Motion to Reconsider March 22, 2018 Order Regarding Want of Jurisdiction
Dismissed as Moot; Case No. 14-18-00522-CV Dismissed as Moot; Case No.
14-17-01011-CV Affirmed; and Memorandum Opinion filed August 20, 2019.




                                           In The

                        Fourteenth Court of Appeals

                                   NO. 14-17-01011-CV
                                   NO. 14-18-00522-CV

                                 GINA LUSK, Appellant

                                              V.
   IGNACIO OSORIO, ADRIANA OSORIO, AND CHAMPIONS REAL
               ESTATE GROUP, LLC, Appellees

                       On Appeal from the 133rd District Court
                                Harris County, Texas
                        Trial Court Cause No. 2015-53814-A1

                              MEMORANDUM OPINION

      Appellant Gina Lusk sued a potential homebuyer, a real estate agent, and the
agent’s brokers after the buyer failed to purchase Lusk’s home. The brokers
(appellees) counterclaimed for contractual attorney’s fees and costs. The trial court

      1
          As we explain below, the original Cause No. 2015-53814 and has not been appealed.
granted the appellees’ motion for summary judgment on all of Lusk’s claims,
severed the claims among Lusk and the appellees from the claims among Lusk and
the other defendants, and then held a bench trial on attorney’s fees and costs,
awarding them to the appellees. In five issues on appeal, Lusk challenges the trial
court’s summary judgment, severance, and award of attorney’s fees and costs.

      We dismiss as moot the appeal in Case No. 14-18-00522-CV, dismiss as
moot Lusk’s “Motion to Reconsider March 22, 2018 Order Regarding Want of
Jurisdiction,” and affirm the trial court’s judgment in Case No. 14-17-01011-CV.

                         I.    APPELLATE JURISDICTION

      Appellees contend that this court lacks jurisdiction over Lusk’s appeals in
each cause number. In particular, appellees contend that there is no final judgment
in appellate Case No. 14-17-01011-CV and that Lusk’s notice of appeal in Case
No. 14-18-00522-CV is untimely.

A.    Legal Principles

      Generally, an appeal may only be taken from a final judgment that disposes
of all pending claims and parties. See Lehmann v. Har-Con Corp., 39 S.W.3d 191,
195 (Tex. 2001); see also Tex. Civ. Prac. & Rem. Code § 51.012. But the right to
appeal should not be lost by an overly technical application of the law. Lehmann,
39 S.W.3d at 205. A court of appeals has jurisdiction over an appeal if the
appellant timely files an instrument in a bona fide attempt to invoke the appellate
court’s jurisdiction. In re K.A.F., 160 S.W.3d 923, 927 (Tex. 2005). Accordingly,
filing a notice of appeal with an incorrect cause number does not defeat the
jurisdiction of the court of appeals. City of San Antonio v. Rodriguez, 828 S.W.2d
417, 418 (Tex. 1992). Furthermore, a prematurely filed notice of appeal is deemed



                                        2
filed on the day of, but after, the event that begins the period for perfecting the
appeal. Tex. R. App. P. 27.1(a).

B.    Background

      Lusk sued the defendants in district court Cause No. 2015-53814. The
appellees answered and filed a counterclaim for contractual attorney’s fees. The
appellees moved for a summary judgment on Lusk’s claims and on the appellees’
counterclaim for attorney’s fees and costs. On September 12, 2017, the trial court
granted the appellees’ motion, stating in the order that the judgment resolved all
claims between Lusk and the appellees and that the case would “proceed
accordingly with respect to any remaining claims between [Lusk] and any
remaining parties.” The trial court did not specifically dispose of the appellees’
counterclaim for attorney’s fees and costs, so the appellees filed an “unopposed
motion to modify, correct, or reform” the summary judgment. On October 31, the
trial court granted the appellees’ motion to modify the summary judgment and
clarified that the summary judgment did not resolve the appellees’ counterclaims
against Lusk, “which shall proceed accordingly.”

