Linda Kujawa v. Myrta Kujawa ( 2012 )

Opinion issued May 17, 2012.

In The

Court of Appeals

For The

First District of Texas

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NO. 01-11-00963-CV

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Linda Kujawa, Appellant

V.

myrta kujawa, Appellee

On Appeal from the 61st District Court

Harris County, Texas

Trial Court Case No. 2010-28732

MEMORANDUM OPINION

Linda Kujawa appeals from the trial court’s order granting summary judgment in favor of Myrta Kujawa on Linda’s adverse possession and prescriptive easement claims. Because we conclude that the summary judgment order is not a final and appealable judgment, we dismiss this appeal for lack of jurisdiction.

Background

          Linda and Myrta are neighbors and relatives-by-marriage. Linda purchased the home next door to Myrta after the passing of the home’s previous owner, Linda’s aunt and Myrta’s sister-in-law. The home’s roof, air conditioning unit, and window awning encroach onto Myrta’s property.[1] Linda filed suit against Myrta for adverse possession and prescriptive easement over the approximately two-foot strip of Myrta’s property on which the home encroaches. Myrta filed a counterclaim for trespass to try title, but she failed to pay the filing fee.

          After discovery, Myrta moved for no-evidence summary judgment. The summary judgment motion addressed Linda’s claims against Myrta but not Myrta’s counterclaim. Linda filed an untimely response to Myrta’s summary judgment motion. The trial court granted Myrta’s motion for summary judgment, stating that it had considered both Myrta’s motion and Linda’s “untimely response.”

          Myrta later moved to modify the summary judgment order, asking the trial court to make the judgment a partial summary judgment so that she could pay the filing fee and prosecute her counterclaim. Linda objected to the motion to modify and moved for reconsideration of the summary judgment, for a new trial, and for leave to file evidence out of time.[2] The trial court denied Linda’s motions and did not rule on Myrta’s motion to modify. Linda appealed.

Jurisdiction

In her first issue, Linda challenges this court’s jurisdiction to hear her appeal, asserting that the order from which she appeals is not a final, appealable judgment. A trial court’s summary judgment order is final and appealable if it actually or expressly disposes of all parties and claims in the suit. See Lehmann v. Har-Con Corp., 39 S.W.3d 191, 200 (Tex. 2001) (holding that summary judgment order is final judgment if it actually disposes of all parties and claims or if it expressly states that it “finally disposes of all parties and all claims and is appealable”). If the order does not actually dispose of all parties and claims or expressly state that it disposes of all parties and claims, it is interlocutory. See id. Absent certain statutory authorization not asserted here, this Court lacks jurisdiction over appeals from interlocutory orders. See id. at 195 & n.12.

          Linda asserts that the trial court’s summary judgment order is not a final judgment because it does not address Myrta’s counterclaim. In the trial court, Linda initially asserted that the trial court’s summary judgment order was final, resulting in the forfeiture of Myrta’s counterclaim.[3] On appeal, Linda asserts that Myrta’s counterclaim was properly before the trial court, such that the trial court’s failure to address the counterclaim renders the judgment interlocutory. Myrta responds that a pleading filed without payment of the filing fee is “conditionally filed.” Therefore, she contends, her counterclaim was not before the trial court, and the trial court’s judgment disposes of all claims properly before the court.

A.      The trial court had discretion to consider or not consider Myrta’s counterclaim

In Tate v. E.I. DuPont de Nemours & Co., Inc., a party filed a timely motion for new trial but did not pay the filing fee for the motion until after it was overruled by operation of law, though payment was made within the trial court’s plenary power. 934 S.W.2d 83, 83 (Tex. 1996). Concluding that the motion was “conditionally filed when [the party] presented it to the clerk, and the filing became complete when she later paid the filing fee,” the Texas Supreme Court held that the motion validly extended the deadline for filing an appeal. See id. at 84 (“Accordingly, the failure to pay the fee before the motion is overruled by operation of law may forfeit altogether the movant’s opportunity to have the trial court consider the motion; it does not, however, retroactively invalidate the conditional filing for purposes of the appellate timetable.”). More recently, the Texas Supreme Court has extended this holding to circumstances in which the filing fee for a motion for new trial was never paid. Garcia v. Garcia, 137 S.W.3d 36, 38 (Tex. 2004). In both cases, the Court noted that, absent emergency or other rare circumstances, the trial court should not consider the motion for new trial until the filing fee is paid. Garcia, 137 S.W.3d at 38; Tate, 934 S.W.2d at 84. And in Garcia, the Court held that, because the motion for new trial was never properly before the trial court, the motion failed to preserve any error for appeal. Garcia, 137 S.W.3d at 38 (“Garcia’s factual sufficiency complaint had to be raised in a motion for new trial, but because she never paid the $15 fee, the trial court was not required to review it. As her complaint was never properly made to the trial court, it preserved nothing for review”). A trial court has the authority to act on motions filed without payment of the filing fee but need not do so. See Garcia, 137 S.W.3d at 38; Tate, 934 S.W.2d at 84.

