Linda Kujawa v. Myrta Kujawa

Opinion issued May 17, 2012.

In The

Court of

Appeals

For The

First District

of Texas

————————————

NO. 01-11-00963-CV

———————————

Linda Kujawa , Appellant

V.

myrta kujawa , Appellee

On Appeal from the 61st District Court

Harris County, Texas

Trial Court Case No. 2010-28732

MEMORANDUM OPINION

Linda Kujawa

appeals from the trial court’s order granting summary judgment in favor of Myrta Kujawa on Linda’s adverse

possession and prescriptive easement claims. Because we conclude that the

summary judgment order is not a final and appealable judgment, we dismiss this

appeal for lack of jurisdiction.

Background

Linda and Myrta

are neighbors and relatives-by-marriage. Linda purchased the home next door to Myrta after the passing of the home’s previous owner, Linda’s

aunt and Myrta’s sister-in-law. The home’s roof, air

conditioning unit, and window awning encroach onto Myrta’s

property. [1]

Linda filed suit against Myrta for adverse possession

and prescriptive easement over the approximately two-foot strip of Myrta’s property on which the home encroaches. Myrta filed a counterclaim for trespass to try title, but she

failed to pay the filing fee.

After discovery, Myrta

moved for no-evidence summary judgment. The summary judgment motion addressed

Linda’s claims against Myrta but not Myrta’s counterclaim. Linda filed an untimely response to Myrta’s summary judgment motion. The trial court granted Myrta’s motion for summary judgment, stating that it had

considered both Myrta’s motion and Linda’s “untimely

response.”

Myrta later

moved to modify the summary judgment order, asking the trial court to make the

judgment a partial summary judgment so that she could pay the filing fee and

prosecute her counterclaim. Linda objected to the motion to modify and moved

for reconsideration of the summary judgment, for a new trial, and for leave to

file evidence out of time. [2]

The trial court denied Linda’s motions and did not rule on Myrta’s

motion to modify. Linda appealed.

Jurisdiction

In her first issue, Linda challenges this court’s

jurisdiction to hear her appeal, asserting that the order from which she

appeals is not a final, appealable judgment. A trial court’s summary judgment

order is final and appealable if it actually or expressly disposes of all

parties and claims in the suit. See

Lehmann v. Har -Con Corp. , 39 S.W.3d 191, 200

(Tex. 2001) (holding that summary judgment order is final judgment if it

actually disposes of all parties and claims or if it expressly states that it

“finally disposes of all parties and all claims and is appealable”). If the

order does not actually dispose of all parties and claims or expressly state

that it disposes of all parties and claims, it is interlocutory. See id. Absent certain statutory authorization

not asserted here, this Court lacks jurisdiction over appeals from

interlocutory orders. See id. at 195 & n.12.

Linda asserts that the trial court’s

summary judgment order is not a final judgment because it does not address Myrta’s counterclaim. In the trial court, Linda initially

asserted that the trial court’s summary judgment order was final, resulting in

the forfeiture of Myrta’s counterclaim. [3]

On appeal, Linda asserts that Myrta’s counterclaim

was properly before the trial court, such that the trial court’s failure to

address the counterclaim renders the judgment interlocutory. Myrta responds that a pleading filed without payment of the

filing fee is “conditionally filed.” Therefore, she contends, her counterclaim

was not before the trial court, and the trial court’s judgment disposes of all

claims properly before the court.

A. The trial court

had discretion to consider or not consider Myrta’s

counterclaim

In Tate v. E.I. DuPont

de Nemours & Co., Inc. , a party filed a timely motion for new trial but

did not pay the filing fee for the motion until after it was overruled by

operation of law, though payment was made within the trial court’s plenary

power. 934 S.W.2d 83, 83 (Tex. 1996). Concluding that the

motion was “conditionally filed when [the party] presented it to the clerk, and

the filing became complete when she later paid the filing fee,” the Texas

Supreme Court held that the motion validly extended the deadline for filing an

appeal. See id. at 84 (“Accordingly,

the failure to pay the fee before the motion is overruled by operation of law

may forfeit altogether the movant’s opportunity to have the trial court

consider the motion; it does not, however, retroactively invalidate the

conditional filing for purposes of the appellate timetable.”). More recently,

the Texas Supreme Court has extended this holding to circumstances in which the

filing fee for a motion for new trial was never paid. Garcia v. Garcia , 137 S.W.3d 36, 38 (Tex. 2004). In both cases, the

Court noted that, absent emergency or other rare circumstances, the trial court

should not consider the motion for new trial until the filing fee is paid. Garcia , 137 S.W.3d at

38 ; Tate , 934 S.W.2d at 84 .

