in Re Educap, Inc ( 2012 )

Opinion issued August 7, 2012
In The
Court of Appeals
For The
First District of Texas
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NO. 01-12-00546-CV
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IN RE EDUCAP, INC., Relator
Original Proceeding on Petition for Writ of Mandamus
MEMORANDUM OPINION
Relator Educap, Inc. has filed a petition for writ of mandamus in this Court.
See TEX. GOV’T CODE ANN. § 22.221 (Vernon 2004); see also TEX. R. APP. P. 52.
Raising one issue, Educap complains of the trial court’s denial of its motion for
entry of final judgment and of the trial court’s failure to render a final appealable
judgment.1 Educap contends that the trial court’s failure to render a final judgment
1
The respondent is The Honorable Linda Storey of the County Civil Court at Law
No. 3 of Harris County. The underlying suit is Educap, Inc. v. Jo Anna McCune,
No. 980350 (County Civil Court at Law No. 3, Harris County, Texas).
prevents it from appealing the trial court’s order granting summary judgment in
favor of real party in interest Jo Anna McCune. Because we agree that the trial has
not rendered a final judgment, we conditionally grant Educap’s petition for writ of
mandamus.
Background Summary
Educap is the holder of the note on McCune’s unpaid student loans. Educap
sued McCune for breach of contract, alleging that she had defaulted on the loans
totaling $41,666.50.
McCune answered the suit asserting a general denial and the affirmative
defense of limitations. In the prayer of her answer, McCune also requested that
she recover her attorney’s fees.
Educap filed a motion for summary judgment on its claims against McCune.
McCune responded to the motion and filed a counter motion for summary
judgment based on the affirmative defense of limitations. In her motion for
summary judgment, McCune also requested her attorney’s fees. To support her
attorney’s fees claims, McCune attached the affidavit of her attorney. In the
affidavit, the attorney specified the amount of her fees associated with different
stages of the litigation.
On the same day, the trial court signed two orders. One order denied
Educap’s motion for summary judgment and the other granted McCune’s motion.
2
The order granting McCune’s motion is entitled, “Order Granting Defendant’s
Motion for Final Summary Judge.” The order provides, “[T]he court considered
the DEFENDANT’S MOTION FOR FINAL SUMMARY JUDGMENT, and the
response thereto, and after reviewing the evidence and hearing arguments, the
Court finds that the Motion should be GRANTED.” The order denying Educap’s
motion for summary judgment was similarly phrased, simply denying the motion.
Educap filed a motion for new trial, asserting that it did not receive a copy of
McCune’s motion for summary judgment or notice of submission of the motion.
The trial court denied Educap’s motion for new trial.
Educap then filed a Motion for Entry of Final Judgment, asserting, in part,
“[T]he Order Granting Defendant’s Motion for Final Summary Judgment is not a
final and appealable order because it does not dispose of all claims and all parties.
In fact the judgment does not specifically state what relief is granted and refers
back to Defendant’s Motion for Summary Judgment.” Educap pointed out that
McCune’s motion for summary judgment included, inter alia, a request for
attorney’s fees. Although not in the mandamus record, it is not disputed that the
trial court denied Educap’s motion for entry of final judgment at a hearing on the
motion.
Educap filed its petition for writ of mandamus in this Court complaining, in
one issue, that the trial court improperly denied the motion for entry of final
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judgment and has failed to render a final judgment in this case. Educap asserts that
it desires to appeal the trial court’s order granting McCune’s motion for summary
judgment but cannot do so without a final judgment. Educap requests this Court to
direct the trial court to sign a final, appealable judgment to allow it to proceed with
its appeal. McCune contends that the trial court has rendered a final appealable
judgment.
