Opinion issued December 15, 2015




                                   In The

                             Court of Appeals
                                   For The

                        First District of Texas
                         ————————————
                             NO. 01-13-00516-CV
                          ———————————
                    ELENA MARKOVSKY, Appellant
                                      V.
                      KIRBY TOWER, L.P., Appellee


                  On Appeal from the 11th District Court
                         Harris County, Texas
                         Cause No. 2009-03458



                        MEMORANDUM OPINION

     This is the second appeal in this lawsuit, which arose out of a contract in

which appellant Elena Markovsky agreed to purchase a condominium from

appellee Kirby Tower, L.P.    In the first appeal, we affirmed a take-nothing
judgment against Markovsky, the plaintiff below, but reversed the award of earnest

money to Kirby Tower because it had not asserted an affirmative claim for relief.

Markovsky v. Kirby Tower, LP, No. 01-10-00738-CV, 2011 WL 5429014 (Tex.

App.–Houston [1st Dist.] Nov. 10, 2011, pet. denied). On remand, the trial court

granted Kirby Tower’s motion for summary judgment, awarding Kirby Tower the

$300,000 in earnest money that had been held in escrow since the parties entered

into the contract. In this appeal, Markovsky challenges the summary judgment and

the trial court’s denial of her motion to enter judgment in her favor. We affirm.

                                   Background

      Markovsky and Kirby Tower negotiated a contract for a high-rise

condominium that required Markovsky to place in escrow $300,000 in earnest

money, which was 10 percent of the agreed purchase price. The contract gave

Markovsky the right to terminate the contract and receive a full refund of the

$300,000 if Kirby Tower failed to complete the unit by May 31, 2008.

      The condominium was not completed by May 31, 2008.                 Markovsky

nevertheless continued to make changes to the unit plans, select unit upgrades, and

specify cabinets and appliances to install in the unit before informing Kirby Tower,

for the first time on November 5, 2008, that she wanted to terminate the contract

and get a refund of her earnest money.        When Kirby Tower did not agree,




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Markovsky sued Kirby Tower for declaratory judgment and breach of contract.

Kirby Tower asserted defenses, but sought no affirmative relief.

      A jury found that Kirby Tower had breached the contract by not completing

the condominium by May 31, 2008, but it also found that Markovsky waived this

breach by continuing to proceed under the contract after that date. The trial court

entered a take-nothing judgment against Markovsky and awarded Kirby Tower the

earnest money plus accrued interest. Markovsky appealed, and we affirmed the

take-nothing judgment, but reversed the trial court’s award of the earnest money to

Kirby Tower because it had not asserted an affirmative claim for relief.

      On remand, Markovsky moved for entry of judgment, requesting a

declaratory judgment awarding her the earnest money. The trial court denied the

motion. Kirby Tower filed original counterclaims for breach of contract and

declaratory judgment, requesting that the earnest money be awarded to it as

liquidated damages, then moved for summary judgment on its counterclaims. In

support of its motion for summary judgment, Kirby Tower submitted the contract,

an affidavit of Andrew Osborne, the authorized representative of Kirby Tower’s

general partner, setting forth facts regarding Markovsky’s termination of the

contract, the trial court’s judgment, and this Court’s memorandum opinion

affirming the take-nothing judgment.




                                         3
      Five days before the summary-judgment hearing, Markovsky filed a

response to the motion for summary judgment, in which she argued that she had

not waived the completion date provision in the contract and that the summary-

judgment evidence raised a fact issue on her breach and on her affirmative

defenses. She also argued that this Court’s opinion did not prevent the trial court

from entering a judgment in her favor awarding her the earnest money. The trial

court granted Kirby Tower’s summary-judgment motion as to both its

counterclaims and entered a declaratory judgment “that Kirby Tower, L.P. is

entitled to the $300,000 earnest money, together with accrued interest, deposited

by Plaintiff/Counter-Defendant Elena Markovsky relating to Unit 27-I at 2727

Kirby, H[o]uston, Texas 77098.” 1




1
      The trial court’s original summary-judgment order did not contain a Mother
      Hubbard clause and did not indicate whether relief was granted based upon Kirby
      Tower’s breach of contract claim, its declaratory judgment claim, or both. It also
      did not dispose of Kirby Tower’s request for attorney’s fees, and thus was not a
      final judgment. See McNally v. Guevara, 52 S.W.3d 195, 196 (Tex. 2001). We
      granted Markovsky’s motion to abate the appeal to permit the trial court to render
      a final judgment. See id. (appellate court may abate appeal to permit trial court to
      render final judgment). The modified final judgment contains a Mother Hubbard
      clause, indicates that summary judgment is granted as to both of Kirby Tower’s
      counterclaims, and awards Kirby Tower $5,000 in conditional appellate attorney’s
      fees. Thus, the judgment is final and we have jurisdiction over this appeal. See id.

