EL VALLE DEL SOL, INC. v. TEX-AG PROPERTIES COMPANY, INC.--Appeal from 332nd District Court of Hidalgo County

NUMBER 13-05-751-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

EL VALLE DEL SOL, INC., Appellant,

v.

TEX-AG PROPERTIES COMPANY, INC., Appellee.

On appeal from the 332nd District Court

of Hidalgo County, Texas.

MEMORANDUM OPINION (1)

Before Chief Justice Valdez and Justices Ya ez and Castillo

Memorandum Opinion by Justice Castillo

The sole issue appellant El Valle del Sol, Inc. (El Valle) presents is whether the trial court erred in dismissing its claim for sanctions and not convening an evidentiary hearing. Claiming lack of notice, El Valle did not appear at the scheduled hearing convened on appellee Tex-Ag Properties Company, Inc.'s (Tex-Ag) motion to dismiss the sanctions claim. We dismiss for lack of jurisdiction.

I. Background

El Valle retained a vendor's lien interest in real property the subject of a declaratory judgment title and encroachment action filed by Tex-Ag. El Valle filed a counterclaim for sanctions on limitations grounds and for statutory attorney fees in a declaratory judgment action. (2) See Tex. R. Civ. P. 13; Henry v. Low, 132 S.W.3d 180, 190 (Tex. App.-Corpus Christi 2004, pet. granted); see also Tex. Civ. Prac. & Rem. Code Ann. 37.009 (Vernon 1997).

Tex-Ag filed a non-suit after it settled with other impleaded parties, leaving the rule 13 claim and the statutory claim for attorney fees as the unresolved issues before the trial court. See Tex. R. Civ. P. 162. Attacking solely the rule 13 counterclaim, Tex-Ag filed special exceptions and a motion to dismiss. Tex-Ag asserted that rule 13 did not provide a viable cause of action and requested the trial court to order El Valle to replead. On the parties' agreement, El Valle amended its counterclaim and included claims for rule 13 sanctions and statutory attorney fees. Tex-Ag countered with new special exceptions and a motion to dismiss on grounds, among others, that the rule 13 sanctions claim was not a viable cause of action that survived non-suit. In its motion, Tex-Ag asserted that rule 13 sanctions "should be considered as a preliminary motion or plea, but not as grounds for an independent cause of action that is the ultimate disposition of the case." Tex-Ag never addressed the statutory attorney fee claim.

The trial court set and convened a hearing on Tex-Ag's special exceptions and motion to dismiss. El Valle did not appear. At the hearing, the following colloquy ensued between Tex-Ag's counsel and the trial court with respect to El Valle's absence:

[Counsel]: . . . And we would ask the Court to dismiss that independent [rule 13] claim as a-as a claim against [Tex-Ag]. . . .

The Court: Is there anybody on the other side? . . . . There is no response filed?

[Counsel]: Not that we are aware of.

The Court: Then the motion to dismiss is granted.

The trial court entered an order granting the motion to dismiss on grounds that the rule 13 "counterclaim should not stand as an independent cause of action." The trial court ordered the claim "dismissed as an invalid ground for an independent cause of action." A few days later, the trial court entered a non-suit order.

El Valle filed a motion for new trial asserting as grounds that its failure to appear was due to lack of notice of the hearing and that it had a meritorious rule 13 claim on grounds, among others, of a false affidavit it claimed Tex-Ag filed in connection with summary-judgment proceedings. In its motion for new trial, El Valle also requested an evidentiary hearing.

On appeal, the parties do not dispute that El Valle's motion for rule 13 sanctions was pending at the time the non-suit was filed and before the non-suit order was entered. See Tex. R. Civ. P. 13, 162; Tex. R. App. P. 38.1(f); Fredonia State Bank v. Gen. Am. Life Ins. Co., 881 S.W.2d 279, 283 (Tex. 1994) (construing predecessor rule to rule 38.1). The trial court expressly granted the dismissal motion on grounds that the rule 13 claim was an "invalid ground for an independent cause of action." The conclusion is in error. See Tex. R. Civ. P. 13,162; Low, 132 S.W.3d at190; see also Mowbray v. Avery, 76 S.W.3d 663, 678 (Tex. App.-Corpus Christi 2002, pet. denied).

