Opinion issued February 3, 2005
In The
Court of Appeals
For The
First District of Texas
NO. 01-03-01079-CV
DOV AVNI KAMINETZKY, INDIVIDUALLY AND AS ASSIGNEE OF CO-VICTIMS, Appellant
V.
PARK NATIONAL BANK OF HOUSTON, TEXAS, N/K/A FROST NATIONAL BANK OF SAN ANTONIO, TEXAS, SURVIVING SUCCESSOR BY MERGER, UNIT OF CULLEN/FROST BANKERS, Appellee
On Appeal from the 333rd District Court
Harris County, Texas
Trial Court Cause No. 2000-08847
MEMORANDUM OPINION
In this appeal from a bill of review proceeding, appellant, Dov Avni Kaminetzky, Individually and as Assignee of Co-Victims (“Kaminetzky”) challenges the trial court’s June 6, 2003 order dismissing all of his claims. In eight issues, Kaminetzky asserts (1) that the trial court’s June 6, 2003 order was not a final judgment and that the trial court erred by (2) not ruling on discovery motions; (3) not ruling on Kaminetzky’s motion for summary judgment; (4) not taking judicial notice of specific facts; (5) granting special exceptions and dismissing cause No. 2000-08847 before trial; (6) not recusing itself; and (7) refusing Kaminetzky’s request for findings of fact and conclusions of law. We disagree and affirm the judgment of the trial court.
Background
In 1991, appellee, Park National Bank of Houston, Texas n/k/a Frost National Bank of San Antonio, Texas, Surviving Successor by Merger, Unit of Cullen/Frost Bankers (“PNB”), foreclosed on a car wash property that was secured by a promissory note held by PNB. After the sale, Kaminetzky and others filed suit against PNB in cause no. 91-106901 (the “1991 case”), asserting that no deficiency was owed. PNB counter-claimed against Kaminetzky and others. The 1991 case was filed in the 333rd District Court, Judge Bianchi presiding.
After a jury trial, the jury returned a verdict in favor of PNB. Kaminetzky appealed the jury’s verdict to this Court. We affirmed the judgment of the trial court. See Kaminetzky v. Park Nat’l Bank of Houston, No. 01-96-01002-CV, 2001 WL 832350 (Tex. App.—Houston [1st Dist.] Jul. 19, 2001, writ denied). Kaminetzky filed an application for writ of error, which the Texas Supreme Court denied.
While the appeal in cause no. 01-96-01002-CV was pending, Kaminetzky filed a bill of review in the 333rd District Court in cause no. 2000-08847 (the “2000 case”). PNB specially excepted to Kaminetzky’s pleadings in the 2000 case, which Judge Halbach sustained.
Although Kaminetzky amended his pleadings, PNB specially excepted a second time. The trial court held a hearing and entered an agreed order on October 10, 2002, requiring Kaminetzky to replead. The order further provided:
1. [Kaminetzky] is ordered to file on or before October 14, 2002 two separate pleadings as follows:
a. A verified (second) amended petition raising any and all bill of review attacks upon this Court’s Judgment of April 17, 1996 in case number 1991-16901, which have been the subject of [Kaminetzky’s] Approved Bill of Review proceedings; and
b. A second, verified supplemental pleading to the Amended Petition identifying any and all other claims by Kaminetzky against [PNB] that are not related to the bill of review that he is [sic] pursuing.
. . .
5. At the hearing on the pleadings and motions the Court shall rule upon the pending motions to compel discovery . . . . The Court will, at the hearing, address by way of status conference, the issues that remain in the case . . . .
The order further stated, “[A]ll discovery and discovery related motions are abated pending an assessment of discovery as it relates to any claims that remain after the Court’s rulings at the hearing to be scheduled.”
After Kaminetzky had filed his amending pleadings, PNB filed its third set of special exceptions and asked the trial court to dismiss Kaminetzky’s claims. On June 6, 2003, the trial court sustained PNB’s third set of special exceptions and found that, “Kaminetzky having failed to submit facts that support a bill of review cause of action or other supplemental cause of action, the claims asserted by Kaminetzky in this proceeding are hereby dismissed.” Kaminetzky appeals from the June 6, 2003 dismissal order.
Discussion
Final Judgment
In his first point of error, Kaminetzky contends that the June 6, 2003 order is not a final judgment. Specifically, Kaminetzky asserts that the trial court’s order is not a final judgment because it does not (1) contain the full names of the parties as stated in the pleadings; (2) dismiss the entire case; and (3) identify the parties to the lawsuit in the same capacities under which Kaminetzky brought suit and PNB was sued.
Because our jurisdiction over this appeal depends on a final judgment, we determine whether the trial court’s June 6, 2003 order constitutes a final judgment. See Houston Health Clubs, Inc. v. First Court of Appeals, 722 S.W.2d 692, 693 (Tex. 1986). Since Lehmann v. Har-Con Corp., it has been settled that no magic words are required to make a judgment rendered other than after a trial on the merits final. 39 S.W.3d 191, 192–93 (Tex. 2001). A judgment is final for purposes of appeal if it actually disposes of all claims and parties, regardless of its language, or states with unmistakable clarity that it is a final judgment as to all claims and parties. Id. Whether a judgment is final must be determined from its language and the record in the case. Id. at 195.
