Affirmed in part, Reversed and Remanded in part and Memorandum Opinion filed November 24, 2009.
In The
Fourteenth Court of Appeals
___________________
NO. 14-07-00809-CV
___________________
Patrick William Keys, Appellant
V.
Litton Loan Servicing, L.P., Appellee
On Appeal from the 129th District Court
Harris County, Texas
Trial Court Cause No. 2006-40536
MEMORANDUM OPINION
In this longstanding property-foreclosure dispute, Patrick William Keys, pro se, appeals the final judgment in favor of Litton Loan Servicing, L.P., the loan servicer for an adjustable rate note on real property owned by Keys. We affirm the trial court in all respects with the limited exception of its granting of Litton’s “Motion for Summary Judgment as to Attorneys’ Fees.” Accordingly, we reverse and remand for further proceedings limited to the award of those attorneys’ fees.
I. Factual and Procedural Background
On November 30, 2001, appellant Patrick William Keys purchased a piece of real property in Harris County through a warranty deed with vendor’s lien. Financing for the purchase was by an adjustable rate note (hereinafter “the Note”) to WMC Mortgage Corp. secured by a Deed of Trust. WMC Mortgage Corp. subsequently assigned the Note to U.S. Bank, N.A. Appellee Litton Loan Servicing, L.P. (hereinafter “Litton”) is the servicer of the Note for U.S. Bank.
Keys, appearing pro se, and Litton were involved in litigation beginning in 2005 over the foreclosure of the property pursuant to U.S. Bank’s lien. That suit was resolved on May 24, 2006, by an agreed order of dismissal with prejudice (hereinafter “Agreed Order”) signed by both parties and the trial court. The most significant aspects of the Agreed Order required Keys to pay $140,000 by September 1, 2006 or otherwise acquiesce in the foreclosure of the property, and Litton agreed to provide a separate payoff statement and refrain from any credit reporting on Keys until September 1, 2006.
Keys, however, did not tender payment in the amount of $140,000 by September 1, 2006. Instead, Keys filed suit against Litton alleging the company had materially failed to comply with the Agreed Order, thereby excusing Keys’s own performance. Keys also requested a declaratory judgment that the Agreed Order was null and void and all rights, liens, and attachments held by Litton, serviced by Litton, or assigned to Litton for the real property were null and void. Litton responded by filing its own breach of contract counterclaim and declaratory-judgment action as well as an application for injunctive relief, and both parties moved for summary judgment.
On October 2, 2006, Keys filed for chapter 13 bankruptcy in federal court, which was dismissed on October 23, 2006. In the meantime, in state court, Keys filed another amended petition, adding a suit to quiet title claim and a negligence per se claim. The trial court eventually granted Litton summary judgment on Keys’s suit to quiet title claim; Keys non-suited his claim for negligence per se. On November 1, 2006, the trial court issued a very detailed interlocutory order, which, among other things, allowed Litton to enforce its lien with respect to the property in question and pursue its statutory and contractual remedies, including posting the property for foreclosure sale in accordance with the Deed of Trust.
Keys then filed his fourth amended petition, adding claims for statutory and common-law fraud. The trial court eventually granted Litton summary judgment on these claims. The property was sold to U.S. Bank, N.A. at a foreclosure sale, but the litigation continued largely unabated. Keys filed his fifth amended petition, adding yet more new claims, and adding U.S. Bank, N.A. as a party. Keys also sued his opposing counsel, the Leyh & Payne, L.L.P. law firm, attorney Steven A. Leyh, attorney John Barnes, and substitute trustee J. Robert MacNaughton. Litton moved to strike Keys’s fifth amended petition, and the trial court granted the motion.
On April 19, 2007, Litton filed a motion for summary judgment on attorneys’ fees. On August 21, 2007, in a final judgment, the trial court granted Litton’s motion for summary judgment on attorneys’ fees and awarded attorneys’ fees in the amount of $35,977.83.
