Peter Payne, Mary Beth Payne, David Howard, and Oksana Howard v. Highland Homes, Ltd.

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH

NO. 02-14-00067-CV

PETER PAYNE, MARY BETH APPELLANTS
PAYNE, DAVID HOWARD,
OKSANA HOWARD, MELVIN
HARRIS, DONNA HARRIS, AND
CHRISTINA CHILDERS

V.

HIGHLAND HOMES, LTD. APPELLEE

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FROM THE 431ST DISTRICT COURT OF DENTON COUNTY
TRIAL COURT NOS. 2011-70650-431, 2012-70202-431

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MEMORANDUM OPINION 1 AND ORDER
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This appeal concerns the trial court’s order granting appellee Highland

Homes, Ltd.’s motion for summary judgment. We previously dismissed this

appeal for want of jurisdiction but withdrew the opinion and judgment after the
1
See Tex. R. App. P. 47.4.
parties filed documents indicating that jurisdiction was present. After reviewing

the parties’ jurisdictional briefing, we conclude that we do not have jurisdiction

over some of the parties to this appeal but that jurisdiction is present as to the

remaining parties.

I. BACKGROUND

A. PROCEEDINGS IN THE TRIAL COURT AND SEVERANCES

Appellants Peter Payne, Mary Beth Payne, David Howard, and Oksana

Howard (the Payne-Howard plaintiffs) filed claims against Highland Homes, Ltd.;

J. Baker Corporation; Landstar Homes Dallas, Ltd.; GCS Trails of Frisco, LP; and

Sun Den Frisco Investment, LP seeking redress for damages to their homes

arising from alleged residential construction defects and creek-bank erosion.

The Payne-Howard plaintiffs later amended their petition to add Appellants

Melvin Harris, Donna Harris, and Christina Childers (the Harris-Childers plaintiffs)

to their claims (the 2011 case).

The Payne-Howard plaintiffs and the Harris-Childers plaintiffs (collectively,

Appellants) alleged “causes of action for violating water code section 11.086,

negligence per se under section 11.086, and common law negligence” against

Highland Homes, Baker, Landstar, GCS, and Sun Den. Payne v. J. Baker Corp.,

No. 02-12-00181-CV, 2013 WL 2091774, at *1 (Tex. App.—Fort Worth May 16,

2013, no pet.) (mem. op.). Against Highland Homes, Appellants also raised

claims for “breach of warranty, breach of contract, violations of the Deceptive

Trade Practices Act, and fraud, among other claims.” Id. at *1 n.3. Baker,

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Landstar, GCS, and Sun Den (collectively, the Baker defendants) filed motions

for summary judgment, and Appellants filed a consolidated response. Id. at *1.

In January 2012, the trial court granted the Baker defendants’ motions for

summary judgment as to “all” of Appellants’ claims against them. On February 7,

2012, the trial court severed all claims raised by Appellants against the Baker

defendants into a separate action (the 2012 case). See Tex. R. Civ. P. 41.

Appellants appealed the summary judgment granted in favor of the Baker

defendants in the 2012 case.

On March 20, 2012, the trial court granted summary judgment in favor of

Highland Homes on “all causes of action” brought by the Harris-Childers plaintiffs

and granted Highland Homes a summary judgment as to the Payne-Howard

plaintiffs’ claims arising under the water code. The trial court then severed into

the 2012 case all claims raised by the Harris-Childers plaintiffs against Highland

Homes, including explicit finality language. At this point, the only live claims that

remained in the 2011 case were the Payne-Howard plaintiffs’ claims against

Highland Homes that were not based on the water code, and the 2012 case

contained Appellants’ claims against the Baker defendants and the Harris-

Childers plaintiffs’ claims against Highland Homes. The Harris-Childers plaintiffs

did not appeal the summary judgment granted in favor of Highland Homes.

Nonetheless, Appellants included the Harris-Childers plaintiffs and the

Baker defendants in their third and fourth amended petitions against Highland

Homes in the 2011 case, raising the same claims as before—violations of the

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water code, negligence per se, negligence, breach of warranties, breach of

contract, violations of the Deceptive Trade Practices Act, and fraud. 2 In their

fourth amended petition, Appellants stated that they again named the Baker

defendants as parties “only to ensure that [their] claims against [the Baker]

defendant[s] are in no way prejudiced, should [Appellants] prevail on appeal” in

the 2012 case.

On May 16, 2013, we reversed the trial court’s summary judgment in favor

of the Baker defendants in the 2012 case and remanded Appellants’ claims

against the Baker defendants to the trial court in the 2012 case because it had

granted the summary judgment before the end of the applicable discovery period.