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                        Motion for Summary Judgment

      In her first issue, Markovsky contends that the trial court erred in granting

summary judgment.

A. Standard of Review and Applicable Law

      We review a trial court’s summary judgment de novo. Travelers Ins. Co. v.

Joachim, 315 S.W.3d 860, 862 (Tex. 2010). If a trial court grants summary

judgment without specifying the grounds for granting the motion, we must uphold

the trial court’s judgment if any of the grounds are meritorious. Beverick v. Koch

Power, Inc., 186 S.W.3d 145, 148 (Tex. App.—Houston [1st Dist.] 2005, pet.

denied). When reviewing a summary judgment, we take as true all evidence

favorable to the nonmovant, and we indulge every reasonable inference and

resolve any doubts in the nonmovant’s favor. Valence Operating Co. v. Dorsett,

164 S.W.3d 656, 661 (Tex. 2005).

      In a traditional summary-judgment motion, the movant has the burden to

show that no genuine issue of material fact exists and that the trial court should

grant judgment as a matter of law. TEX. R. CIV. P. 166a(c); KPMG Peat Marwick

v. Harrison Cnty. Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999). A party

moving for a traditional summary judgment on its affirmative claims must

conclusively prove all essential elements of its claim. See Rhone–Poulenc, Inc. v.

Steel, 997 S.W.2d 217, 223 (Tex. 1999). If the movant conclusively establishes its



                                        5
cause of action, the burden shifts to the nonmovant to respond to the summary

judgment. M.D. Anderson Hosp. & Tumor Inst. v. Willrich, 28 S.W.3d 22, 23

(Tex. 2000).

      A party seeking summary judgment on its affirmative claims is not under

any obligation to negate affirmative defenses.       Kirby Explor. Co. v. Mitchell

Energy Corp., 701 S.W.2d 922, 926 (Tex. App.—Houston [1st Dist.] 1985, writ

ref’d). A party raising an affirmative defense to defeat a motion for summary

judgment must either (1) present a disputed fact issue on the opposing party’s

failure to satisfy his own burden of proof or (2) establish at least the existence of a

fact issue on each element of his affirmative defense by summary judgment proof.

“Moore” Burger, Inc. v. Phillips Petrol. Co., 492 S.W.2d 934, 936–37 (Tex.

1972). An affirmative defense will preclude a summary judgment only if each

element of the affirmative defense is supported by summary judgment evidence.

Kirby Explor., 701 S.W.2d at 926.

B. Did Kirby Tower’s summary-judgment evidence conclusively demonstrate
   that Markovsky breached the contract and that it was entitled to a
   declaratory judgment awarding it the earnest money?

      1. Breach of contract

      The elements of a breach-of-contract action are (1) the existence of a valid

contract, (2) performance or tendered performance by the plaintiff, (3) breach of

the contract by the defendant, and (4) damages sustained by the plaintiff as a result



                                          6
of the breach. See Frost Nat’l Bank v. Burge, 29 S.W.3d 580, 593 (Tex. App.—

Houston [14th Dist.] 2000, no pet.). A breach occurs when a party fails or refuses

to do something she has promised to do. See Townewest Homeowners Ass’n v.

Warner Commc’n Inc., 826 S.W.2d 638, 640 (Tex. App.—Houston [14th Dist.]

1992, no writ).

      “Repudiation or anticipatory breach is a positive and unconditional refusal to

perform the contract in the future, expressed either before performance is due or

after partial performance.” Van Polen v. Wisch, 23 S.W.3d 510, 516 (Tex. App.—

Houston [1st Dist.] 2000, pet. denied). To prove anticipatory breach, also called

anticipatory repudiation, the plaintiff must show that the defendant repudiated the

obligation without just excuse. Taylor Pub. Co. v. Sys. Mktg., Inc., 686 S.W.2d

213, 217 (Tex. App.—Dallas 1984, writ ref’d n.r.e.).