Keys now challenges (1) the trial court’s treatment of the Agreed Order of May 24, 2006, (2) the order of November 1, 2006, granting summary judgment on Litton’s breach of contract counterclaim, (3) the order of April 9, 2007, granting summary judgment on Keys’s fraud claim, (4) the order of August 21, 2007, granting summary judgment on Litton’s attorneys’ fees, and (5) the order of February 19, 2007, granting Litton’s motion to strike Keys’s fifth amended petition.
II. Analysis
A. Legal Effect of Agreed Order
In his first issue, Keys contends the trial court erred by ignoring the legal effect of the Agreed Order in the prior lawsuit. Specifically, Keys raises several reasons why he claims the Agreed Order extinguished any claims U.S. Bank or Litton had on the Note and Deed of Trust.
Even if we view the Agreed Order to Dismiss with Prejudice as an agreed judgment, as Keys contends we should, an agreed judgment may be interpreted in the same manner as a contract. Gulf Ins. Co. v. Burns Motors, Inc., 22 S.W.3d 417, 422 (Tex. 2000); St. Raphael Med. Clinic, Inc. v. Mint Med. Physician Staffing, LP, 244 S.W.3d 436, 439 (Tex. App.—Houston [1st Dist.] 2007, no pet.). Ordinary principles of contract law require us to determine the true intent of the parties as expressed in the Agreed Order. Anzilotti v. Gene D. Liggin, Inc., 899 S.W.2d 264, 267 (Tex. App.—Houston [14th Dist.] 1995, no writ) (reviewing agreed order to arbitrate under contract principles). Whether a contract is ambiguous is a question of law for the court to decide by looking at the contract as a whole in light of the circumstances present when the contract was entered. Stewart Title Guar. Co. v. Aiello, 941 S.W.2d 68, 73-74 (Tex. 1997) (stating in context of agreed judgment). A contract that can be given a definite or certain legal meaning is not ambiguous. Id. at 74.
Here, the Agreed Order is not ambiguous. It states, in relevant part, that Keys is to tender $140,000 to Litton on or before September 1, 2006. In the event Keys did not tender the $140,000 by September 1, 2006, Litton was authorized to enforce its lien and pursue its statutory and contractual remedies, including those necessary to recover its interest in and gain possession of the real property without further delay. This action included posting the property for the October 2006 foreclosure sale and foreclosing its lien in accordance with its Deed of Trust and applicable law.
It is undisputed that Keys did not tender $140,000 to Litton by September 1, 2006. Therefore, under the terms of the Agreed Order, Litton was authorized to enforce its lien and pursue its statutory and contractual remedies. Nowhere does the Agreed Order state that this agreement extinguished the lien under the Note and Deed of Trust in the event Keys defaulted on the payment of the $140,000. In fact, the Agreed Order states just the opposite.[1]
Keys also raises the contract principles of accord and satisfaction and novation under this issue. The Agreed Order may have been an accord and satisfaction of the Note, as Keys asserts, if he had paid the amount due. See Jenkins v. Henry C. Beck Co., 449 S.W.2d 454, 455 (Tex. 1969) (describing an accord and satisfaction as a contractual modification that rests upon a new contract in which the parties agree to discharge the existing obligation by means of a lesser payment tendered and accepted). He did not, however, and, under the Agreed Order, Litton was then entitled to enforce its lien and pursue its statutory and contractual remedies. Likewise, even if the Agreed Order is treated as a novation, as Keys suggests, the purported new agreement did not extinguish the previous obligation in the event of non-payment. See Mandell v. Hamman Oil & Ref. Co., 822 S.W.2d 153, 163 (Tex. App.—Houston [1st Dist.] 1991, writ denied) (stating that a novation consists of (1) a valid previous obligation, (2) an agreement among all parties to accept a new contract, (3) the extinguishment of the previous obligation, and (4) a valid new agreement), abrogated on other grounds by Coastal Oil & Gas Corp. v. Garza Energy Trust, 268 S.W.3d 1 (Tex. 2008).
