Date: 07-14-2017

Case Style: Petrina Lewin and Trenton Lewin, Jr. v. Mission Bend No. 5 Homeowners Association, Inc.

Case Number: 14-16-00026-CV

Judge: Busby

Court: Texas Court of Appeals, Fourteenth District on appeal from the 268th District Court of Fort Bend County

Plaintiff's Attorney: Frank Carroll and Melissa Margaret McLain for Mission Bend No. 5 Homeowners Association, Inc.

Defendant's Attorney: Kurt Clarke for Petrina Lewin and Trenton Lewin, Jr.

Description: Mission Bend No. 5 Homeowners Association, Inc. sued property owners Petrina and Trenton Lewin for unpaid annual assessments and other fees.1 After suit was filed, the Lewins made a payment to the Association. To seek the remaining balance it felt was owed on the Lewins’ account, the Association filed a
1 Petrina and Trenton Lewin are siblings. The property they own together was gifted to them by their parents.
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motion for summary judgment. The Lewins asserted a defense that they had paid the full amount the Association said was owed and filed counterclaims against the Association. The trial court granted summary judgment for the Association and the Lewins appeal, raising two issues. First, the Lewins argue the summary judgment is not final because there are pending counterclaims. Second, the Lewins argue that the Association did not conclusively prove it gave the Lewins all lawful credits and did not move for summary judgment on their counterclaims.
We conclude the summary judgment is final because it expressly provides that it disposes of all claims and parties. On the merits, we hold the Association did not conclusively prove that it gave the Lewins all credits to which they were entitled, and the trial court erred in granting summary judgment on the Lewins’ counterclaims without a proper motion. We therefore reverse the judgment and remand for further proceedings.
BACKGROUND
The Lewins own property located in a subdivision in Fort Bend County. The deed to the property contains a “Covenant for Maintenance Assessments.” This covenant requires the owner to pay the Association annual and special assessments, interest on untimely assessment payments, and reasonable attorneys’ fees. According to the deed, the annual and special assessments are “a charge on the land” and become a lien on the property when each assessment is made. The deed provides that the Association may bring legal action for unpaid fees or foreclose the lien against the property.
In August 2014, the Association sued the Lewins to collect unpaid annual maintenance assessments, interest, and other charges and to foreclose on its lien. The Lewins originally answered with a general denial. In February 2015, the Lewins paid the Association $1,229.98. In Trenton Lewin’s affidavit, he states
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that he called the Association to verify the amount and paid the amount the Association said was owed.
The Association filed a traditional motion for summary judgment seeking a remaining balance of $1,222.58 as well as attorneys’ fees. The Lewins amended their answer to assert an affirmative defense that the amount was paid in full; they also alleged counterclaims for breach of contract, violation of the Deceptive Trade Practices Act (DTPA), and fraud.2 The Association then amended its motion for summary judgment, changing only the amount of attorneys’ fees the Association had incurred. The amended motion did not address the Lewins’ counterclaims.
After the Lewins responded to the Association’s motion for summary judgment, the trial court granted that motion, awarding the Association $1,222.58 plus attorneys’ fees and ordering foreclosure on the Association’s lien. The Lewins appeal the trial court’s grant of summary judgment to the Association.
ANALYSIS
I. The summary judgment is final.
In their first issue, the Lewins challenge our appellate jurisdiction, arguing that the order granting the Association’s motion for summary judgment is interlocutory because their counterclaims were not addressed. We conclude that the summary judgment is final.
As a general rule, an appeal may be taken only from a final judgment. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001). A judgment’s finality is not determined by its form, but by its language and the record on appeal.
2 The Lewins also added a counterclaim labeled “failure to credit account.” This is not a cognizable claim. Because this counterclaim includes allegations that the Association’s conduct was false, misleading, and deceptive, as well as a request for exemplary damages, we construe it as part of the Lewins’ DTPA counterclaim. See Tex. Bus. & Com. Code Ann. §§ 17.46, 17.50 (West 2011).
