William H. Emerson and All Other Occupants v. Chase Manhattan Mortgage Corporation--Appeal from County Court at Law No 3 of Bexar County

MEMORANDUM OPINION

No. 04-05-00323-CV

William H. EMERSON,

Appellant

v.

CHASE MANHATTAN MORTGAGE CORPORATION,

Appellee

From the County Court at Law No. 3, Bexar County, Texas

Trial Court No. 300837

Honorable Irene Rios, Judge Presiding

Opinion by: Catherine Stone, Justice

Sitting: Alma L. L pez, Chief Justice

Catherine Stone, Justice

Phylis J. Speedlin, Justice

Delivered and Filed: December 21, 2005

AFFIRMED

Factual Background

This appeal arises from a forcible detainer action. On January 4, 2005, Chase Manhattan Mortgage Corporation (Chase) purchased real property the subject of this suit at a non-judicial foreclosure sale and received a trustee s deed. William Emerson refused to surrender the property, which he occupied as his residence, thus Chase filed a forcible detainer action in a justice court and was awarded a favorable judgment. Emerson appealed the judgment to county court, and subsequently the court granted a summary judgment in favor of Chase. Chase s original petition also sought an award of attorney s fees; however, the summary judgment order did not mention attorney s fees. Emerson now appeals the summary judgment order. //

Issues on Appeal

In issue one, Emerson claims that the trial court erred in granting summary judgment to Chase because he did not receive the twenty-four days notice required by Texas Civil Procedure Rule 166a, and because Emerson s response to Chase s Motion for Summary Judgment pointed out defects in Chase s motion which were never cured. Further, Emerson notes that Chase s original petition prayed for an award of attorney s fees which were not granted in the summary judgment award. Therefore, Emerson alleges the summary judgment order was partial, not final and appealable, and should be remanded.

In issue two, Emerson contends that the trial court erred in setting an amount for the supersedeas bond without conducting an evidentiary hearing, which he contends is required by Texas Property Code Section 24.007.

Standard of Review

When reviewing a traditional summary judgment, an appellate court uses the following standards:

1. The movant for summary judgment has the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law.

2. In deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the non-movant will be taken as true.

3. Every reasonable inference must be indulged in favor of the non-movant and any doubts resolved in its favor.

Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex. 1985).

Notice

The summary judgment motion and any supporting affidavits shall be filed and served at least twenty-one days before the time specified for hearing. Tex. R. Civ. P. 166a(c). In Lewis v. Blake, the court concluded that Rule 21 allows three additional days for service when done by mail. 876 S.W.2d 314, 315-16 (Tex. 1994); see also Tex. R. Civ. P. 21 (stating three additional days of service shall be added for service of any notice falling under Rule 21).

It is undisputed that Chase filed and sent, via certified mail, the motion for summary judgment on March 28, 2005, with the hearing set for April 21, 2005. When computing the allowable time for service, the actual day of service is not counted, but the day of the hearing is included in the computation. Lewis, 876 S.W.2d at 316. Accordingly, when a motion for summary judgment is served by mail, the motion may be set as early as the twenty-fourth day after service. Id.

Here the motion was sent on March 28, and Emerson computes the timetable from the day of service and the day of hearing. However, Emerson states the day of service is the day he actually received the motion on March 29. Thus, when Emerson calculates from March 29, the timetable begins March 30 and continues until April 21, which allots only twenty-three days for notice. Emerson s calculations are incorrect.

Service by mail is complete upon deposit of the paper, enclosed in a postpaid, properly addressed wrapper, in a post office.... Tex. R. Civ. P. 21a. Applying the law to the facts, the day of service was March 28, the day Chase deposited the motion with the post office. Excluding the first day of service (March 28), exactly twenty-four days elapsed when counting from March 29 to April 21. Emerson s notice complaint is overruled.

Defects in the Motion

In issue one Emerson alleges the trial court erred in granting summary judgment because Emerson s response to the motion in the trial court...was sufficient to defeat summary judgment because it pointed out defects, never cured, in the motion. This is the only statement regarding this issue in Emerson s brief. The brief lacks any supporting authority or citation.

Emerson s brief must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record. Tex. R. App. P. 38.1(h). Because Emerson s brief fails to meet this requirement, this issue is overruled.

Partial or Final Summary Judgment

Emerson claims the summary judgment order is partial, not complete; thus, it is not final and appealable and must be remanded. Specifically, Emerson argues that Chase s original pleading sought an award for attorney s fees, but because the summary judgment order did not mention attorney s fees, it is not final. Chase claims the order is final because 1) Chase stipulates to its finality, 2) Chase drafted the order, 3) the order is entitled Final Summary Judgment, and 4) the order concludes, This is a final judgment and is appealable.

