Wyatt Ranches of Texas, LLC v. William Robert Anderson III and Anderson, Lehrman, Barre & Maraist, LLP

Opinion

NUMBER 13-23-00206-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

WYATT RANCHES OF TEXAS, LLC, Appellant,

v.

WILLIAM ROBERT ANDERSON III AND ANDERSON, LEHRMAN, BARRE & MARAIST, L.L.P., Appellees.

ON APPEAL FROM THE 79TH DISTRICT COURT OF JIM WELLS COUNTY, TEXAS

MEMORANDUM OPINION

Before Justices Benavides, Tijerina, and Silva Memorandum Opinion by Justice Silva

Appellant Wyatt Ranches of Texas, LLC (Wyatt Ranches) appeals a take-nothing

summary judgment in favor of appellees William Robert Anderson III and Anderson, Lehrman, Barre and Maraist, L.L.P. (collectively, Anderson). By two issues, both with

multiple subissues, Wyatt Ranches argues that (1) the trial court could not or did not

properly dispose of Anderson’s combined traditional and no-evidence motions for

summary judgment due to procedural anomalies, and (2) even if the trial court could

properly dispose of the motion procedurally, the affirmative defense of attorney immunity

does not support the dismissal of Wyatt Ranches’ suit. We reverse and remand.

I. BACKGROUND 1

Wyatt Ranches’ live pleading alleged that it agreed to purchase the Warder Ranch,

also known as Los Sueños de los Robles Ranch (the Ranch), from Leo and Catherine

May (the Mays). 2 As part of the agreement, the Mays were required to provide, among

other things, all surface use agreements pertaining to the Ranch. The Mays provided the

recorded surface agreements through their attorney, Anderson. Believing it had received

all the surface agreements, Wyatt Ranches consummated the purchase of the Ranch

only to later discover an unrecorded 2013 amended surface use agreement. According

to the first amended petition, the 2013 agreement amended a previously-disclosed

surface agreement but the modifications were “material, . . . extremely detrimental to the

value and use of the Ranch, and, if known, would have resulted in Wyatt Ranches

terminating the [c]ontract instead of completing the purchase.” Wyatt Ranches brought

claims for negligent misrepresentation, fraud, fraud in a real estate transaction, breach of

1 This appeal was transferred to this Court from the Fourth Court of Appeals in San Antonio by

order of the Texas Supreme Court. See TEX. GOV’T CODE ANN. § 73.001 (granting the supreme court the authority to transfer cases from one court of appeals to another at any time that there is “good cause” for the transfer). 2 The Ranch is described as 6,663.38 acres sitting in Jim Wells, Kleberg, and Nueces Counties.

2 contract, and breach of warranty against the Mays and Anderson.

Anderson’s first amended answer included the affirmative defense of attorney

immunity. Anderson subsequently filed a combined no-evidence and traditional motion

for summary judgment, asserting in part that attorney immunity protected them from suit.

Thereafter, the parties agreed to abate the case until a related lawsuit was resolved.

During the abatement, the trial court set Anderson’s combined motion for summary

judgment for consideration by submission on March 6, 2023. Wyatt Ranches filed a timely

“preliminary response” to Anderson’s combined motion for summary judgment and a

motion to lift the abatement. In both Wyatt Ranches’ response to the motion for summary

judgment and its motion to lift the abatement, it urged the trial court to withdraw its March

6, 2023 submission date, arguing that more discovery needed to be conducted and that

the trial court could not set the case for submission during abatement. The trial court set

Wyatt Ranches’ motion to lift the abatement for a hearing on March 6, 2023.

At the March 6, 2023 hearing, the parties agreed that the trial court should lift the

abatement. Wyatt Ranches reiterated its argument that the submission date should be

withdrawn for additional discovery whereas Anderson responded that they did not believe

more discovery needed to be conducted and that the trial court could decide summary

judgment as a matter of law. The trial court granted the motion to lift the abatement and

said, “[L]et me see what, if anything, I’ll do with the motion for summary judgment by—by

submission.”