      2. Declaratory judgment

      The purpose of the Declaratory Judgments Act is to settle and afford relief

from uncertainty and insecurity with respect to rights, status, and other legal

relations. TEX. CIV. PRAC. & REM. CODE ANN. § 37.002(b) (West 2015). A

declaratory judgment is appropriate only if a justiciable controversy exists,

resolvable by the declaration sought, concerning the rights and status of the parties.

Bonham State Bank v. Beadle, 907 S.W.2d 465, 467 (Tex. 1995); Russell v. Metro.

Transit Auth. of Harris Cnty., 343 S.W.3d 825, 833 (Tex. App.—Houston [14th



                                          7
Dist.] 2011, no pet.). There must be a real and substantial controversy involving a

genuine conflict of tangible interests and not merely a theoretical dispute. Id.

      3. Analysis

      Here, Kirby Tower’s summary judgment evidence included the signed

contract between itself and Markovsky. The contract provided “[i]f [Markovsky]

is in default, [Kirby Tower’s] sole remedy shall be to terminate this Agreement in

which event [Kirby Tower] will be entitled to retain the Earnest Money . . . .” The

motion was also supported by this Court’s memorandum opinion affirming the

take-nothing judgment against Markovsky based on the jury’s finding that she

waived Kirby Tower’s failure to comply with the completion date provision, and

Osborne’s affidavit, averring that Markovsky terminated the contract in November

2008, while the condominium was still under construction, and did not purchase

the condominium, as she had agreed to do. 2 But the legal effect of Markovsky’s

waiver was to continue the contract, and thus, her termination of the contract

constituted a breach. See Henry v. Masson, 333 S.W.3d 825, 841 (Tex. App.—

Houston [1st Dist.] 2010, pet. denied) (“If the non-breaching party treats the

contract as continuing after the breach, he is deprived of any excuse for

terminating his own performance.”) (citing Long Trusts v. Griffin, 222 S.W.3d 412,

415–16 (Tex. 2007) (per curiam)); see also Hanks v. GAB Bus. Servs., Inc., 644


2
      Markovsky agrees that she terminated the contract in November 2008.

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S.W.2d 707, 708 (Tex. 1982) (“A party who elects to treat a contract as continuing

deprives himself of any excuse for ceasing performance on his own part.”).

      Consequently, Kirby Tower’s summary-judgment evidence conclusively

established the existence of a contract, Markovsky’s breach of the contract, and the

parties’ agreement that Kirby Tower would be entitled to retain the $300,000

earnest money in the event of Markovsky’s breach. Accordingly, Kirby Tower

conclusively proved the essential elements of its breach of contract claim. See

Rhone–Poulenc, Inc., 997 S.W.2d at 223; see also Barry v. Jackson, 309 S.W.3d

135, 142 (Tex. App.—Austin 2010, no pet.) (holding sellers entitled to earnest

money where buyer breached contract for the purchase of a home). Moreover, in

proving the essential elements of its breach claim, Kirby Tower conclusively

showed that it was entitled to a declaratory judgment that it, and not Markovsky,

was entitled to the $300,000 in earnest money. See Beadle, 907 S.W.2d at 467.

C. Did Markovsky raise a fact issue precluding summary judgment?

      Markovsky contends that she raised fact issues regarding breach and her

affirmative defenses of compulsory counterclaim, limitations, and unenforceable

penalty. We will address each of these contentions in turn.

      1. No evidence of retraction of repudiation or cure

      Markovsky argues that she raised a fact issue regarding breach because she

adduced evidence demonstrating that she believed that she was legally entitled to



                                         9
terminate the contract without penalty because Kirby Tower had not completed the

condominium by the May 31, 2008 completion date. Markovsky relies on Jenkins

v. Jenkins, 991 S.W.2d 440 (Tex. App.—Fort Worth 1999, pet. denied), a case

involving an ex-husband’s breach of his agreement to make alimony payments, in

which the Fort Worth Court of Appeals wrote that “there is no repudiation if the

refusal to perform is based upon a genuine mistake or misunderstanding as to

matters of fact or law.” Id. at 447 (citing McKenzie v. Farr, 541 S.W.2d 879, 882

(Tex. Civ. App.—Beaumont 1976, writ ref’d n.r.e.)).

      Despite this reference to a mistake or misunderstanding, the ex-husband who

breached the contract did not claim mistake or misunderstanding, nor did he escape

liability for his breach. Instead, the Fort Worth Court of Appeals affirmed the trial

court’s award of alimony payments to the ex-wife’s estate based on the evidence

that the ex-husband had breached the agreement by failing to make alimony

payments as promised. Id. at 448. Accordingly, despite its passing reference to a

mistake or misunderstanding of law, Jenkins does not support Markovsky’s

contention that her mistaken belief about the contract’s terms should allow her to

escape liability for her uncured breach.