      Lusk filed a motion for reconsideration of the partial summary judgment,
and the trial court denied it on November 14. The appellees filed a motion to sever,
and the trial court signed a severance order on November 28, stating that “any and
all causes of action between [Lusk] and [the appellees] are hereby severed into a
new cause bearing Cause No. 2015-53814-A.” The trial court included the
following paragraph:

             The Court notes the Summary Judgment granted September 12,
      2017, and modified by the Court’s October 31, 2017 Order, in favor
      of [the appellees] disposes of all claims against them in this severed
      case. The [appellees’] counterclaims against Plaintiff Gina Lusk


                                         3
      remain unresolved and shall proceed accordingly in the severed cause.
      All relief not herein granted is denied.

      On December 28, Lusk filed a notice of appeal in the original district court
Cause No. 2015-53814. In the notice, Lusk stated her intent to appeal from the
summary judgment signed on September 12 and the denial of the motion for
reconsideration signed on November 14. This court assigned the appellate Case
No. 14-17-01011-CV to the appeal.

      On March 22, 2018, this court issued an order noting that there were
remaining claims and parties in the litigation after the trial court’s summary
judgment order. This court noted that an incorrect cause number would not defeat
appellate jurisdiction if the instrument was a bona fide attempt to invoke this
court’s jurisdiction. This court informed Lusk that she could file an amended
notice of appeal to remedy the defect. Lusk filed in this court a motion to
reconsider the March 22 order. Lusk argued that the severance order made the
summary judgment final because the order “disposed of all claims.” This court
took Lusk’s motion with the case.

      Meanwhile, in the severed district court Cause No. 2015-53814-A, the
appellees filed a motion for attorney’s fees and costs. On February 20, 2018, the
trial court signed a final judgment awarding attorney’s fees and costs to the
appellees. Thirty-one days later, on March 23, Lusk filed a combined motion for
new trial and motion to modify the trial court’s judgment. On June 21, Lusk filed a
notice of appeal. In the notice, she stated her intent to appeal from the February 20
judgment and her intent to appeal from the summary judgment signed on
September 12 and the denial of the motion for reconsideration signed on
November 14. This court assigned appellate Case No. 14-18-00522-CV to the
appeal and consolidated both appeals.


                                         4
      In September 2018, the appellees moved to dismiss both appeals for lack of
appellate jurisdiction. This court denied the motion, but appellees raise similar
jurisdictional arguments in their briefs.

C.    Analysis

      In the notice of appeal that Lusk filed in the original cause—district court
Cause No. 2015-53814 and appellate Case No. 14-17-01011-CV—Lusk stated her
intent to appeal from the trial court’s order that had been severed into the district
court Cause No. 2015-53814-A. Although the notice of appeal included the
incorrect cause number of the original district court cause, her notice of appeal was
a “bona fide attempt” to appeal the trial court’s order that had been severed into the
district court Cause No. 2015-53814-A. See Rodriguez, 828 S.W.2d at 418.

      However, the trial court did not sign a final judgment in the severed cause
until the court finally disposed of all pending claims among Lusk and the appellees
in the February 20, 2018 judgment awarding the appellees attorney’s fees and
costs. Lusk’s prematurely filed notice of appeal is deemed filed on the day of but
after the trial court’s February 20 final judgment. See Tex. R. App. P. 27.1(a).

      Accordingly, we hold that Lusk adequately invoked this court’s jurisdiction
in the severed cause number—district court Cause No. 2015-53814-A—by filing
the premature notice of appeal bearing an incorrect cause number. See Espalin v.
Children’s Med. Ctr. of Dallas, 27 S.W.3d 675, 681–82 (Tex. App.—Dallas 2000,
no pet.) (holding that a notice of appeal filed prematurely and bearing the incorrect
“parent” cause number was a bona fide attempt to appeal a partial summary
judgment that was later severed with a different cause number). Her second notice
of appeal filed in the severed cause was unnecessary to perfect the appeal. See
Corcoran v. Atascocita Cmty. Improvement Ass’n, No. 14-12-00983-CV, 2013 WL
504051, at *1 (Tex. App.—Houston [14th Dist.] Feb. 12, 2013, no pet.) (mem. op.)
                                            5
(per curiam); Alvarado v. Lexington Ins., 389 S.W.3d 544, 549 n.5 (Tex. App.—
Houston [1st Dist.] 2012, no pet.); Lerma v. Forbes, 144 S.W.3d 18, 20 (Tex.
App.—El Paso 2004, no pet.).