And in Garcia , the Court held that,

because the motion for new trial was never properly before the trial court, the

motion failed to preserve any error for appeal. Garcia , 137 S.W.3d at 38 (“Garcia’s factual sufficiency complaint

had to be raised in a motion for new trial, but because she never paid the $15

fee, the trial court was not required to review it. As her complaint was never

properly made to the trial court, it preserved nothing for review”). A trial

court has the authority to act on motions filed without payment of the filing

fee but need not do so. See Garcia , 137 S.W.3d at 38 ; Tate ,

934 S.W.2d at 84 .

This Court has held that a trial court has jurisdiction over

claims that were filed in the trial court without payment of a filing fee. Tanner v. Axelrad ,

680 S.W.2d 851, 853 (Tex. App.—Houston [1st Dist.] 1984, writ dism’d ) (holding that failure to pay filing fee did not

affect trial court’s jurisdiction and noting that, although clerk of court was

authorized to refuse to accept case for filing if fee was not paid, “[ i ]f the clerk accepts and files the case without payment of

the fee, the duty to collect the fee continues”). Other courts of appeals have

also noted that “the payment of a filing fee ‘is not generally a prerequisite

to jurisdiction, nor does the failure to pay such fees deprive the trial court

of jurisdiction over a case.’” Nolte v. Flournoy ,

348 S.W.3d 262, 268 (Tex. App.—Texarkana 2011, pet. denied) (quoting J.

Allen Family Partners, Ltd. v. Swain, No. 04–09–00384–CV, 2010 WL 2103228 ,

at *3 (Tex. App.—San Antonio May 26, 2010, no pet.) ( mem . op.) and citing Kvanvig v. Garcia , 928 S.W.2d 777, 779 (Tex. App.—Corpus Christi 1996, no writ));

Tanner , 680 S.W.2d at 853 ; Advance

Imps., Inc. v. Gibson Prods. Co. ,

533 S.W.2d 168 , 169–70 (Tex. Civ. App.—Dallas 1976, no writ)).

In J. Allen Family

Partners , the San Antonio Court of Appeals addressed an argument similar to

Linda’s argument here, except that the trial court in that case expressly ruled

on the counterclaims filed without payment of the fee. The trial court entered

an award in favor of the defendant on his counterclaim for attorney’s fees after

it had entered an order of nonsuit on the plaintiffs’ claims against the

defendant. J. Allen Family Partners , 2010 WL 2103228 ,

at *1. The plaintiffs argued that the trial court lacked jurisdiction to

award attorney’s fees because the defendant failed to pay the filing fee for

their counterclaims; thus, they argued, the defendant’s counterclaim was not

before the court and the trial court’s order of nonsuit was a final judgment. Id. at *1, *3. The

San Antonio Court of Appeals rejected the plaintiffs’ argument, concluding that

the defendant “did not have an unconditional right to have the counterclaim

heard if the fee was not paid, but the trial court had jurisdiction to consider

and rule on the claim.” Id.

at *3.

The Texarkana Court of Appeals reached the same conclusion

in Nolte , when a trial court entered

judgment in favor of a defendant on his counterclaim for attorney’s fees after

the plaintiff filed a notice of nonsuit. Nolte , 348 S.W.3d at 268 (“even

though a defendant does not have an unconditional right to be heard on

counterclaims absent the payment of a filing fee, a trial court may, in its

discretion, consider such counterclaims without payment of the statutory filing

fee.”). Thus, courts of appeals generally have held that a trial court has

jurisdiction over, and discretion to hear, claims that are conditionally before

it—i.e., claims filed without payment of a filing fee. See Nolte , 348

S.W.3d at 268 ; Tanner , 680 S.W.2d at

853 ; J. Allen Family Partners , 2010 WL 2103228 , at *3; see also Rodriguez v. Womack , No. 14-10-01213-CV, 2012 WL 19659 , at

*2–4 (Tex. App.—Houston [14th Dist.] Jan. 5, 2012, no pet.) ( considering

counterclaim in determining whether amount in controversy was within court’s

jurisdiction even though defendant had not paid filing fee for counterclaim).

The Dallas Court of Appeals has also held that a trial court

has discretion not to hear claims for which the party did not pay a filing fee.

In re C.A.S. , 128 S.W.3d

681 , 685–686 (Tex. App.—Dallas 2003, no pet.). In C.A.S. , the trial court entered an order dismissing the case after the

plaintiff filed a notice of nonsuit. Id.

The defendant argued that the trial court’s order was erroneous because he had

filed a counterclaim for affirmative relief. Id. The Dallas court rejected this argument because the defendant

had not paid the filing fee for his counterclaim. Id. It observed that, because the defendant had not paid the filing

fee, his claims were conditionally filed, and he “had no unconditional right to

be heard on those claims.” Id. at

686 .

In sum, if Myrta’s motion for

summary judgment was meritorious, the trial court would have been within its

discretion to enter a final judgment disposing of the case without considering Myrta’s counterclaim or to enter an interlocutory order disposing

of Linda’s claims only. We turn to the record to determine how the trial court

exercised its discretion.

