appellants against appellees. The order is silent on appellees' requests for recovery of attorney's fees.

In December 2009, PPOC and Cheung filed a traditional motion for partial summary judgment in connection with PPOC's suit for an injunction and sought recovery of attorney's fees. Kirwan and Huffman filed joinders of PPOC and Cheung's motion for partial summary judgment and sought recovery of attorney's fees. Appellants filed a no-evidence motion for summary judgment with respect to claims asserted in appellees' motions for partial summary judgment and sought recovery of attorney's fees.

On February 1, 2010, the trial court signed an “Order on Motions for Summary Judgment.” That order denied PPOC's motion for partial summary judgment on its request for issuance of an injunction, granted summary judgment on appellees' claims for attorney's fees, and denied appellants' motion for summary judgment on appellees' claims for attorney's fees, with the amounts of attorney's fees to be determined.

On March 1, 2010, appellants and appellees filed a rule 11 agreement with the trial court. See Tex.R. Civ. P. 11. In the rule 11 agreement, the parties agreed to dismissal of all claims not previously decided by summary judgment. Further, without waiving objections to, or appeal of, the trial court's November 30, 2009 and February 1, 2010 orders, appellants stipulated to the amounts of appellees' attorney's fees.

On March 11, 2010, the trial court signed a “Final Judgment” denying PPOC's petition for an injunction, dismissing all other claims of appellees not previously adjudicated in the trial court's summary judgments, and awarding appellees judgment against appellants jointly and severally for attorney's fees as follows: $116,012.36 to Huffman; $38,000.00 to Kirwan; $139,315.00 to PPOC; and $6,165.00 to Cheung. The trial court's March 11, 2010 final judgment states that all other relief not expressly granted is denied and the judgment is final and appealable.

Appellants filed this appeal of the November 30, 2009 and February 1, 2010 summary judgment orders as merged into the March 11, 2010 final judgment. See Teer v. Duddlesten, 664 S.W.2d 702, 704 (Tex.1984) (quoting Pan Am. Petroleum Corp. v. Tex. Pac. Coal & Oil Co., 159 Tex. 550, 324 S.W.2d 200, 200–01 (1959)) (“In the absence of an order of severance, party against whom an interlocutory summary judgment has been rendered will have his right of appeal when and not before the same is merged in a final judgment disposing of the whole case.”); In re Guardianship of Miller III, 299 S.W.3d 179, 184 (Tex.App.-Dallas 2009, no pet.) (“Once the trial court disposes of all parties and claims, the trial court's preceding interlocutory judgments or orders are merged into the final judgment whether or not the interlocutory judgments or orders are specifically named within the final judgment.”).

Summary Judgment Standards of Review

Appellees moved for traditional and no-evidence summary judgments, and appellants moved for a no-evidence summary judgment, relating to various claims made in this consolidated lawsuit. We review a trial court's decision to grant or deny a motion for summary judgment de novo. See Tex. Mun. Power Agency v. Pub. Util. Comm'n of Tex., 253 S.W.3d 184, 192 (Tex.2007) (citing standard for appellate review of grant of summary judgment and denial of cross-motion for summary judgment). Although a denial of summary judgment normally is not reviewable, we may review such a denial when both parties moved for summary judgment and the trial court grants one motion and denies the other. Id. In our review of such cross-motions, we review the summary judgment evidence presented by each party, determine all questions presented, and render the judgment that the trial court should have rendered. Id. (citing Comm'rs Court v. Agan, 940 S.W.2d 77, 81 (Tex.1997)).

The standard of review for a traditional summary judgment is well known. See Tex.R. Civ. P. 166a(c); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex.1985). We must determine whether the movant demonstrated that no genuine issues of material fact existed and it was entitled to judgment as a matter of law. See Nixon, 690 S.W.2d at...