Summary
addressing a conditionally filed counterclaim, the court of appeals said, in part, "While a pleading seeking affirmative relief is considered 'conditionally filed' until the required filing fee is paid, because the trial court does not lack subject matter jurisdiction in its discretion it may proceed to disposition of the conditionally-filed request for relief."
Summary of this case from Dr. Arnold W. Mech & Arnold W. Mech, M.D., P.A. v. GXA Network SolutionsOpinion
No. 07-15-00361-CV
01-04-2016
HOWARD CONSTRUCTION COMPANY, INC., APPELLANT v. TEXAS ASSOCIATION OF WOMEN'S CLUBS, APPELLEE
On Appeal from the 413th District Court Johnson County, Texas
Trial Court No. DC-C201500322, Honorable William C. Bosworth, Jr., Presiding
ORDER OF ABATEMENT AND REMAND
Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
Before us are the motion to dismiss for want of jurisdiction filed by appellee Texas Association of Women's Clubs and the response of appellant Howard Construction Company, Inc. On our own motion we will abate the appeal and remand the case to the trial court for clarification of its August 10, 2015 summary judgment order.
Background
Howard sued TAWC for reformation of a deed, declaratory relief, establishment of an easement by necessity, and an accounting. It also alleged claims of slander of title and tortious interference.
On June 17, 2015, TAWC filed its "first amended answer, special exceptions, and counterclaim." According to Howard, TAWC did not pay the required filing fee for the counterclaim. The pleading's counterclaim section sought recovery of damages for breach of contract and statutory attorney's fees, and an award of attorney's fees as a monetary sanction.
See TEX. GOV'T CODE ANN. § 51.317(b)(2) (West Supp. 2015) (requiring district clerk to collect a $15 filing fee for a counterclaim).
Also on June 17, TAWC moved for summary judgment. The motion addressed Howard's claims but not TAWC's counterclaim. The motion concluded with a prayer requesting entry of a "final judgment" against Howard. Howard filed a response.
On August 10, 2015, the trial court signed a short order that stated TAWC's motion for summary judgment was granted. It also stated, "It is further ORDERED that Plaintiff's claims and motions against Defendant are in all things denied." Howard filed a notice of appeal.
On December 17, 2015, TAWC moved to dismiss the appeal for want of jurisdiction. It asserted the August 10 summary judgment order was interlocutory and unappealable because its counterclaim remained pending. Howard responded, arguing that because TAWC failed to pay the filing fee for its counterclaim, TAWC had no unconditional right to be heard on the claim. On December 18, TAWC filed a reply urging that Texas law does not make payment of the filing fee a jurisdictional prerequisite and the trial court retained jurisdiction to consider its counterclaim despite its failure to pay the fee. Hence, it argued, the August 10 order, which disposed only of Howard's claims, was not final.
Analysis
A document is filed when it is tendered to the clerk or placed in the clerk's custody or control. Jamar v. Patterson, 868 S.W.2d 318, 319 (Tex. 1993) (per curiam) (citing Mr. Penguin Tuxedo Rental & Sales, Inc. v. NCR Corp., 787 S.W.2d 371, 372 (Tex. 1990) (per curiam)). Payment of a statutorily required filing fee "is not generally a prerequisite to jurisdiction, nor does the failure to pay such fees deprive the trial court of jurisdiction over a case." Nolte v. Flournoy, 348 S.W.3d 262, 271 (Tex. App.—Texarkana 2011, pet. denied) (citing J. Allen Family Partners, Ltd. v. Swain, No. 04-09-00384-CV, 2010 Tex. App. LEXIS 4116 (Tex. App.—San Antonio May 26, 2010, no pet.) (mem. op.)); see Kapur v. Fondren Southwest Tempos Ass'n, No. 01-13-00138-CV, 2013 Tex. App. LEXIS 12776, at *9-10 (Tex. App.—Houston [1st Dist.] Oct. 15, 2013, no pet.) (mem. op.) ("A party need not pay a filing fee for the trial court to exercise jurisdiction over the claims"); Kvanvig v. Garcia, 928 S.W.2d 777, 779 (Tex. App.—Corpus Christi 1996, orig. proceeding) (interpreting "the Texas Supreme Court's suggestion that the trial court 'should not' act on a motion for new trial before the filing fee is paid more as instructive than as a curbing of the trial court's jurisdiction or authority"); Tanner v. Axelrad, 680 S.W.2d 851, 853 (Tex. App.—Houston [1st Dist.] 1984, writ dismissed) (holding jurisdiction of justice court invoked despite non-payment of filing fee).