B. The record does

not establish whether the trial court intended to exercise its discretionary

authority over Myrta’s counterclaim

The trial court’s summary judgment

order is entitled “Order.” It does not state that it is final, contain any

reference to finality or appealability , or employ the

kind of customary finality language that will dispose of all claims and parties

regardless of whether all issues are properly before the trial court on summary

judgment. See, e.g. , Bison Bldg.

Materials, Ltd. v. Aldridge , No. 06-1084, 2012 WL 1370859 , at *3 (Tex. Apr.

20, 2012) (“The order is not final because it does not contain finality

language, state that it is a final order, or dispose of all claims and parties.”);

Lehmann , 39 S.W.3d at 206 (noting

that statement that judgment “finally disposes of all parties and all claims

and is appealable” would dispose of all claims, even those not raised in

summary judgment motions). It does not reference Myrta’s

counterclaim, nor indicate that the court considered any relief other than that

sought in Myrta’s motion for summary judgment. The

order specifically identifies the filings the court considered as Myrta’s motion and Linda’s response, and it orders only

that Myrta’s summary judgment motion “is in all

things GRANTED.” Myrta’s summary judgment motion

requests judgment on Linda’s claims against her but does not request relief on Myrta’s counterclaim. Thus, the trial court’s summary

judgment order actually and expressly disposes only of Linda’s claims against Myrta —the only claims upon which Myrta

requested relief. See Bison Bldg. Materials , 2012 WL 1370859 , at *3; Lehmann , 39 S.W.3d at 206 ; see also Futch v.

Reliant Sources, Inc. , 351 S.W.3d 929 , 932–33 (Tex. App.—Houston [14th

Dist.] 2011, no pet.) (holding that summary judgment order was not final when

it was titled only as order on motion for summary judgment, expressly granted

only “Motion in its entirety,” and did not actually dispose of all claims).

Nor is there any indication elsewhere

in the record as to the trial court’s intentions, if any, with respect to Myrta’s counterclaim. The trial court did not enter an

order on Myrta’s motion to modify the summary

judgment order. The trial court’s denial of Linda’s motions is equally

consistent with an interlocutory or final summary judgment order. Although the

parties make representations about hearings on these motions before the trial

court, they did not file a reporter’s record in this appeal. We therefore have

no record of what happened at the trial hearings. We generally may not consider

events outside of the record. See Sabine

Offshore Serv., Inc. v. City of Port Arthur , 595 S.W.2d 840, 841 (Tex.

1979); Bencon Mgmt. & Gen. Contracting,

Inc. v. Boyer, Inc. , 178 S.W.3d 198, 210 (Tex. App.—Houston [14th Dist.]

2005, no pet.)

Finally, it appears that the reason that the parties began

treating the trial court’s summary judgment order as a final judgment in the

first place is an entry on the trial court’s docket sheet indicating that a “Final

Summary Judgment [was] Signed” by the trial court on the date of the order.

This Court will not ordinarily rely on docket entries, and there is no basis

here for concluding that the docket entry’s designation of the order as “Final”

reflects the intentions of the trial court. See

Daniel v. Falcon Interest Realty Corp. ,

190 S.W.3d 177, 188 (Tex. App.—Houston [1st Dist.] 2005, no pet.) (quoting Rush

v. Barrios , 56 S.W.3d 88 , 95–96 (Tex. App.—Houston [14th Dist.] 2001, pet.

denied) for the proposition that “an ‘appellate court may not consider docket

entries since they are only made for the clerk’s convenience and are usually

unreliable’”); see also Miller v. Kendall , 804 S.W.2d 933, 944 (Tex. App.—Houston

[1st Dist.] 1990, no writ) (“Generally, a docket entry forms no part of the

record we may consider; it is a memorandum made for the trial court and clerk’s

convenience. This rule results, in part, from the inherent unreliability of

docket entries.”) ( citations omitted).

We hold that the trial court’s summary

judgment order is not a final opinion. We therefore lack jurisdiction over the

merits of this appeal. See Bison Bldg. Materials , 2012 WL

1370859 , at *3; Lehmann , 39 S.W.3d at

206 .

Conclusion

We dismiss this appeal for lack of

jurisdiction.

Harvey

Brown

Justice

Panel

consists of Justices Bland, Massengale, and Brown.

[1] According

to Myrta’s pleadings, the parties discovered the

encroachment when, shortly after Linda purchased the neighboring property, Myrta obtained a survey of her property for the purpose of

installing a new fence.

[2] Linda

asserted that an efiling error had occurred with respect

to her (untimely) summary judgment response, asking the trial court to

reconsider in light of the response she had intended to file.

[3] Linda

later asserted that the trial court’s summary judgment was interlocutory as an

alternative ground for her argument that the trial court should grant her

motion for new trial and for leave to file late evidence.