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John EMMANUEL d/b/a First Americo Auto Sale & Repair, Appellant v. Abigail IZOUKUMOR, Appellee
These appeals are brought by appellant John Emmanuel from a final judgment in favor of appellee Abigail Izoukumor and a separate final judgment in the form of an order granting Izoukumor's motion to dismiss Emmanuel's claims.1 We affirm.
According to Izoukumor, she paid Emmanuel $1,800 as a deposit to purchase a Honda Accord, after Emmanuel repaired it. Emmanuel gave Izoukumor a receipt, dated March 27, 2017, for the deposit. The receipt reflected a balance remained of $500 and stated the car would be ready on April 27, 2017. The car was not repaired, and Emmanuel refused to return the deposit. On November 13, 2018, Izoukumor filed suit (trial court cause number D-1-GN-17-006205, appellate case number 14-19-00362-CV) against Emmanuel asserting: (1) Deceptive Trade Practices-Consumer Protection Act (DTPA)2 violations; (2) breach of contract; (3) promissory estoppel; (4) money had and received; (5) conversion; (6) fraud; (7) theft of property; (8) breach of express warranty; (9) negligent misrepresentation; and (10) negligence, seeking exemplary damages for gross negligence (the “Izoukumor Lawsuit”).
On April 13, 2018, Izoukumor moved for partial summary judgment on her claims for DTPA violations and breach of contract. A hearing was held May 15, 2018. The partial summary judgment was granted in an order signed May 30, 2018. The trial court awarded Izoukumor economic damages in the amount of $1,800, damages in the amount of $3,600 under DTPA section 17.50 (allowing up to treble damages), reasonable and necessary attorney's fees and costs in the amount of $10,000, and post-judgment interest. On October 5, 2018, Emmanuel filed a “Motion to Reopen/New Trial.”
On December 6, 2018, Emmanuel filed suit (trial court cause number D-1-GN-18-007239, appellate case number 14-19-00361-CV) against Izoukumor for $3,600—the cost of parking her car on his lot for twelve months at $10 a day (the “Emmanuel Lawsuit”). On January 4, 2019, Izoukumor moved to dismiss Emmanuel's Lawsuit under Texas Rule of Civil Procedure 91a on the grounds the petition had no basis in law or fact and under the doctrine of res judicata.
A hearing was held on Emmanuel's “Motion to Reopen/New Trial” on March 6, 2019. On March 8, 2019, the trial court denied the motion by written order. That order became final on March 26, 2019, when the trial court granted Izoukumor's motion to voluntarily dismiss her remaining claims against Emmanuel and signed a judgment containing language of finality in trial court cause number D-1-GN-17-006205, appellate number 14-19-00362-CV.
That same day, the trial court granted Izoukumor's motion and dismissed Emmanuel's claims with prejudice in trial court cause number D-1-GN-18-007239, appellate number 14-19-00361-CV. Both are now before this court.
The Izoukumor Lawsuit
Emmanuel first contends the trial court erred in granting Izoukumor's motion for no-evidence summary judgment based on “default judgment.” Emmanuel asserts that he was not served with the motion for summary judgment and there was no evidence of service. We construe this as a complaint that Emmanuel did not receive notice of the motion for summary judgment. “If a party receives notice that is untimely, but sufficient to enable to the party to attend the summary judgment hearing, the party must file a motion for continuance or raise the complaint of late notice in writing, supported by affidavit evidence, and raise the issue before the trial court during the summary judgment hearing.” Buholtz v. Field, No. 03-17-00232-CV, 2018 WL 700058, at *2 (Tex. App.—Austin Jan. 31, 2018, pet. denied) (mem. op.); Tex. R. Civ. P. 251 (continuance); Tex. R. App. P. 33.1(a) (preservation of error).
The record of the hearing held March 6, 2019, on Emmanuel's “Motion to Reopen/New Trial” reflects that Emmanuel appeared at the summary-judgment hearing held May 15, 2018. Thus, Emmanuel received sufficient notice to enable him to attend the summary-judgment hearing. The record does not reflect Emmanuel filed a motion for continuance or raised a complaint of late notice in writing, supported by affidavit evidence. See Buholtz, 2018 WL 700058, at *2; Tex. R. Civ. P. 251. There is no record of the summary-judgment hearing, so the record does not demonstrate that Emmanuel raised the issue before the trial court at the summary-judgment hearing.