In Keys’s seventh, ninth, and tenth sub-issues, he references a lis pendens notice of the lawsuit, preservation of title issues, and facts arising out of another case not part of this appeal, respectively. While he cites to both the record and authority under these sub-issues, he fails to make any arguments on these sub-issues. Where a party fails to support an issue with argument, he waives any error on appeal. Lundy v. Masson, 260 S.W.3d 482, 503 (Tex. App.—Houston [14th Dist.] 2008, pet. denied). Therefore, Keys has failed to adequately brief these sub-issues on appeal and, in doing so, waived error.[2] See Tex. R. App. P. 38.1(i) (“The brief must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record.”).
Accordingly, we overrule Keys’s first issue.
B. Summary Judgment
In issues two, three, and four, Keys contends the trial court erred by granting summary judgment on Litton’s breach of contract counterclaim and attorneys’ fees claim and on Keys’s fraud claim.
1. Summary Judgment on Litton’s Breach of Contract Counterclaim
In his second issue, Keys contends the trial court erred by granting summary judgment on Litton’s breach of contract counterclaim. Specifically, Keys asserts that Litton violated the Agreed Order by continuing to report Keys’s credit and by failing to provide Keys with a separate payoff statement as required in the Agreed Order.[3] Keys concludes, then, that because Litton failed to adhere to the Agreed Order, Litton could not enforce the Agreed Order against Keys.[4]
We review a summary judgment de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). A counter-plaintiff who moves for summary judgment must conclusively establish all of the elements of its cause of action as a matter of law. See Tex. R. Civ. P. 166a(a), (c). We take all evidence favorable to the nonmovant as true and indulge every reasonable inference and resolve any doubts in favor of the nonmovant. Valence Operating Co., 164 S.W.3d at 661. If, as here, the nonmovant relies on an affirmative defense to oppose the summary-judgment motion, he must provide sufficient summary-judgment evidence to create a fact issue on each element of the defense. See Brownlee v. Brownlee, 665 S.W.2d 111, 112 (Tex. 1984); Tello v. Bank One, N.A., 218 S.W.3d 109, 114 (Tex. App.—Houston [14th Dist.] 2007, no pet.).
In his response to the motion, Keys did not contest that he had breached the Agreed Order; rather, he argued that Litton had also materially breached the Agreed Order, thereby making the order unenforceable. Keys’s contention that Litton materially breached the Agreed Order is an affirmative defense. See Compass Bank v. MFP Servs., Inc., 152 S.W.3d 844, 852 (Tex. App.—Dallas 2005, pet. denied). Even if Keys can raise such an affirmative defense in this circumstance,[5] Keys must raise a fact issue as to each element of his affirmative defense. See Brownlee, 665 S.W.2d at 112.
A party breaches a contract when it neglects or refuses to perform a contractual obligation. Mays v. Pierce, 203 S.W.3d 564, 575 (Tex. App.—Houston [14th Dist.] 2006, pet. denied). If the breach is material, the other party is excused from further performance of the contract. See Hernandez v. Gulf Group Lloyds, 875 S.W.2d 691, 692 (Tex.1994).
In response to the motion for summary judgment, Keys put forth an affidavit from a mortgage broker stating that (1) she saw credit reporting by Litton Loan Servicing, L.P. about Keys that she obtained on or about June 29, 2006; (2) the credit reporting by Litton included serious derogatory credit reporting, including foreclosure activity; and (3) she was unable to process a request to refinance a mortgage for Keys based on the credit reporting that she saw on or about June 29, 2006. Keys also submitted his own affidavit stating, in pertinent part, that he believed Litton had engaged in negative credit reporting, and he attached a report from Experian, a credit agency. Under “Status,” the report indicated foreclosure proceedings had started with a past due amount as of February 2005. The account history showed the last foreclosure proceeding started as of December 2004 to February 2005. The creditor’s statement was: “Foreclosure proceedings started.” The report then states that “This item was verified on Jun [sic] 2006 and remained unchanged.”