This Court has held that a trial court has jurisdiction over claims that were filed in the trial court without payment of a filing fee. Tanner v. Axelrad, 680 S.W.2d 851, 853 (Tex. App.—Houston [1st Dist.] 1984, writ dism’d) (holding that failure to pay filing fee did not affect trial court’s jurisdiction and noting that, although clerk of court was authorized to refuse to accept case for filing if fee was not paid, “[i]f the clerk accepts and files the case without payment of the fee, the duty to collect the fee continues”). Other courts of appeals have also noted that “the payment of a filing fee ‘is not generally a prerequisite to jurisdiction, nor does the failure to pay such fees deprive the trial court of jurisdiction over a case.’” Nolte v. Flournoy, 348 S.W.3d 262, 268 (Tex. App.—Texarkana 2011, pet. denied) (quoting J. Allen Family Partners, Ltd. v. Swain, No. 04–09–00384–CV, 2010 WL 2103228, at *3 (Tex. App.—San Antonio May 26, 2010, no pet.) (mem. op.) and citing Kvanvig v. Garcia, 928 S.W.2d 777, 779 (Tex. App.—Corpus Christi 1996, no writ)); Tanner, 680 S.W.2d at 853; Advance Imps., Inc. v. Gibson Prods. Co., 533 S.W.2d 168, 169–70 (Tex. Civ. App.—Dallas 1976, no writ)).

In J. Allen Family Partners, the San Antonio Court of Appeals addressed an argument similar to Linda’s argument here, except that the trial court in that case expressly ruled on the counterclaims filed without payment of the fee. The trial court entered an award in favor of the defendant on his counterclaim for attorney’s fees after it had entered an order of nonsuit on the plaintiffs’ claims against the defendant. J. Allen Family Partners, 2010 WL 2103228, at *1. The plaintiffs argued that the trial court lacked jurisdiction to award attorney’s fees because the defendant failed to pay the filing fee for their counterclaims; thus, they argued, the defendant’s counterclaim was not before the court and the trial court’s order of nonsuit was a final judgment. Id. at *1, *3. The San Antonio Court of Appeals rejected the plaintiffs’ argument, concluding that the defendant “did not have an unconditional right to have the counterclaim heard if the fee was not paid, but the trial court had jurisdiction to consider and rule on the claim.” Id. at *3.

The Texarkana Court of Appeals reached the same conclusion in Nolte, when a trial court entered judgment in favor of a defendant on his counterclaim for attorney’s fees after the plaintiff filed a notice of nonsuit. Nolte, 348 S.W.3d at 268 (“even though a defendant does not have an unconditional right to be heard on counterclaims absent the payment of a filing fee, a trial court may, in its discretion, consider such counterclaims without payment of the statutory filing fee.”). Thus, courts of appeals generally have held that a trial court has jurisdiction over, and discretion to hear, claims that are conditionally before it—i.e., claims filed without payment of a filing fee. See Nolte, 348 S.W.3d at 268; Tanner, 680 S.W.2d at 853; J. Allen Family Partners, 2010 WL 2103228, at *3; see also Rodriguez v. Womack, No. 14-10-01213-CV, 2012 WL 19659, at *2–4 (Tex. App.—Houston [14th Dist.] Jan. 5, 2012, no pet.) (considering counterclaim in determining whether amount in controversy was within court’s jurisdiction even though defendant had not paid filing fee for counterclaim).

The Dallas Court of Appeals has also held that a trial court has discretion not to hear claims for which the party did not pay a filing fee. In re C.A.S., 128 S.W.3d 681, 685–686 (Tex. App.—Dallas 2003, no pet.). In C.A.S., the trial court entered an order dismissing the case after the plaintiff filed a notice of nonsuit. Id. The defendant argued that the trial court’s order was erroneous because he had filed a counterclaim for affirmative relief. Id. The Dallas court rejected this argument because the defendant had not paid the filing fee for his counterclaim. Id. It observed that, because the defendant had not paid the filing fee, his claims were conditionally filed, and he “had no unconditional right to be heard on those claims.” Id. at 686.

In sum, if Myrta’s motion for summary judgment was meritorious, the trial court would have been within its discretion to enter a final judgment disposing of the case without considering Myrta’s counterclaim or to enter an interlocutory order disposing of Linda’s claims only. We turn to the record to determine how the trial court exercised its discretion.