The March 6, 2019 hearing does reflect that Emmanuel was given an additional two weeks to respond to the motion for summary judgment. To the extent this extension suggests Emmanuel raised the issue, Emmanuel was granted relief.
Emmanuel did not file a response to the summary-judgment motion. On May 29, 2018, Emmanuel filed a request for additional time, but it was not supported by affidavit. See Buholtz, 2018 WL 700058, at *2. The record does not reflect the request was presented to the trial court or that the trial court ruled on it. The trial court rendered summary-judgment in favor of Izoukumor the next day. Emmanuel subsequently filed a “Motion to Reopen/New Trial,” but a complaint of late notice of a hearing is not preserved by a motion filed after the summary-judgment hearing. See Buholtz, 2018 WL 700058, at *3.
We conclude that Emmanuel has not preserved a complaint for appellate review on the issue of timely notice of the motion for summary judgment. See Tex. R. App. P. 33.1(a).3 Emmanuel did not make such a complaint in the trial court in writing. Even if Emmanuel did raise the issue at the hearing, he was granted relief. Emmanuel's written request for more time was unsupported by affidavit evidence and he did not obtain a ruling in the trial court. Accordingly, Emmanuel's first issue is overruled.4
In his third issue, Emmanuel claims the trial court's judgment in the Izoukumor Lawsuit violates the Eighth and Fourteenth Amendments to the United States Constitution and an unspecified portion of the Texas Constitution because it is excessive. As noted above, Izoukumor was awarded $1,800 in actual damages, which was the amount she paid Emmanuel to fix and purchase the car. See Tex. Bus. & Com. Code Ann. § 17.50(b)(1) (providing that consumer who prevails on DTPA claim may obtain economic damages). Izoukumor was also awarded $3,600 under DTPA section 17.50 (allowing up to treble damages) on the basis that Emmanuel acted knowingly. See Tex. Bus. & Com. Code Ann. § 17.50(b)(1) (plaintiff may recover up to three times its actual damages if trier of fact finds defendant violated DTPA “knowingly”). Finally, Izoukumor was awarded reasonable and necessary attorney's fees in the amount of $10,000. See Tex. Bus. & Com. Code Ann. § 17.50(d); Tex. Civ. Prac. & Rem. Code Ann. § 38.001(8).
In his motion for new trial, Emmanuel complained the trial court erred in granting $3,600 in damages and awarding attorney's fees of $10,000. However, Emmanuel did not assert those awards violated his constitutional rights. The record does not reflect Emmanuel presented his complaint on appeal to the trial court and the trial court ruled, or refused to rule, on the issue. Accordingly, nothing is presented for our review. See Tex. R. App. P. 33.1(a); In re L.M.I., 119 S.W.3d 707, 711 (Tex. 2003) (observing that Supreme Court of the United States and Supreme Court of Texas have both held that even constitutional claims must be raised in trial court to preserve error). We overrule Emmanuel's third issue.
The Emmanuel Lawsuit
In his second issue, Emmanuel claims the trial court erred by dismissing his claims against Izoukumor. In support of this claim, Emmanuel contends the trial court did not make any findings of fact.
Izoukumor moved to dismiss Emmanuel's claims as having no basis in law or fact. See Tex. R. Civ. P. 91a. When, as here, the trial court does not specify the ground on which it relied, a party appealing the grant of a motion to dismiss under Rule 91a must challenge every ground on which the trial court could have granted the motion. See Shumway v. Whispering Hills of Comal Cty. Tex. Prop. Owners Ass'n, Inc., No. 03-15-00513-CV, 2016 WL 4429939, at *2 (Tex. App.—Austin Aug. 16, 2016, pet. denied) (mem. op.). Emmanuel does not contend the trial court could not have granted Izoukumor's motion to dismiss, which asserted Emmanuel's claims had no basis in law or were somehow precluded. Since Emmanuel has not challenged every ground upon which the trial court could have relied when granting the motion to dismiss, we must affirm the trial court's decision. See id. (Blizzard v. Select Portfolio Servicing, No. 03-13-00716-CV, 2015 WL 5096710, at *4 (Tex. App.—Austin Aug. 27, 2015, no pet.) (mem. op.)). Issue two is overruled.