A judgment must be final in order to be appealed. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001). In order to be final, a judgment must dispose of all parties and all issues in a lawsuit. Id. at 192. On the contrary, a judgment that does not dispose of all parties and issues is not final but interlocutory. Id. at 191. In the absence of a special statute or judicial exception, an interlocutory order is not appealable. N.Y. Underwriters Ins. Co. v. Sanchez, 799 S.W.2d 677, 678-79 (Tex. 1990).

In McNally v. Guevara, plaintiff sued for a declaration that his easement be used not only for access, but also for parking. 52 S.W.3d 195, 195 (Tex. 2001). The defendants counterclaimed requesting the opposite declaration and also requesting an award of attorney s fees. Id. Defendants filed a motion for summary judgment which addressed only the easement issue, but did not mention attorney s fees. Id. The trial court granted the summary judgment and also did not refer to the attorney s fees claim. Id. at 196. On plaintiff s appeal, plaintiff argued that the judgment was not final because it did not dispose of the attorney s fees issue. Id. Defendants argued they had abandoned their attorney s fees claim by failing to include the claim in their summary judgment motion. Id. The court concluded that the omission of the attorney s fees claim did not waive the issue, therefore, it was not appealable. Id.

McNally is distinguishable from the present case. In McNally, the trial court granted the summary judgment motion, captioned Judgment, which recited that the defendants motion should be in all things granted. On appeal, the Texas Supreme Court stated that [n]othing in the trial court s judgment, other than its award of costs to the defendants, suggests that it intended to deny the defendants claim for attorney fees. The award of costs, by itself, does not make the judgment final. Id.

As the supreme court has further explained:

An order does not dispose of all claims and all parties merely because it is entitled final , or because the word final appears elsewhere in the order, or even because it awards costs. Nor does an order completely dispose of a case merely because it states that it is appealable, since even interlocutory orders may sometimes be appealable. Rather, there must be some other clear indication that the trial court intended the order to completely dispose of the entire case.

...

A statement like, This judgment finally disposes of all parties and all claims and is appealable , would leave no doubt about the court s intention.

Lehmann, 39 S.W.3d at 206.

The judgment here does not merely state one of the above facts mentioned by the Lehmann court; but rather, the judgment recites all of these facts. Specifically, the order is entitled Final Summary Judgment, awards costs, and includes a final concluding statement, This is a final judgment and is appealable. Additionally, the order recites, After considering the pleadings, the Motion, and the arguments of counsel, the Court finds that the Motion should be granted. (Emphasis added). The combination of these facts leaves no doubt as to the court s intention that this judgment is final and appealable; therefore, Emerson s first issue is overruled.Supersedeas Bond

In issue two, Emerson claims the court erred in setting the supersedeas bond at $2,500 based on no evidence because there was no witness testimony or evidentiary documents of any kind. Specifically, Emerson asserts Property Code Section 24.007 requires a hearing to set supersedeas bond. Section 24.007 reads:A final judgment of a county court in an eviction suit may not be appealed on the issue of possession unless the premises in question are being used for residential purposes only. A judgment of a county court may not under any circumstances be stayed pending appeal unless, within 10 days of the signing of the judgment, the appellant files a supersedeas bond in an amount set by the county court. In setting the supersedeas bond the county court shall provide protection for the appellee to the same extent as in any other appeal, taking into consideration the value of rents likely to accrue during appeal, damages which may occur as a result of the stay during appeal, and other damages or amounts as the court may deem appropriate.

Tex. Prop. Code Ann. 24.007.

We need not decide whether the trial court erred in failing to conduct an evidentiary hearing before setting supersedeas bond because this court will not reverse the trial court s judgment on appeal unless we conclude the error complained of probably caused the rendition of an improper judgment, or probably prevented appellant from properly presenting his case to this court. See Tex. R. App. P. 44.1(a). Emerson fails to explain how he was harmed. See Tex. Constr. Co. of Austin v. Allen, 635 S.W.2d 810, 815 (Tex. App. Corpus Christi 1982, writ ref d n.r.e.) (concluding that appellant failed to demonstrate how the error probably resulted in an improper verdict); Nabelek v. State, No. 14-03-00965-CV, 2005 WL 2148999, at *5 (Tex. App. Houston[14th Dist.] Sept. 8, 2005, no pet. h.) (explaining that Nabelek s failure to explain how the absence of a record of the hearing caused rendition of an improper judgment or prevented him from properly presenting his case on appeal). Emerson s issue two is overruled.Conclusion

The trial court s judgment is final and appealable, adequate notice was provided before the summary judgment hearing, and Emerson fails to allege any harm resulted in the trial court s failure to hold an evidentiary hearing before setting the supersedeas bond. Accordingly, we affirm the trial court s judgment.

Catherine Stone, Justice