Nexus Series B, LLC v. Durham Trading Partners XII, LLC ( 2022 )

NUMBER 13-21-00333-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
NEXUS SERIES B, LLC, Appellant,
v.
DURHAM TRADING PARTNERS XII, LLC, Appellee.
On appeal from the 201st District Court
Of Travis County, Texas.
MEMORANDUM OPINION
Before Chief Justice Contreras and Justices Benavides and Tijerina
Memorandum Opinion by Justice Benavides
In this commercial lending dispute, appellant Nexus Series B, LLC (Nexus) filed
suit to enforce a contractual provision, and appellee Durham Trading Partners XII, LLC
(Durham) countersued for declaratory relief. Each party moved for summary judgment,
and the trial court granted Durham’s motion and denied Nexus’s motion. By three issues,
Nexus argues that the judgment was not final and appealable, Durham was not entitled
to summary judgment on its claim, and the trial court erred in denying Nexus’s motion for
summary judgment.1 We affirm.
I. BACKGROUND
Nexus loaned Durham $625,000 to fund a commercial real estate project, including
the purchase price of the realty and the construction of a building. The loan was secured
by a deed of trust, which contained the following provision:
In the event that [Nexus] exercises its right to foreclose under this Deed of
Trust, [Durham] agrees to reasonably cooperate with [Nexus] in facilitating
introduction to and work with any contractors, including but not limited to
operating and construction contractors. Upon [Nexus’s] request, [Durham]
also agrees to assign all contractual rights and obligations it may have
related to the Property.
Before the note matured, Durham sued Waterloo Surveying, Inc. (Waterloo) for
professional malpractice based on an allegedly inaccurate survey the company
performed on the property. Durham had hired Waterloo to provide a survey of the property
and relied on that survey in constructing the building. Once the structure was complete,
Durham applied for a certificate of occupancy, which was denied by the City of Austin.
The city also denied Durham’s request for a variance. It was during this process that
Durham allegedly discovered that the survey was inaccurate.
Without the certificate of occupancy, Durham was unable to generate revenue from
the property and eventually defaulted on the loan. Nexus notified Durham in writing that
1 This appeal was transferred to us from the Third Court of Appeals in Austin pursuant to a docket-
equalization order issued by the Supreme Court of Texas. See TEX. GOV’T CODE ANN. §§ 22.220(a)
(delineating the jurisdiction of appellate courts), 73.001 (granting the supreme court the authority to transfer
cases from one court of appeals to another at any time that there is “good cause” for the transfer).
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it was initiating foreclosure proceedings and demanded that Durham assign “all of [its]
rights and claims as Plaintiff under Cause No. D-1-GN-20-002635[,] styled Durham
Trading Partners XII, LLC v. Waterloo Surveyors, Inc.”
Durham refused, and Nexus filed this separate suit for breach of contract, seeking
to enforce its right of assignment under the deed. In the petition, Nexus specifically
identified the Waterloo suit and alleged that it had “demanded that [Durham] assign all of
its rights, claims, and obligations under [Durham’s] suit against Waterloo Surveyors.”
Nexus stated that it was seeking “specific performance ordering [Durham] to assign its
claims against Waterloo Surveyors to [Nexus].” Durham countersued for a declaration
that its professional malpractice claim in the Waterloo suit was not covered by the
assignment provision because it sounded in tort, not contract.
Both parties moved for summary judgment, and in its motion, Nexus argued that it
was entitled to summary judgment on its breach of contract claim because “all of
[Durham’s] claims, contractual rights and obligations related to the Property, including all
claims against Waterloo Surveyors that relate to the Property, are expressly covered
under the terms of the Deed of Trust.” As support for its motion, Nexus attached copies
of its demand letter and the deed of trust.
In support of its motion, Durham attached a copy of its petition in the Waterloo suit.
The petition raises a single claim for “professional negligence,” alleging that “[Waterloo]
is a professional land surveyor . . . [with] a legal duty to perform its services accurately.”
Durham further alleged that Waterloo breached this duty, proximately causing Durham
“significant expense and economic damage.”
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We have not been provided with a reporter’s record of the summary judgment
hearing in this case. However, in a post-submission brief to the trial court, Nexus clarified
that it “[wa]s not seeking by its lawsuit an assignment of tort claims from [Durham]” but
only any contractual rights Durham has under its professional services agreement with
Waterloo. Nexus accused Durham of “attempt[ing] to confuse the [trial] court and the
issues . . . by arguing about the assignability of [Durham’s] professional negligence
claims asserted in [the Waterloo suit].” Nexus concluded that Durham’s negligence claims
in the Waterloo suit were “beyond the scope of the issues pending in this present lawsuit”
and asked the trial court to dismiss Durham’s claim for declaratory relief with prejudice.
In a response filed the same day, Durham argued that Nexus was attempting to
recast its claim after the trial court apparently signaled that it was going to rule in favor of
Durham. Durham pointed to Nexus’s demand letter, petition, and summary judgment
motion as proof that Nexus had always sought the assignment of Durham’s professional
malpractice claim.