B.      The record does not establish whether the trial court intended to exercise its discretionary authority over Myrta’s counterclaim

          The trial court’s summary judgment order is entitled “Order.” It does not state that it is final, contain any reference to finality or appealability, or employ the kind of customary finality language that will dispose of all claims and parties regardless of whether all issues are properly before the trial court on summary judgment. See, e.g., Bison Bldg. Materials, Ltd. v. Aldridge, No. 06-1084, 2012 WL 1370859, at *3 (Tex. Apr. 20, 2012) (“The order is not final because it does not contain finality language, state that it is a final order, or dispose of all claims and parties.”); Lehmann, 39 S.W.3d at 206 (noting that statement that judgment “finally disposes of all parties and all claims and is appealable” would dispose of all claims, even those not raised in summary judgment motions). It does not reference Myrta’s counterclaim, nor indicate that the court considered any relief other than that sought in Myrta’s motion for summary judgment. The order specifically identifies the filings the court considered as Myrta’s motion and Linda’s response, and it orders only that Myrta’s summary judgment motion “is in all things GRANTED.” Myrta’s summary judgment motion requests judgment on Linda’s claims against her but does not request relief on Myrta’s counterclaim. Thus, the trial court’s summary judgment order actually and expressly disposes only of Linda’s claims against Myrta—the only claims upon which Myrta requested relief. See Bison Bldg. Materials, 2012 WL 1370859, at *3; Lehmann, 39 S.W.3d at 206; see also Futch v. Reliant Sources, Inc., 351 S.W.3d 929, 932–33 (Tex. App.—Houston [14th Dist.] 2011, no pet.) (holding that summary judgment order was not final when it was titled only as order on motion for summary judgment, expressly granted only “Motion in its entirety,” and did not actually dispose of all claims).

          Nor is there any indication elsewhere in the record as to the trial court’s intentions, if any, with respect to Myrta’s counterclaim. The trial court did not enter an order on Myrta’s motion to modify the summary judgment order. The trial court’s denial of Linda’s motions is equally consistent with an interlocutory or final summary judgment order. Although the parties make representations about hearings on these motions before the trial court, they did not file a reporter’s record in this appeal. We therefore have no record of what happened at the trial hearings. We generally may not consider events outside of the record. See Sabine Offshore Serv., Inc. v. City of Port Arthur, 595 S.W.2d 840, 841 (Tex. 1979); Bencon Mgmt. & Gen. Contracting, Inc. v. Boyer, Inc., 178 S.W.3d 198, 210 (Tex. App.—Houston [14th Dist.] 2005, no pet.)

Finally, it appears that the reason that the parties began treating the trial court’s summary judgment order as a final judgment in the first place is an entry on the trial court’s docket sheet indicating that a “Final Summary Judgment [was] Signed” by the trial court on the date of the order. This Court will not ordinarily rely on docket entries, and there is no basis here for concluding that the docket entry’s designation of the order as “Final” reflects the intentions of the trial court. See Daniel v. Falcon Interest Realty Corp., 190 S.W.3d 177, 188 (Tex. App.—Houston [1st Dist.] 2005, no pet.) (quoting Rush v. Barrios, 56 S.W.3d 88, 95–96 (Tex. App.—Houston [14th Dist.] 2001, pet. denied) for the proposition that “an ‘appellate court may not consider docket entries since they are only made for the clerk’s convenience and are usually unreliable’”); see also Miller v. Kendall, 804 S.W.2d 933, 944 (Tex. App.—Houston [1st Dist.] 1990, no writ) (“Generally, a docket entry forms no part of the record we may consider; it is a memorandum made for the trial court and clerk’s convenience. This rule results, in part, from the inherent unreliability of docket entries.”) (citations omitted).

          We hold that the trial court’s summary judgment order is not a final opinion. We therefore lack jurisdiction over the merits of this appeal. See Bison Bldg. Materials, 2012 WL 1370859, at *3; Lehmann, 39 S.W.3d at 206.

Conclusion

We dismiss this appeal for lack of jurisdiction.

                                                                   Harvey Brown

                                                                   Justice

Panel consists of Justices Bland, Massengale, and Brown.

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[1]           According to Myrta’s pleadings, the parties discovered the encroachment when, shortly after Linda purchased the neighboring property, Myrta obtained a survey of her property for the purpose of installing a new fence.

[2]           Linda asserted that an efiling error had occurred with respect to her (untimely) summary judgment response, asking the trial court to reconsider in light of the response she had intended to file.

[3]           Linda later asserted that the trial court’s summary judgment was interlocutory as an alternative ground for her argument that the trial court should grant her motion for new trial and for leave to file late evidence.