Affirmed and Majority and Conc urring Opinion s filed October 15, 2020
.

In The 

## Fourteenth Court of Appeals

NO. 14

- 19

- 00361

- CV NO. 14

- 19

- 0036 2

- CV

JOHN EMMANUEL D/B/A FIRST AMERICO AUTO SALE & REPAIR , Appellant V. ABIGAIL IZOUKUMOR , Appellee
On Appeal fr om the 98 t h Dis tri ct Court Travis Cou nty, Texas Trial Court Cause No s . D
- 1

- GN

- 18

- 007239 & D
- 1

- GN

- 17

- 006205

MAJORITY OPINION These appeals are brought by appellant John Emmanuel from a final judgment in favor of appell ee Abigail Izoukumor and a separate f inal j u dg men t in the form of a

n order granting Izouk

u mor ’ s motion to dismiss Emmanuel ’ s claims

. 1 We affirm.

1 The Supreme Court of Texas o r dered the Court of Appeals for t he Third Distri ct of2 B ACKGROUND Accord ing to Izoukumor , she paid Emmanuel $1,800 as a deposit to purchase a Honda Accord , after Emmanuel repaired it

. Emmanuel gav e Izouk umor
a re ce i pt , dated March 27, 2017 , for the deposi t

. The receipt reflec t ed a balance

re mained of $500 and state d the car w ould be ready on April 27, 2017. The car was not repaired, and Emmanuel refused to return the deposit. O n November 13 , 2018, Izoukum or fil e d sui t ( trial court cause number D

- 1

- GN

- 17

- 006 2 05 , appellate case number 14

- 19

- 0036 2

- CV ) against Emmanuel asser ting : (1) D ece ptive T rade P ractices

- Consumer Pro tection A ct (DTPA) 2 violati ons ; (2) breach of cont r a ct; (3) pr omissory estoppel; (4) money had a n d received; (5) c onver sion; (6) fraud; (7) theft of property; ( 8 ) breach of express warranty; (9) negli g e nt misrepresentation; and (10) negligence , seeking exemplary damages f or gross ne gli g ence (the

“ Izoukumor L awsuit ” )

. O n April 13, 2018 , Izoukum or mov e d for partial summary judgment on her claims for D T PA vi olations and breach of contrac t. A hearing was held May 15, 201 8. The partial summary ju dgment was granted in an order si g ned May 30, 2018. The tr ial court awar ded Izoukumor ec onomic damage s in the a m ou nt of $1,800 , damages i n the amount of $ 3,600 under DT P A section 17.50 ( allowing up to tre ble d amages ) , reasonable and necessary attorney ’ s fees and costs in the amount of $10,000 , and post

- jud gment interest. On October 5, 201 8 , Emmanuel filed a “ M o tion t o Reopen /New Tri al

. ”

Texas to transfer th ese case s (No s
. 03

- 19

- 00177

- CV & 03

- 19

- 00178

- CV ) to this court. Misc. Dock et No. 1 9

- 90 22 (Tex. Mar. 26 , 20 1 9 ), se e Tex. Gov’t C ode Ann. §§ 7 3.00 1, .002. Because of t he transfer, we d e cide the case i n accordance with the precedent of the transf ero r court under princi ple s of stare decisis if o ur decision othe rwise would have been inconsistent with the tran sferor court’ s precedent. S ee Tex. R. Ap p. P . 41.3.
2 Tex. Bus. & Com . Code Ann

. §§ 17.41

- . 63.3

O n De c ember 6, 2 01 8 , Emmanuel fil ed suit ( trial court cause number D

- 1

- GN

- 18

- 007239 , appellate case number 14

- 19

- 00361

- CV ) against Izoukumor for $3,600

— the cost of parking h er car on his lot for twelve months at $1 0 a da y (the “ Em m a

n uel L awsuit ” )

. On January 4 , 2 019, Izoukumor mo ved to dismiss Emmanu el ’ s Law suit under Tex as Rule of Civ il Procedure 91a on t h e grounds the pe tition had no basis in law or fact and under t he doc trine of res judic ata

