Wolfe's Carpet, Tile & Remodeling v. Bourelle

693 S.W.3d 424

WOLFE’S CARPET, TILE & REMODELING, LLC, Appellant

v.Gary and Beverly BOURELLE, Appellees

NO. 14-22-00579-CV

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

Opinion filed July 27, 2023

On Appeal from the 129th District Court, Harris County, Texas, Trial Court Cause No. 2018-69479

Stephanie Harp, Robert Berleth, Houston, for Appellee.

Nicholas Martinez, Houston, for Appellant.

Panel consists of Justices Bourliot, Hassan, and Wilson.

OPINION

Meagan Hassan, Justice

Appellant Wolfe’s Carpet, Tile & Remodeling, LLC ("Wolfe") sued appellees Gary and Beverly Bourelle (together, "the Bourelles"), asserting the Bourelles owed Wolfe money pursuant to a construction contract. The Bourelles filed a motion for summary judgment and argued that the parties’ contract was void for violating Texas Insurance Code section 4102.051, which prohibits a person from "act[ing] as a public insurance adjuster … unless the person holds a license." See Tex. Ins. Code Ann. § 4102.051(a). The trial court granted the Bourelles summary judgment motion. After the trial court signed a final judgment, Wolfe appealed. For the reasons below, we affirm the trial court’s final judgment.

Background

The Bourelles hired Wolfe to make certain repairs on their property after it was damaged during Humcane Harvey. According to Wolfe, it performed approximately $40,000 in work on the Bourelles’ property but the Bourelles refused to remit the amount owed to Wolfe.

Wolfe sued the Bourelles in 2018 and asserted claims for breach of contract, quantum meruit, and unjust enrichment. Wolfe also requested a declaratory judgment regarding the mechanic’s and materialman’s lien on the Bourelles’ property. The Bourelles filed an answer and asserted multiple counterclaims against Wolfe.

The Bourelles filed a motion for summary judgment, asserting the parties’ construction contract was void under the Texas Insurance Code because, via the contract’s terms, Wolfe was holding itself out as a public insurance adjuster. On November 2, 2021, the trial court signed an order granting in part the Bourelles’ summary judgment motion. The trial court granted summary judgment on Wolfe’s claims and, in its findings, stated that the Bourelles "have opted to void the Contract with [Wolfe] per the Texas Insurance Code." The trial court denied the Bourelles’ summary judgment motion with respect to their counterclaims.

The Bourelles then filed a second summary judgment motion addressing the lien on their property, which the trial court granted in January 2022. The Bourelles filed a "Notice of Nonsuit" with respect to their remaining counterclaims. But in an apparent change of heart, the Bourelles withdrew their notice of nonsuit and filed a fourth amended answer reasserting their counterclaims.

In March 2022, the trial court signed an "Order on Motions for Modification, Correction and New Trial." In its order, the trial court (1) affirmed the November 2021 order granting in part the Bourelles’ summary judgment motion and voiding the parties’ contract, (2) vacated the January 2022 order granting the Bourelles’ second summary judgment motion with respect to the lien on their property, and (3) granted the Bourelles’ motion for leave with withdraw their nonsuit.

The Bourelles filed a third summary judgment motion, again seeking to remove the lien on their property. The trial court signed an order granting the motion and removing the lien. The trial court signed a final judgment on July 8, 2022, that (1) reiterated its rulings granting the Bourelles’ first and third summary judgment motions, (2) imposed a $25,000 bond to stay enforcement of the order removing the lien, and (3) dismissed without prejudice the Bourelles’ claims against Wolfe. The final judgment states that it "dispos[es] of all remaining causes of action and is appealable." Also on July 8, 2022, the trial court signed and dated a "Notice of Nonsuit" filed by the Bourelles, in which they nonsuited all their claims against Wolfe. Wolfe timely filed a notice of appeal.

Analysis

Raising two issues on appeal, Wolfe asserts the trial court erred by (1) voiding the parties’ contract for violating the Texas Insurance Code, and (2) removing its lien on the Bourelles’ property. The Bourelles respond to Wolfe’s issues and also contend that Wolfe’s notice of appeal failed to preserve any issues for appellate review. We begin with the Bourelles’ preservation contention before turning to Wolfe’s issues.

I. Wolfe’s Notice of Appeal

[1] Wolfe’s notice of appeal states that it appeals the following orders signed by the trial court:

1. the Notice of Nonsuit signed July 8, 2022;

2. the Final Summary Judgment signed January 26, 2022; and

3. the Order for Interlocutory Summary Judgment signed November 2, 2021.

The Bourelles assert that these listed orders are insufficient to preserve Wolfe’s appellate issues for the following reasons:

• The trial court signed two orders on July 8, 2022: a final judgment and the Bourelles’ "Notice of Nonsuit." Wolfe’s appellate brief did not raise any issues challenging the "Notice of Nonsuit" even though this was the challenged order listed on its notice of appeal.