While a pleading seeking affirmative relief is considered "conditionally filed" until the required filing fee is paid, because the trial court does not lack subject matter jurisdiction in its discretion it may proceed to disposition of the conditionally-filed request for relief. Nolte, 348 S.W.3d at 268 (citing Kvanvig, 928 S.W.2d at 779); Kujawa v. Myrta Kujawa, No. 01-11-00963-CV, 2012 Tex. App. LEXIS 3905, at *5-6 (Tex. App.—Houston [1st Dist.] May 17, 2012, no pet.) (mem. op.) (citing Garza v. Garcia, 137 S.W.3d 36, 38 (Tex. 2004) and Tate v. E.I. DuPont de Nemours & Co., Inc., 934 S.W.2d 83, 84 (Tex. 1996) (per curiam)) ("A trial court has the authority to act on motions filed without payment of the filing fee but need not do so"). Thus, the trial court had authority to dispose of TAWC's counterclaim when it ruled on TAWC's motion for summary judgment. Swain, 2010 Tex. App. LEXIS 4116, at *8 (finding that while the defendants "did not have an unconditional right to have [their] counterclaim heard if the fee was not paid . . . the trial court [nevertheless] had jurisdiction to consider and rule on the claim").
See Jamar, 868 S.W.2d at 319 (holding motion for new trial was "conditionally filed" when tendered to the clerk even though the filing fee was not paid until eighteen days later).
The question for our jurisdictional analysis thus becomes whether, by signing the summary judgment order, the trial court intended to dispose of the entire case or only the issues raised by TAWC's motion for summary judgment. The appellate jurisdiction of a court of appeals is generally limited to final judgments and a few, here inapplicable, statutory exceptions. Lehmann v. Har—Con Corp., 39 S.W.3d 191, 195 (Tex. 2001). On the one hand, the trial court may have recognized its jurisdiction over TAWC's counterclaim but taken no action simply because TAWC did not request disposition of the counterclaim through its motion for summary judgment. The August 10 order enjoys no presumption of finality, and lacks the language necessary to express a final disposition. It does not mention the counterclaim nor does it address taxation of costs. Further, "[i]t is well settled that a trial court cannot grant a summary-judgment motion on grounds not presented in the motion." Timpte Indus., Inc. v. Gish, 286 S.W.3d 306, 310 (Tex. 2009) (citing Science Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 912 (Tex. 1997)). An order on summary judgment intended to be final and purporting to dispose of causes of action not challenged by the summary judgment motion is reversible. Lehmann, 39 S.W.3d at 202.
See In re Burlington Coat Factory Warehouse of McAllen, Inc., 167 S.W.3d 827, 829 (Tex. 2005) (orig. proceeding) (explaining there is no presumption of finality following a summary judgment or default judgment).
See Lehmann, 39 S.W.3d at 205 (concluding in the absence of 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"). --------
The record contains, however, some indication the trial court may have intended its order to dispose of the entire case. The clerk's record contains a copy of a notice sent by the district clerk to counsel for the parties under civil rule 306a(3). Rule 306a(3) provides in part, "When the final judgment or other appealable order is signed, the clerk of the court shall immediately give notice to the parties or their attorneys of record by first-class mail advising that the judgment or order was signed." TEX. R. CIV. P. 306a(3). According to the notice, the August 10 order either disposed of "this case" or was an appealable order. From the wording of the notice and the rule, it is not surprising that Howard filed a notice of appeal.
From this record, we are unable to say with certainty whether the trial court intended its order to be a final judgment. Cf. Kujawa, 2012 Tex. App. LEXIS 3905, at *9-13 (holding under facts similar to those at hand a summary judgment order was interlocutory and nonappealable). "If the appellate court is uncertain about the intent of the order, it can abate the appeal to permit clarification by the trial court." Lehmann, 39 S.W.3d at 206; TEX. R. APP. P. 27.2 (stating the appellate court may allow an appealed order that is not final to be modified so as to be made final and may allow the modified order and all proceedings relating to it to be included in a supplemental record); see Disco Mach. of Liberal Co. v. Payton, 900 S.W.2d 71, 74 (Tex. App.—Amarillo 1995, writ denied) (abating for clarification).
Accordingly, we abate the appeal and remand the case to the trial court. On remand, the trial court shall immediately give notice to appellate counsel and proceed apace to supplement the record so that it shows whether or not the trial court rendered a final judgment on August 10 and intended its August 10 order to dispose of all claims and all parties in the case. If the trial court intended such a disposition, it shall modify the order to clearly and unequivocally evince that intent. If the trial court concludes it did not so intend, it shall so certify in writing. The trial court shall then include the modified order clarifying its intent regarding finality, or its certification that it did not intend a final judgment, in a supplemental clerk's record to be filed with the clerk of this court on or before January 29, 2016.
It is so ordered
Per Curiam