Even so, the statutory claim for attorney fees survived the rule 162 non-suit. See Tex. R. Civ. P. 162; Univ. of Tex. Med. Branch at Galveston v. Estate of Blackmon, 195 S.W.3d 98, 100-101 (Tex. 2006) (citing BHP Petroleum Co., Inc. v. Millard, 800 S.W.2d 838, 841(Tex. 1990) (per curiam) ("A claim for affirmative relief must allege a cause of action, independent of the plaintiff's claim, on which the claimant could recover compensation or relief, even if the plaintiff abandons or is unable to establish his cause of action"). Rule 162 permits the trial court to hold hearings and enter orders affecting costs, attorney fees, and sanctions, even after notice of non-suit is filed, while the court retains plenary power. Id. at 101 (citing In re Bennett, 960 S.W.2d 35, 38 (Tex. 1997)). Tex-Ag's motion was limited to the rule 13 claim. The trial court had no pleading before it upon which to enter a judgment with respect to statutory attorney fees. Where there is no pleading, there can be no judgment. Cunningham v. Parkdale Bank, 660 S.W.2d 810, 813 (Tex. 1983). Thus, the statutory attorney fee claim remains pending. Accordingly, we turn to the question of our jurisdiction over this appeal.

II. Jurisdiction

The trial court's order granting Tex-Ag's motion to dismiss the rule 13 counterclaim does not address El Valle's claim for statutory attorney fees. Thus, we are obligated to determine the finality of the trial court's order in connection with our own jurisdiction. See Garcia v. Comm'rs Court of Cameron County, 101 S.W.3d 778, 779 (Tex. App.-Corpus Christi 2003, no pet.) (citing N.Y. Underwriters Ins. Co. v. Sanchez, 799 S.W.2d 677, 678 (Tex. 1990) (per curiam)); Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443 (Tex. 1993). In determining our jurisdiction, we analyze the claims brought by the parties. Garcia, 101 S.W.3d at 779. Because the question of jurisdiction is a legal question, we follow the de novo standard of review. Id. at 783 (citing Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998)).

Although a judgment following a trial on the merits is presumed to be final, there is no such presumption of finality following a summary judgment or default judgment. In re Burlington Coat Factory Warehouse of McAllen, Inc., 167 S.W.3d 827, 829 (Tex. 2005) (orig. proceeding) (citing Lehmann v. Har-Con Corp., 39 S.W.3d 191, 199-200, (Tex. 2001)). "A judgment 'must be read in light of the importance of preserving a party's right to appeal;' if we imply finality from anything less than an unequivocal expression, a party's right to appeal may be jeopardized." Id. at 830 (citing Lehmann, 39 S.W.3d at 206). The law does not require that a final judgment be in any particular form. Garcia, 101 S.W.3d at 784 (citing Lehmann, 39 S.W.3d at 195). Therefore, whether a decree is a final judgment must be determined from its language and the record in the case. Id.

III. Conclusion

We have reviewed the live pleadings of the parties and the trial court's dismissal order. El Valle's statutory claim for attorney fees remains unaddressed and pending before the trial court. Accordingly, we conclude that the order dismissing the rule 13 sanctions claim is not a final appealable order. See Lehmann, 39 S.W.3d at 204; Garcia, 101 S.W.3d at 784. We dismiss for want of jurisdiction. See Tex. R. App. P. 43.2(f).

ERRLINDA CASTILLO

Justice

Memorandum Opinion delivered and

filed this 28th day of August, 2006.

1. See Tex. R. App. P. 47.1, 47.2, 47.4.

2. Filed on August 1, 2005, El Valle's live pleading is titled, "Defendant's Second Amended Answer and Counterclaim." In a declaratory judgment action, the trial court "may award costs and reasonable and necessary attorney's fees as are equitable and just." Tex. Civ. Prac. & Rem. Code Ann. 37.009 (Vernon 1997). The law does not require prevailing-party status as a prerequisite to an award of attorney fees in a declaratory judgment action. Garcia v. Comm'rs Court of Cameron County, 101 S.W.3d 778, 779 (Tex. App.-Corpus Christi 2003, no pet.) (citing Barshop v. Medina County Underground Water Conservation Dist., 925 S.W.2d 618, 637-38 (Tex. 1996)); see State Farm Lloyds v. C.M.W., 53 S.W.3d 877, 894 (Tex. App.-Dallas 2001, pet. denied); Hartford Cas. Ins. v. Budget Rent-A-Car, 796 S.W.2d 763, 771 (Tex. App.-Dallas 1990, writ denied).