In a subsequent letter ruling, the trial court informed the parties that it was granting
Durham’s motion and denying Nexus’s motion because “[Durham’s] suit against Waterloo
is not a contractual right subject to assignment.” The trial court further explained that
“[Nexus’s] suit to enforce and [Durham’s] UDJA claim both seek, in simplest terms, the
same relief.” In a subsequent email, the trial court clarified that it considered the parties’
claims as “seek[ing] an opposite ruling on the same material issue,” and therefore, its
ruling “[wa]s a final judgment.”
Nexus filed a motion for reconsideration, reiterating the arguments it made in its
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post-submission brief. The trial court overruled the motion and then signed a “Final
Judgment” granting Durham’s motion for summary judgment, denying Nexus’s motion for
summary judgment, and ordering “that [Nexus] should take nothing by [its] suit.” The
judgment also contains the following language: “This judgment is final, disposes of all
parties and claims and is appealable.” This appeal ensued.
II. STANDARD OF REVIEW
We review the trial court’s summary judgment de novo. KCM Fin. LLC v.
Bradshaw, 457 S.W.3d 70, 79 (Tex. 2015). To prevail on a traditional motion for summary
judgment, the movant must establish that no issue of material fact exists and that it is
entitled to judgment as a matter of law. TEX. R. CIV. P. 166a(c); Mann Frankfort Stein &
Lipp Advisors v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). “When both parties move for
summary judgment and the trial court grants one motion and denies the other, we review
all the summary judgment evidence, determine all of the issues presented, and render
the judgment the trial court should have.” Lightning Oil Co. v. Anadarko E&P Onshore,
LLC, 520 S.W.3d 39, 45 (Tex. 2017) (quoting Merriman v. XTO Energy, Inc., 407 S.W.3d
244, 248 (Tex. 2013)).
We review the propriety of a summary judgment by taking all evidence favorable
to the nonmovant as true, indulging every reasonable inference in favor of the nonmovant,
and resolving any doubts against the motion. City of Keller v. Wilson, 168 S.W.3d 802,
824 (Tex. 2005) (citing IHS Cedars Treatment Ctr. of DeSoto, Tex., Inc. v. Mason, 143
S.W.3d 794, 798 (Tex. 2004)). “It is fundamental that a motion for summary judgment
must be supported by the pleadings on file, and the final judgment of the court must
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conform to those pleadings.” Hernandez v. Hernandez, 632 S.W.3d 92, 97 (Tex. App.—
El Paso 2020, no pet.) (citing Houle v. Casillas, 594 S.W.3d 524, 541 (Tex. App.—El Paso
2019, no pet.)).
III. FINALITY
Nexus first questions whether the judgment was final and appealable because,
according to Nexus, the judgment did not dispose of all its claims. We find that the
judgment is final and that we therefore have jurisdiction over the appeal.
A. Applicable Law
Generally, only final judgments are appealable. See Qwest Commc’ns Corp. v. AT
& T Corp., 24 S.W.3d 334, 336 (Tex. 2000) (“An appellate court lacks jurisdiction to review
an interlocutory order unless a statute specifically authorizes an exception to the general
rule, which is that appeals may only be taken from final judgments.”). “[W]hen there has
not been a 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). Accordingly, following summary
judgment proceedings, we examine a judgment for a “clear indication that the trial court
intended the [judgment] to completely dispose of the entire case.” Bella Palma, LLC v.
Young, 601 S.W.3d 799, 801 (Tex. 2020) (per curiam) (quoting Lehmann, 39 S.W.3d at
205). “Although no ‘magic language’ is required, a trial court may express its intent to
render a final judgment by describing its action as (1) final, (2) a disposition of all claims
and parties, and (3) appealable.” Id. (citing In re R.R.K., 590 S.W.3d 535, 543 (Tex.
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2019)).
We only consult the record when the trial court’s intent is unclear from the
judgment. In re R.R.K., 590 S.W.3d at 541. Thus, even if the judgment and record are at
odds, a judgment with “a clear and unequivocal statement of finality” controls. Bella
Palma, 601 S.W.3d at 801 (citing Lehmann, 39 S.W.3d at 206).
B. Analysis
Here, the trial court plainly expressed its intent that the judgment should be
considered final: “This judgment is final, disposes of all parties and claims and is
appealable.” See id. Nexus contends that the judgment was not final because the trial
court misconstrued its claim, and in doing so, never reached the merits of its claim. Even
if that were true, we are not permitted to consult the record when, as here, the judgment
contains a clear expression of finality. See id.; In re R.R.K., 590 S.W.3d at 541. Moreover,
“[a] judgment that grants more relief than a party is entitled to is subject to reversal, but it
is not, for that reason alone, interlocutory.” Lehmann, 39 S.W.3d at 200 (citing Young v.
Hodde, 682 S.W.2d 236 (Tex. 1984) (per curiam)). We overrule Nexus’s first issue and
turn to the merits of the appeal.
IV. DURHAM’S MOTION FOR SUMMARY JUDGMENT
By its second issue, Nexus argues that the trial court improperly granted Durham’s
motion for summary judgment because Durham’s professional malpractice claim against
Waterloo was “part and parcel of the contractual rights and obligations accruing to
[Nexus].”2 We disagree.
