Frontier Logistics, L.P., FLPCW, L.P., George Cook, Glenn Wiseman, James Madler and Christy Fulton v. National Property Holdings, L.P., Michael Plank and Russell Plank

Motions for Rehearing Denied; Reversed and Rendered; Opinion filed April
18, 2013 Withdrawn, and Substitute Opinion filed October 17, 2013.

In The

Fourteenth Court of Appeals

NO. 14-11-00357-CV

FRONTIER LOGISTICS, L.P., FLPCW, L.P., GEORGE COOK, GLENN
WISEMAN, JAMES MADLER, AND CHRISTY FULTON, Appellants
V.

NATIONAL PROPERTY HOLDINGS, L.P., MICHAEL PLANK, AND
RUSSELL PLANK, Appellees

On Appeal from the 269th District Court
Harris County, Texas
Trial Court Cause No. 2008-36847A

1
SUBSTITUTE OPINION
A real estate developer sued two individuals and a limited partnership
asserting various claims. The defendants filed third-party claims against various
third-party defendants seeking defense and indemnity based upon an agreement to

1
We deny the appellees’ motion for rehearing and the appellants’ motion for rehearing. We
withdraw the opinion issued in this case on April 18, 2013, and issue this substitute opinion.
which the third-party plaintiffs and the third-party defendants are parties. The trial
court granted summary judgment in favor of the third-party plaintiffs and denied in
part the summary-judgment motion filed by the third-party defendants. The trial
court concluded that most of the claims asserted by the real estate developer
against the defendants were within the scope of the indemnity provision. After
severing the third-party claims from the rest of the lawsuit, the trial court
conducted a bench trial on damages and attorney’s fees and rendered a money
judgment in favor of the third-party plaintiffs. On appeal, we conclude as a matter
of law that the claims asserted against the third-party plaintiffs do not fall within
the scope of the indemnity provision under the agreement’s unambiguous
language. Accordingly, we reverse the trial court’s judgment and render judgment
that the third-party plaintiffs take nothing against the third-party defendants.

I. FACTUAL AND PROCEDURAL BACKGROUND
On March 17, 2008, appellees/third-party plaintiffs National Property
Holdings, L.P., Michael Plank, and Russell Plank (collectively, the ―Plank
Parties‖), appellants/third-party defendants Frontier Logistics, L.P., FLPCW, L.P.,
George Cook, Glenn Wiseman, James Madler, and Christy Fulton (collectively, the
―Frontier Parties‖), and others entered into a Settlement Agreement and Release
(―Settlement Agreement‖). Gordon Westergren was not a party to the Settlement
Agreement. In the Settlement Agreement, the Frontier Parties promised to
indemnify, defend, and hold harmless National Property Holdings, L.P. (―National
Property‖) and other entities from and against certain claims and other matters.2

Three months after the execution of the Settlement Agreement, Gordon
Westergren filed a lawsuit against the Plank Parties, asserting various claims for
breach of contract and torts and seeking a money judgment. The Plank Parties

2
The language and scope of this provision are addressed in the analysis section below.

2
demanded defense and indemnity from the Frontier Parties. After the Frontier
Parties refused this demand, the Plank Parties asserted third-party claims for
defense and indemnity against the Frontier Parties based only upon the Settlement
Agreement’s indemnity provision (the ―Indemnity Provision‖). The Plank Parties
alleged that they are indemnitees under this provision and that the claims asserted
by Westergren against them fall within its scope. The Plank Parties sought
indemnity for any sums that they might be compelled to pay Westergren based on
his claims, as well as the costs of defending against Westergren’s claims and
attorney’s fees and costs for the prosecution of the third-party claims. The Frontier
Parties filed counterclaims in which they sought, among other things, to recover
their costs and reasonable and necessary attorney’s fees under a prevailing-party
provision in the Settlement Agreement, if they were to prevail in their defense
against the Plank Parties’ claims.
The Frontier Parties filed a motion for summary judgment seeking a
judgment that the Plank Parties take nothing on their third-party claims. The
Frontier Parties asserted that, under the unambiguous language of the Settlement
Agreement, Westergren’s claims do not fall within the scope of that agreement’s
Indemnity Provision. The trial court granted this motion in part, ruling that the
Plank Parties are not entitled to defense and indemnity as to Westergren’s claim
against the Plank Parties based upon their failure to pay $1 million, but the trial
court denied the motion as to all of Westergren’s other claims.

