Nowroozi, Michael v. Strozier, Scott, Sam Stiefel, Nancy Walker & Tom Burslem ( 2000 )

NUMBER 13-99-230-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

___________________________________________________________________

MICHAEL NOWROOZI

, Appellant,

v.

SCOTT STROZIER, SAM STIEFEL,

NANCY WALKER, AND TOM BURSLEM

, Appellees.

___________________________________________________________________

On appeal from the 129th District Court of Harris County, Texas.

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O P I N I O N

Before Chief Justice Seerden and Justices Dorsey and Yañez Opinion by Chief Justice Seerden

This is an appeal from a take-nothing summary judgment rendered against plaintiff below, Michael Nowroozi. We affirm.

Procedural Background

Appellant Michael Nowroozi brought three separate suits against his homeowners's association, its management company, and individual members of the board of directors of the homeowner's association for various claims relating to the management of Nowroozi's subdivision. Nowroozi's allegations against Pines of Woodedge Community Improvement Association, Inc., SCS Management Services, Inc., Scott Strozier, Sam Stiefel, Nancy Walker, and Tom Burslem included conspiracy, breach of fiduciary duty, failure to perform as officers and directors, and failure to enforce restrictive covenants.

All three cases were consolidated on October 26, 1998. Nowroozi filed a second (actually third) amended petition in the consolidated action on January 6, 1999. While all parties were included in the style of the amended petition, the only defendants referenced in the body of the petition were individuals Strozier, Stiefel, Walker, and Burslem. This amended petition failed to include any causes of action against either Pines of Woodedge Community Improvement Association, Inc., or SCS Management Services.

On October 26, 1998, the trial court granted a motion for summary judgment filed by SCS Management Services on all causes of action against it, and subsequently severed the summary judgment from the instant proceeding.

On January 29, 1999, the trial court granted a motion for summary judgment filed by Strozier, Walker, and Burslem regarding liability in their individual capacities.

On February 2, 1999, the trial court entered a "Judgment as to Certain Claims" memorializing a settlement reached between Nowroozi and Stiefel.

On February 17, 1999, the trial court granted a no-evidence motion for summary judgment filed by Stiefel, Strozier, Walker and Burslem "as members and directors" of the Pines of Woodedge Improvement Association, Inc. The instant appeal arises from this summary judgment.

Jurisdiction

Appellees contend that this Court lacks jurisdiction over this appeal either because the notice of appeal was not timely, or alternatively, because the summary judgment was interlocutory.

Appellees first argue that the timetable for perfecting an appeal was triggered by the trial court's judgment of February 2, 1999, which included a "Mother Hubbard" provision. Appellees thus contend that it was a final judgment as to all claims and all parties. If this were so, the deadline for perfecting the appeal expired thirty days after the judgment was signed, or March 4, 1999. See Tex. R. App. P. 26.1. Appellant failed to appeal the February 2, 1999, judgment, and instead filed a notice of appeal regarding the February 17, 1999, judgment on March 17, 1999.

In order to be a final, appealable summary judgment, the order granting the motion must dispose of all parties and all issues before the court. Mafrige v. Ross, 866 S.W.2d 590, 591 (Tex. 1993). The Texas Supreme Court has held that if a summary judgment appears to be final, as evidenced by the inclusion of language purporting to dispose of all claims or parties, the judgment should be treated as final for the purposes of appeal. Id. at 592. If a summary judgment is final and appealable, to avoid waiver, the parties are required either to ask the trial court to correct the first summary judgment while the court retained plenary power, or to perfect a timely appeal. Inglish v. Union State Bank, 945 S.W.2d 810, 811 (Tex. 1997). Thus, if the February 2, 1999, judgment is final, appellant will have failed to timely perfect appeal.

As noted by appellees, the February 2, 1999, judgment contains a "Mother Hubbard" clause: "All other relief not expressly granted in this judgment is denied." However, the judgment itself is titled "Judgment as to Certain Claims." The judgment recites that "a settlement has been reached between [Nowroozi and Stiefel] only." The judgment further states that Nowroozi's "other" claims and the counterclaims of the remaining defendants are not affected by the resolution of the claims therein.