2 We note that Nexus’s position on appeal is inconsistent with the post-submission brief it filed in
the trial court where it expressly disclaimed that it was seeking an assignment of Durham’s malpractice
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A. Applicable Law
Texas law recognizes that when a contract brings two parties together, their
relationship may be governed by both legal and contractual duties. Jim Walter Homes,
Inc. v. Reed, 711 S.W.2d 617, 618 (Tex. 1986) (citing Montgomery Ward & Co. v.
Scharrenbeck, 204 S.W.2d 508 (Tex. 1947)). A defendant’s conduct may breach duties
in tort, contract, or both simultaneously. Id. “The nature of the injury most often determines
which duty or duties are breached.” Id. “When the only loss or damage is to the subject
matter of the contract, the plaintiff’s action is ordinarily on the contract.” Sw. Bell Tel. Co.
v. DeLanney, 809 S.W.2d 493, 494 (Tex. 1991) (first citing W. KEETON, D. DOBBS, R.
KEETON & D. OWEN, PROSSER & KEATON ON THE LAW OF TORTS § 92 at 655 (5th Ed. 1984),
and then citing J. EDGAR, JR. & J. SALES, TEX. TORTS & REMEDIES § 1.03[4][b] at 1–36
(1990)).
However, “some contracts involve special relationships that may give rise to duties
enforceable as torts, such as professional malpractice.” Id. at 494 n.1; see Ling v. BDA&K
Bus. Servs., Inc., 261 S.W.3d 341, 347 (Tex. App.—Dallas 2008, no pet.) (“A claim for
professional malpractice is based in negligence.” (citing Cosgrove v. Grimes, 774 S.W.2d
662, 664 (Tex. 1989))). This occurs because professionals have a legal duty “to exercise
the degree of care, skill, and competence that reasonably competent members of the
profession would exercise under similar circumstances.” Dukes v. Philip Johnson/Alan
Ritchie Architects, P.C., 252 S.W.3d 586, 594 (Tex. App.—Fort Worth 2008, pet. denied)
(citing Averitt v. PriceWaterhouseCoopers L.L.P., 89 S.W.3d 330, 334 (Tex. App.—Fort
claim. Durham has not raised the issue of judicial admission, and we assume without deciding that Nexus
may change its position on appeal.
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Worth 2002, no pet.)). Registered land surveyors provide a professional service, and
therefore, they are subject to claims for professional malpractice. See TEX. CIV. PRAC. &
REM. CODE ANN § 150.002(a), (b) (requiring plaintiffs to file a certificate of merit for
negligence claims against a registered surveyor); Pakal Enters., Inc. v. Lesak Enters.
LLC, 369 S.W.3d 224, 226, 228 (Tex. App.—Houston [1st Dist.] 2011, pet. denied)
(applying § 150.002 to a negligence claim against a surveyor).
B. Analysis
Here, Durham filed suit against Waterloo for professional malpractice, alleging
Waterloo is a professional land surveying company that breached its “legal duty to
perform its services accurately.” This claim sounds in tort, not contract. See DeLanney,
809 S.W.2d at 494 n.1; Ling, 261 S.W.3d at 347. Because Durham and Nexus only
agreed to the assignment of “contractual rights and obligations related to the [p]roperty,”
Durham’s professional malpractice claim against Waterloo is not subject to assignment,
and Durham was entitled to summary judgment on its declaratory judgment claim. We
overrule Nexus’s second issue.
V. NEXUS’S MOTION FOR SUMMARY JUDGMENT
Finally, Nexus argues that even if Durham’s malpractice claim is not assignable,
Nexus is nonetheless entitled to the assignment of any contractual rights Durham has
with respect to its professional services agreement with Waterloo. We have reviewed
Nexus’s demand letter and pleadings, and we agree with the trial court that Nexus’s
enforcement suit was limited to the assignment of Durham’s malpractice claim in the
Waterloo suit.
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Although Nexus attempted to state its claim more broadly in its motion for summary
judgment, “a motion for summary judgment must be supported by the pleadings on file,”
and Nexus never amended its pleadings to enlarge its claim beyond the malpractice
claim. See Hernandez, 632 S.W.3d at 97 (citing Houle, 594 S.W.3d at 541). In fact, “a
plaintiff’s summary-judgment argument based on a claim that was not raised by a cause
of action actually pleaded is not reviewable on appeal.” Id. (citing Houle, 594 S.W.3d at
541).
Based on the pleadings on file, the trial court correctly concluded that the parties
filed competing motions for summary judgment addressing the same subject matter, and
consequently, the success of Durham’s motion—which we have already affirmed—
necessarily meant the failure of Nexus’s motion and a take nothing judgment against it.
Accordingly, we overrule Nexus’s third issue.3
VI. CONCLUSION
We affirm the trial court’s judgment.
GINA M. BENAVIDES
Justice
Delivered and filed on the
1st day of December, 2022.
3Of course, just as the trial court’s judgment was limited to the assignment of Durham’s malpractice
claim, we express no opinion on whether Nexus is entitled to the assignment of any contractual rights
Durham has under its professional services agreement with Waterloo.
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