The Plank Parties moved for summary judgment that, under the
unambiguous language of the Settlement Agreement, the Frontier Parties owe the
Plank Parties a defense and indemnity as to all of Westergren’s claims except his
claim against the Plank Parties based upon their failure to pay $1 million. The trial
court granted this summary-judgment motion.

3
 A jury trial on the claims between Westergren and the Plank Parties began
on September 13, 2010. Effective that same day and pursuant to an agreement
between the Plank Parties and the Frontier Parties, the trial court severed the third-
party claims into a separate case. In December 2010, the trial court rendered
judgment in the unsevered case that Westergren take nothing against the Plank
Parties and that the Plank Parties take nothing against Westergren.3

On March 24, 2011, the trial court conducted a bench trial in the severed
case regarding the Plank Parties’ damages. The trial court rendered judgment that
the Plank Parties recover the following amounts from the Frontier Parties: (1)
$925,076 for reasonable attorney’s fees, expert-witness fees, and expenses relating
to the Plank Parties’ defense of Westergren’s claims; (2) $364,351 for reasonable
attorney’s fees and costs for the prosecution of the third-party claims by the Plank
Parties, (3) conditional awards of appellate attorney’s fees, and (4) prejudgment
and postjudgment interest. Under the judgment, the trial court denied the Frontier
Parties the relief they requested in their counterclaims. The Frontier Parties have
appealed. The Plank Parties have not appealed.

II. STANDARD OF REVIEW
In a traditional motion for summary judgment, if the movant’s motion and
summary-judgment evidence facially establish its right to judgment as a matter of
law, the burden shifts to the nonmovant to raise a genuine, material fact issue
sufficient to defeat summary judgment. M.D. Anderson Hosp. & Tumor Inst. v.
Willrich, 28 S.W.3d 22, 23 (Tex. 2000). In our de novo review of a trial court’s
summary judgment, we consider all the evidence in the light most favorable to the

3
Westergren and the Plank Parties appealed from that judgment, and those appeals have been
decided by this court in a separate, consolidated case. See Westergren v. National Property
Holdings, L.P., Nos. 14-11-00058-CV, 14-11-00229-CV,—S.W.3d—,—, 2013 WL 4857689, at
*26 (Tex. App.—Houston [14th Dist.] June 28, 2013, pet. filed).

4
nonmovant, crediting evidence favorable to the nonmovant if reasonable jurors
could, and disregarding contrary evidence unless reasonable jurors could not.
Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006). The evidence
raises a genuine issue of fact if reasonable and fair-minded jurors could differ in
their conclusions in light of all of the summary-judgment evidence. Goodyear Tire
& Rubber Co. v. Mayes, 236 S.W.3d 754, 755 (Tex. 2007).

As discussed below, we may review the trial court’s denial in part of the
Frontier Parties’ summary-judgment motion because the Frontier Parties and the
Plank Parties both moved for summary judgment on the same issue. See FDIC v.
Lenk, 361 S.W.3d. 602, 611–12 (Tex. 2012); Gastar Exploration v. U.S. Specialty
Ins. Co., —S.W.3d—,—, 2013 WL 3693603, at *4 (Tex. App.—Houston [14th
Dist.] Jul. 16, 2013, no pet. h.). When both parties move for summary judgment,
each party must carry its own burden, and neither can prevail because of the failure
of the other to discharge its burden. INAC Corp. v. Underwriters at Lloyd’s, 56
S.W.3d 242, 247 (Tex. App.—Houston [14th Dist.] 2001, no pet.). Because each
party was a movant, the burden for each was the same: to establish entitlement to a
summary judgment by conclusively proving all the elements of the claim or
defense as a matter of law. Id.

III. ISSUES PRESENTED
On appeal, the Frontier Parties present the following issues:

(1) Did the trial court err in granting the Plank Parties’ summary-judgment
motion?