The Agreed Order stated that “Litton Loan Servicing shall not report any credit reporting on Keys until September 1, 2006.” Contrary to Keys’s contention, the Agreed Order does not state that Litton was required to contact crediting services to remove any prior credit reporting from their records. The Experian report shows that Litton last reported on Keys’s credit in February 2005, prior to the Agreed Order. Litton’s summary-judgment evidence included an affidavit from a custodian of records for Keys’s loan stating that Litton had checked its system records and the comments logs attached to Keys’s loan account and there was no record of either (a) any communication received from Experian or any other credit bureau concerning Keys after February 2006; and/or (b) any communication sent by Litton to Experian or any other credit bureau after the response to the February 2006 communication from Experian, which was transmitted to Experian on March 10, 2006, all prior to the Agreed Order.[6]
The only evidence of activity after the Agreed Order was signed is the notation on the Experian report that the report was verified in June 2006. First, the Agreed Order states that Litton shall not “report” any credit reporting on Keys. Keys’s summary-judgment evidence does not raise a fact issue that Litton reported any credit reporting on Keys after the Agreed Order. Second, even if Litton verified the information already on Experian’s report and a verification constituted a breach of the Agreed Order, Keys’s summary-judgment evidence does not raise a fact issue that the verification itself was the cause of any damages rather than what was already on his report. See Frost Nat’l Bank v. Burge, 29 S.W.3d 580, 593 (Tex. App.—Houston [14th Dist.] 2000, no pet.) (stating elements of breach of contract claim include whether party was damaged as a result of breach).
Therefore, Keys’s second issue is overruled.
2. Summary Judgment on Keys’s Fraud Claim
In his third issue, Keys contends the trial court erred by granting summary judgment on his fraud claim. Specifically, Keys asserts (1) the trial court’s order is “tantamount to a dismissal for want of prosecution”; (2) the dismissal “with prejudice” was in error; and (3) assuming the order granted a partial summary judgment on his fraud claim, fact issues exist.
The trial court’s order of April 9, 2007, states that “Defendant’s Second Supplement to its Supplemental Motion for Summary Judgment and Supplemental Motion for Sanctions for Frivolous Pleading . . . is meritorious and should be in all things granted.” There is an asterisk after this statement with a note at the bottom of the order stating, “The Court waited one (1) hour for plaintiff, Mr. Keys, to appear or otherwise contact the Court, but he did not do so. No response or opposition to the Motion was filed.” In the body of the order, the trial court dismissed Keys’s common-law fraud and statutory fraud claims with prejudice.
Keys’s argument that this order is tantamount to a dismissal for want of prosecution is without merit. The order states that Litton’s motion for summary judgment is granted. It says nothing about dismissing for want of prosecution.[7] Furthermore, to the extent that “dismissal” language is appropriate in an order granting summary judgment at all, summary judgment necessarily entails dismissal with prejudice. See Hyundai Motor Co. v. Alvarado, 892 S.W.2d 853, 854 (Tex. 1995) (per curiam).
While Keys’s argument is not entirely clear, he seems to contend the trial court also erred by granting summary judgment on his fraud claim because evidence shows Litton signed the Agreed Order but then continued to pursue its claims under the Note and Deed of Trust.
A traditional summary judgment may be granted if the motion and summary-judgment evidence establish there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c). Summary judgment for a defendant is proper when the defendant negates at least one element of each of the plaintiff’s theories of recovery, or pleads and conclusively establishes each element of an affirmative defense. Sci. Spectrum, Inc. v. Martinez, 940 S.W.2d 910, 911 (Tex. 1997).
