Lagoye v. Victoria Wood Condominium Ass'n

• Decision Date: 31 July 2003
• Docket Number: No. 14-02-00002-CV.,14-02-00002-CV.
• Citation: 112 S.W.3d 777
• Parties: Abiodun Henri LaGOYE, Appellant, v. VICTORIA WOOD CONDOMINIUM ASSOCIATION, Genesis Property Management, Genesis Community Management Allegedly f/k/a Genesis Property Management, Terry H. Sears, Etan Mirwis, Harlan Stein, and Kit Snyder, Appellees.
• Court: Texas Court of Appeals

112 S.W.3d 777

Abiodun Henri LaGOYE, Appellant, v. VICTORIA WOOD CONDOMINIUM ASSOCIATION, Genesis Property Management, Genesis Community Management Allegedly f/k/a Genesis Property Management, Terry H. Sears, Etan Mirwis, Harlan Stein, and Kit Snyder, Appellees.

No. 14-02-00002-CV.

Court of Appeals of Texas, Houston (14th Dist.).

July 31, 2003.

Abiodun Henri Lagoye, Houston, for appellants.

John Bradley Mitchell, Marc D. Markel, Houston, for appellees.

Panel consists of Justices KEM THOMPSON FROST, SEYMORE, and GUZMAN.

OPINION

KEM THOMPSON FROST, Justice.

This is an appeal from a nunc pro tunc, no-evidence summary judgment granted in favor of appellees Victoria Wood Condominium Association, Genesis Community Management allegedly f/k/a Genesis Property Management, Terry H. Sears, Etan Mirwis, Harlan Stein, and Kit Snyder. Appellant Abiodun Henri LaGoye claims there are unresolved genuine issues of material fact and the summary judgment should be reversed. He argues that he should have been allowed to late-file responses to requests for admissions. Additionally, he claims that Genesis Community Management should not be a party to this appeal.

I. FACTUAL AND PROCEDURAL BACKGROUND

LaGoye, the plaintiff below, owned a two-bedroom unit in the Victoria Wood Condominium Project. The homeowners' association, Victoria Wood Condominium Association (the "Homeowners' Association") contracted with a management company, Genesis Property Management, to manage the building.

In February 2001, LaGoye's condominium sustained water damage, apparently as a result of a hot water pipe breaking. The damage included a caved-in ceiling, warped floors and cabinets, and waterlogged sheetrock. As a result of the accident, LaGoye and his son were forced to move out of their home. LaGoye claimed a subsequent inspection uncovered toxic mold.

LaGoye filed this suit, pro se, against the Homeowners' Association and three members of its Board of Directors, Etan Mirwis, Harlan Stein, and Kit Snyder (collectively, the "Board Members"). LaGoye also asserted claims against Genesis Property Management and its on-site property manager, Terry H. Sears (the "On-Site Manager"), for breach of a contract to maintain the common area, fraud due to alleged misrepresentations, breach of a fiduciary duty to expend the Homeowners' Association's assessed maintenance fee in maintaining the property, and alleged violations of the Real Estate Licensing Act. LaGoye later filed an amended petition in which he joined Migura Insurance Agency and Genesis Community Management as defendants, and added a breach-of-duty-of-good faith-and-fair-dealing claim, a breach-of-duty-to-fairly-settle claim, and an unfair-claims-settlement action.¹ All eight defendants filed an answer to the amended petition.

In May 2001, the Homeowners' Association, Genesis Property Management, and the On-Site Manager served a request for disclosure on LaGoye. In June 2001, while LaGoye was responding to this discovery, the Homeowners' Association served an additional request for disclosure as well as a request for production and requests for admissions.² The responses to the discovery were due on July 16, 2001.³ LaGoye did not timely answer the requests for admissions because, according to his response to the motion for summary judgment and motion for new trial, he mistakenly believed he had thirty-three days from date of receipt as opposed to thirty days from date of service (plus three days due to service by mail). See Tex.R. Civ. P. 21a. Additionally, LaGoye claims he was under the impression that because he filed a motion for an extension of time to file discovery responses on July 19, 2001, he had preserved his right to late-file responses. LaGoye's motion for an extension of time to respond to this discovery was set for submission, but the trial court never ruled on it.⁴ Two weeks after his discovery responses were due, on August 1, 2001, LaGoye filed a "Response and Objections to [the Homeowners' Association's] Requests for Admissions."

Appellees filed a no-evidence motion for summary judgment. LaGoye timely filed a response. The trial court granted partial summary judgment in favor of the Homeowners' Association, the Board Members, Genesis Property Management, and the On-Site Manager.⁵ LaGoye filed a motion for new trial, which was overruled by operation of law. On the motion of the Homeowners' Association, the Board Members, Genesis Property Management, and the On-Site Manager, the trial court severed the claims against them from the claims against the nonmovants (Migura Insurance Company and Genesis Community Management), and the partial summary judgment became final on December 4, 2001. Subsequently, the trial court entered a judgment nunc pro tunc signed on July 29, 2002, apparently because of an alleged error in the name of one of the parties in the motion for summary judgment, the summary-judgment order, and the order of severance.⁶ After the parties filed their initial briefs on appeal, appellees supplemented the record with the judgment nunc pro tunc.

