Reversed and Remanded and Memorandum Opinion filed February 12, 2019.




                                      In The

                     Fourteenth Court of Appeals

                               NO. 14-17-00347-CV

ERNESTINE SOPHIE JIMENEZ, AKA ERNESTINE SIERRA JIMENEZ,
AKA ERNESTINE GARCIA, AKA ERNESTINE JIMENEZ GARCIA, AKA
                  BAKER LEWIS, Appellant
                                         V.

                       ROSEMARIE Z. LEWIS, Appellee

             On Appeal from the County Civil Court at Law No. 3
                           Harris County, Texas
                      Trial Court Cause No. 1044770

                 MEMORANDUM                      OPINION


      This is an appeal from a summary judgment granted in favor of appellee,
Rosemarie Z. Lewis. Both Lewis and appellant, Ernestine Sophie Jimenez, assert
that we do not have jurisdiction over this appeal. In her first issue, Jimenez argues
that we do not have jurisdiction because the trial court’s summary judgment order
did not dispose of all parties and claims. Lewis responds that we do not have
jurisdiction because Jimenez did not timely file her notice of appeal. We initially
conclude that Jimenez’s notice of appeal was timely because the trial court granted
Jimenez an extension of time to file her motion for new trial pursuant to Rule
21(f)(6) of the Texas Rules of Civil Procedure, which in turn extended the deadline
for Jimenez to file her notice of appeal.        We also conclude that we have
jurisdiction over Jimenez’s appeal because the trial court’s summary judgment
order clearly and unequivocally disposed of all claims and parties.         Jimenez
contends in her third issue that the trial court erred when it signed a final summary
judgment because Lewis’s motion did not address Jimenez’s counterclaims or her
third-party claims against Richard Lewis. We sustain this issue because a trial
court errs when it grants more relief than requested in a motion for summary
judgment. Jimenez contends in her second issue that the trial court erred when it
granted Lewis’s motion for summary judgment on Lewis’s breach of lease claim.
We sustain Jimenez’s second issue because the summary judgment evidence raised
genuine issues of material fact on Lewis’s breach of lease cause of action. We
therefore reverse the trial court’s final summary judgment and remand to the trial
court for further proceedings.

                                  BACKGROUND

      Jimenez married Richard Lewis, Rosemarie Lewis’s son, on October 24,
2004. They divorced on August 20, 2008. Richard had signed a lease renting a
home allegedly owned by Lewis on September 1, 2004. Jimenez did not sign the
lease. After Richard and Jimenez divorced, Lewis sued Jimenez for breach of the
lease. Jimenez appeared in the lawsuit, filed counterclaims against Lewis, and she
added Richard as a third-party defendant. Jimenez asserted numerous causes of
action against both Lewis and Richard including, among other things, a request for
a declaratory judgment declaring the September 1, 2004 lease void, fraud,

                                         2
conversion, conspiracy, and intentional infliction of emotional distress.

       Lewis eventually filed a traditional motion for summary judgment only on
her breach of lease cause of action. Lewis argued that Jimenez was liable under
the lease because Jimenez’s future spouse, Richard, had signed the lease, and the
rent qualified as a necessary pursuant to the Texas Family Code. See Tex. Fam.
Code Ann. § 2.501(b) (“A spouse who fails to discharge the duty of support is
liable to any person who provides necessaries to the spouse to whom support is
owed.”); § 3.201(a)(2) (providing that “a person is personally liable for the acts of
the person’s spouse only if . . . the spouse incurs a debt for necessaries as provided
by” Texas Family Code section 2.501(b)).              Lewis attached several items of
summary judgment evidence to her motion. This evidence included a copy of the
lease as well as copies of two checks payable to Lewis that had been signed by
Jimenez.1 Lewis also attached Richard’s affidavit in which he stated, among other
things, that Lewis “provided a place for me and [Jimenez] to reside, which we did
do. We resided in the leased premises for years, including after the term of the
ending of the lease and pursuant to the holdover provision. It was agreed with
[Lewis] that we would continue to pay the amount of rent under the lease that we
were paying during the first 13 months of the lease.” Richard concluded his
affidavit by stating that Jimenez owed Lewis $5,535.

