Opinion
NUMBER 13-15-00127-CV
03-17-2016
TOM TUCKER, Appellant, v. CARL BEDGOOD AND LAURA BEDGOOD, Appellees.
On appeal from the County Court at Law No. 1 of Victoria County, Texas.
MEMORANDUM OPINION
Before Justices Garza, Perkes and Longoria
Memorandum Opinion by Justice Garza
This appeal arises from a real estate dispute between appellant/cross-appellee Tom Tucker and appellees/cross-appellants Carl and Laura Bedgood. The trial court granted summary judgment dismissing Tucker's suit against the Bedgoods. On appeal, Tucker argues that the trial court erred because there were disputed issues of material fact, and the Bedgoods argue that the trial court erred by failing to award attorney's fees to them. We will dismiss for want of jurisdiction.
I. BACKGROUND
Carl Bedgood, an attorney and owner of a title company, contracted in 2005 to purchase eighteen parcels of real property in Port O'Connor, Calhoun County, Texas. Tucker, an attorney and Bedgood's real estate agent, agreed to participate in the transaction as a purchaser of one half of the properties. Accordingly, Bedgood and Tucker entered into an "Investment Agreement" under which Bedgood agreed to transfer half of his interests in the sales contracts to Tucker. The sales closed on or about July 14, 2005.
Three of the parcels sold in 2005 are at issue in this appeal. Lot A-10 of the La Salle Hotel Site was purchased by Tucker, and Lots A-9 and A-11 in the same development were purchased by Bedgood and his wife Laura. As of 2005, Lot A-9 was sixty feet wide while Lots A-10 and A-11 were 75 feet wide. These three lots are contiguous to each other, and each is adjacent to Matagorda Bay.
In May 2006, James P. Bryan Jr. informed Tucker that he was interested in purchasing Lot A-9 from the Bedgoods. However, Bryan asked if it was possible to increase the size of Lot A-9 so that it would be seventy feet wide. According to Tucker, Bryan stated that he was willing to pay an additional $50,000 for the extra ten feet of width. Tucker alleges that he then entered into an oral agreement with Carl Bedgood under which the parties agreed that the width of Lot A-9 would be increased to seventy feet and the widths of the other two lots would be reduced to seventy feet. Tucker alleges that he and Bedgood orally agreed that they would equally divide the extra $50,000 that Bryan agreed to pay for the additional ten feet of width.
The Bedgoods subsequently entered into a contract under which they agreed to convey Lot A-9 to Bryan (the "earnest money contract"). Under a section entitled "Special Provisions," the earnest money contract stated: "Lot A-9 will be enlarged to 70 feet by decreasing lots 10 and 11 by five feet each." An addendum to the contract stated that the Bedgoods "shall convey to [Bryan] . . . Tract A-9 plus adjacent 10 feet out of Tract A-10." Tucker was not a party or signatory to the contract, and the contract did not state that the duties outlined in the "Special Provisions" section or addendum would be completed by any particular date.
The sale to Bryan was consummated by warranty deed on or about May 23, 2006. The deed, executed by Tucker and the Bedgoods, contained a metes and bounds description of Lot A-9 indicating that the property conveyed was seventy feet wide. The Bedgoods received $250,000 and Tucker received $25,000, in accordance with their alleged oral agreement.
In 2008, a dispute arose between Tucker and the Bedgoods regarding some of the properties purchased in 2005, but not Lots A-9, A-10, or A-11. On August 28, 2008, Tucker and the Bedgoods executed a "Mutual Release" intending to resolve that dispute. Under this agreement, Tucker released the Bedgoods from any and all claims
which existed before and as of the date of this agreement, including any and all claims or causes of action which [Tucker] did not know or suspect to exist in his favor at the time of the execution of this agreement, directly or indirectly attributable to, or arising out of or relating to all of their disputes, issues or claims against each other relating to [the subject properties] . . . .
In 2014, the Bedgoods conveyed Lot A-11 to the Texas Dow Employees Credit Union ("TDECU"). Tucker discovered that the metes and bounds description of Lot A-11, as contained in the warranty deed by which the Bedgoods conveyed the property to TDECU, showed that the lot was 75 feet wide. Tucker sued the Bedgoods on February 4, 2015, alleging that the Bedgoods' sale of Lot A-11 constituted breach of contract, breach of fiduciary duty, common law fraud, statutory fraud, unjust enrichment, and civil conspiracy. Tucker alleged that he was entitled to $25,000 in damages, representing the Bedgoods' half of the $50,000 payment allegedly made by Bryan for the extra ten feet of width.
