Affirmed and Opinion filed July 11, 2002.
In The
Fourteenth Court of Appeals
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NO. 14-00-00095-CV
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BARBARA SMITH CHRISTLEY, INDEPENDENT EXECUTRIX
OF THE ESTATE OF CYRIL J. SMITH, DECEASED, Appellant
V.
LEASING ASSOCIATES, INC., Appellee
On Appeal from the
Probate Court No. 3Harris County, Texas
Trial Court Cause No. 181608-421
O P I N I O N
Barbara Smith Christley, Independent Executrix of the Estate of Cyril J. Smith, Deceased, (“Christley”)[1] appeals a summary judgment granted in favor of Leasing Associates, Inc. (“Leasing Associates”) on various grounds. We affirm.
Background
Cyril Smith, Sr. (“Senior”), the father of Cyril Smith, Jr. (“Junior”) and Christley, executed a power of attorney ( the “power of attorney”), appointing Junior his attorney-in-fact to facilitate management of his affairs. Leasing Associates leased vehicles and equipment to Junior’s corporation, Ware-Con Services Corporation (“Ware-Con”), and required Senior’s financial backing on the leases (the “leases”). Purporting to fulfill this requirement, Junior signed Senior’s name to a vehicle lease guaranty agreement dated October 6, 1981 and an equipment lease guaranty agreement dated February 25, 1982 (collectively, the “guaranties”) and returned them to Leasing Associates without disclosing that Junior had signed Senior’s name on them. In 1982, Senior himself executed a deed of trust on real property (the “deed of trust”) to further secure the leases. Senior died later that year, Ware-Con subsequently failed to pay the leases, and Leasing Associates sought recourse against Senior’s estate under the guaranties and deed of trust.
As pertinent to this appeal, Christley filed a declaratory judgment action in 1984 against Leasing Associates to declare its claims against her (as representative of Senior’s estate) invalid; Leasing Associates filed counterclaims (the “counterclaims”) against Christley for amounts due under the guaranties and for foreclosure of the deed of trust; and Christley generally denied the counterclaims and asserted various affirmative defenses to them.
At the trial in 1986, the jury found, among other things, that: (1) Senior lacked sufficient mental capacity when he executed the deed of trust; (2) Senior received no consideration for the deed of trust and guaranties; (3) Leasing Associates did not properly declare that the leases were in default; (4) Leasing Associates gave proper notice and demand for payment of the guaranties; (5) Ware-Con’s default under the lease agreements caused Leasing Associates $225,000 in actual damages; (6) Junior did not sign the guaranties with Senior’s permission; and (7) Junior did not sign the guaranties while exercising the authority granted to him under the power of attorney. In accordance with the jury’s verdict, the trial court entered a judgment (the “first judgment”) that, among other things, declared the guaranties and deed of trust void as to Senior and thus ordered that Leasing Associates take nothing against Christley.
Leasing Associates appealed the first judgment to this court (the “first appeal”). See Smith v. Christley, 755 S.W.2d 525, 531-33 (Tex. App.—Houston [14th Dist.] 1988, writ denied) (“our prior opinion”). Among other things, Leasing Associates challenged the findings of the jury, arguing that Junior executed the guaranties under the authority of the power of attorney, Junior had Senior’s permission to sign the guaranties, and Leasing Associates had properly declared the lease agreements to be in default. Although we sustained these points as a matter of law, we could not render judgment on them because Leasing Associates had preserved them only in its motion for new trial and thus sought only a remand. See id. at 533. In addition, we rendered judgment that Christley take nothing on her action to declare the guaranties and deed of trust invalid. Id. Accordingly, we reversed the portion of the first judgment declaring these instruments void and remanded the case on the following matters:
(1) whether Junior acted with Senior’s permission and under the power of attorney; and
(2) whether Leasing Associates properly declared the leases in default and (if so,) a determination of the damages caused by that default.
Id. We affirmed the remainder of the first judgment. Id.
Following our remand, the parties filed cross motions for summary judgment, and the trial court granted Leasing Associates’s motion and rendered judgment in 1999 (the “second judgment”)[2] awarding it recovery against Christley.