      Nor does Markovsky’s argument find support in McKenzie v. Farr, 541

S.W.2d 879 (Tex. Civ. App.—Beaumont 1976, writ ref’d n.r.e.), the case from

which Jenkins derived the quote upon which Markovsky relies. In McKenzie, the



                                           10
plaintiff sued the defendants for anticipatory breach of a settlement agreement, but

the appellate court held that the record conclusively showed that the defendants “at

all times . . . made known their willingness to perform under the settlement

agreement,” and therefore no anticipatory breach or repudiation occurred. Id. at

881. Unlike in McKenzie, Markovsky never retracted her repudiation or cured her

breach by paying the contract price.      The authorities simply do not support

Markovsky’s contention that she can escape liability for an uncured breach on the

basis that the breach was based on a unilateral misunderstanding of the contract’s

terms. See New York Party Shuttle, LLC v. Bilello, 414 S.W.3d 206, 212 (Tex.

App.—Houston [1st Dist.] 2013, pet. denied) (noting that unilateral mistake not

known or induced by other party will not constitute grounds for relief and that even

mutual mistakes must not routinely be relied upon to avoid results of an unhappy

bargain, because parties should be able to rely on finality of freely bargained

agreements).

      Here, Markovsky presented no evidence that she either retracted her

repudiation or paid Kirby Tower the $3 million purchase price after learning that,

contrary to her mistaken belief, payment actually was required by the contract’s

terms. Accordingly, there is no evidence to support Markovsky’s claim that she

did not repudiate the contract. Cf. Englehart v. Volunteer State Life Ins., 195

S.W.2d 798, 802–03 (no repudiation where party offered to perform and tendered



                                        11
payments due after learning that its failure to perform was based upon a genuine

mistake and misunderstanding); see also Jenkins, 991 S.W.2d at 447 (repudiation

“is conduct that shows a fixed intention to abandon, renounce, and refuse to

perform the contract”).   Consequently, Markovsky failed to raise a fact issue

regarding breach. See Jenkins, 991 S.W.2d at 447; Englehart, 195 S.W.2d at 802–

03.

      2. Affirmative defenses

      It is undisputed that Markovsky filed her answer asserting affirmative

defenses less than seven days before the summary judgment hearing, without

requesting leave of court. Kirby Tower argues that Markovsky thus waived her

affirmative defenses. See Sosa v. Central Power & Light, 909 S.W.2d 893, 895

(Tex. 1995) (party who files pleading asserting affirmative defenses within seven

days of summary-judgment hearing must obtain leave of court); Shoemake v.

Fogel, Ltd., 826 S.W.2d 933, 937 (Tex. 1992) (affirmative defenses waived if not

pleaded).

      We “will presume leave was granted ‘when a summary judgment states that

all pleadings were considered, and when . . . the record does not indicate that [a]

pleading was not considered, and the opposing party does not show surprise.’”

Mensa-Wilmot v. Smith Int’l, Inc., 312 S.W.3d 771, 778 (Tex. App.—Houston [1st

Dist.] 2009, no pet.) (quoting Cont’l Airlines, Inc. v. Kiefer, 920 S.W.2d 274, 276



                                        12
(Tex. 1996)). Markovsky argues that the trial court’s summary-judgment order

states that the trial court considered Kirby Tower’s “Motion for Summary

Judgment . . . any response, and any reply . . . ,” and that we should therefore

presume leave was granted, because her response addresses her affirmative

defenses.

      We disagree. It is not enough for the summary-judgment order to state that

the trial court considered Markovsky’s response; the order must affirmatively state

or show that the trial court considered Markovsky’s late-filed pleading—her

answer—to support a presumption that leave to file the answer was granted.3 See

Cont’l Airlines, 920 S.W.2d at 276 (court presumes leave was granted “when a

summary judgment states that all pleadings were considered”); Prohold Ltd. v.

Mitchell Energy & Dev. Corp., No. 01-00-01133-CV, 2002 WL 221527, at *4 n.2

(Tex. App.—Houston [1st Dist.] Feb. 14, 2002, pet. denied) (appellate court would

not presume leave was granted to file late-filed pleading where summary-judgment

order did not state that all pleadings were considered and only stated that the trial

court “reviewed the Motion, all exhibits, and the other evidence in the record”); cf.