On March 7, 2023, the trial court signed an order lifting the abatement and

withdrawing the submission date for Anderson’s combined motion for summary judgment.

3 On March 8, 2023, the trial court notified the parties that it was granting Anderson’s motion

for summary judgment as to attorney immunity only and directed the parties to prepare

an order reflecting such. Anderson thereafter filed a motion to modify the order lifting

abatement to strike the language that withdrew the submission date, but the trial court

never signed an order doing so. On March 27, 2023, the trial court signed an order

granting Anderson’s motion for summary judgment on its affirmative defense of attorney

immunity. This appeal followed.

II. FINAL APPEALABLE ORDER

As a preliminary matter, we must address Wyatt Ranches’ claim that the order it

appealed is not a final appealable order. Wyatt Ranches argues that the order “purported

to dispose of Wyatt Ranches’ claims only to the extent they implicated attorney immunity,”

but because “Wyatt Ranches’ claims do not involve and are not controlled by that

defense[,] . . . [the o]rder necessarily did not fully and finally dispose of the entire case.”

With limited exceptions not applicable here, this Court is without jurisdiction to

review an order that is not final. McFadin v. Broadway Coffeehouse, LLC, 539 S.W.3d

278, 283 (Tex. 2018); see TEX. CIV. PRAC. & REM. CODE ANN. § 51.014 (enumerating

permissible interlocutory appeals). An order is final and appealable when it disposes of

all pending claims and all parties. McFadin, 539 S.W.3d at 283. “Although language like

a Mother Hubbard clause indicates that the trial court intended a judgment to be final and

appealable, no particular title, form, or language is required to make a judgment final.” Id.

Instead, to determine whether an order is final and appealable, we look to the language

of the order and the record. Id. Because our jurisdiction depends on whether the order is

4 final, it is a question of law that we review de novo. Id. at 282.

Here, Wyatt Ranches does not identify which specific parties or claims it contends

were not resolved by the trial court’s order. Nevertheless, the record shows that Wyatt

Ranches nonsuited all claims against the Mays and the order dismisses its “claims”

against Anderson. Wyatt Ranches seems to argue that because the pleaded affirmative

defense was incorrectly found to apply to its claims, the order does not actually dispose

of its claims. However, if that were so, an appellate court would never have jurisdiction to

review an improper summary judgment, which is simply not the case.

Because Wyatt Ranches nonsuited its claims against the Mays, all that remained

were its claims against Anderson. 3 Anderson argued, and the trial court agreed, that

attorney immunity applied to all of Wyatt Ranches’ claims against Anderson. Based on

the record, including Anderson’s motion for summary judgment, it is clear that the trial

court’s order dismissing Wyatt Ranches’ “claims” against Anderson included all of Wyatt

Ranches’ claims, leaving no claims or parties surviving. See id. at 283. Accordingly,

whether the trial court was correct or incorrect, its order constitutes a final appealable

order for which this Court has jurisdiction to review. See id.

III. SUMMARY JUDGMENT

By its first issue, Wyatt Ranches argues that procedural defects prohibited the trial

court from granting summary judgment.

3 Although Wyatt Ranches nonsuited its claims against the Mays while the case was abated, it was

still effective upon filing. See TEX. R. CIV. P. 162 (noting that a party may nonsuit claims at any time before the plaintiff has introduced all its evidence); United Oil & Mins., Inc. v. Costilla Energy, Inc., 1 S.W.3d 840, 846 (Tex. App.—Corpus Christi–Edinburg 1999, pet. dism’d) (upholding nonsuit taken during abatement); see also AAA Free Move Ministorage, L.L.C. v. Latigo Props., Inc., No. 04-14-00075-CV, 2015 WL 1120330 (Tex. App.—San Antonio Mar. 11, 2015, no pet.) (mem. op.) (same).

