SignAd, Ltd. v. BJZ Investments, LLC

640 S.W.3d 611

SIGNAD, LTD., Appellant

v.BJZ INVESTMENTS, LLC, Blake Zimmerman, and Jill Bell, Appellees

NO. 14-20-00419-CV

Court of Appeals of Texas, Houston (14th Dist.).

Opinion filed January 27, 2022

Christopher Rothfelder, Richard L. Rothfelder, Houston, for Appellant.

Scott Rothenberg, John Patout Jr., Houston, for Appellee.

Panel consists of Chief Justice Christopher and Justices Zimmerer and Wilson.

Tracy Christopher, Chief Justice

Several issues are raised in this appeal, but we consider just the following two: first, whether we have appellate jurisdiction; and second, whether the trial court properly granted a motion for summary judgment. We conclude that we have appellate jurisdiction, and that the summary judgment was improper. We therefore reverse the trial court's judgment and remand the case for additional proceedings consistent with this opinion.

BACKGROUND

This case arises out of the breach of a lease agreement.

In late 2012, Mike and Emily Kopycinski entered into an agreement to lease a portion of their real property to SignAd, Ltd., which is in the business of outdoor advertising.

The agreement contemplated the erection of a billboard on the Kopycinskis' property, which is adjacent to a major highway. The agreement required a one-time rental payment of thirty thousand dollars, which SignAd paid in exchange for a lease term of thirty years. The agreement also granted SignAd a right of first refusal, which enabled SignAd to match any acceptable offer for the purchase of the Kopycinskis' property, should the Kopycinskis ever decide to sell their property during the term of the lease.

In early 2013, SignAd erected a large, double-facing billboard on the Kopycinskis' property. SignAd regularly maintained the billboard and changed the advertising copy on either a monthly, semi-annual, or annual basis. But for several years, SignAd did not record a copy or memorandum of its lease agreement in the county real property records, nor did SignAd maintain any sort of regular contact with the Kopycinskis, because the lease agreement only required the one-time rental payment.

In 2017, the Kopycinskis received an offer for the purchase of their property from BJZ Investments, LLC. The Kopycinskis determined that the offer was acceptable, but they did not notify SignAd of the offer before accepting it, which was a violation of the lease agreement. Nor did the Kopycinskis notify BJZ of SignAd's right of first refusal. The Kopycinskis conveyed the property to BJZ by warranty deed, which stated that the conveyance was made subject to "such presently valid and subsisting easements, if any, ... which are not of record."

In 2019, nearly two years after the conveyance, BJZ reached out to SignAd by phone and email and requested a copy of its lease agreement with the Kopycinskis. Through these contacts, SignAd first learned of the conveyance from the Kopycinskis to BJZ.

Soon thereafter, SignAd recorded a memorandum of its lease agreement and right of first refusal in the county real property records. SignAd also sent a letter to BJZ, asserting its right of first refusal and demanding that BJZ convey the property to SignAd for the same consideration that BJZ had paid to the Kopycinskis. When BJZ refused the demand, SignAd filed this suit.

In its live pleading, SignAd asserted causes of action against BJZ and two affiliated individuals, Blake Zimmerman and Jill Bell (collectively, the "BJZ Parties"), as well as against the Kopycinskis. SignAd sought a declaratory judgment that it was entitled to purchase the property from the BJZ Parties based on its right of first refusal, which was still valid and enforceable. SignAd also sought damages for a breach of contract.

The Kopycinskis filed a pro se answer, asserting in a single sentence that they were not liable for the allegations against them. They did not seek any relief from any party.

The BJZ Parties also filed an answer, but they were represented by counsel, and they generally denied the allegations against them and sought to recover from SignAd their attorney's fees and related costs. The BJZ Parties did not assert any particular cause of action against SignAd, but the BJZ Parties claimed that they were entitled to their fees and costs under Chapter 38 of the Texas Civil Practice and Remedies Code.

SignAd moved for a partial summary judgment on its breach of contract claim against the Kopycinskis, which the trial court granted as to liability only. The trial court's order made no mention or award of damages resulting from the Kopycinskis' breach of contract.

Roughly one month after this order, the BJZ Parties moved for summary judgment against SignAd. The BJZ Parties argued that they were bona fide purchasers, which was an affirmative defense that, if proven, would defeat SignAd's claims. As additional affirmative defenses, the BJZ Parties argued that SignAd's claims were defeated by theories of equitable estoppel, failure of consideration, laches, and waiver. SignAd filed a response with evidence attached and argued that the BJZ Parties' affirmative defenses were not applicable, or that fact issues precluded a summary judgment.