       Jimenez filed a response to Lewis’s motion for summary judgment. Jimenez
included as summary judgment evidence excerpts from Lewis’s deposition. Lewis,
during her deposition, could not recall buying any houses. She also could not
recall signing a lease with her son Richard. Lewis further testified that she was not
aware of any agreements that she had with Jimenez. Lewis did not recall suing
       1
        One of the checks was signed on August 4, 2006. The memo line was filled out as “1/2
August ’06.” The second check was signed on July 1, 2005 and the memo line stated “1/2 July.”
The second check was stamped “Returned Not Paid, Stop Payment.”

                                             3
Jimenez and separately denied knowledge of having a landlord’s lien on any of
Jimenez’s property. When asked if she wanted to punish Jimenez, Lewis testified,
“No. I’d just rather not see her, hear from her, or have anything to do with her.”
When asked if she made the decision to sue Jimenez, Lewis first testified that she
did not, and then she testified that she could have “because [she] hated that
woman.” Finally, Lewis testified that she was unaware of Jimenez owing her any
money.

       The trial court granted Lewis’s motion for summary judgment on March 21,
2017. The judgment awarded Lewis $5,535 in damages and $2,500 in attorney’s
fees. The trial court’s summary judgment order included the following language:
“All relief not granted herein is denied. This is a final judgment disposing of all
parties and all issues. All prior interlocutory orders are hereby made final.”

       Jimenez’s attorney attempted to electronically file a motion for new trial on
April 20, 2017. According to Jimenez’s attorney, she verified at the time of filing
that the motion for new trial was properly filed and that the cost of filing was paid
by credit card. Jimenez’s attorney later discovered however, that the motion for
new trial had not been filed. Jimenez filed a motion for leave to file her motion for
new trial late.2     Jimenez asserted Rule 21(f)(6) of the Texas Rules of Civil
Procedure as the basis for her motion.3 A response by Lewis to Jimenez’s motion

       2
        The motion was styled “First Amended Motion for Leave to File Motion to Accept
Second Filed Motion for New Trial.” Jimenez’s attorney attached an affidavit to the motion in
which she stated:
       My name is Sharon Hemphill. I am the attorney in this case and I make this
       affidavit for the limited purposes herein. I am over the age of eighteen years old
       and I am not other disqualified from making this affidavit. I have personal
       knowledge regarding the facts herein and they are true and correct.
       The facts set forth in the attached motion are true and correct.
       3
         Rule 21(f)(6) provides: “Technical Failure. If a document is untimely [filed] due to a
technical failure or a system outage, the filing party may seek appropriate relief from the court.
                                                 4
does not appear in the appellate record. The trial court granted Jimenez’s motion
making her motion for new trial timely filed. The motion for new trial was
subsequently overruled by operation of law. This appeal followed.

                                          ANALYSIS

I.     We have jurisdiction because Jimenez’s motion for new trial extended
       the deadline for the filing of her notice of appeal and the trial court’s
       summary judgment order language clearly and unequivocally disposed
       of all parties and claims.
       Jimenez initially argues that we do not have jurisdiction over this appeal
because the trial court’s summary judgment order did not dispose of her
counterclaims and third-party claims. Lewis, on the other hand, asserts in her
appellee’s brief that we do not have jurisdiction because Jimenez’s motion for new
trial and notice of appeal were not filed timely. We therefore must first determine
whether we have jurisdiction over this appeal. See State v. Naylor, 466 S.W.3d
783, 805 (Tex. 2015) (appellate courts have affirmative duty to confirm
jurisdiction).