II. ISSUES PRESENTED

LaGoye makes several arguments on appeal. We construe his brief and supplemental brief to present the following complaints for appellate review: (1) the trial court erred in granting a judgment nunc pro tunc; (2) the trial court erred in not allowing LaGoye to late-file his responses to the requests for admissions; and (3) the trial court erred in granting the motion for summary judgment.

III. JURISDICTION

Before addressing the merits of this case, we must determine, as a threshold matter, whether we have appellate jurisdiction. After the summary judgment was granted, appellees obtained an order severing LaGoye's claims against the Homeowners' Association, the Board Members, Genesis Property Management, and the On-Site Manager into cause number 01-21180-A (the "A-Case"). The clerk of the court was ordered to copy and file several documents and orders from the original action into the severed action, including the summary judgment LaGoye challenges on appeal. Both his first and second notices of appeal bear the original cause number; yet, they specifically name the complained-of summary judgment severed into the A-Case. The problem is that we have no record of an appeal from the A-Case. Thus, we must decide if LaGoye has properly perfected an appeal of the summary judgment he challenges.

A. Perfection of Appeal of the A-Case

Decisions should turn on substance rather than procedural technicalities. Texas Instruments v. Teletron Energy Management, 877 S.W.2d 276, 278 (Tex. 1994). An appellate court has jurisdiction over an appeal when the appellant files an instrument that is "a bona fide attempt to invoke appellate court jurisdiction." E.g., Verburgt v. Dorner, 959 S.W.2d 615, 616 (Tex.1997); Mueller v. Saravia, 826 S.W.2d 608, 609 (Tex.1992); City of San Antonio v. Rodriguez, 828 S.W.2d 417, 418 (Tex.1992) (per curiam); Grand Prairie Indep. Sch. Dist. v. Southern Parts Imports, Inc., 813 S.W.2d 499, 500 (Tex. 1991). If there is no suggestion of confusion regarding which judgment the appellant appeals, misnumbering should not defeat the appellate court's jurisdiction. City of San Antonio, 828 S.W.2d at 418; Matlock v. McCormick, 948 S.W.2d 308, 310 (Tex. App.-San Antonio 1997, no pet.).

Appellees have participated in this appeal and have voiced no complaint concerning the nature or subject matter of the appeal. There is no apparent confusion regarding the judgment being appealed. Because LaGoye's notices of appeal refer to the summary judgment granted in favor of appellees, and because it was the only summary judgment granted at the time the notice of appeal was filed, we find that the misnumbering caused no confusion regarding the judgment from which LaGoye seeks to appeal. See City of San Antonio, 828 S.W.2d at 418; Matlock, 948 S.W.2d at 310; see also Silk v. Terrill, 898 S.W.2d 764, 766 (Tex.1995) (per curiam) (holding judicial economy is not served when a case ripe for decision is decided on a procedural technicality; cases should be decided on the merits when procedural deficiencies can easily be corrected); Blankenship v. Robins, 878 S.W.2d 138, 139 (Tex.1994) (per curiam) (finding motion for new trial erroneously filed in severed cause number rather than in original cause number nonetheless extended appellate timetable in original cause number). Therefore, we hold that LaGoye timely perfected this appeal and we have jurisdiction to consider it.

B. Trial Court's Entry of Judgment Nunc Pro Tunc

After the appellees supplemented the appellate record with the judgment nunc pro tunc signed on July 29, 2002, LaGoye filed a supplemental appellate brief in which he argues that the judgment nunc pro tunc does not correct a clerical mistake, but instead makes a substantive change—the addition of a party—to the severance order finalizing the partial summary judgment.⁷ He claims Genesis Community Management is not a proper party to this appeal. We agree.

The purpose of a judgment nunc pro tunc is to correct a clerical error in the judgment after the court's plenary power has expired. Escobar v. Escobar, 711 S.W.2d 230, 231 (Tex.1986). See Tex.R. Civ. P. 316.⁸ A clerical error is a mistake or omission in the entry of a judgment in the official record and the judgment as it was actually rendered. Andrews v. Koch, 702 S.W.2d 584, 585 (Tex.1986); Universal Underwriters Ins. Co. v. Ferguson, 471 S.W.2d 28, 29-30 (Tex.1971). In contrast, a judicial error is an error arising from a mistake of law or fact that requires judicial reasoning or determination to correct. West Texas State Bank v. Gen. Resources Management Corp., 723 S.W.2d 304, 306 (Tex.App.-Austin 1987, writ ref'd n.r.e.). In other words, an error that occurs in the rendering, as opposed to the entering, of a judgment is a judicial error. Escobar, 711 S.W.2d at 231; see Wood v. Griffin & Brand of McAllen, 671 S.W.2d 125, 127-32 ...