(2) Did the trial court err in denying in part the Frontier Parties’ summary-
judgment motion?

(3) Is the Indemnity Provision ambiguous, and, if so, is the extrinsic evidence
disputed, so that summary judgment for either party was improper?

5
(4) Did the trial court err to the extent it overruled the Frontier Parties’
objections to the Plank Parties’ summary-judgment evidence and sustained
the Plank Parties’ objections to the Frontier Parties’ summary-judgment
evidence?

In a conditional cross-point, the Plank Parties assert that the trial court erred in
ruling that the Frontier Parties did not owe the Plank Parties a defense and
indemnity for Westergren’s claim against the Plank Parties based upon their failure
to pay $1 million.

IV. ANALYSIS
A. Do the claims asserted by Westergren fall within the scope of the
Indemnity Provision?
The main issue in this case is whether the claims Westergren asserted
against the Plank Parties fall within the scope of the Indemnity Provision. In
construing agreements, our primary concern is to ascertain and give effect to the
intentions of the parties as expressed in the agreement. Kelley-Coppedge, Inc. v.
Highlands Ins. Co., 980 S.W.2d 462, 464 (Tex. 1998). To ascertain the parties’
true intentions, we examine the entire agreement in an effort to harmonize and give
effect to all provisions of the contract so that none will be rendered meaningless.
MCI Telecomms. Corp. v. Tex. Utils. Elec. Co., 995 S.W.2d 647, 652 (Tex. 1999).
Whether a contract is ambiguous is a question of law for the court. Heritage Res.,
Inc. v. NationsBank, 939 S.W.2d 118, 121 (Tex. 1996). A contract is ambiguous
when its meaning is uncertain and doubtful or is reasonably susceptible to more
than one interpretation. Id. But, when a written contract is worded so that it can
be given a certain or definite legal meaning or interpretation, it is unambiguous,
and the court construes it as a matter of law. Am. Mfrs. Mut. Ins. Co. v. Schaefer,
124 S.W.3d 154, 157 (Tex. 2003). We cannot rewrite the contract or add to its
language under the guise of interpretation. See American Mfrs. Mut. Ins. Co., 124

6
S.W.3d at 162. Rather, we must enforce the contract as written. See Royal Indem.
Co. v. Marshall, 388 S.W.2d 176, 181 (Tex. 1965).

The Plank Parties and the Frontier Parties are parties to the Settlement
Agreement. Under the unambiguous language of the Settlement Agreement,
Westergren is not a party to the Settlement Agreement.4 In Section I of the
Settlement Agreement, the parties recite that ―[t]his Settlement Agreement resolves
matters in dispute between the parties . . . .‖ Section V of the Settlement
Agreement provides as follows:

MUTUAL RELEASES THROUGH DATE OF THIS AGREEMENT
In consideration of the promises set forth above and the
execution of Exhibits ―A-J‖, [the Frontier Parties] release all claims,
causes of action . . . as well as all losses and liabilities with respect to
any acts or omissions by [the Plank Parties and related entities] with
respect to the Port Crossing Project or otherwise previously asserted
by [the Frontier Parties] or any claim which could be asserted by [the
Frontier Parties] for any acts or omissions that have occurred as of
[March 17, 2008] with respect to [the Plank Parties and related
entities], whether known or unknown. Such release shall include,
without limitation, any claim that [any of the Frontier Parties] has or
had a right to purchase any portion of, or be a partner or other investor
in any entity owning a portion of, the Port Crossing Project now or
hereafter owned by [Port Crossing Land, L.P.] or any affiliate of [Port
Crossing Land, L.P.], including, without limitation, the land described
in Exhibits ―B‖ and ―C‖, respectively. The RLX Partnership
Agreement and PRL Partnership Agreement shall be deemed to [be]
amended to be consistent with the release of any right by [the Frontier
Parties] or any affiliated person or entity to participate in the
ownership, directly or indirectly, of any other land owned currently or
previously owned at any time by the LaPorte 81 Partnership, Stuart
Haynsworth, or any land described in any exhibits attached to the PRL
4
Westergren did not sign the Settlement Agreement, and there is no language in that agreement
indicating that Westergren is a party. Instead, the Agreement recites that Westergren is a partner
in Frontier Logistics, L.P. and FLPCW, L.P. and that Westergren ―is not joining in this
Agreement as one of the Frontier Parties.‖