       We turn first to Lewis’s contention that we do not have jurisdiction because
Jimenez’s motion for new trial was filed past the thirty-day deadline which she
argues rendered Jimenez’s notice of appeal untimely. See Tex. R. Civ. P. 329b;
Tex. R. App. P. 26.1. We begin by pointing out that Lewis does not dispute that if
we determine Jimenez’s motion for new trial was timely filed, then her notice of
appeal was also timely filed. As discussed above, once Jimenez discovered that
her motion for new trial had not been electronically filed on April 20, 2017, she
filed a motion seeking an extension of time to file the motion citing Rule 21(f)(6)
of the Texas Rules of Civil Procedure in support. As pointed out above, Lewis did

If the missed deadline is one imposed by these rules, the filing party must be given a reasonable
extension of time to complete the filing.” Tex. R. Civ. P. 21(f)(6).

                                               5
not file a response opposing Jimenez’s motion for leave. The trial court granted
the motion, finding that there was good cause to do so.

      On appeal, Lewis asserts that we do not have jurisdiction to consider
Jimenez’s appeal because the trial court abused its discretion when it granted
Jimenez’s motion for leave. In Lewis’ view, the trial court abused its discretion
because Jimenez (1) offered no evidence of a technical error, and (2) took too long,
seven days, to discover the filing problem and to file a motion for leave to file a
late motion for new trial. We disagree with both contentions.

      In the verified motion for leave, Jimenez’s attorney explained her efforts to
timely file the motion for new trial on April 20, 2017 and to pay the filing fee.
Jimenez’s attorney also provided a detailed explanation for the delay in filing the
motion for leave. Among other things, she had numerous other court appearances
requiring her attention over the next several days.       Jimenez’s attorney then
explained:

      Movant returned to her office to set the hearing on the motion for new
      trial late in the afternoon of 4-28-17 when she returned after
      mediation when Movant saw on the e-file list that the MFNT was
      safely “filed,” but could not locate the MFNT in the Court’s file, and
      immediately believed that the MFNT had not yet “shown up” in the
      court’s file as occurs periodically. At that time the Movant filed and
      served via email the Motion to correct, et al, filed earlier.
      It was only on further research, when in the process of filing for the
      oral hearing for the MFNT, that Movant continued to try to locate the
      filing that Movant was horrified to discover that something occurred
      after it was listed as “filed” and Movant discovered somehow there
      was an error but Movant was not notified of any error. In fact,
      Movant relied on the fact that it was “filed” as confirmed on the Tyler
      Technology website. Movant had no idea that there was any problem
      with the filing until tonight.


Jimenez’s attorney went on that she had “no idea what caused this error and [she]
                                         6
was not aware of it until tonight.” In addition, Jimenez’s attorney attached a print-
out from her efile service showing that she filed an “envelope” in this case at 11:48
p.m. on April 20, 2017.

      We conclude this is some evidence supporting the trial court’s implied
findings that (1) there was a technical failure, as contemplated by Rule 21(f)(6),
when Jimenez attempted to file her motion for new trial on April 20, 2017; and (2)
seven days was not an unreasonable delay in filing the motion for leave. In
addition, Lewis provided no evidence that she would be prejudiced by the trial
court granting Jimenez’s motion for leave to file her motion for new trial late. See
Krajca v. Caum, 01-16-00057-CV, 2017 WL 2471102, at *4 (Tex. App.—Houston
[1st Dist.] June 8, 2017, pet. denied) (mem. op.) (considering lack of prejudice to
summary judgment movant in determining that trial court abused discretion when
it struck summary judgment response as untimely filed). We hold that the trial
court did not abuse its discretion when it granted Jimenez’s motion for leave. See
Tex. R. Civ. P. 21(f)(5) (providing that electronically filed document is deemed
filed when transmitted to the filing party’s electronic filing service provider);
Krajca, 2017 WL 2471102, at *3 (“Thus, the rules themselves provide a
mechanism to promote the resolution of cases on their merits rather than
procedural defaults resulting from clerical or technical mistakes.”); Tex. Dep’t of
Aging & Disability Servs. v. Mersch, 418 S.W.3d 736, 742 (Tex. App.—Houston
[1st Dist.] 2013, no pet.) (“The electronic filing and service rules should not
become a trap for the unwary when no harm is done.”). Because the trial court
granted Jimenez’s motion for leave based on Rule 21(f)(6), Jimenez’s motion for
new trial is deemed timely filed on April 20, 2017. As a result, Jimenez’s notice of
appeal, filed on May 1, 2017, was also timely filed. See Tex. R. Civ. P. 21(f)(5)
(“If the missed deadline is one imposed by these rules, the filing party must be