Lastly, Emmanuel argues we should abate or suspend this proceeding until the criminal charges against him for theft of property have been resolved. He contends such action is necessary to protect his Fifth Amendment right against double jeopardy.
“Double jeopardy applies only to criminal cases.” Ex parte Watkins, 73 S.W.3d 264, 267 (Tex. Crim. App. 2002). The pendency of a criminal matter does not impair a court's proceeding with a contemporaneous civil matter involving the same issues or parties. Kugle v. DaimlerChrysler Corp., 88 S.W.3d 355, 362 (Tex. App.—San Antonio 2002, pet. denied); see McCann v. Spencer Plantation Invs., Ltd., No. 01-16-00098-CV, 2017 WL 769895, at *6 (Tex. App.—Houston [1st Dist.] Feb. 28, 2017, pet. denied) (mem. op.) (declining to apply double-jeopardy doctrine in civil case); Favaloro v. Comm'n for Lawyer Discipline, 994 S.W.2d 815, 822 (Tex. App.–Dallas 1999, pet. stricken) (declining to apply double-jeopardy doctrine in civil case); Underwood v. Bridewell, 931 S.W.2d 645, 647–48 (Tex. App.—Waco 1996, orig. proceeding) (abuse of discretion to abate civil-forfeiture action until criminal prosecution completed); McInnis v. State, 618 S.W.2d 389, 392–93 (Tex. Civ. App.—Beaumont 1981, writ ref'd n.r.e.) (upholding trial court's refusal to continue civil disbarment case until final disposition of related criminal case). Emmanuel's fourth issue is overruled.
The judgment of the trial court in trial court cause number D-1-GN-17-006205 is affirmed. The judgment of the trial court in trial court cause number D-1-GN-18-007239 is affirmed.
Appellant John Emmanuel d/b/a First Americo Auto Sale & Repair challenges the trial court's judgment in the suit appellee Abigail Izoukumor filed against him. In that litigation, Izoukumor asserted violations of the Texas Deceptive Trade Practices-Consumer Protection Act (“DTPA”),1 breach of contract, and other claims.
Izoukumor filed a motion on April 13, 2018, seeking partial summary judgment on her claims for DTPA violations and breach of contract, and she filed a notice that an oral hearing on the motion would take place on May 15, 2018. Emmanuel did not file a response to the summary-judgment motion. The trial court held a hearing on the motion on May 15, 2018, and two weeks later signed an order granting Izoukumor's motion.
Emmanuel filed a “Motion to Reopen/New Trial,” the substance of which was a motion for new trial.2 In his motion, Emmanuel asserted that he did not receive Izoukumor's summary-judgment motion until after the trial court granted the motion. Emmanuel asserted that if he had received the motion or if he had been served with the motion, he would have had an opportunity to file a summary-judgment response. Emmanuel asked the trial court to set aside its summary-judgment order and to order a new trial. Emmanuel did not submit any evidence supporting his contention that he had not received or been served with the summary-judgment motion before the trial court granted the motion.
In response to Emmanuel's motion, Izoukumor submitted evidence that on April 13, 2018, she served Emmanuel with her summary-judgment motion. The trial court denied Emmanuel's motion for new trial.