7
 Partnership Agreement and RLX Partnership Agreement.
A. [The Plank Parties and each entity owned, directly or
indirectly, in whole or in part, by any of the Plank Parties] release [the
Frontier Parties] (but not Westergren) from any claims or causes of
action of whatsoever nature, whether known or unknown . . . arising
out of any acts or omissions of [the Frontier Parties] that have
occurred as of [March 17, 2008] or any obligation to pay a guaranty
fee or related fee in connection with the Northern Trust financing
arranged by [Michael Plank] for RLX.
B. [The Frontier Parties] release [the Plank Parties and any
other Plank entities] from any liability for any acts or omissions of
[the Plank Parties and any other Plank entities] for any defamatory or
disparaging statements made by [the Plank Parties and any other
Plank entities] against [the Frontier Parties] as of [March 17, 2008]
relating to the Port Crossing Project or otherwise.
C. [The Frontier Parties] hereby indemnify, defend and hold
harmless [the Plank Parties and any other Plank entities] from and
against all claims, causes of action (including, without limitation,
fraud in a real estate transaction, breach of fiduciary duties,
conversion, appropriation of business opportunities, breach of contract
and negligent representation), as well as all losses and liabilities with
respect to any acts or omissions of the [the Plank Parties and related
entities] with respect to the Port Crossing Project that [are] asserted by
Westergren by, through or under [one of the Frontier Parties] or any
other claim asserted by Westergren which is covered by the release
granted by [the Frontier Parties] pursuant to [Section V of the
Settlement Agreement].
D. The Parties agree that this Release encompasses all acts
or omissions by any of the Parties as of [March 17, 2008]. The
Frontier Parties acknowledge that the Frontier Parties have had an
opportunity to review all financial records and other financial
information of RLX and PRL desired by the Frontier Parties.5

The Indemnity Provision (Section V, Part C, above) is the only indemnity
contained in the Settlement Agreement. Under the unambiguous language of the

5
(italics added).

8
Settlement Agreement, for the claims asserted by Westergren against the Plank
Parties in the unsevered case (the ―Westergren Claims‖) to be within the scope of
this provision, these claims must either (1) be ―asserted by Westergren by, through
or under [one of the Frontier Parties]‖ or (2) be ―asserted by Westergren‖ and
―covered by the release granted by [the Frontier Parties] pursuant to [Section V of
the Settlement Agreement].‖ Neither in their summary-judgment motion nor on
appeal have the Plank Parties sought defense and indemnity by arguing that the
Westergren Claims fall within the first category. Therefore, the issue presented is
whether the Westergren Claims fall within the second category. 6 The Westergren
Claims are asserted by Westergren, so in conducting this inquiry we focus on
whether the Westergren Claims are ―covered by the release granted by [the
Frontier Parties] pursuant to [Section V of the Settlement Agreement].‖

Under the Settlement Agreement’s unambiguous language, Westergren is
not a party to the agreement, and the agreement contains no release by Westergren
of any of his claims. In Section V of the Settlement Agreement, the Frontier
Parties release various claims and rights against the Plank Parties, but the Frontier
Parties do not purport to release any claims that Westergren has against the Plank
Parties.7 Under the plain language of the Settlement Agreement, the Westergren
Claims are not within the scope of the releases by the Frontier Parties contained in
Section V of the Settlement Agreement. The Plank Parties agree that the
Settlement Agreement contains no releases of any claims belonging to Westergren.
Nonetheless, the Plank Parties argue that the Indemnity Provision includes all
claims by Westergren that are of the same description as the claims by the Frontier

6
A review of the Westergren Claims shows that they are not asserted by Westergren by, through,
or under one of the Frontier Parties.
7
In the Plank Parties’ release of various claims against the Frontier Parties, claims against
Westergren are expressly excluded from the scope of the release.

