Hernandez v. Hernandez

632 S.W.3d 92

Alejandro HERNANDEZ, Appellant,

v.Alberto Enrique HERNANDEZ and Reynaldo Aaron Morales, Appellees.

No. 08-19-00060-CV

Court of Appeals of Texas, El Paso.

November 4, 2020

PRO SE APPELLANT: Alejandro Hernandez, P.O. Box 13734, El Paso, TX 79913.

ATTORNEY FOR APPELLEES: Rodolfo Mata, Blanco Ordonez Mata & Wallace, PC, 5715 Cromo Dr, El Paso, TX 79912-5538.

Before Alley, C.J., Rodriguez, and Palafox, JJ.

OPINION

YVONNE T. RODRIGUEZ, Justice

Counting our issued opinions as of this date, this is the fourth appeal Appellant, Alejandro Hernandez, has filed against Appellees, Alberto Enrique Hernandez and Reynaldo Aaron Morales, and the sixth overall appeal filed against various parties based on what Appellant contends was his wrongful removal from certain property in which he was a tenant. See Hernandez v. Hernandez , 596 S.W.3d 403 (Tex.App.—El Paso 2020, no pet.) ; Hernandez v. Sommers , No. 08-18-00045-CV, 2018 WL 1940362 (Tex.App.—El Paso Apr. 25, 2018, no pet.)(mem. op.) ; Hernandez v. Hernandez , 547 S.W.3d 898 (Tex.App.—El Paso 2018, pet. denied) (appeals filed by Appellant against Appellees); see also Hernandez v. Sommers , 587 S.W.3d 461 (Tex.App.—El Paso 2019, pet. denied) ; Hernandez v. US Bank Trust, NA for LSF8 Master Participation Trust , No. 08-16-00290-CV, 2017 WL 1953291 (Tex.App.—El Paso May 11, 2017, no pet.)(mem. op.) (appeals filed against other parties based on same incident).

In this episode of the saga, Appellant filed a wrongful-removal claim in the El Paso Justice Court, received an unfavorable ruling, and appealed to the El Paso County Court at Law No. 7. The County Court granted summary judgment against his wrongful-removal claim – a claim he previously asserted in a separate lawsuit against Appellees based on the same facts and arguments as those made in this appeal – and awarded attorney's fees. In this appeal, Appellant challenges those rulings. Appellees argue to the contrary and also assert a cross-point on appeal requesting "attorney's fees and/or sanctions against Appellant" under Texas Rule of Appellate Procedure 45 only if this Court determines that we cannot uphold the County Court's awarded fees. See TEX.R.APP.P. 45 (providing that an appellate Court can award a prevailing party "just damages" if the Court determines that an appeal is frivolous).

We hold that Appellant failed to show the summary judgment was error where: (1) his appellate argument is unreviewable because it is based on a claim not raised in his original petition; (2) he failed to negate all grounds upon which the judgment could be upheld; and (3) his claim, newly argued claim on appeal, would not have established a genuine issue of material fact. However, we hold that the County Court erred by awarding attorney's fees in the absence of any authority alleged in Appellees' pleadings on which such fees could be upheld. Based on our holding on the attorney's-fees issue, we also hold that Appellant's appeal was not frivolous under Rule 45. Accordingly, we affirm the County Court's summary judgment but strike the attorney's fees award of $14,007.50 in the judgment.

I. BACKGROUND

A. The Core of Appellant's Litigation: Appellees Became Owners of Property from which Appellant had Previously been Evicted by a Bank that Foreclosed on it.

Hernandez was a tenant of certain property (the Property) under a purported oral lease. U.S. Bank Trust foreclosed on the Property, and on February 2, 2017, Appellees placed a winning bid for the purchase of the Property in an online auction. Appellees executed a purchase agreement for the Property the next day. Under that agreement, U.S. Bank Trust was obligated to deliver a deed and convey title to Appellees upon completion of certain conditions to closing the transaction. On February 27, 2017, U.S. Bank Trust executed a special warranty deed, which was held in escrow until March 16, 2017, or the date of closing when Appellees received delivery of the deed. In the meantime, while the deed remained in escrow, U.S. Bank Trust had executed a writ of possession and took possession of the Property on March 13, 2017.

B. Appellant Filed a Wrongful-Eviction Claim in the Justice Court and, Later, Appealed the Unfavorable Ruling to the County Court where the Court Granted Summary Judgment for Appellees and Awarded Attorney's Fees to Appellees.