Without stating its reasoning, the trial court granted the BJZ Parties' motion and signed an "Order Granting Summary Judgment." This order was dated February 6, 2020, and it contained the following language:

It is therefore, ORDERED, ADJUDGED, and DECREED that Plaintiff SignAd take nothing by its claims; that Defendants BJZ [I]nvestments LLC, Blake Zimmerman, and Jill Bell recover their costs and reasonable and necessary attorneys' fees in the amount of $20,582.64 from Plaintiff; and for such other and further relief to which Defendants may be justly entitled to, at law or in equity.

More than two months after the trial court signed this order, the BJZ Parties moved for a severance, asserting in their motion that SignAd still had a pending claim against the Kopycinskis, which made the order interlocutory.

The trial court granted the severance and signed an "Order Granting Entry of Final Judgment" in favor of the BJZ Parties. Less than two weeks after signing that order, the trial court voided it and signed another "Order Granting Entry of Final Judgment" in favor of the BJZ Parties. That subsequent order was dated May 4, 2020. Twenty-eight days after that, on June 1, 2020, SignAd filed its notice of appeal.

The appeal was assigned to our court, and SignAd raised several issues in its appellant's brief. These issues included challenges to the trial court's summary judgment, its award of attorney's fees, and its rulings on miscellaneous motions and objections. There was no mention of appellate jurisdiction in this opening brief.

In their appellees' brief, the BJZ Parties argued for the first time that we lacked jurisdiction to address any of SignAd's issues. In an about-face from their position in the trial court, the BJZ Parties argued that the trial court's February 6th order had been final—not interlocutory—and that SignAd had failed to timely perfect its appeal.

SignAd filed a reply brief to address this jurisdictional argument, and the BJZ Parties filed a surreply in response. Before we may consider the merits of SignAd's appeal, we must first address this threshold question of appellate jurisdiction.

APPELLATE JURISDICTION

A timely filed notice of appeal is essential to invoke this court's appellate jurisdiction. See Tex. R. App. P. 25.1(b). As a general rule, a notice of appeal is timely if it is filed within thirty days of the trial court's final judgment. See Tex. R. App. P. 26.1. There are several exceptions to this rule, see Tex. R. App. P. 26.1(a)–(d), and we even have the discretion to extend the filing deadline in certain situations, see Tex. R. App. P. 26.3, but none of those circumstances applies here. Thus, SignAd's notice of appeal was due within thirty days of the final judgment.

The parties dispute when the trial court's final judgment was actually rendered. If the final judgment was rendered by the trial court's May 4th order, as SignAd argues in its reply brief, then the notice of appeal was due by June 3, 2020, which would mean that we have appellate jurisdiction because SignAd filed its notice of appeal two days earlier. If, on the other hand, the final judgment was rendered by the trial court's February 6th order, as the BJZ Parties now argue, then the notice of appeal was due on March 9, 2020, which is technically thirty-two days after the order because the thirtieth calendar day fell on a weekend. See Tex. R. App. P. 4.1 (providing that if a deadline falls on a weekend or legal holiday, then the deadline is extended to the next day that is not a weekend or legal holiday). This would also mean that we lack appellate jurisdiction because SignAd filed its notice of appeal eighty-four days too late.

We consider questions of finality under a de novo standard of review. See Matter of Guardianship of Jones , 629 S.W.3d 921, 924 (Tex. 2021) (per curiam). And in making our determination of finality, we are guided by Lehmann v. Har-Con Corp. , 39 S.W.3d 191 (Tex. 2001), which held that a judgment issued without a conventional trial is final for purposes of appeal if at least one of the following tests has been satisfied: (1) "it states with unmistakable clarity that it is a final judgment as to all claims and all parties," or (2) "it actually disposes of all claims and parties then before the court, regardless of its language." Id. at 192–93.

Lehmann provided an exemplar for the first test. If the judgment contains a phrase such as, "This judgment finally disposes of all parties and all claims and is appealable," then there can be no doubt that the judgment is final. Id. at 206. The trial court's May 4th order contains such a finality phrase, which means that it was final for purposes of appeal, so long as it was signed at a time when the trial court still retained its plenary power.

The BJZ Parties argue that the trial court had already lost its...