9
Parties that were released in the Section V of the Settlement Agreement. Under the
Plank Parties’ argument, ―covered by the release‖ would be construed to mean
―would be covered by the release if Westergren were a releasing party.‖ It is not
reasonable to construe ―covered by the release‖ to include matters not covered by
the release. The Plank Parties’ construction is not reasonable because it adds
words to the agreement and is contrary to the plain meaning of the language used.
See American Mfrs. Mut. Ins. Co., 124 S.W.3d at 162; Coastal Terminal Operators
v. Essex Crane Rental Corp., No. 14-02-00627-CV, 2004 WL 1795355, at *5–6
(Tex. App.—Houston [14th Dist.] Aug. 12, 2004, pet. denied) (mem. op.).
The Plank Parties assert that a contrary construction would render this part
of the Indemnity Provision meaningless. But, under the construction outlined
above, this part of the indemnity would cover claims that the Frontier Parties
release in Section V of the Settlement Agreement that Westergren asserts as an
assignee following assignment of the claims by one or more of the Frontier Parties
to Westergren. Thus, this construction does not render any part of the Settlement
Agreement meaningless. The Plank Parties also rely upon parol evidence
regarding the negotiating and drafting of the Settlement Agreement. But, to the
extent that this parol evidence contradicts the plain meaning of the Settlement
Agreement, this evidence is incompetent to change the agreement’s unambiguous
language. See White Oak Operating Co., LLC v. BLR Const. Companies, LLC,
362 S.W.3d 725, 734 (Tex. App.—Houston [14th Dist.] 2011, no pet.).

The Plank Parties argue that it would make no sense for them to obtain an
indemnity regarding claims within the scope of the Frontier Parties’ releases in the
Settlement Agreement. According to the Plank Parties, this would make no sense
because suit on these released claims would constitute a breach of the release
portion of the Settlement Agreement, which would give rise to a claim for breach

10
of the Settlement Agreement. But, the release language in the Settlement
Agreement provides the released parties with only an affirmative defense in a
lawsuit on a released claim. See Dresser Indus. v. Page Petroleum, 853 S.W.2d
505, 508 (Tex. 1993); Westergren v. National Property Holdings, L.P., Nos. 14-
11-00058-CV, 14-11-00229-CV,—S.W.3d—,—, 2013 WL 4857689, at *24 (Tex.
App.—Houston [14th Dist.] June 28, 2013, pet. filed). Suit on a released claim by
one of the releasing parties does not give rise to a claim by the released parties for
breach of the release portion of the Settlement Agreement. See Dresser Indus.,
853 S.W.2d at 508 (Tex. 1993); Westergren,—S.W.3d at —, 2013 WL 4857689, at
*24.

The Plank Parties assert that the scope of the matters addressed by the
parties to the Settlement Agreement is broader than the scope of that agreement
under the Frontier Parties’ argument. The Plank Parties also assert that the
definition of ―Port Crossing Project‖ shows that the Settlement Agreement
addressed matters dealing with property on the west side of Powell Road as well as
on the east side of Powell Road, contrary to one of the Frontier Parties’ arguments.
The Plank Parties also point out that Westergren made more expansive claims in
his original petition than he did in later amended petitions, including claims
regarding property on the west side of Powell Road as well as on the east side of
Powell Road. Presuming, without deciding, that all of the foregoing assertions are
correct, they would not change our construction of the Indemnity Provision.

In the unsevered case, Westergren did not assert at any time a claim assigned
to him by one of the Frontier Parties or a claim of one of the Frontier Parties that
was released in the Settlement Agreement. Under the unambiguous language of
the Settlement Agreement, the Westergren Claims are not ―covered by the release
granted by [the Frontier Parties] pursuant to [Section V of the Settlement

11
Agreement],‖ and thus, as a matter of law, these claims are not within the scope of
the Indemnity Provision.8 Therefore, the Plank Parties’ third-party claims fail as a
matter of law, and the trial court erred in granting the Plank Parties’ summary-
judgment motion.9 Accordingly, we sustain the Frontier Parties’ first issue.10
B. May this court review the trial court’s denial in part of the Frontier
Parties’ motion for summary judgment?
In their second issue, the Frontier Parties assert that the trial court erred to
the extent it denied their summary-judgment motion. In CU Lloyd’s of Texas v.
Feldman, the Supreme Court of Texas held that, before a court of appeals may
reverse summary judgment for one party and render judgment for the other party,
each party must have sought a final judgment in its respective motion for summary
judgment, unless an exception applies involving claims for declaratory relief. See
CU Lloyd’s of Texas v. Feldman, 977 S.W.2d 568, 569 (Tex. 1998) (per curiam).
Under this case, we would not be able to render judgment for the Frontier Parties
on their cross-motion because, in that motion, the Frontier Parties did not seek a
final judgment and because the exception involving declaratory relief does not
apply. See id. But, the inquiry as to the availability of review and rendition does
not end there.