A fraud cause of action requires a party to establish that (1) a material representation was made, (2) the representation was false, (3) when the speaker made the representation, he knew it was false or made it recklessly without knowledge of the truth and as a positive assertion, (4) the speaker made it with the intention that it should be acted upon by the party, (5) the party acted in reliance upon it, and (6) the party thereby suffered injury. Lundy, 260 S.W.3d at 492. The elements of statutory fraud are essentially identical to the elements of common-law fraud, except that statutory fraud under Texas Business and Commerce Code section 27.01 does not require proof of knowledge or recklessness as a prerequisite to recovery of actual damages. Tex. Bus. & Com. Code Ann. § 27.01 (Vernon 2009). Keys does not present evidence raising a genuine issue of material fact as to whether a false representation was made. To the contrary, the Agreed Order that he presents as evidence explicitly states that in the event Keys did not pay the $140,000 by September 1, 2006, Litton could enforce its lien and pursue its statutory and contractual remedies, including foreclosure under the Deed of Trust.
Therefore, Keys’s third issue is overruled.
3. Summary Judgment on Litton’s Attorneys’ Fees Claim
In his fourth issue, Keys contends the trial court erred by granting Litton’s motion for summary judgment on attorneys’ fees when Litton was not entitled to attorneys’ fees and did not segregate the fees.[8]
a. Entitlement to Attorneys’ Fees
Keys contends the trial court erred by granting the motion for summary judgment on attorneys’ fees because there is no legal basis for an award of fees.
Keys filed claims for breach of contract, declaratory judgment, negligence per se, suit to quiet title, and fraud. Litton counterclaimed for breach of contract and declaratory judgment. The trial court granted Litton’s motion for summary judgment on its breach of contract counterclaim save and except for the required element of damages. With regard to damages, the trial court found a fact question existed as to the reasonableness and necessity of Litton’s alleged attorneys’ fees and sustained Keys’s objection to Litton’s attorneys’ fees evidence for failing to segregate the fees between Litton’s defense against Keys’s claims and its prosecution of its various counterclaims. Rather than seeking attorneys’ fees as direct damages for breach of the Agreed Order, Litton later pursued attorneys’ fees in a motion for summary judgment under Texas Civil Practice & Remedies Code sections 37.009 and 38.001.[9]
Texas law does not allow the recovery of attorneys’ fees unless they are authorized by statute or contract. Tony Gullo Motor I, L.P. v. Chapa, 212 S.W.3d 299, 310 (Tex. 2006). Section 38.001 of the Civil Practice and Remedies Code provides that a successful party in a breach of contract action may recover reasonable attorneys’ fees. Tex. Civ. Prac. & Rem. Code Ann. § 38.001(8) (Vernon 2008). A party may not recover attorneys’ fees on a breach of contract claim when that party fails to recover damages. Mustang Pipeline Co. v. Driver Pipeline Co., 134 S.W.3d 195, 201 (Tex. 2004); Green Int’l Inc. v. Solis, 951 S.W.2d 384, 390 (Tex. 1997).
Here, the trial court expressly granted Litton’s motion for summary judgment on its breach of contract counterclaim save and except for the required element of damages. Litton’s motion for summary judgment on attorneys’ fees sought fees under the provisions of the Texas Civil Practice & Remedies Code, not as direct damages as a result of the breach of the Agreed Order. Because Litton had not recovered damages on its breach of contract counterclaim, it could not recover the attorneys’ fees pursuant to Texas Civil Practice & Remedies Code section 38.001. See Kenneth Leventhal & Co. v. Reeves, 978 S.W.2d 253, 257–58 (Tex. App.—Houston [14th Dist.] 1998, no pet.).
Litton also sought attorneys’ fees in its motion for summary judgment under section 37.009 of the Texas Civil Practice & Remedies Code. Under section 37.009, “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 (Vernon 2008). Although not entirely clear, Keys apparently contends that Litton was not entitled to attorneys’ fees under section 37.009 because the declaratory judgment duplicated the relief already sought under Litton’s breach of contract counterclaim. However, the declaratory judgment sought a declaration that U.S. Bank was the holder of a valid, enforceable first lien on the Property, there was an amount due and owing on the Note, and Litton could enforce the lien on Keys’s property by proceeding on the foreclosure. In contrast, Litton’s breach of contract counterclaim asserted Keys breached the Agreed Order by bringing suit and Litton was entitled to sue and recover damages, namely attorneys’ fees. Keys’s argument that Litton could not pursue attorneys’ fees under section 37.009 is without merit.
