Robert E. Penta, Jr. v. Brenton Harris Johnson

• Court: Court of Appeals of Texas
• Decided: January 28, 2022
• Docket: 07-21-00238-CV
• Status: Published

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo

No. 07-21-00238-CV

ROBERT E. PENTA, JR. APPELLANT

V.

BRENTON HARRIS JOHNSON, APPELLEE

On Appeal from the 200th District Court Travis County, Texas Trial Court No. D-1-GN-20-004590, Honorable Jessica Mangrum, Presiding

January 28, 2022 ORDER OF ABATEMENT AND REMAND Before PIRTLE and PARKER and DOSS, JJ.

Because of our concern that the district court’s summary judgment order on appeal

lacks finality and appealability, we abate and remand this case to the district court for

clarification in the manner directed below.1

1 Originally appealed to the Third Court of Appeals, sitting in Austin, this case was transferred to this Court by the Texas Supreme Court pursuant to its docket equalization efforts. See TEX. GOV’T CODE ANN. § 73.001. Background

Alleging a dispute between Appellant, Robert E. Penta, and Appellee, Benton

Harris Johnson, in the purchase and sale of real property, Penta sued Johnson. In his

live petition, Penta alleged Johnson anticipatorily breached their sales contract;

alternatively, he alleged Johnson fraudulently induced him to enter into the contract.

Although Penta did not seek declaratory relief under the Uniform Declaratory Judgments

Act2 (UDJA), he requested an award of attorney’s fees under the act. Johnson answered

and filed a counterclaim seeking declaratory relief, damages for breach of the sales

contract, and attorney’s fees under the UDJA and the contract.

Johnson thereafter filed a traditional and no evidence motion for summary

judgment. By the motion, Johnson sought to defeat Penta’s causes of action for

anticipatory breach of the contract and fraudulent inducement. Affirmative relief was also

requested on the claims Johnson alleged in his counterclaim. Johnson’s motion did not,

however, urge that Penta should be denied attorney’s fees under the UDJA.

By order of August 11, 2021, the district court rendered the declaratory relief

Johnson requested, awarded him damages on his breach of contract claim, and decreed

that Penta take nothing by his claims of anticipatory breach of contract and fraudulent

inducement. Penta then noticed the present appeal.

During a preliminary review of the record, we observed the August 11 summary

judgment order lacked finality language and did not address whether Penta would be

entitled to attorney’s fees under the UDJA. At our direction, the parties filed letter briefs

2 TEX. CIV. PRAC. & REM. CODE ANN. §§ 37.001-.011.

2 addressing the finality of the summary judgment order. Johnson argues we lack

jurisdiction; Penta argues our jurisdiction over the appeal properly attached.

Analysis

“In any proceeding under [the UDJA], the court may award costs and reasonable

and necessary attorney’s fees as are equitable and just.” TEX. CIV. PRAC. & REM. CODE

ANN. § 37.009. Under the UDJA, an attorney’s fees award is not dependent on a finding

that a party “substantially prevailed.” Barshop v. Medina Cty. Underground Water

Conservation Dist., 925 S.W.2d 618, 637 (Tex. 1996). “One need not even . . . seek

affirmative relief to be awarded attorney’s fees under the [UDJA], as long as the award of

fees is equitable and just.” Hong Kong Dev., Inc. v. Nguyen, 229 S.W.3d 415, 452 (Tex.

App.—Houston [1st Dist.] 2007, no pet.); Save Our Springs Alliance, Inc. v. Lazy Nine

Mun. Util. Dist. ex rel. Bd. of Dirs., 198 S.W.3d 300, 318 (Tex. App.—Texarkana 2006,

pet. denied) (“Either party may obtain attorney’s fees [under the UDJA] regardless of

which party is affirmatively seeking relief.”); District Judges of Collin Cty. v. Comm’rs Court

of Collin Cty., 677 S.W.2d 743, 746 (Tex. App.—Dallas 1984, writ ref’d n.r.e.) (concluding

judgment awarding attorney’s fees under UDJA to losing defendants was not abuse of

discretion).

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). The August 11, 2021 summary judgment order

enjoys no presumption of finality3 and lacks the language necessary to express a final

3In re Burlington Coat Factory Warehouse of McAllen, Inc., 167 S.W.3d 827, 829 (Tex. 2005) (orig. proceeding).

3 disposition. 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.”).

Given the absence of the order’s language indicating finality and a pending request

for attorney’s fees under the UDJA, it appears the summary judgment order is not a final

judgment. See Farm Bureau Cnty. Mut. Ins. v. Rogers, 455 S.W.3d 161 (Tex. 2015) (per

curiam) (affirming dismissal of appeal where trial court’s order did not dispose of parties’

attorney’s fees claims). However, the Rules of Appellate Procedure provide that if we are

unable to say with certainty whether the trial court intended a final judgment, we may

abate the appeal to permit clarification by the court. TEX. R. APP. P. 27.2. See also Disco

Mach. of Liberal Co. v. Payton, 900 S.W.2d 71, 74 (Tex. App.—Amarillo 1995, writ denied)

(abating for clarification of whether final judgment was intended).

On our own motion, we abate the appeal and remand the case to the district court

for clarification of its August 11, 2021 summary judgment order. On remand, the district

court shall give notice to appellate counsel and supplement the record to indicate whether

it rendered a final judgment on August 11, 2021. If the district court intended to render a

final disposition of all parties and all claims, it shall modify the August 11 order to evince

that intent clearly and unequivocally. See TEX. R. APP. P. 27.2 (“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.”); Lehmann, 39 S.W.3d at 206 (providing an example of language that leaves no

doubt of the court’s intentions, viz.: “This judgment finally disposes of all parties and all

4 claims and is appealable.”). Conversely, if the district court concludes it did not intend to

render a final judgment, it shall so certify in writing. See Disco Mach, 900 S.W.2d at 75

(stating in instructions on remand for clarification, “if judgment was never rendered the

parties cannot cause it to now be rendered[.]”).

The district 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 February 28, 2022.

All briefing deadlines, including that for filing Appellee Johnson’s brief, are

suspended until further order of the Court.

It is so ordered.

Per Curiam