In the El Paso County Justice Court, Appellant filed an original petition alleging that Appellees improperly excluded him from the Property under Texas Property Code section 92.0081. Appellees responded with a motion for summary judgment arguing that there was no genuine issue of material fact that Appellant had no valid claim under Section 92.0081 because Appellees were not Appellant's landlord at the time a constable executed the writ of possession to evict Appellant from the Property. The Justice Court granted summary judgment in favor of Appellees, and Appellant appealed to the County Court at Law No. 7. Once Appellant's suit was in the County Court, Appellees filed an answer generally denying Appellant's allegations, asserting that collateral estoppel barred Appellant's claim, and requesting attorney's fees.

Subsequently, Appellees filed a motion for summary judgment asserting, as in the Justice Court, that: (1) there was no genuine issue of material fact that Appellant had no valid claim under Section 92.0081 because Appellees were never his landlord; and additionally (2) summary judgment should be granted on the basis of collateral estoppel. In the motion, Appellees also made a request for attorney's fees of $14,007.50 based on work already performed and for prospective attorney's fees between $8,000 and $12,000 based on any appeal. As the "equitable grounds" for such fees, Appellees asserted that the fees were "based on the attorney-fees-as-damages theory[,]" citing Akin, Gump, Strauss, Hauer & Feld, L.L.P. v. Nat'l Dev. & Research Corp. , 299 S.W.3d 106 (Tex. 2009). In support of their contentions, Appellees attached numerous exhibits to their motion, including an affidavit for attorney's fees thoroughly explaining the necessity and reasonableness of such fees and itemizing the services that had been provided.

Appellant filed a response in which he argued that there was a genuine issue of material fact that Appellees owed him duties as landlords pursuant to the terms of their purchase agreement for the Property under Texas Property Code section 92.0081 and – as a newly advanced argument not alleged in his original petition – the "Protecting Tenants at Foreclosure Act of 2009" (the Act). Appellant further contended that collateral estoppel did not bar his lawsuit because "the Court of Appeals did not have before it a complete copy of the Purchase Agreement which [Appellees] provided [Appellant] for the first time on September 13, 2018[.]" Finally, Appellant argued that attorney's fees were not recoverable because: (1) "In this case, there is an absence of a contract or statute which provides for the recovery of attorney's fees;" and (2) "assuming attorney-fees-as-damages theory does exist, it does not apply here[.]"

After a hearing, the County Court entered an order granting Appellees' motion for summary judgment and awarding attorney's fees in the amount of $14,007.50. Appellant subsequently filed his notice of appeal.

II. ISSUES ON APPEAL

Appellant raises two issues on appeal. In his first issue, Appellant argues that the County Court erred in granting summary judgment against him. Specifically, he asserts that "Appellees' only basis for their motion for summary judgment in the trial court is that Appellant's claims are barred by collateral estoppel" and that collateral estoppel could not have applied. He contends that the doctrine was inapplicable because this Court was not previously presented with a complete copy of the purchase agreement in the records of our earlier opinions – due to, allegedly, Appellees' failure to provide it to him until he filed the instant case – and that he was therefore prevented from presenting his present argument based on the Act in his earlier appeals. In his second issue, Appellant argues that the County Court abused its discretion by awarding attorney's fees because "[i]n this case, there is an absence of a contract or statute which provides for the recovery of attorney's fees."

In response to Appellant's first issue, Appellees argue that summary judgment was proper where: (1) Appellant failed to show an issue of material fact that Appellees owed him any duties under the Property Code or the Act prior to taking possession of the property; and (2) collateral estoppel prevented Appellant from litigating the same issues that he litigated in two prior lawsuits filed against Appellees. And in response to Appellant's second issue, Appellees argue that: (1) attorney's fees were recoverable based on the equitable principles invoked in their motion for summary judgment; and (2) "Appellees invoked in the letter and spirit of their argument for attorney's fees presented in their Motion for Summary Judgment" a source for such fees under Texas Civil Practice and Remedies Code section 10.002. Furthermore, Appellees assert a cross-point on appeal that, "[t]o the extent that this Court determines that the Trial Court did abuse its discretion in awarding Appellees $14,007.50 in attorney's fees," this Court should "award Appellees attorney's fees and/or sanctions against Appellant ... under Texas Rule of Appellate Procedure 45."

III. DISCUSSION

A. Summary Judgment Standard of Review

We review grants of summary judgment de novo. Lightning Oil Co. v. Anadarko E&P Onshore, LLC , 520 S.W.3d 39, 45 (Tex. 2017). A party moving for traditional summary judgment bears the burden of proving there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. TEX.R.CIV.P. 166a(c) ; Lightning Oil , 520 S.W.3d at 45. Thus, a defendant moving for traditional summary judgment must conclusively negate at least one...