We next consider whether Litton was required to segregate its attorneys’ fees.
b. Segregating Attorneys’ Fees
Keys argues that Litton was required to segregate attorneys’ fees between claims. Litton contends the attorneys’ fees it sought in its motion for summary judgment on attorneys’ fees do not require segregation because the claims, defenses, and counterclaims were based on the same set of facts and circumstances.
Generally, a party seeking attorneys’ fees must segregate fees incurred in connection with a claim that allows their recovery from fees incurred in connection with a claim for which no such recovery is allowed. See Chapa, 212 S.W.3d at 313–14. Both in its motion for summary judgment and on appeal, Litton cites to Stewart Title Guaranty Co. v. Sterling for the proposition that when claims are dependent upon the same set of facts or circumstances and thus are “intertwined to the point of being inseparable,” segregating attorneys’ fees is not required. See Stewart Title Guar. Co. v. Sterling, 822 S.W.2d 1, 11–12 (Tex. 1991). However, the Texas Supreme Court modified Sterling in Tony Gullo Motors I, L.P. v. Chapa. 212 S.W.3d at 313-14.
In Chapa, the Texas Supreme Court clarified that intertwined facts alone are insufficient to excuse the failure to segregate. Id. at 313. The Court expressly disavowed the prior rule that suggested a common set of underlying facts necessarily makes all claims arising from those facts “inseparable” and thus all legal fees recoverable. Id. at 313–14. It is only when discrete legal services advance both a claim for which fees are recoverable and a claim for which fees are unrecoverable that fees need not be segregated. Id.
However, if any attorneys’ fees relate solely to a claim for which attorneys’ fees are unrecoverable, a claimant must segregate recoverable from unrecoverable fees. Id. at 313. The evidence of the amount of recoverable attorneys’ fees is sufficiently segregated if, for example, the attorney testifies that a given percentage of the drafting time would have been necessary even if the claim for which attorneys’ fees are not recoverable had not been asserted. See id. at 314. The party seeking to recover attorneys’ fees bears the burden of demonstrating segregation is not required. CA Partners v. Spears, 274 S.W.3d 51, 82 (Tex. App.—Houston [14th Dist.] 2008, pet. denied).
We conclude that Litton did not meet its burden under Chapa of showing it was not required to segregate attorneys’ fees. Litton, however, did not forfeit its right to recover attorneys’ fees by failing to segregate them. See 7979 Airport Garage, L.L.C. v. Dollar Rent A Car Sys., Inc., 245 S.W.3d 488, 510 (Tex. App.—Houston [14th Dist.] 2007, pet. denied). The evidence it presented regarding the total amount of attorneys’ fees it incurred is some evidence of what the segregated amount should be. Id. Therefore, we sustain Keys’s fourth issue with regard to segregating attorneys’ fees, reverse that portion of the judgment granting the motion for summary judgment on attorneys’ fees, sever that portion of the judgment, and remand this issue for a new trial on attorneys’ fees. As a result of our disposition of this issue, we do not reach the question of whether the attorneys’ fees were reasonable.
C. Keys’s Attempt to Amend His Petition
In his fifth issue, Keys argues that the trial court erred in striking his fifth amended petition.