5 A. Applicable Law

“A party against whom a claim, counterclaim, or cross-claim is asserted or a

declaratory judgment is sought may, at any time, move with or without supporting

affidavits for a summary judgment in his favor as to all or any part thereof.” TEX. R. CIV.

P. 166a(b). “Except on leave of court, with notice to opposing counsel, the motion and

any supporting affidavits shall be filed and served at least twenty-one days before the

time specified for hearing.” Id. R. 166a(c). Summary judgment may be considered by

submission or hearing, but no oral testimony may be received at a hearing. Id.; see

Hooten v. Yeager, 654 S.W.3d 185, 192 (Tex. App.—Texarkana 2022, no pet.) (citing

Martin v. Martin, Martin & Richards, Inc., 989 S.W.2d 357, 359 (Tex. 1998) (per curiam)).

Notice of a hearing or consideration by submission is mandatory and essential,

and because summary judgment is such a harsh remedy, the notice provisions of Rule

166a(c) must be strictly construed. Town Park Ctr., LLC v. City of Sealy, 639 S.W.3d 170,

183 (Tex. App.—Houston [1st Dist.] 2021, no pet.). “Notice of a summary-judgment

hearing must inform the nonmovant of the exact date of hearing or submission. A trial

court that grants summary judgment without notice of the hearing to the nonmovant errs

in granting it.” B. Gregg Price, P.C. v. Series 1 - Virage Master LP, 661 S.W.3d 419, 423

(Tex. 2023) (per curiam) (internal citations omitted). A lack of proper notice constitutes a

deprivation of due process. Id. at 422–23. “A new [setting] requires a new notice.” Id. at

423.

B. Analysis

Wyatt Ranches contends that two procedural infirmities precluded the trial court

6 from granting Anderson’s motion for summary judgment: (1) the abatement; and (2) the

trial court’s withdrawal of the submission date. Anderson, on the other hand, argues that

because the trial court lifted the abatement, it did not preclude the trial court from ruling

on it, and that the trial court’s notice for the March 6, 2023 submission date was sufficient

notice. We agree with Wyatt Ranches that the trial court’s withdrawal of the submission

date precluded it from granting Anderson’s motion for summary judgment.

When the trial court withdrew the submission date for the motion for summary

judgment, it was required to set a new date with sufficient notice to the parties. See TEX.

R. CIV. P. 166a(c); B. Gregg Price, 661 S.W.3d at 423. Failure to do so constituted a

deprivation of Wyatt Ranches’ due process rights. See B. Gregg Price, 661 S.W.3d at

422–23. “[T]he remedy for a denial of due process is due process.” Id. at 423. Accordingly,

the trial court erred by granting Anderson’s summary judgment without proper new setting

and notice. See id. at 422–23.

Anderson’s argument that the trial court provided sufficient notice through its initial

notice fails for the same reason—once the trial court withdrew the submission date, its

notice of that submission date was no longer effective. See id. Anderson further argues

that any error in granting summary judgment without notice simply constituted harmless

error because Wyatt Ranches filed a response. See TEX. R. APP. P. 44.1(a). However,

Anderson provides no authority that harmless error applies to a deprivation of due

process, and we find none. See id. Moreover, although Wyatt Ranches filed a preliminary

response “[o]ut of an abundance of caution,” it explained that “discovery [wa]s

substantially incomplete” because of the abatement, and it intended to supplement its

7 response after conducting additional discovery. See TEX. R. CIV. P. 166a(c). Accordingly,

we conclude the trial court erred by granting Anderson’s motion for summary judgment

after withdrawing the submission date. See B. Gregg Price, 661 S.W.3d at 423. We

sustain Wyatt Ranches’ first issue. 4

IV. CONCLUSION

We reverse the trial court’s judgment and remand the case for further proceedings

consistent with this memorandum opinion.

CLARISSA SILVA Justice

Delivered and filed on the 30th day of May, 2024.

4 Because Wyatt Ranches’ first issue is dispositive, we need not reach its second issue. See TEX.

R. APP. P. 47.4.