8
In their third issue, the Frontier Parties argue in the alternative that the agreement is ambiguous
and that this court should consider parol evidence. Because the agreement is unambiguous,
consideration of parol evidence would not be appropriate. See White Oak Operating Co., LLC,
362 S.W.3d at 734. In any event, we need not address the third issue.
9
In the trial court, the Plank Parties asserted that all three of the Plank Parties are indemnitees
under the Indemnity Provision. The trial court agreed and rendered judgment in favor of all
three Plank Parties. Michael Plank and Russell Plank do not appear to be indemnitees under the
Indemnity Provision. In any event, we presume, without deciding, that all three Plank Parties are
indemnitees under this provision.
10
In their fourth issue, the Frontier Parties challenge various evidentiary rulings of the trial court.
Because it is unnecessary to overturn any of these evidentiary rulings to adjudicate this appeal,
we need not and do not address the fourth issue.

12
 This court recently held that, in FDIC v. Lenk, the Supreme Court of Texas
modified the Feldman rule so that a court of appeals may render judgment on the
cross-motion in a third scenario—when the moving parties in both motions seek
summary judgment on the same issue.11 See Gastar Exploration, —S.W.3d at—,
2013 WL 3693603, at *4 (addressing effect of FDIC v. Lenk, 361 S.W.3d. 602,
611–12 (Tex. 2012) on the Feldman rule and holding that court of appeals may
render judgment on a cross-motion that does not fall within the scope of the
Feldman rule to the extent that, in the cross-motion, the moving party seeks
summary judgment on the same issue addressed in the other motion). In their
summary-judgment motion, the Frontier Parties sought summary judgment on the
same issue that was addressed in the Plank Parties’ summary-judgment motion.
Therefore, under this court’s holding in Gastar Exploration, we may review the
Frontier Parties’ summary-judgment motion and render judgment based upon this
motion. See Gastar Exploration, —S.W.3d at—, 2013 WL 3693603, at *4.
Because, as discussed above, the Plank Parties’ third-party claims fail as a matter
of law, the trial court erred to the extent it denied the Frontier Parties’ summary-
judgment motion. Accordingly, we sustain the Frontier Parties’ second issue. The
appropriate appellate judgment is for this court to reverse the trial court’s judgment

11
Thus, in Gastar Exploration, this court held that the Supreme Court of Texas has modified the
Feldman rule, a rule that has been applied by this court on numerous occasions. See Continental
Cas. Co. v. American Safety Cas. Ins. Co., 365 S.W.3d 165, 172 (Tex. App.—Houston [14th
Dist.] 2012, pet. denied); Mosby v. Post Oak Bank, 401 S.W.3d 183, 190 (Tex. App.—Houston
[14th Dist.] 2011, pet. denied); Davis Gulf Coast, Inc. v. Smith Intern., Inc., No. 14-09-00838-
CV, 2011 WL 1849084, at *8 (Tex. App.—Houston [14th Dist.] May 12, 2011, no pet.); XTO
Energy, Inc. v. Smith Production, Inc., 282 S.W.3d 672, 675 n.3 (Tex. App.—Houston [14th
Dist.] 2009, pet. dism’d); Four Bros. Boat Works, Inc. v. Tesoro Petroleum Companies, Inc., 217
S.W.3d 653, 663 (Tex. App.—Houston [14th Dist.] 2006, pet. denied); de Laurentis v. USAA,
162 S.W.3d 714, 719 (Tex. App.—Houston [14th Dist.] 2005, pet. denied); Alaniz v. Rebello
Food & Beverage, L.L.C., 165 S.W.3d 7, 20 (Tex. App.—Houston [14th Dist.] 2005, no pet.);
Smither v. Progressive County Mut. Ins. Co., 76 S.W.3d 719, 721 n.1 (Tex. App.—Houston
[14th Dist.] 2002, pet. denied).