The trial court’s docket-control order of November 20, 2006, gave the parties until January 21, 2007, to amend their pleadings. Keys filed a fifth amended petition and request for injunctive relief on February 7, 2007. He sought to add U.S. Bank, N.A., the law firm Leyh & Payne, L.L.P., attorneys Steven A. Leyh and John Barnes, and substitute trustee J. Robert MacNaughton as defendants. In addition, he added claims for trespass to try title against U.S. Bank for foreclosing on the property and tortious interference and conspiracy against the three individuals. Litton filed a motion to strike this petition, citing untimeliness and a “rehashing” of the issues already decided by the trial court. The trial court granted the motion to strike Keys’s fifth amended petition.[10]
We review a trial court’s refusal to allow an amendment to the pleadings for an abuse of discretion. See Greenhalgh v. Serv. Lloyds Ins. Co., 787 S.W.2d 938, 939 (Tex. 1990). We also review a trial court’s enforcement of a scheduling order for an abuse of discretion. G.R.A.V.I.T.Y. Enter., Inc. v. Reece Supply Co., 177 S.W.3d 537, 542-44 (Tex. App.—Dallas 2005, no pet.). We will not reverse a trial court’s judgment for abuse of discretion unless the trial court acted in an arbitrary manner, without reference to any guiding rules or principles. Walker v. Gutierrez, 111 S.W.3d 56, 62 (Tex. 2003). It must be clear from the record that the trial court could have reached only one contrary decision. In re Nitla S.A. de C.V., 92 S.W.3d 419, 422 (Tex. 2002).
“Parties may amend their pleadings . . . by filing such pleas with the clerk at such time as not to operate as a surprise to the opposite party; provided, that any pleadings . . . offered for filing . . . after such time as may be ordered by the judge under Rule 166, shall be filed only after leave of the judge is obtained, which leave shall be granted by the judge unless there is a showing that such filing will operate as a surprise to the opposite party.” Tex. R. Civ. P. 63. Texas Rule of Civil Procedure 166 authorizes the trial court to enter various pre-trial orders including one for a cut-off date on amendments to pleadings. Tex. R. Civ. P. 166. Even where leave of court is required to file an amended pleading, the trial court may not refuse an amended pleading unless: (1) the opposing party presents evidence of surprise or prejudice; or (2) the amendment asserts a new cause of action or defense and thus is prejudicial on its face and the opposing party objects to the amendment. Greenhalgh, 787 S.W.2d at 939. A trial court’s refusal to allow an amendment to pleadings will not be disturbed on appeal unless the complaining party demonstrates a clear abuse of discretion. NCS Mgmt. Corp. v. Sterling Collision Ctrs., Inc., 108 S.W.3d 534, 536 (Tex. App.—Houston [14th Dist.] 2003, pet. denied).
Here, Keys did not seek leave of court to file his fifth amended petition after the deadline for amended pleadings. The amendment added new causes of action against new parties. It was not unreasonable for the trial court to call a halt to an ever-spiraling cycle of litigation. We do not find it clear from the record that the trial court could have reached only one contrary decision. Therefore, the trial court did not abuse its discretion in granting the motion to strike Keys’s fifth amended petition. We overrule Keys’s fifth issue.
D. Keys’s Request for Sanctions
In his sixth issue, Keys asks this Court to sanction Litton’s attorneys for allegedly failing to disclose certain matters in the Substitute Trustee’s Deed (filed with the official real property records), Notice of Dismissal of Lawsuits as to Lis Pendens (filed with the official real property records), and the petition for forcible entry and detainer filed in another court. Keys cites Texas Rule of Civil Procedure 13 and Texas Rule of Appellate Procedure 52.11 in support of appellate sanctions. Texas Rule of Civil Procedure 13 allows a trial court to sanction attorneys who sign pleadings, motions, or other papers that are both groundless and either brought in bad faith or for the purpose of harassment. Tex. R. Civ. P. 13; see also Tex. R. Civ. P. 2 (stating rules of civil procedure shall govern procedure in justice, county, and district courts). Texas Rule of Appellate Procedure 52.11 allows sanction awards in original proceedings. See Tex. R. App. P. 52.11. Keys has not cited proper grounds or authority for this Court to grant appellate sanctions in this case. Therefore, we overrule Keys’s sixth issue.
III. Conclusion
We affirm the judgment of the trial court in all respects except as to the granting of Litton’s “Motion for Summary Judgment as to Attorneys’ Fees.” As to the award of those attorneys’ fees, we reverse and remand this case to the trial court for further proceedings not inconsistent with this opinion.
