in Re Dr. Frank Mora and First Vista Investments, Llc

NUMBER 13-13-00098-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
IN RE DR. FRANK MORA AND FIRST VISTA INVESTMENTS, LLC
On Petition for Writ of Mandamus
and Motion for Emergency Relief.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Rodriguez and Longoria
Memorandum Opinion by Chief Justice Valdez1
By petition for writ of mandamus, relators Dr. Frank Mora and First Vista
Investments, LLC (“First Vista”), contend in one issue that the underlying trial court
judgment is interlocutory and, therefore, the trial court erred in denying their motion to
modify the judgment to render it final and appealable. Concluding that the judgment at
issue is final, we deny the petition for writ of mandamus.
1
See TEX. R. APP. P. 52.8(d) (“When denying relief, the court may hand down an opinion but is
not required to do so.”); TEX. R. APP. P. 47.4 (distinguishing opinions and memorandum opinions).
I. BACKGROUND
First Vista and Mora, as guarantor, leased 1800 Main Place in McAllen, Texas,
from TCP Main Place Partners, LP (“TCP”). First Vista thereafter brought suit against
TCP alleging, inter alia, that it had misrepresented the size of the area subject to lease.
TCP filed a counterclaim against First Vista for failure to make payments under the
lease and filed a third party claim against Mora as guarantor of the lease. Mora filed a
general denial to TCP’s counterclaim. The prayer of his general denial stated:
Cross Defendant prays the Court, after notice and hearing or trial, enters
judgment in favor of Cross Defendant, awards Cross Defendant the costs
of court, attorney’s fees, and such other and further relief as Cross
Defendant may be entitled to in law or in equity.
The dispute was ultimately tried to a jury, which found that First Vista and Mora
breached the commercial lease. On June 21, 2011, the trial court entered judgment on
the verdict in favor of TCP jointly and severally against First Vista and Mora in the
amount of $702,299.16, along with attorney’s fees and interest. The judgment, entitled
“Final Judgment,” provided that it was “final, disposes of all claims and all parties, and is
appealable.” In the judgment, the trial court also “order[ed] execution to issue for this
judgment.” First Vista and Mora did not appeal.
TCP began efforts to collect the judgment and issued post-judgment discovery to
First Vista and Mora. In March of 2012, TCP filed a motion for contempt against First
Vista and Mora on grounds they had failed to comply with an order requiring them to
produce post-judgment discovery. On May 8, 2012, First Vista and Mora filed a motion
to modify the judgment on grounds that the judgment was not final because it did not
dispose of Mora’s request for attorney’s fees. The trial court did not immediately rule on
the motion to modify, and the parties continued to dispute the extent and scope of post-
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judgment discovery. In July of 2012, the trial court issued an order compelling First
Vista and Mora to produce records in response to requests for production and ordered
Mora to appear for deposition. On January 23, 2013, the trial court denied the motion to
modify the judgment. The parties continued to engage in discovery matters. In
December of 2012, TCP filed a first supplemental motion for contempt, contending that
First Vista and Mora had failed to comply with the order rendered in July requiring the
production of documents. In January of this year, the trial court issued a show cause
order requiring First Vista and Mora to appear and address their alleged failure to
comply with the trial court’s orders requiring discovery. The record currently before us
does not indicate the trial court’s ruling on this issue.
On February 13, 2013, relators filed this original proceeding. In conjunction with
their petition for writ of mandamus, relators filed a motion for emergency relief
requesting that we stay the underlying trial court proceedings. By order issued that
same day, we granted the request for emergency relief and ordered the trial court
proceedings, including any actions regarding enforcement of the judgment at issue
herein, to be stayed. We further requested that TCP file a response to the petition for
writ of mandamus. On February 14, 2013, TCP filed a motion for reconsideration of the
stay, its response to the petition for writ of mandamus, and a motion for sanctions on
grounds the petition was frivolous.
II. STANDARD OF REVIEW
To be entitled to the extraordinary relief of a writ of mandamus, the relators must
show that the trial court abused its discretion and that there is no adequate remedy by
appeal. In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135–36 (Tex. 2004) (orig.