Standard of Review
A summary judgment may be granted if the motion and summary judgment evidence show that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law on the issues expressly set out in the motion or response. Tex. R. Civ. P. 166a(c); Jacobs v. Satterwhite, 65 S.W.3d 653, 655 (Tex. 2001). When both sides move for summary judgment and the trial court grants one motion and denies the other, the reviewing court should review both sides’ summary-judgment evidence, determine all questions presented, and render the judgment that the trial court should have rendered. Holy Cross Church of God in Christ v. Wolf, 44 S.W.3d 562, 566 (Tex. 2001). When reviewing a summary judgment, we take evidence as true, indulge every reasonable inference, and resolve any doubts, in favor of the nonmovant. Limestone Prods. Distribution v. McNamara, 71 S.W.3d 308, 311 (Tex. 2002).
Scope of First Appeal and Remand
Christley’s first issue asserts that the second judgment improperly dismisses her claims against Junior and James Foutch, another defendant, because neither Junior nor Foutch filed a motion for summary judgment. As outlined above, the issues to be determined on remand of this case following the first appeal were narrowly specified in our prior opinion. When an appeals court remands a case and its decision clearly limits the subsequent trial to a particular issue, the trial court is restricted on remand to a determination of that issue. Hudson v. Wakefield, 711 S.W.2d 628, 630 (Tex. 1986).[3] In this case, because our prior opinion was not overturned and the scope of its limited remand did not extend to Christley’s claims against Junior or Foutch, those claims were finally disposed of by the first judgment and first appeal and thus needed no further motion for summary judgment on remand. Accordingly, Christley’s first issue is overruled.
Christley’s second and third issues contend that: (1) Leasing Associates did not appeal the portion of the first judgment denying its claims against Christley because none of Leasing Associates’s points of error in the first appeal challenged that portion of the first judgment; (2) the second judgment was not authorized because Leasing Associates’s claims against Christley were determined by the first judgment, not appealed, and not included in the limited remand; and (3) on remand, Leasing Associates waived all claims for relief by dismissing its only remaining claims that were within the scope of remand, those against Junior. We disagree.
As noted above, Leasing Associates asserted counterclaims against Christley, Christley asserted affirmative defenses to those counterclaims, and the trial court entered a take-nothing judgment on those counterclaims in the first judgment. Page two of Leasing Associates’s brief in the first appeal plainly states, “Leasing Associates . . . bring[s] this appeal to complain of certain rulings of the Court and findings of the jury on Leasing Associate’s [sic] claims against the Estate of Cyril Smith, Sr. (through Barbara Christley as representative of the estate of her father).”
As reflected in our prior opinion, Leasing Associates’s points of error two through six, ten, twelve, and thirteen pertained to the enforceability of the documents that purported to bind Senior, i.e., whether: (1) Senior lacked mental capacity to execute the deed; (2) Junior signed the guaranties apart from the power of attorney and without Senior’s permission; (3) Senior received consideration for the deed of trust or guaranties; and (4) Leasing Associates failed to properly declare the leases in default. See Smith, 755 S.W.2d at 531-33. Of those points of error, we sustained numbers two (regarding whether Senior received consideration), five and six (regarding whether Junior acted with Senior’s permission and under the power of attorney), and thirteen (regarding whether Leasing Associates properly declared the leases to be in default). The first of our remand issues related specifically to Leasing Associates’s points five and six, and the second remand issue related specifically to its point thirteen.
In that our prior opinion rendered a take-nothing judgment against Christley’s claims for declaratory relief, the only relevance the remanded issues could have had as between Christley and Leasing Associates was as to Leasing Associates’s claims against Christley. Moreover, it is clear that the remand issues did not pertain to the liability of Ware-Con or Junior because they stemmed from Leasing Associates’s points of error, which raised no complaint regarding the liability of those parties (but only the amount of damages awarded against Junior).