Espeche v. Ritzell, 65 S.W.3d 226, 230 (Tex. App.—Houston [14th Dist.] 2001)


3
      This is particularly true here, where the summary-judgment order specifically
      states that Kirby Tower’s reply was considered. The reply pointed out that
      Markovsky had not filed a pleading asserting her affirmative defenses, and asked
      the trial court to deny Markovsky leave to file an untimely pleading because
      granting leave would be unfair and prejudicial.

                                         13
(presuming leave granted where summary-judgment order did not state that

pleadings were considered, but included reference to third party beneficiary that

was only included in late-filed amended pleading), rev’d on other grounds, 65

S.W.3d 226 (Tex. 2002); Burns v. Seascape Owners Ass’n, Inc., No. 01-11-00752-

CV, 2012 WL 3776513, at *7 (Tex. App.—Houston [1st Dist.] Aug. 30, 2012, no

pet.) (leave presumed where summary-judgment order recited “Having considered

the pleadings and all evidence, the Court finds the motion is meritorious and

should be granted.”); see also McIntyre v. Wilson, 50 S.W.3d 674, 684 (Tex.

App.—Dallas 2001, pet. denied) (leave to file not presumed where summary-

judgment order did not state that all pleadings on file were considered). On this

record, we conclude Markovsky waived her affirmative defenses.

      However, even if we were to presume leave to file the original answer

within seven days of the hearing was granted, we would nevertheless conclude that

Markovsky failed to raise a fact issue regarding the three affirmative defenses she

addresses on appeal.

         a. Compulsory counterclaim

      Markovsky argues that Kirby Tower was precluded from asserting its

counterclaims on remand because they were compulsory counterclaims that should

have been asserted before the first appeal. When a counterclaim is compulsory, it

“must be asserted in the initial action and cannot be asserted in later actions.”



                                        14
Ingersoll-Rand Co. v. Valero Energy Corp., 997 S.W.2d 203, 207 (Tex. 1999); see

also Moore v. First Fin. Res. Enters., Inc., 277 S.W.3d 510, 515 (Tex. App.—

Dallas 2009, no pet.) (“[A] party’s failure to assert a compulsory counterclaim

precludes that party from asserting it in later lawsuits.”). But the remand was not a

“later action” and Markovsky cites no authority for the proposition that a

compulsory counterclaim may not be asserted on remand if permitted by the

appellate court mandate. We hold that Markovsky did not establish the existence

of a fact issue on this affirmative defense.

          b. Limitations

      Markovsky argues that she raised a fact issue about whether Kirby Tower’s

counterclaims are barred by the four-year statute of limitations. However, Kirby

Tower pleaded anticipatory repudiation as an affirmative defense in its First

Amended Answer on August 4, 2009, less than one year after Markovsky

terminated the contract. Because Kirby Tower’s breach of contract and declaratory

judgment counterclaims relate back to this affirmative defense, they are not barred

by limitations. See Bacchus Indus., Inc. v. Frontier Mech. Contrs., 36 S.W.3d 579,

586 (Tex. App.—El Paso 2000, pet. denied) (“Because the counterclaim relates to

the affirmative defense Frontier raised in its First Amended Answer, we believe the

counterclaim was timely filed.”); see also TEX. CIV. PRAC. & REM. CODE ANN.

§ 16.068 (West 2015) (“If a filed pleading relates to a . . . defense that is not



                                          15
subject to a plea of limitation when the pleading is filed, a subsequent amendment

or supplement to the pleading that changes the facts or grounds of liability or

defense is not subject to a plea of limitation unless the amendment or supplement

is wholly based on a new, distinct, or different transaction or occurrence.”).

Accordingly, Markovsky did not raise a fact issue on limitations.

         c. Unenforceable penalty

      “An assertion that a liquidated damages provision constitutes an

unenforceable penalty is an affirmative defense, and the party asserting penalty

bears the burden of proof.” SP Terrace, L.P. v. Meritage Homes of Tex., LLC, 334

S.W.3d 275, 278 (Tex. App.—Houston [1st Dist.] 2010, no pet.) (citing Urban Tel.

Network Corp. v. Liquidity Solutions, 277 S.W.3d 917, 919 (Tex. App.—Dallas

2009, no pet.).   Thus, to avoid summary judgment based upon this defense,

Markovsky was required to raise a fact issue regarding whether the liquidated

damages stipulated—$300,000, or 10% of the purchase price of the

condominium—was “disproportionate to actual damages.”           See id. (quotation

marks omitted). Generally, this requires the party claiming unenforceable penalty

to submit evidence of the actual damages incurred. See id.