Appellees contend that the inclusion of the "Mother Hubbard" clause automatically renders the February 2, 1999, judgment final and appealable. See Lehmann v. Har--Con Corp., 988 S.W.2d 415, 417 (Tex.App.--Houston [14^th Dist.] 1999, no pet. h.)("Mother Hubbard" language renders every summary judgment order final and appealable); Kaigler v. General Elec. Mortgage Ins. Corp., 961 S.W.2d 273, 275 (Tex.App.--Houston [1^st Dist.] 1997, no writ)(same). We decline to follow the Houston courts of appeals in applying such a "bright line" test of finality where the judgment contains both a "Mother Hubbard" clause, and language specifically excluding parties and causes of action from the judgment.

Finality must be resolved by a determination of the intention of the court as gathered from the language of the decree and the record as a whole, aided on occasion by the conduct of the parties. Continental Airlines, Inc. v. Shupe, 920 S.W.2d 274 (Tex. 1996). In the circumstances described here, where the judgment on its face reveals that specific parties and claims are not affected, the presumption of finality will not apply. See Lowe v. Teator, 1 S.W.3d 819, 823 (Tex.App.--Dallas 1999, no pet. h.). Thus, the February 2, 1999, judgment was not final, and therefore Nowroozi's notice of appeal of the February 17, 1999, judgment was timely.

Appellees alternatively contend that the February 17, 1999, judgment is interlocutory in nature because it fails to address all parties and causes of action pending in the trial court. Based on the record before this Court, the judgment addressed all parties who were present in the trial court under plaintiff's live pleadings. The appellant's claims against SCS Management had been denied by motion for summary judgment, and those claims severed into a separate cause. Moreover, the appellant's live pleadings fail to include any claim against Pines of Woodedge Community Association.

However, the record reflects that Pines of Woodedge Community Association, Inc., Strozier, Walker, and Burslem each had claims for attorney's fees pending at the time of the summary judgment that were not addressed by judgment in the trial court. If a summary judgment order does not refer to or mention issues pending in a counterclaim, then those issues remain unadjudicated. Chase Manhattan Bank, N.A. v. Lindsay, 787 S.W.2d 51, 53 (Tex. 1990); Munawar v. Cadle Co., 2 S.W.3d 12, 15 (Tex.App.--Corpus Christi 1999, no pet. h.). A summary judgment order that does not dispose of all issues and all parties is generally interlocutory and not appealable in the absence of a severance. Bandera Elec. Coop., Inc. v. Gilchrist, 946 S.W.2d 336, 337 (Tex. 1997); Munawar, 2 S.W.3d at 15.

Appellees sought the recovery of attorney's fees pursuant to the Declaratory Judgment Act, which allows for the recovery of costs and reasonable and necessary attorney's fees. See Tex. Civ. Prac. & Rem. Code Ann. §37.009 (Vernon 1997). Appellant's claims had originally included a request for declaratory relief under this Act. However, appellant's live pleading failed to include a request for declaratory relief. Thus, appellees' claims for attorney's fees must fail as a matter of law. We conclude that we have jurisdiction over this appeal, and will proceed to address its merits.

Standard of Review

We review a "no evidence" summary judgment by ascertaining whether the non-movant produced any evidence of probative force to raise a fact issue on the material questions presented. See Roth v. FFP Operating Partners, 994 S.W.2d 190, 195 (Tex. App.--Amarillo 1999, pet. denied). We consider all the evidence in the light most favorable to the party against whom the summary judgment was rendered and disregard all contrary evidence and inferences. See Merrill Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex.1997), cert. denied, 523 U.S. 1119, 118 S. Ct. 1799, 140 L. Ed. 2d 939 (1998).