      We dismiss as moot the appeal generated by Lusk’s unnecessary notice of
appeal, Case No. 14-18-00522-CV. See Corcoran, 2013 WL 504051, at *1.
Because the appeals were consolidated, however, we will consider the briefing and
records filed in both appellate case numbers to resolve the appeal in Case No. 14-
17-01011-CV. Accordingly, Lusk’s motion for reconsideration of this court’s
March 22, 2018 order is dismissed as moot.

                           II.    SUMMARY JUDGMENT

      In Lusk’s first and second issues, she challenges the trial court’s rendition of
a partial summary judgment (1) on her claims based on vicarious liability for the
acts of the real estate agent and (2) on her claim of fraudulent inducement, which
Lusk added in an amended petition after the appellees’ filed their motion for
summary judgment.

A.    Summary Judgment on Vicarious Liability

      Throughout this suit, Lusk has sought to hold appellees vicariously liable for
the acts of the real estate agent. One of the grounds in the appellees’ motion for
summary judgment was that the appellees could not be liable for torts committed
by the real estate agent because she was an independent contractor. In her first
issue on appeal, Lusk challenges the trial court’s granting of summary judgment
solely on that ground.

      However, as Lusk acknowledges in her briefing before this court, the
appellees also moved for summary judgment on Lusk’s claims because (1) the
buyer’s breach of contract was the “sole cause in fact” of Lusk’s damages, and (2)

                                          6
the economic loss doctrine barred Lusk’s claims. In her briefing before this court,
Lusk does not challenge these alternative grounds for summary judgment.

      When, as here, the trial court grants a summary judgment motion without
specifying the grounds in the motion upon which the trial court relies, we must
affirm the judgment if any ground in the motion is meritorious. See, e.g., FinServ
Cas. Corp. v. Transamerica Life Ins., 523 S.W.3d 129, 139 (Tex. App.—Houston
[14th Dist.] 2016, pet. denied). An appellant must challenge all possible grounds
upon which the summary judgment could have been granted, whether properly or
improperly. Id. A failure to do so can be fatal to the appellate challenge. Fairfield
Indus. v. EP Energy E&P Co., 531 S.W.3d 234, 251 (Tex. App.—Houston [14th
Dist.] 2017, pet. denied); see also Heritage Gulf Coast Props. v. Sandalwood
Apartments, 416 S.W.3d 642, 653 (Tex. App.—Houston [14th Dist.] 2013, no pet.)
(“If the appellant fails to challenge all grounds on which the judgment may have
been granted, the appellate court must uphold the summary judgment.”).

      Here, the trial court could have rendered the summary judgment, properly or
improperly, based on the appellees’ independent grounds of (1) lack of causation
or (2) economic loss doctrine. Because Lusk does not challenge these independent
grounds for summary judgment on appeal, her first issue is overruled. See, e.g.,
Fairfield Indus., 531 S.W.3d at 251; FinServ Cas. Corp., 523 S.W.3d at 139;
Heritage Gulf Coast Props., 416 S.W.3d at 653–54.

B.    Summary Judgment on Fraudulent Inducement

      After the appellees’ moved for summary judgment, Lusk filed her third
amended petition and added a claim for fraudulent inducement against the buyer
and real estate agent, while maintaining her “claim” for “agency” against “all
Defendants.” In her second issue, Lusk contends that the trial court erred by
rendering a summary judgment on the fraudulent inducement claim because the
                                         7
appellees did not address the claim in their summary judgment motion. See, e.g.,
Bridgestone Lakes Cmty. Improvement Ass’n v. Bridgestone Lakes Dev. Co., 489
S.W.3d 118, 123 (Tex. App.—Houston [14th Dist.] 2016, pet. denied).