13
and, based upon the Frontier Parties’ summary-judgment motion, render judgment
that the Plank Parties take nothing by their claims. See id. at *4, 10.

C. May this court remand for further proceedings regarding the Frontier
Parties’ counterclaim?

In their motion for rehearing, the Frontier Parties assert that, in addition to
reversing the trial court’s judgment and rendering judgment that the Plank Parties
take nothing by their claims, this court also should remand this case to the trial
court for the limited purpose of allowing the Frontier Parties to prove and recover
the expenses and costs, including reasonable attorney’s fees, that they sought to
recover in their counterclaim based upon a prevailing-party provision in the
Settlement Agreement. In their summary-judgment motion, the Frontier Parties
did not seek judgment on any of their counterclaims. In their summary-judgment
motion, the Plank Parties did not mention or seek judgment as to any of the
Frontier Parties’ counterclaims. In its orders on these summary-judgment motions,
the trial court did not dispose of any of the Frontier Parties’ counterclaims. See
Harris County Appraisal District v. Johnson, 889 S.W.2d 531, 532–33 (Tex.
App.—Houston [14th Dist.] 1994, orig. proceeding). The trial court disposed of
these counterclaims in its final judgment after trial, in which the trial court denied
the Frontier Parties the relief they requested in their counterclaims. Though the
Frontier Parties appealed from this final judgment, in their appellants’ brief, they
did not assign error as to the trial court’s denial of recovery on their counterclaims
in the final judgment.
The Frontier Parties assigned error as to the trial court’s order granting the
Plank Parties’ summary-judgment motion and its order denying in part the Frontier
Parties’ summary-judgment motion, but, in these orders, the trial court did not
adjudicate any of the Frontier Parties’ counterclaims. The Frontier Parties have not

14
assigned error as to the trial court’s denial of relief on their counterclaims, nor have
they briefed any such alleged error. Accordingly, the issue of whether the trial
court erred in denying recovery on the Frontier Parties’ counterclaim based upon a
prevailing-party provision in the Settlement Agreement is not before this court.
See Texas Nat’l Bank v. Karnes, 717 S.W.2d 901, 903 (Tex. 1986) (holding that
―the court of appeals may not reverse a trial court’s judgment in the absence of
properly assigned error‖); Wilson v. Patterson, No. 14-10-00943-CV, 2011 WL
4924252, at *1, n.1 (Tex. App.—Houston [14th Dist.] Oct. 18, 2011, no pet.)
(concluding that certain alleged error was not before this court because appellant
had not assigned error) (mem. op.). As explained above, the proper course based
on the error assigned by the Frontier Parties is for this court to reverse the trial
court’s judgment and render judgment that the Plank Parties take nothing by their
claims. Because any error regarding the Frontier Parties’ counterclaims is not
before this court, there is no basis for a remand to the trial court regarding any of
these counterclaims. See Karnes, 717 S.W.2d at 903; Wilson, 2011 WL 4924252,
at *1, n.1.
D. May this court consider the Plank Parties’ conditional cross-point
despite their failure to file a notice of appeal?

In a conditional cross-point, the Plank Parties assert that the trial court erred
in ruling that the Frontier Parties did not owe the Plank Parties a defense and
indemnity for Westergren’s claim against the Plank Parties based upon their failure
to pay $1 million. We now consider whether we may grant the relief requested in
this cross-point even though the Plank Parties have not filed a notice of appeal.12

12
The Plank Parties’ cross-point is conditioned on this court’s reversal of the trial court’s
judgment in Westergren v. National Property Holdings, L.P., Cause Nos. 14-11-00058-CV, 14-
11-00229-CV. This condition has occurred. See Westergren,—S.W.3d at —, 2013 WL
4857689, at *26.