Under his first issue on appeal, Emmanuel asserts that the trial court erred in denying his motion for new trial because Izoukumor did not serve her summary-judgment motion on Emmanuel and Emmanuel only learned of the motion after the trial court granted it. Though Emmanuel does not mention the notice of hearing on the motion, presumably he claims Izoukumor did not serve the notice of hearing on him either, because if she had, Emmanuel would have learned of the summary-judgment motion before the trial court granted it. Emmanuel does not assert on appeal that he had some notice of the summary-judgment hearing, so that he was able to attend the summary-judgment hearing, but less notice than Texas Rule of Civil Procedure 166a requires.3
Under the Fourteenth Court of Appeals's error-preservation precedent, a party may preserve error in a post-judgment motion for new trial as to a complaint that the party received no notice of the summary-judgment motion or the hearing, because a party in this posture lacks the ability to attend the summary-judgment hearing.4 On the other hand, if a party complains it received notice that was untimely but sufficient to enable the party to attend the summary-judgment hearing, to preserve error the party must file a motion for continuance or raise the complaint of late notice in writing, supported by affidavit evidence, and put before the trial court during the summary-judgment hearing.5 Under his first issue, Emmanuel asserts the former complaint rather than the latter. Thus, Emmanuel preserved error by his motion for new trial.6 Though Emanuel preserved this complaint in the trial court, Emmanuel had the burden of proving his allegation that Izoukumor did not serve her summary-judgment motion on Emmanuel and that Emmanuel only learned of the motion after the trial court granted it. Because Emmanuel submitted no proof of this allegation, the trial court did not abuse its discretion in denying Emmanuel's request for a new trial based on this allegation.7
The majority construes Emmanuel's complaint as limited to an alleged lack of service of the summary-judgment motion; the majority does not view Emmanuel as complaining of a lack of notice of the summary-judgment hearing.8 Rather than incorrectly characterize Emmanuel's first issue and dispose of it based on a failure to preserve error, this court should overrule it based on Emmanuel's failure to provide evidence that Izoukumor did not serve her summary-judgment motion on Emmanuel and that Emmanuel only learned of the motion after the trial court granted it.9
1. The Supreme Court of Texas ordered the Court of Appeals for the Third District of Texas to transfer these cases (Nos. 03-19-00177-CV & 03-19-00178-CV) to this court. Misc. Docket No. 19-9022 (Tex. Mar. 26, 2019), see Tex. Gov't Code Ann. §§ 73.001, .002. Because of the transfer, we decide the case in accordance with the precedent of the transferor court under principles of stare decisis if our decision otherwise would have been inconsistent with the transferor court's precedent. See Tex. R. App. P. 41.3.
2. Tex. Bus. & Com. Code Ann. §§ 17.41-.63.
3. See also Fertic v. Spencer, 247 S.W.3d 242, 248 & n.4 (Tex. App.—El Paso 2007, pet. denied); May v. Nacogdoches Mem'l Hosp., 61 S.W.3d 623, 626 (Tex. App.—Tyler 2001, no pet.) (concluding that nonmovant waived notice issue when she participated in hearing, but failed to object in writing prior to hearing); Negrini v. Beale, 822 S.W.2d 822, 823 (Tex. App.—Houston [14th Dist.] 1992, no writ) (stating that nonmovant waived complaint concerning 21-day notice requirement when nonmovant received notice of hearing, appeared at hearing, filed no controverting affidavit, and did not file motion for continuance).
4. To the extent Emmanuel's complaint could be construed as one of no notice of the summary-judgment motion or hearing, despite his appearance at the hearing, we agree with the concurrence that the trial court did not abuse its discretion by denying Emmanuel's “Motion to Reopen/New Trial” on that ground.
1. Tex. Bus. & Com. Code Ann. §§ 17.41-.63.
2. This court gives effect to the substance of the motion rather than the motion's title or form. See State Bar of Tex. v. Heard, 603 S.W.2d 829, 833 (Tex. 1980).
3. See Tex. R. Civ. P. 166a.
4. See Garrick v. Autoliv ASP, Inc., No. 14-17-00818-CV, 2018 WL 3385159, at *2–3 (Tex. App.—Houston [14th Dist.] Jul. 12, 2018, pet. denied) (mem. op.); Modelist v. Deutsche Bank Nat. Trust Co., No. 14-10-00249-CV, 2011 WL 3717010, at *2 (Tex. App.—Houston [14th Dist.] Aug. 25, 2011, no pet.) (mem. op.); Rios v. Tex. Bank, 948 S.W.2d 30, 33 (Tex. App.—Houston [14th Dist.] 1997, no pet.).
5. See Garrick, 2018 WL 3385159, at *2–3; Rios, 948 S.W.2d at 33.
6. See Garrick, 2018 WL 3385159, at *2–3; Modelist, 2011 WL 3717010, at *2; Rios, 948 S.W.2d at 33.
7. See Modelist, 2011 WL 3717010, at *2.
8. See ante at 456–58.
9. See Modelist, 2011 WL 3717010, at *2.
Charles A. Spain, Justice
(Frost, C.J., concurring).
Response sent, thank you
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Docket No: NO. 14-19-00361-CV, NO. 14-19-00362-CV
Decided: October 15, 2020
Court: Court of Appeals of Texas, Houston (14th Dist.).
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