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proceeding). The relators have the burden of establishing both prerequisites to
mandamus relief. In re CSX Corp., 124 S.W.3d 149, 151 (Tex. 2003) (orig.
proceeding). This burden is a heavy one. See In re Epic Holdings, Inc., 985 S.W.2d 41
(Tex. 1998) (orig. proceeding).
III. ANALYSIS
By one issue, relators contend that the trial court abused its discretion in denying
their motion to modify the judgment when the judgment did not dispose of all claims and
parties, “thereby making the judgment an interlocutory judgment that cannot be
appealed.” Relators specifically contend that the judgment at issue failed to address
Mora’s pending claim for attorney’s fees as recited in his prayer. 2 As stated by the
Texas Supreme Court, “[a] claim for attorney's fees is not an affirmative claim where it is
based solely on the defense against the other party's claims but is an affirmative claim
where it is based on an independent ground or as a sanction.” Villafani v. Trejo, 251
S.W.3d 466, 470 (Tex. 2008). Accordingly, a request for attorney's fees in the
defendant's answer and in the pleading's prayer, not made in connection with an
affirmative claim alleging that the opposing party has independently committed a breach
of the party's contract, does not constitute a claim for affirmative relief. See Leon
Springs Gas Co. v. Rest. Equip. Leasing Co., 961 S.W.2d 574, 578 (Tex. App.—San
Antonio 1997, no pet.); see also Johnson v. Hope Vill. Apartments, No. 09-09-00526-
CV, 2010 Tex. App. LEXIS 8619, at **9–10 (Tex. App.—Beaumont Oct. 28, 2010, pet.
denied) (mem. op.). The provisions of the civil practice and remedies code providing for
2
Relators also argue that Mora did not appear at the trial of this case as a party defendant, but
merely as a “witness,” and argue that the judgment does not indicate that he was present at trial or how
his claims were disposed. In response, TCP points out that Mora was represented at the trial of this
cause by counsel
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the recovery of attorney’s fees in breach of contract cases do not provide for recovery of
attorneys' fees by defendants who only defend against a plaintiff's contract claim and do
not present their own contract claim. See TEX. CIV. PRAC. & REM. CODE ANN. § 38.001
(West 2008); Am. Airlines, Inc. v. Swest, Inc., 707 S.W.2d 545, 547 (Tex. 1986) (holding
defendant could not recover attorneys' fees under predecessor to section 38.001 when
defendant did not present contract claim); see also, e.g., Polansky v. Berenji, No. 03-11-
00592-CV, 2012 Tex. App. LEXIS 10180, at **10–13 (Tex. App.—Austin Dec. 7, 2012,
no pet.) (op.); Brockie v. Webb, 244 S.W.3d 905, 910 (Tex. App.—Dallas 2008, pet.
denied) (“Section 38.001 does not provide for attorney's fees in the pure defense of a
claim.”); Energen Res. MAQ, Inc. v. Dalbosco, 23 S.W.3d 551, 558 (Tex. App.—
Houston [1st Dist.] 2000, pet. denied) (holding defendant that did not present its own
claim under chapter 38 could not recover attorneys' fees).
Mora’s answer does not include any affirmative claims against TCP for an
alleged breach of the lease. Moreover, the answer contains no analysis or citation
supporting Mora’s request for attorney's fees or any statement explaining the basis of
his claim for attorney's fees. We conclude that Mora’s answer does not contain a
statement of an affirmative claim for relief as contemplated by Rule 47 of the Texas
Rules of Civil Procedure. See TEX. R. CIV. P. 47 (governing pleadings containing claims
for relief). Therefore, Mora had no pending independent claim for attorney's fees
against TCP when the matter was submitted to the jury or when the trial court entered
judgment in this case. Thus, the judgment at issue resolved all pending claims and
parties.
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Further, even if we were to conclude otherwise and decide that Mora had
pleaded an affirmative ground for the award of attorney’s fees, the judgment rendered in
this case would nevertheless be final. The Texas Supreme Court employs a “long
recognized” presumption of finality for judgments that follow a trial on the merits.