15
 The trial court granted summary judgment in the Frontier Parties’ favor on
this issue. In their conditional cross-point, the Plank Parties seek to alter the trial
court’s judgment so that it awards them greater relief than the relief granted them
by the trial court. But, the Plank Parties have not filed a notice of appeal. The
Supreme Court of Texas has held that an appellee in the court of appeals who has
not filed a notice of appeal may not seek to alter the trial court’s judgment in a way
that would award the appellee more relief than the trial court granted the appellee
in its judgment. See Lubbock County, Tex. v. Trammel’s Lubbock Bail Bonds, 80
S.W.3d 580, 584 (Tex. 2002); CHCA East, L.P. v. Henderson, D.D.S., 99 S.W.3d
630, 636 (Tex. App.—Houston [14th Dist.] 2003, no pet.). Because the Plank
Parties have not filed a notice of appeal, they may not seek to alter the trial court’s
judgment to award them more relief than the trial court granted in its judgment,
and we may not consider their conditional cross-point. See Lubbock County, Tex.,
80 S.W.3d at 584; CHCA East, L.P., 99 S.W.3d at 636.

The Plank Parties assert on rehearing that this court’s intervening reversal of
the trial court’s judgment in Westergren v. National Property Holdings, L.P.
constitutes ―good cause‖ under Texas Rule of Appellate Procedure 25.1(c), which,
according to the Plank Parties, allows this court to consider their cross-point
despite their failure to file a notice of appeal. See Tex. R. App. P. 25.1(c) (stating
that ―[t]he appellate court may not grant a party who does not file a notice of
appeal more favorable relief than did the trial court except for just cause‖). But,
that same rule provides that ―[a] party who seeks to alter the trial court’s judgment
or other appealable order must file a notice of appeal.‖ Tex. R. App. P. 25.1(c)
(emphasis added). And, an appellate court may grant a party who did not file a
notice of appeal more favorable relief than the trial court granted without
considering or sustaining appellate challenges from that party, for example, when

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necessary to grant appellate relief to parties who have filed a notice of appeal. See
Ex parte Elliot, 815 S.W.2d 251, 252 (Tex. 1991) (per curiam) (stating that
reversal of an entire judgment even as it applies to nonappealing parties is
appropriate if necessary to provide the appellant with ―full and effective relief‖).
The Lubbock County court did not provide for a ―just cause‖ exception to its rule
that an appellee who has not filed a notice of appeal may not seek to alter the trial
court’s judgment to award the appellee more relief than the trial court granted the
appellee. See Lubbock County, Tex., 80 S.W.3d at 584. See also City of Austin v.
Whittington, 384 S.W.3d 766, 789 (Tex. 2012) (agreeing with the proposition that
a litigant who is attacking the trial court’s judgment by seeking greater relief than
the relief awarded in the judgment must file a notice of appeal). Under this
binding precedent, we cannot consider the Plank Parties’ conditional cross-point
because, without having filed a notice of appeal, they seek to alter the trial court’s
judgment to award them more relief than the trial court granted.13 See Lubbock
County, Tex., 80 S.W.3d at 584; CHCA East, L.P., 99 S.W.3d at 636.

V. CONCLUSION
In their summary-judgment motion the Frontier Parties sought summary
judgment on the same issue that was addressed in the Plank Parties’ summary-
judgment motion. Therefore, this court may review the Frontier Parties’ summary-
judgment motion and render judgment based upon this motion. Under the
unambiguous language of the Settlement Agreement, the Westergren Claims do
not fall within the scope of the Indemnity Provision. Therefore, the Plank Parties’
13
Even if there were a ―just cause‖ exception, we still would not conclude that this court’s
intervening reversal of the trial court’s judgment in Westergren v. National Property Holdings,
L.P. constitutes ―just cause‖ to allow the Plank Parties to assert their cross-point without having
filed a notice of appeal.

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third-party claims fail as a matter of law, and the trial court erred to the extent it
denied the Frontier Parties’ summary-judgment motion and granted the Plank
Parties’ summary-judgment motion. Accordingly, we reverse the trial court’s
judgment and render judgment that the Plank Parties take nothing by their claims.

/s/ Kem Thompson Frost
Chief Justice

Panel consists of Chief Justice Frost and Justices Christopher and McCally.

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