      However, there are exceptions to this rule. When a summary judgment
movant fails to amend the motion after the nonmovant has amended the petition
and added a new claim, the summary judgment can still be affirmed if “the
amended petition essentially reiterates previously pleaded causes of action.” Id. To
determine whether an amended petition essentially reiterates previously pleaded
claims, an appellate court looks to whether the new claim is based on facts and
theories alleged in the original petition. See id.

      The exception applies in this case because Lusk’s new claim of fraudulent
inducement merely reiterated previously pleaded claims of common law fraud and
statutory fraud. We quote from Lusk’s second and third amended petitions:



       Second Amended Petition                           Third Amended Petition

Claim 4: Common Law Fraud                         Claim 5: Fraudulent Inducement
...                                               ...
       34. Pleading further and in the                   61. Pleading further and in the
alternative to Plaintiffs other causes—At         alternative to Plaintiffs other causes—At
the time they made the foregoing                  the time they made the foregoing
representations and omissions, [the buyer]        representations and omissions, [the buyer]
and [the agent] knew that they were false         and [the agent] knew that they were false
or made the representations without               or made the representations without
knowledge       of   the    truth  thereof.       knowledge       of   the    truth  thereof.
Specifically, [the agent] knew neither [the       Specifically, [the agent] knew neither [the
buyer] lacked the financial capacity to           buyer] lacked the financial capacity to
purchase the house, was not a successful          purchase the house, was not a successful
business executive, and was not a family          business executive, and was not a family
member.                                           member.
                                                         62. [The buyer] and [the agent]
                                                  made these knowingly and willfully made
                                                  these representations to induce Gina Lusk
                                              8
                                                     to enter into the purchase agreement with
                                                     [the buyer].
        35. Plaintiff justifiably relied upon                63. Plaintiff justifiably relied upon
the facts as represented by Defendants. In           the facts as represented by Defendants. In
fact, Plaintiff was not in a position to know        fact, Plaintiff was not in a position to know
of the falsity of the misrepresentations and         of the falsity of the misrepresentations and
omissions.                                           omissions.
        36. The misrepresentations made by                   64. The misrepresentations made by
Defendants were material insofar as                  Defendants were material insofar as
Plaintiff entered into and complied with all         Plaintiff entered into the Agreement based
terms of the Agreement based on [the                 on [the buyer]’s and [the agent]’s
buyer]’s and [the agent]’s representations.          representations.
        37.        In        making        the               65.        In        making        the
misrepresentations and omitting the                  misrepresentations and omitting the
pertinent facts, [the buyer] and [the agent]         pertinent facts, [the buyer] and [the agent]
acted so as to deceive and defraud Plaintiff.        acted so as to deceive and defraud Plaintiff.
Accordingly, their conduct was such as to            Accordingly, their conduct was such as to
rise to the level of common law fraud.               rise to the level of common law fraud.
        38. Plaintiff was damaged as a direct                66. Plaintiff was damaged as a direct
and proximate result of Defendants'                  and proximate result of Defendants'
fraudulent conduct.                                  fraudulent conduct.
        39. Defendant [the agent] was acting                 67. Defendant [the agent] was acting
in both her individual capacity and as an            in both her individual capacity and as an
agent of the [appellees].                            agent of [the appellees].
        40. Exemplary damages. Plaintiffs                    68. Exemplary damages. Plaintiffs
injuries resulted from Defendants’ actual            injuries resulted from Defendants’ actual
fraud or malice, which entitles Plaintiff to         fraud or malice, which entitles Plaintiff to
exemplary damages under Texas Civil                  exemplary damages under Texas Civil
Practice & Remedies Code section                     Practice & Remedies Code section
41.003(a).                                           41.003(a).


       But for the addition of a single paragraph—number sixty-two—in the third
amended petition, the allegations are identical. The factual bases for the claims are
identical, i.e., the same alleged misrepresentations in paragraph thirty-four of the
second amended petition and paragraph sixty-one of the third amended petition.