Payne, 2013 WL 2091774, at *5. 3

Meanwhile, Highland Homes filed a motion for summary judgment in the

2011 case directed to the claims raised by the Payne-Howard plaintiffs in the

fourth amended petition. Highland Homes recognized that the Harris-Childers

plaintiffs again were included as plaintiffs in the fourth amended petition but

asserted that the Harris-Childers plaintiffs had failed to serve Highland Homes

with citation and that the Harris-Childers plaintiffs’ attempted claims were barred

2
In these amended petitions, Appellants added the City of Frisco as a
defendant. The trial court later granted Frisco’s plea to the jurisdiction, and this
court subsequently dismissed Appellants’ appeal of that order after Appellants
moved to voluntarily dismiss their appeal. See Payne v. City of Frisco, No. 02-
13-00446-CV, 2014 WL 5038179, at *1 (Tex. App.—Fort Worth Oct. 9, 2014, no
pet. h.) (mem. op.).
3
We issued the mandate on July 29, 2013.

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by res judicata based on the March 20, 2012 summary judgment and subsequent

severance into the 2012 case.

On November 25, 2013, the trial court granted summary judgment in favor

of Highland Homes on all claims brought against it by the Payne-Howard

plaintiffs. The trial court did not include language that the order was a final and

appealable order as it had done in the 2012 case regarding the Harris-Childers

plaintiffs’ claims against Highland Homes. On December 20, 2013, Appellants

filed a motion for new trial in the 2011 case “re: the Order on Defendant Highland

Homes, Ltd’s First Amended Traditional and No Evidence Motion for Summary

Judgment signed November 25, 2013.” This was the entirety of the motion.

They raised no specific grounds or arguments to support their motion. See Tex.

R. Civ. P. 321, 322. The motion was overruled by operation of law. See Tex. R.

Civ. P. 329b(c). On February 21, 2014, Appellants filed a notice of appeal in the

2011 case regarding the order granting Highland Homes summary judgment on

the Payne-Howard plaintiffs’ claims.

B. PROCEEDINGS IN THIS COURT

After receiving the notice of appeal directed to the summary-judgment

order in the 2011 case, we notified the parties that the trial court clerk had

informed us that claims and parties remained pending in the trial court, rendering

the summary-judgment order not immediately appealable. Appellants responded

that they agreed the summary-judgment order was not final based on pending

claims in the trial court. Highland Homes filed a response and a motion to

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dismiss asserting that it agreed that we did not have jurisdiction but because the

notice of appeal was untimely, not because there were pending claims and

parties in the trial court. On April 10, 2014, we dismissed the appeal for want of

jurisdiction based on pending claims and parties in the 2011 case.

Highland Homes filed a motion for rehearing asserting that we were

incorrect in our conclusion that all claims and parties had not been disposed of in

the 2011 case. Highland Homes pointed to the trial court’s severance orders and

the trial court clerk’s notification under rule 306a(3) that the summary-judgment

order was “[f]inal” or “[a]ppealable.” See Tex. R. Civ. P. 306a(3). However,

Highland Homes believed dismissal was appropriate because the motion for new

trial was ineffective to extend the appellate timetable, rendering the notice of

appeal untimely.

After review of the documents produced by Highland Homes, we

concluded that our dismissal was arguably improper but that a final determination

could not be had without the appellate record. Therefore, we withdrew our

dismissal opinion and judgment on June 6, 2014, and ordered the clerk’s and

reporter’s records filed. We directed that clerk’s records should be filed for both

the 2011 case and the 2012 case. 4 We further ordered Appellants and Highland

Homes to file jurisdictional briefs addressing whether a final and appealable

4
We additionally determined that because the Harris-Childers plaintiffs had
been severed into the 2012 case and because the Harris-Childers plaintiffs
joined in the notice of appeal, the 2012 case number, as well as the 2011 case
number, should be included on all orders and opinions.

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judgment had been rendered in the 2011 case, the effect of Appellants’ fourth

amended petition in the 2011 case (which was filed after the Harris-Childers

plaintiffs’ claims had been finally disposed of and severed), and the effect of this

Court’s reversal of the summary judgment in the 2012 case regarding Appellants’

claims against the Baker defendants. See, e.g., Tex. R. App. P. 42.3, 44.3.

Although Appellants did not designate and the clerk did not file a clerk’s record

for the 2012 case, Appellants and Highland Homes filed jurisdictional briefs.

II. DISCUSSION

A. FINAL AND APPEALABLE ORDER

Appellants argue that the trial court’s November 25, 2013 order in the 2011

case granting summary judgment in favor of Highland Homes on all claims

brought by the Payne-Howard plaintiffs was not a final and appealable order.