Christley argues that the following sentence in our prior opinion shows that Leasing Associates assigned no error in the first appeal to the denial of its claims against Christley: “This rendition of judgment should not be construed to grant Leasing Associates affirmative relief on those instruments, however, since they had not sought such.” Smith, 755 S.W.2d at 533. However, this language does not mean that Leasing Associates assigned no error to the denial of its claims against Christley, but only that we could not render judgment in favor of Leasing Associates on the determinations we had made as a matter of law because Leasing Associates had preserved those points only by a motion for new trial. See id.[4] Therefore, we overrule issues two and three.
Christley’s fourth issue contends that she is not bound by the guaranties because: (1) Leasing Associates relied on forged signatures, not the power of attorney; (2) the statute of frauds bars Leasing Associates’s recovery; (3) the power of attorney does not authorize the guaranties; and (4) Senior received no consideration for the guaranties. Christley’s fifth and sixth issues assert that errors and dicta in our prior opinion are not binding and there is no evidence to dispose of Christley’s conspiracy claim. However, because these contentions are either directly contrary to our prior opinion or beyond the scope of the limited remand issues, and because Leasing Associates’s summary judgment response and cross motion indicated this to the trial court,[5] the contentions in Christley’s fourth through sixth issues were not properly before the trial court. Accordingly, they present nothing for our review and are overruled.
Prejudgment Interest
Christley’s seventh issue challenges the award of prejudgment interest in the second judgment. However, Christley has not cited, and we have not found, any portion of the record showing that these challenges were ever presented to the trial court.[6] Accordingly, the seventh issue presents nothing for our review and is overruled,[7] and the judgment of the trial court is affirmed.
/s/ Richard H. Edelman
Justice
Judgment rendered and Opinion filed July 11, 2002.
Panel consists of Justices Anderson, Fowler, and Edelman.
Do Not Publish — Tex. R. App. P. 47.3(b).
[1] Although Christley’s briefs in this case indicate that she is also an appellant: (1) individually, (2) as a beneficiary of the Estate of Cyril J. Smith, Deceased, and (3) as Independent Administratrix of the Estate of Martha Reeve Smith, Deceased, the judgment being appealed awards relief against Christley only in her capacity as Independent Executrix of the Estate of Cyril J. Smith, Deceased. See Tex. R. App. P. 25.1(b) (the filing of a notice of appeal by any party invokes the appellate court’s jurisdiction over all parties to the trial court’s judgment or order appealed from). Accordingly, unless otherwise indicated, references to Christley in this opinion will be only in that capacity.
[2] It is not apparent why the lawsuit was allowed to languish from 1988 to 1999.
[3] See Garcia v. Martinez, 988 S.W.2d 219, 221-22 (Tex. 1999) (holding that remand only as to the issue of the guardian ad litem’s fee did not overrule (or allow the trial court to disregard) the preceding judgment’s order that costs, including the ad litem fee, would be paid by the defendants pro rata); University of Tex. Sys. v. Harry, 948 S.W.2d 481, 482-83 (Tex. App.—El Paso 1997, no pet.) (holding that remand on issues of injury and course of employment did not allow trial court to submit jury question on incapacity, i.e., resulting from the injury); Lake v. Lake, 899 S.W.2d 737, 741 (Tex. App.—Dallas 1995, no writ.) (holding that remand for determination of amount of credit to be applied for payments received did not allow trial court to consider claim for attorney’s fees).
[4] See also Horrocks v. Tex. Dep’t of Transp., 852 S.W.2d 498, 499 (Tex. 1993) (holding that in reversing a judgment based on grounds raised only in a motion for new trial, appeals court may afford only such relief as trial court could have granted in response to the request presented to it, i.e., a new trial).
[5] See Estate of Stonecipher v. Estate of Butts, 686 S.W.2d 101, 103 (Tex. 1985) (holding that respondent waived complaint regarding limited scope of the remand by failing to raise it before trial court).
[6] See Tex. R. App. P. 33.1 (requiring complaint to be presented to trial court to preserve it for appellate review).
[7] Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 243 (Tex. 1985) (overruling challenge to award of prejudgment interest for failure to present complaint to trial court).