       Furthermore, in the second amended petition, Lusk alleged a claim for
statutory fraud based on a Section 27.01 of the Business and Commerce Code. See
Tex. Bus. & Com. Code § 27.01. According to the petition, and consistent with the
                                                 9
statutory language, the claim was based on a theory of fraudulent inducement:
“Defendants [the buyer] and [the agent] made the false representations and
promises for the purpose of inducing Plaintiff to enter into a contract.” See id. §
27.01(a). When a plaintiff seeks exemplary damages under the statute, as Lusk
sought in her second amended petition, the elements of statutory fraud are identical
to common law fraudulent inducement. See Brush v. Reata Oil & Gas Corp., 984
S.W.2d 720, 726 & n.4 (Tex. App.—Waco 1998, pet. denied) (reasoning that the
“elements of statutory fraud under section 27.01 are essentially identical to the
elements of common law fraud except that the statute does not require proof of
knowledge or recklessness as a prerequisite to the recovery of actual damages”;
however, when a plaintiff proves knowledge, the plaintiff can recover exemplary
damages); see also McPherson Road Baptist Church v. Mission Inv’rs/Fort Worth,
LP, No. 2-08-412-CV, 2009 WL 2579647, at *7 (Tex. App.—Fort Worth Aug. 20,
2009, no pet.) (mem. op.) (per curiam) (“Section 27.01 of the business and
commerce code provides a statutory cause of action for fraudulent inducement in
real estate transactions.”).

      In sum, Lusk’s claim for fraudulent inducement was based on the same facts
and theories as her claims for fraud in the second amended petition. Thus, the third
amended petition essentially reiterated previously pleaded claims. Under these
circumstances, the summary judgment can be affirmed.

      Lusk’s second issue is overruled.

                                III.   SEVERANCE

      In her third issue, Lusk contends that the trial court erred by granting the
appellees’ motion to sever (discussed above in Part I.B of this opinion) because (1)
the trial court erred by rendering the summary judgment and (2) “the claims are so
interwoven with the remaining action that they involve the same facts and issues.”
                                          10
       First, Lusk has not shown that the trial court erred by rendering a summary
judgment, so this contention lacks merit. Furthermore, the record shows that Lusk
filed a response to the motion to sever to “clarify her non-opposition” to the
motion. She wrote that she intended to file a motion to reconsider the trial court’s
summary judgment, and, “Subject to this motion and provided that the [summary
judgment] order is upheld and not overturned, Plaintiff is not opposed to [the
appellees’] Motion to Sever and Motion to Modify the Judgment.” To the extent
that Lusk’s complaint on appeal could be understood as a challenge to the
severance order irrespective of the trial court’s ruling on the motion for summary
judgment, Lusk did not preserve this alleged error in the trial court as required. See
Gammill v. Fettner, 297 S.W.3d 792, 803 (Tex. App.—Houston [14th Dist.] 2009,
no pet.) (party failed to preserve error for appellate complaint that trial court erred
by granting severance because the severed part was so interwoven with the
remaining action as to involve the same facts and issues); see also Tex. R. App. P.
33.1(a).

       Lusk’s third issue is overruled.

                          IV.    ATTORNEY’S FEES AND COSTS

       In her fourth issue, Lusk contends that the trial court erred by awarding
attorney’s fees and costs to the appellees’ because the trial court erred in granting
the appellees’ motion for summary judgment. Lusk contends that the appellees did
not “prevail” under the terms of the contract. 2 Because Lusk has not shown that the
trial court erred by rendering the partial summary judgment, her fourth issue is
overruled.

       2
          The contract contains the following provision regarding attorney’s fees: “A Buyer,
Seller, Listing Broker, Other Broker, or escrow agent who prevails in any legal proceeding
related to this contract is entitled to recover reasonable attorney’s fees and all costs of such
proceeding.”
                                              11
      In her fifth issue, Lusk contends: “The Trial Court erred as it misapplied the
term ‘prevailed’ as the term is applied in Texas Supreme Court Case Epps v.
Fowler and erred in applying the Epps factors in determining on what claims, if
any, Appellees ‘prevailed.’” 3 Specifically, Lusk notes that the appellees argued in
their motion for attorney’s fees that Lusk had asserted seven claims against the
appellees, but Lusk’s third amended petition included only two claims against the
appellees: negligent hiring and agency.