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B.Z.B., Inc. v. Clark, 273 S.W.3d 899, 902 (Tex. App.—Houston [14th Dist.] 2008, no pet.) (citing Lehmann, 39 S.W.3d at 195). If the finality of the judgment is uncertain, an appellate court may abate the appeal to permit clarification. Tex. R. App. P. 27.2; Lehmann, 39 S.W.3d at 206.
A judgment issued before a conventional trial on the merits is final if the judgment’s language clearly and unequivocally provides that it disposes of all claims and parties, or if the judgment actually disposes of every pending claim and party. Lehmann, 39 S.W.3d at 205. If the judgment’s language is clear that it is final, then the language must be given effect. Id. at 206. A statement such as “This judgment finally disposes of all parties and all claims and is appealable” leaves no doubt that the court’s intention was to make a final disposition of the case. Id. at 206.
If the judgment expressly provides that it disposes of all claims and parties, then the judgment is final for purposes of appeal even though the record reveals a claim or party that was not in fact addressed. Id. at 200. Thus, if a plaintiff moves for summary judgment on its claims without addressing the defendant’s counterclaims and the trial court grants the summary judgment with express finality language, then the judgment is final, albeit erroneous. Nuszen v. Burton, 494 S.W.3d 799, 802 n.1 (Tex. App.—Houston [14th Dist.] 2016, no pet.); Landaverde v. Centurion Capital Corp., No. 14–06–00712–CV, 2007 WL 1848698, at *3 (Tex. App.—Houston [14th Dist.] June 28, 2007, no pet.) (mem. op.). “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.
In this case, the trial court’s grant of summary judgment states: “This
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judgment finally disposes of all parties and claims and is appealable.”3 Under Lehmann, this language makes clear that the judgment is final, even though the record reveals that the trial court did not address the Lewins’ counterclaims. We therefore have jurisdiction over this appeal.
II. The trial court erred in granting the Association summary judgment.
In their second issue, the Lewins argue the trial court erred in granting summary judgment because the Association did not give them all credits and offsets to which they were entitled. The Lewins also contend the court erred in failing to address their counterclaims.
A. Standard of review
We review a trial court’s grant of summary judgment de novo. Exxon Corp. v. Emerald Oil & Gas Co., 331 S.W.3d 419, 422 (Tex. 2010). A traditional motion for summary judgment is properly granted if the movant establishes there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c); Gastar Expl. Ltd. v. U.S. Specialty Ins. Co., 412 S.W.3d 577, 582 (Tex. App.—Houston [14th Dist.] 2013, pet. denied). A plaintiff is entitled to summary judgment if it conclusively proves all essential elements of its claim. Cullins v. Foster, 171 S.W.3d 521, 530 (Tex. App.—Houston [14th Dist.] 2005, pet. denied).
B. The Association did not meet its burden to prove conclusively that the Lewins owe it $1,222.58.
Having reviewed the summary judgment record, we conclude that the Association did not conclusively prove that it gave the Lewins all credits and
3 We abated this appeal to permit clarification of the summary judgment’s finality. After the abatement, the trial court denied the Lewins’ request to find the summary judgment interlocutory and stated that it addressed all matters raised by the Lewins in granting the motion for summary judgment.
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offsets to which they were entitled. The Association provided an affidavit purporting to show that the Lewins still owe it $1,222.58 after crediting their payment. The affidavit lists the amounts the Association charged the Lewins each year for assessments, interest, and collection fees, as well as the credits the Association applied to their account. The affidavit breaks up the list of charges and credits into two different sections: (1) amounts secured by the association’s lien; and (2) amounts not secured by the association’s lien. Each section includes a sub-total, and the sum of those sub-totals is the total amount the Association contends is still due.
In responding to the Association’s motion for summary judgment, the Lewins provided evidence that they paid the Association $1,229.98 after the suit was filed. Although the affidavit lists credits that total $1,229.88 when properly added together, there are arithmetic errors in the Association’s sub-totals for both the amounts secured and the amounts not secured, and consequently in the total amount it contends is still due.4 The incorrect total provided in the affidavit is $1,222.58, and the trial court awarded the Association precisely that amount in its summary judgment.5