Vaughn v. Drennon, 324 S.W.3d 560, 562 (Tex. 2010) (per curiam); Moritz v. Preiss,
121 S.W.3d 715, 718 (Tex. 2003); N. E. Indep. Sch. Dist. v. Aldridge, 400 S.W.2d 893,
895 (Tex. 1966). The presumption originated in Aldridge and states:
When a judgment, not intrinsically interlocutory in character, is rendered
and entered in a case regularly set for a conventional trial on the merits,
no order for a separate trial of issues having been entered pursuant to [our
procedural rules], it will be presumed for appeal purposes that the Court
intended to, and did, dispose of all parties legally before it and of all issues
made by the pleadings between such parties.
400 S.W.2d at 897–98. Under this presumption, “any judgment following a conventional
trial on the merits creates a presumption that the judgment is final for purposes of
appeal.” Vaughn, 324 S.W.3d at 561; see also Nguyen v. Nguyen, 355 S.W.3d 82, 87
(Tex. App.—Houston [1st Dist.] 2011, pet. denied); Good v. Baker, 339 S.W.3d 260,
265 (Tex. App.—Texarkana 2011, pet. denied). A judgment following a conventional
trial on the merits need not dispose of every party and claim for the Aldridge
presumption of finality to apply. See Vaughn, 324 S.W.3d at 561.
Moreover, in Lehmann v. Har-Con Corp., the supreme court explained that the
language of an order or judgment can make it final, even though it should have been
interlocutory, if that language expressly disposes of all claims and all parties. 39
S.W.3d 191, 205 (Tex. 2001). Where the intent to finally dispose of the case is
unequivocally expressed in the words of the order itself and is clear, the order is final
and appealable even if the record does not provide an adequate basis for rendition of
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judgment. Id. at 200. The court suggested that a statement like, “[t]his judgment finally
disposes of all parties and all claims and is appealable,” would leave no doubt about the
court's intention to finally dispose of the case. Id. at 206. The supreme court held that
an express adjudication of all parties and claims in a case is not interlocutory merely
because the record does not afford a legal basis for the adjudication, and in those
circumstances, the order must be appealed and reversed. Id. at 204.
In the instant case, the judgment was entered after a full trial on the merits and is
therefore entitled to a presumption of finality under Aldridge. The language of the
judgment in this case clearly and unequivocally indicates that it is intended to be final. It
is entitled “Final Judgment” and provides that “[t]his judgment is final, disposes of all
claims and all parties, and is appealable.” See In re Daredia, 317 S.W.3d 247, 248–49
(Tex. 2010) (orig. proceeding). We conclude that the judgment by its clear terms
disposed of all claims and parties and was therefore final. Accordingly, the trial court
did not abuse its discretion in refusing to modify the judgment. We overrule relators’
sole issue.
IV. MOTION FOR SANCTIONS
We next address TCP’s motion for sanctions against relators. TCP contends that
relators’ petition for writ of mandamus was “clearly groundless” and brought “solely for
delay.” In this regard, TCP notes that relators failed to point out the language in the
judgment that stated that the judgment was final and argued instead in their petition that
the judgment was interlocutory because it did not include a “Mother Hubbard” provision
stating that “all relief not granted is denied.”
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We have carefully considered these issues and consider the matters alleged to
be of some concern. In this regard, we note that the record reflects that relators entered
an agreed partial judgment on TCP’s action for garnishment on the judgment subject to
attack herein. It is arguably inconsistent to agree to garnishment based on a judgment
and simultaneously contend that the judgment is not final. Nevertheless, based on our
review of the pleadings and record, at the present time, we deny TCP’s request for
sanctions. We are confident that the trial court will take any steps deemed necessary to
ensure that the parties and their counsel strictly comply with their ethical and
professional obligations in further proceedings below.
V. CONCLUSION
The Court, having examined and fully considered the petition for writ of
mandamus and the response thereto, is of the opinion that relators have not shown
themselves entitled to the relief sought. Accordingly, the stay previously issued in this
matter is lifted. See TEX. R. APP. P. 52.10(b) (“Unless vacated or modified, an order
granting temporary relief is effective until the case is finally decided.”). TCP’s motion for
reconsideration of the stay order is dismissed as moot. The petition for writ of
mandamus is denied. As previously stated, TCP’s motion for sanction is denied.
___________________
ROGELIO VALDEZ
Chief Justice
Delivered and filed the
28th day of February, 2013.
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