      As is clear from Lusk’s argument in her second issue on appeal, however,
Lusk sought to hold the appellees liable under an agency theory for various other
torts committed by the real estate agent, including fraudulent inducement. Thus,
the appellees “prevailed” on those claims when the trial court rendered the
summary judgment on Lusk’s claims.

      In Epps v. Fowler, the Supreme Court of Texas addressed whether a
defendant can be a “prevailing party” for purposes of awarding contractual
attorney’s fees when the plaintiff has nonsuited claims against that defendant. See
351 S.W.3d 862, 864 (Tex. 2011). The court held that “a defendant may be a
prevailing party when a plaintiff nonsuits without prejudice if the trial court
determines, on the defendant’s motion, that the nonsuit was taken to avoid an
unfavorable ruling on the merits.” Id. at 870. The supreme court suggested that
courts should make this determination by relying as much as possible on the
existing record and affidavits, and courts should resort to live testimony only in
rare instances. See id. at 870. The court provided an example of when a court
might find that a nonsuited defendant was a prevailing party because the plaintiff
sought to avoid an unfavorable judgment: “if a plaintiff nonsuits only after a
motion for summary judgment is filed, it may suggest that the plaintiff elected to

      3
          See Epps v. Fowler, 351 S.W.3d 862 (Tex. 2011).

                                              12
do so in order to escape summary judgment.” Id. at 871. We review for an abuse of
discretion the trial court’s factual determination of whether a plaintiff nonsuited to
avoid an unfavorable ruling. N. Star Water Logic, LLC v. Ecolotron, Inc., 486
S.W.3d 102, 105 (Tex. App.—Houston [14th Dist.] 2016, no pet.).

      In the roughly one-page argument in her brief, Lusk does not contend that
the trial court erred by awarding attorney’s fees to the individual appellees (Ignacio
and Adriana Osorio) in particular, nor does Lusk refer to the fact that she nonsuited
her claims against the individual appellees after the appellees filed their motion for
summary judgment. This issue and the case of Epps v. Fowler, however, were
discussed in the trial court briefing and at a hearing. Specifically, the parties
discussed at the hearing the standard of proving that Lusk nonsuited her claims to
avoid an unfavorable judgment.

      When a trial court does not file findings of fact and conclusions of law to
support its ruling, as here, we infer all findings necessary to support the judgment.
See Burton v. Prince, No. 14-17-00181-CV, 2019 WL 1064868, at *2 (Tex.
App.—Houston [14th Dist.] Mar. 7, 2019, no pet. h.). Likewise, we infer the
necessary finding in favor of the trial court’s judgment that Lusk nonsuited her
claims to avoid an unfavorable summary judgment. See BBP Sub I LP v. Di Tucci,
No. 05-12-01523-CV, 2014 WL 3743669, at *4 (Tex. App.—Dallas July 29, 2014,
no pet.) (mem. op.) (reviewing an implied finding that the plaintiff dismissed a
claim to avoid an unfavorable judgment after the trial court had granted a partial
summary judgment and then held a bench trial on attorney’s fees). Considering that
Lusk nonsuited after the appellees filed a motion for summary judgment, we hold
that the trial court acted within its discretion at the bench trial by finding that Lusk
nonsuited her claims against the individual appellees to avoid an unfavorable
summary judgment. See Epps, 351 S.W.3d at 871.

                                          13
      Lusk’s fifth issue is overruled.

                                V.       CONCLUSION

      The appeal in appellate Case No. 14-18-0522-CV is dismissed as moot, as is
Lusk’s Motion to Reconsider March 22, 2018 Order Regarding Want of
Jurisdiction. The trial court’s judgment in district court Cause No. 2015-53814-A
and appellate Case No. 14-17-01011-CV is affirmed.




                                         /s/    Ken Wise
                                                Justice


Panel consists of Justices Wise, Zimmerer, and Spain.




                                           14