They primarily rely on the fact that the Payne-Howard plaintiffs’ “claim” for

rescission against Highland Homes in the 2011 case remained pending after the

November 25, 2013 summary-judgment order. But rescission is a remedy that is

available only if a contracting party has committed some wrong. See Kennebrew

v. Harris, 425 S.W.3d 588, 595–96 (Tex. App.—Houston [14th Dist.] 2014, pet.

denied) (citing Nelson v. Regions Mortg., Inc., 170 S.W.3d 858, 863 (Tex. App.—

Dallas 2005, no pet.)). It is not an independent claim for relief. See Cruz v.

Andrews Restoration, Inc., 364 S.W.3d 817, 825 (Tex. 2012); Kennebrew, 425

S.W.3d at 595. Rescission is available to a party only if that party prevails on a

claim for which rescission is an available remedy. See Kennebrew, 425 S.W.3d

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at 596. Thus, the request for rescission cannot support Appellants’ argument

that there were pending “claims” against Highland Homes after the summary-

judgment order in the 2011 case.

The Harris-Childers plaintiffs’ claims against Highland Homes had been

finally disposed of by summary judgment and severed into the 2012 case. The

Payne-Howard plaintiffs’ attempts to revive the Harris-Childers plaintiffs’ claims

against Highland Homes in the third and fourth amended petitions were

ineffective. See Mensa-Wilmot v. Smith Int’l, Inc., 312 S.W.3d 771, 780 (Tex.

App.—Houston [1st Dist.] 2009, no pet.). The Harris-Childers plaintiffs neither

sought leave to refile their claims against Highland Homes in the 2011 case nor

properly served the amended petitions on Highland Homes. See Tex. R. Civ. P.

106–07; see also Tex. R. Civ. P. 41, 174. Thus, the Harris-Childers plaintiffs’

claims against Highland Homes were finally disposed of by the trial court’s March

20, 2012 summary-judgment order and severance of those claims into the 2012

case. See Mensa-Wilmot, 312 S.W.3d at 780.

All of the Payne-Howard plaintiffs’ claims against Highland Homes similarly

were finally disposed of by the summary-judgment order in the 2011 case. On

March 20, 2012, the trial court granted Highland Homes a summary judgment as

to the Payne-Howard plaintiffs’ claims arising under the water code, including

their negligence-per-se and negligence claims arising from the alleged statutory

violations. On November 25, 2013, the trial court granted summary judgment in

favor of Highland Homes on the Payne-Howard plaintiffs’ remaining claims:

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negligence, gross negligence, breach of warranties, breach of contract, violations

of the Deceptive Trade Practices Act, and fraud.

We do not presume that the trial court intended to dispose of all parties

and issues in its summary-judgment order in the absence of language that such

was intended. See Lehmann v. Har-Con Corp., 39 S.W.3d 191, 199–200 (Tex.

2001). However, a summary-judgment order that actually disposes of all

remaining issues and parties will be considered to be a final order even though

no finality language is included. See id. at 200. Such is the case here. Although

the November 25, 2013 summary-judgment order includes no finality language

indicating that the trial court intended the order to be final and appealable, the

order actually disposed of all remaining issues and parties in the 2011 case.

Therefore, as Appellants asserted in their docketing statement, the November

25, 2013 summary-judgment order was a final, appealable order because it

disposed of all parties and claims that remained pending in the 2011 case. See,

e.g., Waterway Ranch, LLC v. Tex. Bank Fin., No. 02-13-00350-CV, 2014 WL

1389752, at *2 (Tex. App.—Fort Worth Apr. 10, 2014, pet. dism’d) (mem. op.).

B. TIMELINESS OF APPEAL

Our conclusion that the trial court’s summary-judgment order was a final,

appealable order in the 2011 case does not end our jurisdictional inquiry.

Highland Homes asserts that the notice of appeal was not timely filed.

The Harris-Childers plaintiffs’ notice of appeal was not timely filed. All of

the Harris-Childers plaintiffs’ claims against Highland Homes were finally

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resolved by the March 20, 2012 order and severance into the 2012 case. The

Harris-Childers plaintiffs did not appeal from this summary judgment, which

included specific finality language. The later third and fourth amended petitions in

the 2011 case again including the Harris-Childers plaintiffs as parties did not

unilaterally revive their claims. Appellants did not seek leave of court to

reconsolidate the 2012 case, into which the Harris-Childers plaintiffs’ claims had

been severed, into the 2011 case. See Tex. R. Civ. P. 41, 174. Further, the

Harris-Childers plaintiffs were not proper parties to the 2011 case when the trial

court entered the summary-judgment order; thus, the motion for new trial—even

if we considered the motion to be timely filed after the 2012 order and

severance—cannot extend the appellate timetable as to the Harris-Childers

plaintiffs. See Lapiner v. Maimon, 429 S.W.3d 816, 820–21 (Tex. App.—

Houston [14th Dist.] 2014, pet. filed) (plurality op.); State & Cnty. Mut. Fire Ins.