Standard of Review
To be entitled to the extraordinary relief of a writ of mandamus, relators
must show the trial court abused its discretion and there is no adequate remedy by
appeal. In re Team Rocket, L.P., 256 S.W.3d 257, 259 (Tex. 2008) (orig.
proceeding). A trial court abuses its discretion if it reaches a decision so arbitrary
and unreasonable that it constitutes a clear and prejudicial error of law, or if it
clearly fails to correctly analyze or apply the law. In re Cerberus Capital Mgmt.,
L.P., 164 S.W.3d 379, 382 (Tex. 2005) (orig. proceeding); Walker v. Packer, 827
S.W.2d 833, 839 (Tex. 1992) (orig. proceeding).
Analysis
Here, Educap contends that the trial court abused its discretion by denying
its motion for entry of judgment and by refusing to render a final, appealable
judgment. As it did in the trial court, Educap asserts that the trial court’s order
granting McCune’s motion for summary judgment fails to address all of McCune’s
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claims. It claims that the order is too indefinite to ascertain the relief granted to
McCune. Educap points out that McCune requested attorney’s fees in her answer
and in her motion for summary judgment. The amount of fees requested was
supported by an attorney’s affidavit, appended to her motion for summary
judgment.
When, as here, there has been no conventional trial on the merits, “an order
or judgment is not final for purposes of appeal unless it actually disposes of every
pending claim and party or unless it clearly and unequivocally states that it finally
disposes of all claims and all parties.” Lehmann v. Har–Con Corp., 39 S.W.3d
191, 205 (Tex. 2001). In addition, a final judgment must be definite and certain
such that the clerk can ascertain the amount to place in the writ of execution. See
Int’l Sec. Life Ins. Co. v. Spray, 468 S.W.2d 347, 350 (Tex. 1971).
Here, the trial court’s summary judgment orders taken together form its
judgment. The judgment does not specifically address McCune’s attorney’s fees
claim, which she expressly asserted in her answer and in her motion for summary
judgment.2 We also note that the trial court did not include language in its
2
McCune contends that she did not plead a counter-claim for attorney’s fees against
Educap. However, the record shows that she requested attorney’s fees in the
prayer of her answer and in her motion for summary judgment. Even assuming
that McCune did not plead an attorney’s fees claim, unpled claims that are tried by
express or implied consent of the parties are treated as if they had been raised in
the pleadings. Roark v. Stallworth Oil & Gas, Inc., 813 S.W.2d 492, 495 (Tex.
1991). Thus, an unpled attorney’s fees claim presented in a motion for summary
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judgment indicating that it was denying relief not expressly granted. Had it
included such language, the judgment would arguably reflect that the trial court
was granting McCune’s summary judgment on Educap’s claims but denying any
claim for affirmative relief included in the motion for summary judgment, such as
the attorney’s fees claims. See In re Certain Underwriters at Lloyd’s London, No.
01–09–00851–CV, 2010 WL 184300, at *3 (Tex. App.—Houston [1st Dist.] Jan.
15, 2010, orig. proceeding) (mem. op.) (holding that order granting summary
judgment was final judgment even though attorney’s fees request made in motion
for summary judgment not addressed in the order because order indicated that all
relief not expressly granted was denied; thus, attorney’s fees request was denied by
the order).
Nor does the trial court’s judgment otherwise indicate that it intended to
dispose of the attorney’s fees claims when it ruled on the competing motions for
summary judgment. See, e.g., St. Raphael Med. Clinic, Inc. v. Mint Med.
Physician Staffing, LP, 244 S.W.3d 436, 440 (Tex. App.—Houston [1st Dist.]
2007, no pet.) (holding that agreed judgment not specifically addressing claim for
attorney’s fees final because it stated that it “is conclusive, not only on the matters
actually raised and litigated, but it is also conclusive on every other matter that
judgment proceeding without objection is tried by consent. See, e.g., Emery Air
Freight Corp. v. Gen. Transp. Sys., Inc., 933 S.W.2d 312, 316 (Tex. App.—
Houston [14th Dist.] 1996, no writ), disapproved of on other grounds by Evanston
Ins. Co. v. ATOFINA Petrochemicals, Inc., 256 S.W.3d 660 (Tex. 2008).