After reviewing the trial court’s June 6, 2003 order, we conclude that it disposed of all claims and parties. The order considers “all such claims and causes of action for bill of review.” The order also states, “[T]he claims asserted by Dov Avni Kaminetzky in this proceeding are hereby dismissed.” Tellingly, in his motion to vacate the trial court’s dismissal order, Kaminetzky even referred to the June 6, 2003 order as the order that “dismissed the entire case.” (Emphasis added). After the trial court signed the June 6, 2003 order, there were no remaining issues to be disposed of. We hold that the judgment is final for purposes of appeal.
We overrule Kaminetzky’s first point of error.
Discovery Motions
In his second point of error, Kaminetzky argues that the trial court erred by not ruling on discovery motions. On July 11, 2000, Kaminetzky served PNB with his First Set of Interrogatories, Requests For Admissions and Request for Production of Documents and Tangible Things. Kaminetzky later served PNB with a variety of other discovery requests.
Each time Kaminetzky filed discovery requests, PNB filed a responsive objection. This process continued until October 8, 2002, when the parties signed an agreed order. The order stated “that all discovery and discovery related motions are abated pending an assessment of discovery as it relates to any claims that remain after the Court’s rulings at the hearing to be scheduled.” The abatement of discovery would last until the trial court determined whether Kaminetzky’s bill of review pleading stated a claim on which relief could be granted. After Kaminetzky had repleaded his claims, the trial court determined that “[Kaminetzky] failed to submit facts that support a bill of review cause of action or other supplemental cause of action.” The trial court dismissed all of Kaminetzky’s claims, as we discussed above, and, therefore, no discovery remained to be taken. The trial court did not abuse its discretion in not ruling on discovery motions when all claims had been dismissed.
We overrule Kaminetzky’s second point of error.
Motion for Summary Judgment
In his third point of error, Kaminetzky argues that the trial court erred by not ruling on his motion for summary judgment. Kaminetzky filed a motion for summary judgment on May 25, 2001. He states that the motion was set for “ruling” on June 18, 2001. Kaminetzky argues that the trial court abused its discretion by refusing to rule on his motion for summary judgment. We disagree.
The record reflects that Kaminetzky initially filed his no-evidence motion for summary judgment on May 25, 2001. PNB filed a response to the motion, arguing that Kaminetzky’s motion was defective because it did not satisfy the requirements of the no-evidence summary judgment rule, rule 166a(I). See Tex. R. Civ. P. 166a(I). PNB’s response also requested a continuance pursuant to rule 166a(f) to obtain additional evidence. See Tex. R. Civ. P. 166a(f). Kaminetzky filed a notice of oral hearing on his motion for summary judgment on July 19, 2002, requesting a hearing on August 9, 2002. Kaminetzky then filed his first amended no-evidence motion for summary judgment on July 23, 2002. The hearing on the motion for summary judgment was reset for September 13, 2002. On October 10, 2002, the trial court entered an agreed order, which provided that “all pending motions for summary judgment are passed and will not be reset until after [the to-be-scheduled] status conference” that was to occur after Kaminetzky had filed his amended bill of review; PNB would then have an opportunity to object to the amended bill of review. Kaminetzky filed his second amended bill of review on October 14, 2002, and the trial court dismissed all of his claims on June 6, 2003. Accordingly, no claims remained to be decided by summary judgment. We cannot conclude that the trial court abused its discretion by not ruling on Kaminetzky’s motion for summary judgment.
We overrule Kaminetzky’s third point of error.
Special Exceptions and Motion to Dismiss
In his fifth and seventh points of error, Kaminetzky argues that the trial court abused its discretion by granting PNB’s special exceptions and motion to dismiss. Specifically, he asserts that the special exceptions were vague and improper, and the motion to dismiss was not signed.
Special Exceptions
After Kaminetzky had filed his second amended bill of review, PNB filed its third set of special exceptions. PNB’s special exceptions alleged that Kaminetzky’s bill of review did not state an independent claim on which relief could be granted. The trial court sustained the special exceptions and dismissed all of Kaminetzky’s claims on June 6, 2003.
The controlling issue in a case in which the trial court sustains special exceptions and dismisses a cause of action following the plaintiff’s failure to amend properly is the propriety of the trial court’s ruling sustaining the special exceptions. Cole v. Hall, 864 S.W.2d 563, 566 (Tex. App.—Dallas 1993, writ denied); McCamey v. Kinnear, 484 S.W.2d 150, 152 (Tex. Civ. App.—Beaumont 1972, writ ref’d n.r.e.). An appellant who complains of the dismissal of a cause of action following the sustaining of special exceptions must first attack the trial court’s decision to sustain the special exceptions and then attack the court’s decision to dismiss the cause of action. Cole, 864 S.W.2d at 566.