Co. v. Kelly, 915 S.W.2d 224, 227 (Tex. App.—Austin 1996, no pet.). We do not

have jurisdiction over the Harris-Childers plaintiffs’ attempted appeal from the

trial court’s November 25, 2013 order and dismiss their appeal.

However, we conclude that the Payne-Howard plaintiffs’ notice of appeal

was timely filed. The trial court signed the summary-judgment order on

November 25, 2013. The Payne-Howard plaintiffs filed a motion for new trial on

December 20, 2013, less than thirty days after the date the order was signed.

See Tex. R. Civ. P. 329b(a). Thus, if the motion for new trial was effective to

extend the appellate timetable, the Payne-Howard plaintiffs’ notice of appeal,

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filed on February 21, 2014, was timely because it was filed less than ninety days

after the trial court’s summary-judgment order. See Tex. R. App. P. 26.1(a)(1).

Highland Homes contends that the motion for new trial did not extend the

appellate timetable because it contained nothing more than a recitation of the

appealing parties and a statement that the motion was “re: the Order of

Defendant Highland Homes, Ltd’s First Amended Traditional and No Evidence

Motion for Summary Judgment signed November 25, 2013.”

Highland Homes is correct that a motion for new trial must specify the

grounds supporting the requested relief in such a way that the trial court may

identify and understand the argument. See Tex. R. Civ. P. 321; 5 Roy W.

McDonald & Elaine Carlson, Texas Civil Practice § 28:13[b] (2d ed. 1999). But

this rule affects what the trial court may consider and what issues are preserved

for appeal, not whether the motion extends the appellate timetable. See Tex. R.

Civ. P. 322, 324(b); Neely v. Tarrant Cnty., 124 S.W.2d 101, 103–04 (Tex. 1939);

Vasquez v. Carmel Shopping Ctr. Co., 777 S.W.2d 532, 534 (Tex. App.—Corpus

Christi 1989, writ denied); Taylor v. Trans-Cont’l Props., Ltd., 739 S.W.2d 873,

876–77 (Tex. App.—Tyler 1987, no writ); Neily v. Arron, 724 S.W.2d 908, 911

(Tex. App.—Fort Worth 1987, no writ); see also Keenan v. Keenan, No. 04-04-

00240-CV, 2005 WL 471186, at *1 n.1 (Tex. App.—San Antonio Mar. 2, 2005, no

pet.) (mem. op.); 6 Roy W. McDonald & Elaine Carlson, Texas Civil Practice

§ 9:15 (2d ed. rev. 2014). Highland Homes does not mention this line of

authority in its jurisdictional brief and, of course, does not argue it is inapplicable

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here. Therefore, the Payne-Howard plaintiffs’ timely filed motion for new trial,

although insufficient under civil procedure rules 321, 322, and 324(b), operated

to extend the appellate timetable under appellate rule 26.1(a).

III. CONCLUSION

The Harris-Childers plaintiffs failed to timely appeal from the trial court’s

order finally disposing of their claims against Highland Homes. Therefore, we

dismiss the Harris-Childers plaintiffs’ appeal for want of jurisdiction. See Tex. R.

App. 42.3, 43.2(f). The Payne-Howard plaintiffs, however, timely filed a motion

for new trial after the trial court signed a summary-judgment order that fully and

finally disposed of all claims and parties remaining in the 2011 case. This motion

for new trial extended the appellate timetable, rendering their notice of appeal

timely filed.

The clerk shall note on the docket of this case that the Harris-Childers

plaintiffs are dismissed from this appeal. The clerk shall also ensure that this

appeal now concerns only the 2011 case and shall remove reference to the 2012

case from all subsequent notices, orders, and opinions in this appeal. We will

not issue our judgment regarding the dismissal of the Harris-Childers plaintiffs

until the Payne-Howard plaintiffs’ issues are disposed of on appeal. See Tex. R.

App. P. 43.1, 43.6. Because the appellate record has been filed, the clerk shall

also notify the Payne-Howard plaintiffs and Highland Homes of the briefing

schedule applicable to this appeal. See 2d Tex. App. (Fort Worth) Loc. R. 1.E.

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Finally, the clerk shall send this memorandum opinion and order to all parties, the

trial court, the trial court clerk, and the court reporter. See Tex. R. App. P. 12.6.

/s/ Lee Gabriel

LEE GABRIEL
JUSTICE

PANEL: LIVINGSTON, C.J.; DAUPHINOT and GABRIEL, JJ.

DELIVERED: December 18, 2014

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