      Here, the only evidence Markovsky offered to support this defense was an

excerpt from the deposition of Kirby Tower’s sales manager, Doug Husid, stating

that he personally “believed” that Kirby Tower would be able to sell the



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condominium for an unspecified amount “more” than the amount Markovsky had

agreed to pay once the building was constructed. Markovsky adduced no evidence

that Kirby Tower actually sold the condominium for any amount, nor did she

submit any other evidence relating to Kirby Tower’s actual damages. Other courts

have held similar liquidated damages provisions to be reasonable and enforceable

in real estate transactions, where it has long been recognized that actual damages

can be difficult to quantify. See, e.g., Chan v. Montebello Dev. Co., No. 14-08-

00936-CV, 2008 WL 2986379, *5 (Tex. App.—Houston [14th Dist.] July 31,

2008, no pet.) (“The negotiated amount of earnest money, $92,000, or ten percent

of the total purchase price of $920,000, is a reasonable amount of liquidated

damages in a real estate transaction such as this one.”); Elliott v. Henck, 223

S.W.2d 292, 295 (Tex. Civ. App.—Galveston 1949, writ ref’d n.r.e.) (earnest

money provision providing for liquidated damages to seller that was ten percent of

purchase price was not unenforceable penalty); cf. Phillips v. Phillips, 820 S.W.3d

785, 789–90 (Tex. 1991) (contractual provision providing that non-breaching party

was entitled to 10 times actual damages was an unenforceable penalty). We thus

conclude that Markovsky failed to raise a fact issue on whether the liquidated

damages provision constitutes an unenforceable penalty.




                                        17
      We hold that the trial court did not err in granting Kirby Tower’s motion for

summary judgment, and we overrule Markovsky’s first issue.4

                          Motion for Entry of Judgment

      In her second issue, Markovsky contends that the district court erred in

denying her motion for entry of judgment, in which Markovsky sought a judgment

ordering the release of the earnest money to her.

      In the first appeal, we affirmed the trial court’s take-nothing judgment

against Markovsky on all of her claims, including her declaratory judgment claim

in which she sought a declaration that she was entitled to the release of the earnest

money based on Kirby Tower’s failure to satisfy the May 31, 2008 completion

date. Markovsky, 2011 WL 5429014, at *7. Accordingly, on remand, Markovsky

was precluded from re-litigating her declaratory judgment claim for a declaration

that she was entitled to the earnest money based on Kirby Tower’s failure to

complete construction by May 31, 2008. See Briscoe v. Goodmark Corp., 102

S.W.3d 714, 716 (Tex. 2003) (“questions of law decided on appeal . . . will govern

4
      Markovsky also argues that the trial court improperly relied upon its own
      recollections of the 2010 trial in deciding to grant summary judgment. We do not
      address this complaint because we have concluded that the summary-judgment
      evidence is sufficient to support the grounds raised in the motion for summary
      judgment. See Camp Mystic, Inc. v. Eastland, 399 S.W.3d 266, 278 (Tex. App.—
      San Antonio 2012, no pet.); see also Provident Life & Accident Ins. Co. v. Knott,
      128 S.W.3d 211, 216 (Tex. 2003) (if trial court’s order does not specify grounds
      for summary judgment ruling, court of appeals affirms summary judgment if any
      theory presented to the trial court and preserved for appellate review is
      meritorious).

                                         18
the case throughout its subsequent stages”); Cessna Aircraft Co. v. Aircraft

Network, LLC, 345 S.W.3d 139, 144 (Tex. App.—Dallas 2011, no pet.) (“When an

appellate court remands a case with specific instructions, the trial court is limited

to complying with the instructions and cannot re-litigate issues controverted at the

former trial.”); In re Henry, 388 S.W.3d 719, 728 (Tex. App.—Houston [1st Dist.]

2012, pet. denied) (in considering the case on remand, the trial court is bound by

the law of the case). Accordingly, the trial court properly denied Markovsky’s

motion for entry of judgment. See Briscoe, 102 S.W.3d at 716; Cessna Aircraft

Co., 345 S.W.3d at 144; In re Henry, 388 S.W.3d at 728.

      We overrule Markovsky’s second issue.

                                    Conclusion

      We affirm the trial court’s judgment.



                                              Rebeca Huddle
                                              Justice

Panel consists of Justices Massengale, Brown, and Huddle.




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