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could have been litigated and decided as an incident to or essentially connected
with the subject matter”). The trial court’s judgment also does not include express
language of finality, indicating that the trial court intended the judgment to be final
and appealable. See Lehmann, 39 S.W.3d at 192–93; cf. Reyes v. Credit Based
Asset Servicing & Securitization, 190 S.W.3d 736, 738–39 (Tex. App.—San
Antonio 2005, no pet.) (holding that summary judgment order not specifically
addressing claim for attorney’s fees was final because of language indicating trial
court intended it to be final and appealable). In the absence of language of finality,
a trial court’s failure to dispose of a pending attorney’s fees claim renders a
judgment interlocutory. See, e.g., McNally v. Guevara, 52 S.W.3d 195, 196 (Tex.
2001) (holding that judgment was not final and appealable, in part, because it did
not dispose of defendant’s attorney’s fees claim).
Even if we assume that the trial court’s order granting McCune’s motion for
summary judgment includes an attorney’s fees award, the amount of the award is
not included in the order. As mentioned, a judgment is not final unless it is
definite and certain, such that the clerk can ascertain the amount to place in the
writ of execution. See Spray, 468 S.W.2d at 350; see also Harris Cnty. Toll Road
Auth. v. Sw. Bell Tel., L.P., 263 S.W.3d 48, 54 (Tex. App.—Houston [1st Dist.]
2006), aff’d, 282 S.W.3d 59 (Tex. 2009). In other words, “[i]f the amount awarded
by the judgment cannot be determined, the judgment is interlocutory.” Harris
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Cnty. Toll Road Auth., 263 S.W.3d at 54 (quoting Olympia Marble & Granite v.
Mayes, 17 S.W.3d 437, 440 (Tex. App.—Houston [1st Dist.] 2000, no pet.)).
Thus, even assuming that the trial court intended to award McCune her attorney’s
fees by granting her motion for summary judgment, the judgment is nonetheless
interlocutory because the amount of the fees awarded has not been stated in the
judgment. See Chado v. PNL Blackacre, L.P, No. 05–04–00312–CV, 2005 WL
428824, at *1 (Tex. App.—Dallas Feb. 24, 2005, no pet.) (mem. op.) (dismissing
appeal as interlocutory because order granting summary judgment to Blackacre
and awarding it attorney’s fees on appeal failed to specify amount of attorney’s
fees awarded); see also Spray, 468 S.W.2d at 350; Howell v. Mauzy, 774 S.W.2d
274, 276 (Tex. App.—Austin 1989, writ denied). We hold that the trial court did
not render a final judgment and it abused its discretion when it denied Educap’s
motion to render a final judgment.
We further hold that because there is no final judgment, Educap has no
remedy by appeal. Subject to a few exceptions not applicable here, an appellant
may only appeal from a final judgment. See Lehmann, 39 S.W.3d at 195. Thus,
Educap has met its burden to show it is entitled to the mandamus relief it seeks.
See In re Team Rocket, 256 S.W.3d at 259.
For the reasons discussed, we conditionally grant the requested mandamus
relief. We direct the trial court to grant Educap’s motion for entry of final
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judgment and render a final, appealable judgment in this case.3 We will issue writ
only if the trial court fails to do so.
Laura Carter Higley
Justice
Panel consists of Justices Higley, Sharp, and Huddle.
3
Educap also complains in his mandamus petition that the trial court did not
expressly rule on other requests for relief made by McCune in her motion for
summary judgment. Educap points out that McCune requested costs of court and
requested the trial court to “[o]rder such other relief, special or general, at law or
in equity as may be appropriate.” Because we have determined that the judgment
is not a final judgment, we need not determine whether the lack of language
addressing the other requested relief affects the finality of the judgment. We are
confident that the trial court will dispose of any pending claims or otherwise
indicate with clarity that the judgment is a final, appealable judgment.
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