• The trial court vacated the January 2022 final summary judgment.

• The November 2021 interlocutory summary judgment (which voided the parties’ contract) merged into the final judgment.

We conclude that these challenges do not deprive us of jurisdiction to consider Wolfe’s issues on appeal.

The contents of a notice of appeal are governed by the Texas Rules of Appellate Procedure, which state that the notice must include "the date of the judgment or order appealed from." Tex. R. App. P. 25.1(d). In cases challenging the sufficiency of a notice of appeal, the Texas Supreme Court has consistently held that "a timely filed document, even if defective, invokes the court of appeals’ jurisdiction." Sweed v. Nye, 323 S.W.3d 873, 875 (Tex. 2010) (per curiam); see also Perry v. Cohen, 272 S.W.3d 585, 587 (Tex. 2008) (per curiam) ("disposing of appeals for harmless procedural defects is disfavored"). The supreme court advocates for a policy that "appl[ies] rules of procedure liberally to reach the merits of the appeal whenever possible." Warwick Towers Council of Co-Owners v. Park Warwick, L.P, 244 S.W.3d 838, 839 (Tex. 2008) (per curiam).

Applying this precept, this court also takes a liberal approach when evaluating alleged errors in notices of appeal. See, e.g., Human Biostar, Inc. v. Celltex Therapeutics Corp., 514 S.W.3d 844, 846 (Tex. App.—Houston [14th Dist.] 2017, pet. denied) (rejecting the appellee’s argument that the court lacked jurisdiction because appellants’ notices of appeal listed the wrong order); Lackshin v. Spofford, No. 14-03-00977-CV, 2004 WL 1965636, at *2 (Tex. App.—Houston [14th Dist.] Sept. 7, 2004, pet. denied) (mem. op.) (notice of appeal was not defective despite listing incorrect date for final judgment); Griggs v. Wood, No. 14-00-00226-CV, 2001 WL 987906, at *1 n.1 (Tex. App.—Houston [14th Dist.] Aug. 30, 2001, no pet.) (not designated for publication) (declining to dismiss notice of appeal because it did not state the date of the judgment or the order appealed from).

[2] Based on a liberal application of the appellate rules, Wolfe’s notice of appeal is sufficient to preserve its issues for appellate review. Wolfe seeks to challenge (1) the trial court’s summary judgment voiding the parties’ contract on grounds that it violates the Insurance Code, and (2) the trial court’s removal of the lien on the Bourelles’ property. The summary judgment complained of in Wolfe’s first issue was ruled on in the trial court’s November 2021 order, which was one of the challenged orders listed in Wolfe’s notice of appeal. The Bourelles do not cite any case law holding that listing the interlocutory order — but not the final judgment — in the notice of appeal deprives the appellate court of jurisdiction to consider the issue. See Weeks Marine, Inc. v. Garza, 371 S.W.3d 157, 162 (Tex. 2012) ("An appellant can preserve error in the body of their appellate brief, even if it is not separately listed in the notice of appeal or presented as an issue in the brief."); see also, e.g., Anderson v. Long, 118 S.W.3d 806, 809-10 (Tex. App.—Fort Worth 2003, no pet.) (holding that the appellant could challenge an interlocutory partial summary judgment even though the notice of appeal stated that the appeal was from the order sustaining a subsequent plea to the jurisdiction).

Wolfe’s notice of appeal also lists the "Notice of Nonsuit signed July 8, 2022" as one of the appealed orders. On the trial court’s docket sheet, the July 8, 2022 final judgment also is listed as the "Order of Non-Suit signed July 8, 2022" despite the document’s header stating that it is a "Final Judgment." Construing the notice of appeal in conjunction with the trial court’s docket sheet suggests Wolfe was attempting to appeal the final judgment — particularly since Wolfe did not raise any issues in its appellate brief challenging the nonsuit that also was signed on July 8, 2022.

Finally, the Texas Rules of Appellate Procedure require only that the notice of appeal list "the date of the judgment or order appealed from." Tex. R. App. P. 25.1(d) (emphasis added). Wolfe’s notice includes the correct date for the final judg- ment, even though it lists the incorrect title.

In sum, because notices of appeal are to be liberally construed, the alleged issues with Wolfe’s notice of appeal do not warrant declining to reach the merits of its appeal. We overrule the Bourelles’ argument on this point.

II. Texas Insurance Code Section 4102.051

In the trial court, the Bourelles filed a summary judgment motion seeking to void their contract with Wolfe on grounds that the contract violated the Texas Insurance Code’s prohibition against persons holding themselves out as public insurance adjusters. See Tex. Ins. Code Ann. § 4102.051. The trial court signed an order granting the summary judgment...