                                          7
given a reasonable extension of time to complete the filing.”).

      We turn next to Jimenez’s argument that we do not have jurisdiction because
the trial court’s summary judgment did not dispose of her counterclaims and third-
party claims against Richard. “[T]he general rule, with a few mostly statutory
exceptions, is that an appeal may be taken only from a final judgment.” Lehmann
v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001). This Court has previously
recognized that a final judgment is not determined by its form, but by its language
and the record on appeal. B.Z.B., Inc. v. Clark, 273 S.W.3d 899, 902 (Tex. App.—
Houston [14th Dist.] 2008, no pet.) (citing Lehmann for the test of finality). To
satisfy the Lehmann test, a judgment either must state clearly and unequivocally
that it disposes of all claims and parties, or it must dispose of every pending claim
and party regardless of its language. Lehmann, 39 S.W.3d at 200. The Supreme
Court of Texas recently reiterated that language such as “all relief not granted is
denied . . . does not indicate that a judgment rendered without a conventional trial
is final for the purposes of appeal.” In re Daredia, 317 S.W.3d 247, 248 (Tex.
2010) (per curiam) (citing Lehmann, 39 S.W.3d at 203–04). But a statement such
as “This judgment finally disposes of all parties and all claims and is appealable”
leaves no doubt about the court’s intention to make a final disposition of the case.
Id. (citing Lehmann, 39 S.W.3d at 206).

      In re Daredia also clarified that the word “final,” while less clear than
“appealable,” was “clear enough” to indicate a final judgment when the judgment
stated, “All relief not expressly granted herein is denied. This judgment disposes
of all parties and all claims in this cause of action and is therefore FINAL.” Id. at
248-9. Further, an order “can be final and appealable when it should not be,” as
when an order granting summary judgment does not address all of the plaintiff’s
claims, but “state[s] unequivocally that final judgment is rendered that the plaintiff

                                          8
take nothing by his suit.” Lehmann, 39 S.W.3d at 204. Thus, an order’s clear
intent to dispose of all claims and all parties will make it final and appealable
“even though it should have been interlocutory” or the parties “did not intend for
the judgment to be final.” Id. at 200, 206. Granting a final judgment that does not
address all claims “makes the order reversible, but not interlocutory.” Id. at 204.

      We conclude that the trial court’s summary judgment order, quoted above,
clearly and unequivocally disposed of all parties and claims.         The judgment
therefore was a final judgment and we have jurisdiction. Lehmann, 39 S.W.3d at
204; Lewin v. Mission Bend No. 5 Homeowners Ass’n, Inc., No. 14-16-00026-CV,
2017 WL 2959653, at *2 (Tex. App.—Houston [14th Dist.] July 11, 2017, no pet.)
(mem. op.). We overrule Jimenez’s first issue on appeal.