When an appellant attacks a trial court’s order sustaining special exceptions and dismissing a cause of action, we review the pleading to determine whether the trial court abused its discretion in sustaining the special exceptions. Id.; Bader v. Cox, 701 S.W.2d 677, 686 (Tex. App.—Dallas 1985, writ ref’d n.r.e.). The test for abuse of discretion is whether the court acted without reference to any guiding rules and principles or whether the act was arbitrary and unreasonable. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1986). If the pleading does not state a cause of action, the trial court does not err in dismissing the entire case. Cole, 864 S.W.2d at 566; Hubler v. City of Corpus Christi, 564 S.W.2d 816, 820 (Tex. Civ. App.—Corpus Christi 1978, writ ref’d n.r.e.).
Kaminetzky asserts that the trial court abused its discretion in two ways when it granted PNB’s special exceptions. First, he argues that the special exceptions were vague. Second, he argues that PNB made a “bold assertion” and an improper objection when it pleaded that Kaminetzky’s actual pleading omitted elements. Kaminetzky does not assert that his pleadings state a claim on which relief can be granted or that the pleadings allege all of the elements of a bill of review cause of action. Other than the two arguments mentioned, Kaminetzky makes no other arguments on how the trial court erred in granting the special exceptions.
Because Kaminetzky attacks only the adequacy of PNB’s special exceptions, we limit our review to those special exceptions. After carefully reviewing PNB’s special exceptions, we conclude that the special exceptions were sufficient to properly alert Kaminetzky to the deficiencies in his amended bill of review. See Hefley v. Sentry Ins. Co., 131 S.W.3d 63, 65 (Tex. App.—San Antonio 2003, pet. denied). Specifically, the special exceptions detailed why each element of Kaminetzky’s bill of review lacked merit and did not state a claim. Accordingly, we conclude that the special exceptions were not vague—they were sufficient to alert Kaminetzky to the deficiencies in his bill of review.
Motion to Dismiss
In a related point, Kaminetzky argues in his seventh point of error that the trial court erred in granting PNB’s motion to dismiss because the motion did not have a signature page. Kaminetzky does not argue that he did not have notice of the special exceptions or motion to dismiss. Further, Kaminetzky provides no citation to the record where he made the trial court aware of his complaint before the trial court ruled on the motion to dismiss. See Tex. R. App. P. 33.1. PNB filed a supplemental clerk’s record with a signed copy of its special exceptions and motion to dismiss, including an explanation on why the original motion did not have a signature page. Accordingly, this point is without merit.
We overrule Kaminetzky’s fifth and seventh points of error.
Recusal
In his sixth point of error, Kaminetzky asserts that the trial judge erred by not recusing himself. Kaminetzky alleges that the trial judge was a material witness to an ex-parte communication and thus had to recuse himself pursuant to the Texas Rules of Civil Procedure. See Tex. R. Civ. P. 18b(2)(c).
To recuse a judge, any party may file a motion stating grounds why the judge before whom the case is pending should not sit in the case. Tex. R. Civ. P. 18a(a). The motion must be filed at least ten days before the date set for trial or other hearing, be verified, and state with particularity the grounds for recusal. Id. Before proceeding further in the case, the judge must either recuse himself or, if he declines recusal, request the presiding judge of the administrative judicial district to assign a judge to hear the motion. Tex. R. Civ. P. 18a(c), (d).
Kaminetzky has not cited to any place in the record where he filed a motion to recuse, and we do not find one. The trial judge was not obligated to recuse himself without a request to do so. Gill v. Tex. Dep’t of Criminal Justice, 3 S.W.3d 576, 579 (Tex. App.—Houston [1st Dist.] 1999, no pet.); Hall v. Treon, 39 S.W.3d 722, 723 (Tex. App.—Beaumont, 2001, no pet.). Without a motion to recuse and a ruling on it, there is nothing to review on appeal.
We overrule Kaminetzky’s sixth point of error.
Findings of Fact and Conclusions of Law
In his eighth point of error, Kaminetzky argues that the trial court abused its discretion in refusing to file findings of fact and conclusions of law. Specifically, Kaminetzky argues that rule 297 of the Texas Rules of Civil Procedure requires the trial court to file findings of fact and conclusions of law. See Tex. R. Civ. P. 297.
Although Kaminetzky relies on rule 297, the operative rule here is rule 296. See Tex. R. Civ. P. 296. Rule 296 provides: “In any case tried in the district or county court without a jury, any party may request the court to state in writing its findings of fact and conclusions of law.” Id. (Emphasis added). When no trial has occurred, the trial court is under no duty to file findings of fact and conclusions of law. Bruno’s v. Arty’s Imports, Inc., 119 S.W.3d 893, 900 n.2 (Tex. App.—Dallas 2003, no pet.); Kendrick v. Lynaugh, 804 S.W.2d 153, 156 (Tex. App.—Houston [14th Dist.] 1990, no pet.). Because no trial had occurred in Kaminetzky’s bill of review cause of action, the trial court had no duty to file findings of fact and conclusions of law. Id.
We overrule Kaminetzky’s eighth point of error.
Conclusion
We affirm the judgment of the trial court.
Evelyn V. Keyes
Justice
Panel consists of Justices Taft, Keyes, and Hanks.