A "no evidence" summary judgment is improperly granted if the non-movant presents more than a scintilla of probative evidence to raise a genuine issue of material fact. See Zapata v. The Children's Clinic, 997 S.W.2d 745, 747 (Tex.App.--Corpus Christi 1999, no pet.); Lampasas v. Spring Center, Inc., 988 S.W.2d 428, 432 (Tex.App.--Houston [14th Dist.] 1999, no pet.). More than a scintilla of evidence exists when the evidence "rises to a level that would enable reasonable and fair-minded people to differ in their conclusions." Havner, 953 S.W.2d at 711 (citation omitted). Summary judgment, however, must be granted under Rule 166a(i) if the party opposing the motion fails to bring forth competent summary judgment proof. See Saenz v. Southern Union, 999 S.W.2d 490, 492 (Tex. App.--El Paso 1999, pet. denied); Robinson, 998 S.W.2d at 412.

Analysis

We now consider whether the trial court erred in granting appellees' motion for summary judgment. Appellant argues generally that there were numerous issues of material fact precluding summary judgment for appellees. As noted previously, appellant's claims against the appellees included conspiracy, breach of fiduciary duty, failure to perform as officers and directors, and failure to enforce restrictive covenants. In their no-evidence motion for summary judgment, appellees Stiefel, Strozier, Walker, and Burslem argue that there is no evidence to establish that they failed to act in good faith, with ordinary care, or in a manner they reasonably believed to be in the best interests of the homeowner's association. The filing of this motion shifted the burden to Nowroozi to come forward with enough evidence to be entitled to a jury trial. See Tex. R. Civ. P. 166a(i). In his response, Nowroozi contended specifically that the appellees knew that Stiefel was operating a business from his residence in contravention of the restrictive covenants applicable to the subdivision, yet refused to enforce the restrictive covenants against Stiefel. Nowroozi did not raise any other issues in support of his alleged causes of action.

In response to the summary judgment, Nowroozi submitted his own affidavit and excerpts from the deposition of Nancy Walker. Nowroozi's summary judgment evidence fails to present any evidence of probative force to raise a fact issue on the material questions presented.

Nowroozi offers the excerpts from the deposition of Nancy Walker as evidence that she had personal knowledge that Stiefel was operating a business at his residence in contravention of the restrictive covenants of the homeowner's association. However, a review of the deposition excerpts shows that Walker was only aware that Stiefel had a hobby of rebuilding cars and selling them, and that he in fact used those cars for his personal transportation. Walker did not know whether Stiefel made any money from this hobby. Walker's deposition testimony fails to establish that Stiefel's hobby constituted a "business" in violation of any restrictive covenants, or that Walker had any knowledge that Stiefel was operating a business within the subdivision.

Nowroozi also offered his own affidavit in response to appellees' motion for summary judgment. In his affidavit, he asserts that he told Walker and Strozier that Stiefel was operating a business from his residence, and requested that they make Stiefel cease and desist. However, Nowroozi's affidavit fails to establish that these individuals were officers and directors of the subdivision association, that the bylaws prohibit the operation of a business, that Stiefel was operating a business from his residence, or that the officers and directors had the duty or power to enforce restrictive covenants. Moreover, Nowroozi's affidavit consists primarily of factual conclusions. Conclusory statements that are not supported by facts are not proper as summary judgment proof. See Purcell v. Bellinger, 940 S.W.2d 599, 602 (Tex. 1997).

We affirm because Nowroozi did not present a scintilla of evidence in response to the motion for summary judgment showing that the officers and directors committed any actionable offense, nor did he point out evidence that raises a fact issue as to his alleged causes of action.

Finally, appellant cites no cases showing that he would have a justiciable cause of action against the officers and directors of his community association even if his allegations were taken as true. The summary judgment evidence before the trial court, even taken in a light most favorable to the appellant, supports the granting of the summary judgment because nothing in the record establishes that the officers and directors had the duty or power to enforce the restrictive covenants.

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ROBERT J. SEERDEN, Chief Justice

Do not publish

.

Tex. R. App. P. 47.3.

Opinion delivered and filed

this 25th day of May, 2000.