II.   The trial court erred when it granted summary judgment on Jimenez’s
      counterclaims against Lewis and third-party claims against Richard.
      Jimenez argues in her third issue that the trial court erred when it (1) granted
summary judgment on her counterclaims against Lewis because Lewis’s motion
did not address those claims; and (2) disposed of Jimenez’s third-party claims
against Richard because Richard did not file a motion for summary judgment on
those claims.    We agree.     See Lewin, 2017 WL 2959653, at *4 (“Granting
summary judgment on a claim not addressed in a motion for summary judgment is
reversible error.”). We therefore sustain Jimenez’s third issue because the trial
court’s summary judgment order, while final, erroneously disposed of claims not
addressed in a motion for summary judgment.

III. The trial court erred when it granted Lewis’s motion for summary
     judgment on her breach of lease cause of action.
      In her second issue, Jimenez argues that the trial court erred when it granted
Lewis’s motion for summary judgment because the summary judgment evidence

                                          9
raised a genuine issue of material fact on Lewis’s breach of lease cause of action.

      We review a trial court’s order granting a traditional summary judgment de
novo. Mid-Century Ins. Co. v. Ademaj, 243 S.W.3d 618, 621 (Tex. 2007). In
reviewing a grant of summary judgment, we consider all of the evidence in the
light most favorable to the nonmovant. Ron v. AirTran Airways, Inc., 397 S.W.3d
785, 788 (Tex. App.—Houston [14th Dist.] 2013, no pet.). When a plaintiff moves
for summary judgment on its cause of action, it must conclusively prove all
essential elements of its claim as a matter of law. Cullins v. Foster, 171 S.W.3d
521, 530 (Tex. App.—Houston [14th Dist.] 2005, pet. denied).             Evidence is
considered conclusive if reasonable people could not differ in their conclusions.
Dias v. Goodman Mfg. Co., L.P., 214 S.W.3d 672, 676 (Tex. App.—Houston [14th
Dist.] 2007, pet. denied). The nonmovant has no burden to respond to a motion for
summary judgment unless the movant conclusively establishes each element of its
cause of action as a matter of law. Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217,
222–23 (Tex. 1999). If the movant establishes its entitlement to judgment, then the
burden shifts to the nonmovant to come forward with competent controverting
evidence sufficient to raise a genuine issue of material fact. Muller v. Stewart Title
Guar. Co., 525 S.W.3d 859, 868 (Tex. App.—Houston [14th Dist.] 2017, no pet.).

      To be entitled to summary judgment on her breach of the lease claim, Lewis
was required to prove, as a matter of law, the following essential elements: (1) the
existence of a valid lease contract; (2) that she performed or tendered performance
under the lease; (3) that Jimenez breached the lease; and (4) that she suffered
damages as a result of Jimenez’s breach. Caron v. Smaby, No. 01-15-00528-CV,
2017 WL 2471101, at *7 (Tex. App.—Houston [1st Dist.] June 8, 2017, no pet.)
(mem. op.).    To avoid the undisputed fact that Jimenez did not sign the lease
agreement, and that Jimenez denied the existence of the lease, Lewis argues that

                                         10
Jimenez is liable for the allegedly unpaid rent because it qualifies as a necessary.
See Tex. Fam. Code Ann. § 2.501(b). Even if we assume without deciding that the
allegedly unpaid rent qualifies as a necessary, and that a landlord may pursue a
breach of lease claim against a former spouse who did not sign the lease based on a
necessaries theory, we conclude that the summary judgment evidence, when
viewed under the appropriate standard of review, created a genuine issue of
material fact on whether Lewis suffered damages. This evidence includes Lewis’s
deposition testimony that she was unaware of Jimenez owing her any money.
Because there is a genuine issue of material fact on the damage element of Lewis’s
cause of action, we hold the trial court erred when it granted Lewis’s motion for
summary judgment. We sustain Jimenez’s second issue on appeal.

                                   CONCLUSION

      Having sustained Jimenez’s second and third issues, we reverse the
judgment of the trial court and remand the case to the trial court for further
proceedings.


                                      /s/    Jerry Zimmerer
                                             Justice


Panel consists of Justices Christopher, Zimmerer, and Hassan.




                                        11