The Bedgoods answered the suit and filed a counterclaim for breach of the Mutual Release and a declaratory judgment stating that the release was enforceable. The Bedgoods then filed traditional and no-evidence motions for summary judgment. The no-evidence motion alleged that Tucker lacked evidence of an essential element of each one of his claims. The traditional motion alleged that the Bedgoods were entitled to judgment as a matter of law on Tucker's claims because the evidence conclusively established their affirmative defenses of statute of frauds, statute of limitations, and release. The traditional motion additionally argued that the evidence conclusively established their counterclaim and, therefore, they were entitled to an award of $12,000 as damages, representing the amount they incurred on attorney's fees as a result of Tucker's alleged breach of the Mutual Release. Evidence attached to the Bedgoods' motions included: (1) Carl Bedgood's affidavit; (2) Tucker's affidavit; (3) the 2006 earnest money contract between the Bedgoods and Bryan; (4) the 2006 warranty deed conveying Lot A-9 to Bryan; (5) the 2008 Mutual Release; (6) an affidavit by the Bedgoods' counsel regarding attorney's fees; and (7) excerpts from Tucker's deposition.
Specifically, as to Tucker's breach of contract claim, the Bedgoods argued that there was no evidence that a valid written contract existed or that Tucker suffered damages. As to Tucker's fraud claim, the Bedgoods argued that there was no evidence that they made a false promise. The Bedgoods further argued that there was no evidence that they were unjustly enriched, that they were engaged in a civil conspiracy, or that they owed a fiduciary duty to Tucker.
In response to the motions, Tucker argued that he had raised genuine issues of material fact as to each of his claims and each of the Bedgoods' affirmative defenses. He relied on evidence including his affidavits and the Bedgoods' responses to discovery requests.
The trial court granted the Bedgoods' summary judgment motions without specifying any grounds. The summary judgment order states in its entirety as follows:
Tucker and the Bedgoods each perfected appeals.
JUDGMENT
On this the 18th of February, 2015, the Court heard the Defendant's Traditional and No Evidence Motion for Summary Judgment against Plaintiff filed in this cause. Plaintiff appeared by his attorney . . . and Defendant appeared by his attorney . . . .
The Court has considered the records and files in this matter, the affidavits on file and all other papers and documents filed by the parties, and the oral argument of counsel for the respective parties and the briefs filed by counsel, and finds that there is no genuine issue of material facts and that Defendant is entitled to judgment as a matter of law.
IT IS, THEREFORE, ORDERED, ADJUDGED, AND DECREED, that Defendant's Traditional and No Evidence Motion for Summary Judgment against Plaintiff is hereby GRANTED, and that summary judgment be entered in favor of Defendant and against Plaintiff.
IT IS ACCORDINGLY ORDERED, ADJUDGED, AND DECREED, that Defendant recover from Plaintiff judgment for $—[] in reasonable and necessary attorney's fees. All relief not expressly granted herein is denied.
SIGNED this 23 day of February, 2015.
The trial court evidently drew a line through the blank space provided in the form order for the award of attorney's fees. --------
II. JURISDICTION
Absent statutory authorization, an appeal may be taken only from a final judgment. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001). Neither party argues on appeal that the judgment on appeal was not final and appealable; nevertheless, the issue affects our jurisdiction and we are therefore obligated to review it sua sponte. M.O. Dental Lab v. Rape, 139 S.W.3d 671, 673 (Tex. 2004).
An order or judgment entered before a conventional trial on the merits is final for purposes of appeal only if it (1) actually disposes of all claims and all parties before the court or (2) clearly and unequivocally states that it finally disposes of all claims and all parties. Id. at 673-75; Lehmann, 39 S.W.3d at 205. The judgment on appeal in this case did neither. First, it did not dispose of all claims because the Bedgoods' counterclaim for damages remains pending. The order on appeal purported to grant the Bedgoods' summary judgment motion, and that motion argued for summary judgment on the counterclaim, but the order did not award the Bedgoods the damages they requested in their counterclaim and in their summary judgment motion with respect to the counterclaim. Instead, the order stated that "[a]ll relief not expressly granted herein is denied," thereby suggesting that the Bedgoods' request for summary judgment on their counterclaim for damages was, in fact, denied. Second, the order did not "clearly and unequivocally" state that it disposed of all claims and parties. See M.O. Dental Lab, 139 S.W.3d at 673-75; Lehmann, 39 S.W.3d at 205; cf. In re Daredia, 317 S.W.3d 247, 248 (Tex. 2010) (per curiam) (orig. proceeding) (holding that a judgment which states that "[t]his judgment disposes of all parties and all claims in this cause of action and is therefore FINAL" "clearly and unequivocally indicates that it is a final judgment" and is therefore appealable).
For the foregoing reasons, we conclude that the order on appeal is not final. Moreover, there is no statutory authorization for an interlocutory appeal in this situation. Cf. TEX. CIV. PRAC. & REM. CODE ANN. § 51.014 (West, Westlaw through 2015 R.S.). Accordingly, we lack jurisdiction over the appeals. See Lehmann, 39 S.W.3d at 195.
III. CONCLUSION
The appeal and cross-appeal are dismissed for want of jurisdiction. See TEX. R. APP. P. 42.3(a), 43.2(f).
DORI CONTRERAS GARZA
Justice Delivered and filed the 17th day of March, 2016.