/s/ Kent C. Sullivan
Justice
Panel consists of Chief Justice Hedges, and Justices Yates and Sullivan.
[1] Consequently, Keys’s following sub-issues are without merit: (1) that any counterclaims Litton had arising out of the Note and the Deed of Trust were compulsory counterclaims of the original lawsuit and the Agreed Order extinguished the right to bring suit on the transaction out of which the action arose; (2) that res judicata barred claims arising out of the same subject matter of the prior suit; (3) that the Deed of Trust no longer exists because the trial court did not attach a copy of it to the Agreed Order; and (4) that the trial court lacked subject-matter jurisdiction on claims arising from the Note and Deed of Trust because that transaction was permanently extinguished upon dismissal with prejudice.
[2] Keys’s eleventh sub-issue is a paragraph setting out various standards of review.
[3] Keys did not raise the issue of Litton’s failure to provide him with a separate payoff statement in the response to the motion for summary judgment. “Issues not expressly presented to the trial court by written motion, answer or other response shall not be considered on appeal as grounds for reversal.” Tex. R. Civ. P. 166a(c).
[4] Keys mentions promissory estoppel, but fails to set forth the elements or how it applies in this case. In addition, within his second issue, Keys states that the trial court erred by granting a declaratory judgment in favor of Litton, but does not argue why it was error. As a result, these sub-issues are waived. Tex. R. App. P. 38.1(i); Lundy, 260 S.W.3d at 503.
[5] If we view the Agreed Order as an agreed judgment, some courts have held that parties to an agreed judgment may not raise affirmative contractual defenses, including breach of the other party to excuse performance, when doing so will abrogate the terms and obligations of the judgment. See Spradley v. Hutchison, 787 S.W.2d 214, 219–220 (Tex. App.—Fort Worth 1990, writ denied) (noting split in courts of appeals over this issue).
[6] The record does not include Exhibit B, which is apparently an affidavit attached to Litton’s response and objection to Keys’s motion for summary judgment and incorporated in its own motion for summary judgment. The parties do not contend the affidavit is essential to the disposition of this issue. If the pertinent summary-judgment evidence considered by the trial court is not in the appellate record, we presume the omitted evidence supports the trial court’s judgment. See Enter. Leasing Co. v. Barrios, 156 S.W.3d 547, 550 (Tex. 2004). Therefore, we presume the affidavit listed as Exhibit B supports the summary judgment in favor of Litton.
[7] To the extent Keys claims he did not receive notice of the summary-judgment hearing, the record contains a notice of hearing.
[8] Keys also asserts the trial court erred by granting summary judgment on Litton’s declaratory-judgment counterclaim, which included approximately $50,000 in attorneys’ fees due under the Note. In his brief, Keys states that the trial court erred because these attorneys’ fees were based entirely on Litton’s own payoff statement. However, Keys makes no argument about this alleged error. Where a party fails to support an issue with argument, he waives any error on appeal. Lundy, 260 S.W.3d at 503. In addition, Keys asserts Litton is not entitled to these fees because the Agreed Order extinguished the Note and Deed of Trust. As previously discussed in issue one, this argument is without merit. Consequently, we remand for further proceedings only the attorneys’ fees sought by Litton in its “Motion for Summary Judgment as to Attorneys’ Fees.”
[9] Litton also cited Texas Rule of Civil Procedure 13 as a basis for its attorneys’ fees; however, the trial court did not impose attorneys’ fees as sanctions against Keys, and Litton does not contend it did.
[10] On July 19, 2007, Keys filed a motion for leave of court to amend his pleadings, claiming he received no notice of the filing of Litton’s motion to strike and stating the added claims were necessary for the proper and complete adjudication of the case. The trial court denied Keys’s motion for leave of court to amend his petition to include the claim of “trespass to try title” against U.S. Bank, N.A. Keys does not challenge the trial court’s denial of his motion for leave to amend his sixth amended petition, only its granting of the motion to strike his fifth amended petition.