Because the Association made arithmetic errors in calculating the amount the Lewins owe, we conclude the Association did not conclusively prove that it gave the Lewins all credits and offsets to which they were entitled. Therefore, the
4 Specifically, the affidavit shows a sub-total for the amounts secured of $785.02 and for the amounts not secured of $437.56; adding these sub-totals yields a total amount due of $1,222.58. In fact, adding the individual charges and subtracting the individual credits listed in the affidavit produces a sub-total of $807.52 for amounts secured and $347.56 for amounts not secured. Adding these sub-totals together yields a total amount due of only $1,195.08.
5 The Lewins did not point out these mathematical errors to the trial court, but it was not their burden to do so. See Shafighi v. Tex. Farmers Ins. Co., No. 14–12–00082–CV, 2013 WL 1803609, at *4–5 (Tex. App.—Houston [14th Dist.] Apr. 30, 2013, no pet.) (mem. op.).
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Association was not entitled to summary judgment for $1,222.58.6
C. The trial court erred in granting summary judgment on counterclaims not addressed in the Association’s motion.
Granting summary judgment on a claim not addressed in a motion for summary judgment is reversible error. G & H Towing Co. v. Magee, 347 S.W.3d 293, 297 (Tex. 2011). The Association’s amended motion for summary judgment does not address the Lewins’ counterclaims. Therefore, the trial court erred in granting the Association summary judgment on the Lewins’ counterclaims. See Ward v. Lamar Univ., 484 S.W.3d 440, (Tex. App.—Houston [14th Dist.] 2016, no pet.) (“[C]ourts should rely on the adversary system of justice, which depends on the parties to frame the issues for decision and assigns to courts the role of neutral arbiter of the matters that the parties present.”).
The Association argues that even if its motion did not specifically address the Lewins’ counterclaims, the Association is still entitled to summary judgment because the error was harmless. No judgment should be reversed on appeal because of an error of law made by the trial court unless the error “probably caused the rendition of an improper judgment” or “probably prevented the appellant from properly presenting the case to the court of appeals.” Tex. R. App. 44.1; Magee, 347 S.W.3d at 297. “Although a trial court errs in granting summary judgment on a cause of action not expressly presented by written motion, . . . the error is harmless when the omitted cause of action is precluded as a matter of law by other grounds raised in the case.” Magee, 347 S.W.3d at 297–98.
We have already concluded the Association was not entitled to summary
6 The Lewins argue that the $1,222.58 amount stated in the affidavit is inconsistent with the Association’s motion and the judgment signed by the court. We conclude the amounts stated in the Association’s motion, affidavit, and the judgment are consistent, but the total amount due is consistently stated incorrectly in each document given the mathematical errors in the affidavit.
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judgment because it did not conclusively prove entitlement to the amount awarded in the judgment. Even if the Association were entitled to summary judgment on its claim for unpaid assessments, however, granting summary judgment on the Lewins’ counterclaims would not be harmless. For instance, the Lewins’ DTPA and fraud counterclaims include an element of misrepresentation, and the Association could not negate the allegation that it misrepresented to Trenton the amount owed simply by proving that a different amount was actually owed. See Bridgestone Lakes Comm. Improvement Ass’n, Inc. v. Bridgestone Lake Dev. Co., 489 S.W.3d 118, 123–24 (Tex. App.—Houston [14th Dist.] 2016, pet. denied) (holding that because no ground asserted in motion for summary judgment conclusively negated common element of new causes of action and motion was not broad enough to encompass new causes of action, error in granting summary judgment on those causes of action was not harmless).

Outcome: Because the Association did not meet its burden and the trial court granted more relief than was requested, we sustain the Lewins’ second issue challenging to the summary judgment. We reverse the trial court’s summary judgment and remand the case for further proceedings.

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