. A hear i ng was held on Emmanuel ’ s “ M o t i on to Reopen/New Tr i al ” on March 6, 2019. On March 8, 2019, the trial court denied the motion by written order. T h at order became fina l on Mar ch 26, 2019 , when the tri al court gr ante d Izoukumor ’ s m otion t o volun tarily dismiss her remaining claims ag a ins t E mmanuel and signed a judgment containin g language of finality in t rial court

cause n umber D

- 1

- GN

- 17

- 0 06205 , appellate n um ber 14

- 19

- 0036 2

- CV

. Th at same day, the trial court granted Izou kumor ’ s motion and dis missed Emmanuel ’ s claims with pr ejudice in tri a l court cau se n umber D

- 1

- GN

- 1 8

- 00 7 239 , appellate number 14

- 19

- 0036 1

- C V

. Both a re now before this c ourt

. I SSUE S T he Izoukum or L awsuit
E mmanuel first c ontends the trial court er red i n grantin g Izoukumor ’ s
mo tion for no - evidence summary judg ment bas ed on “ d e f a u lt judgmen t

. ” Em manuel asserts that he was not served with the motion for summary judgment and there was no evidence of service. We construe this as a complaint that Emmanuel did not re ceive notice of the motion fo r summary judgment

. “If a party

rec eive s notice that i s untimely, but sufficient to ena ble to t he pa r ty to at tend the summary judgment hearing, the party mus t file a motion for c ontinuance or raise the complaint of late notice in writing, supported by af fidavit evidence, an d raise4

the issue bef

or e the trial c ourt during the summary judgment hearing. ” Buh o ltz v. F ield , No. 03

- 17

- 00232

- CV, 2018 WL 700058, at *2 (Tex. App.

— Austin J an . 31, 2018, pet. denied ) (mem. op.) ; Tex. R. Civ. P. 251 (continuance); Tex. R

. A pp
. P. 33.1(a) (preservation of error)

. T he rec or d of the hearing held March 6, 2019, on E mmanuel ’ s “ M otion to Reopen/New Tri al ” reflects that Emmanuel appe ared at the sum mary - judgment h earing held May 15, 2 01 8

. Thus, Emmanuel received suf ficient n otice to en able him to attend the summar y - judg ment hear in g. The record does not refl ect Emmanuel f

iled a motion for continuance or raise d a complaint of late n oti ce in writing, su pported by af fi davit e vidence. See Buholt z , 2018 WL 700058, at *2 ; Tex . R. Civ. P. 251

. There is no record of th e sum mary - j u dgment h e a ring, so the record does not demo nstrate t hat Emmanuel raised the issue before the t rial court at the summary

-

judgment hearing

. Th e Ma rc h 6, 2019 hearing does reflect that Emmanu el was given an add itional two weeks to re spon d to the motion for s um m ary j udg ment. T o the exten t this ext ension su g gests Emm a nuel raised the issue , Emmanuel was granted relief. Emmanuel did not file a re sponse t o t he summary - judgment motion

. On May 29, 20 18, Emmanuel filed a request for additional time , but it was not

su pported by a ffidavit

. See Buholt z , 2018 WL 700058, at *2

. T he record does n o t

re flect t he request was presented to the trial court or that the tr ia l court ruled on it

. T he t rial court r endered summary - ju dgment in favor of Izoukumor the next day

. Emma nuel s ubsequen tly filed a “ M otion to Reo pen/New Tri al , ” but a complaint of late notice of a hearing is not preser ved by a motion filed after the

summa r y - judgment hearing

. See Buh oltz , 2018 WL 700058, at *3

.5

We conclude that Emmanuel ha s not preserved a com plaint for ap p ell ate review on th e issu e of timely notice of the motion for summary ju d gment

. See T ex. R. Ap p. P. 33.1(a). 3 Emmanuel did not make such a complaint in the trial co urt in writin g . Even if Emmanuel did raise the issue at the hearing, he was gr a n ted relief

. Emm anuel ’ s written r e ques t for more time was unsupported by a ffidavit ev i dence

a nd he did not obtain a r uling in the trial court. Accord i ng ly, Emmanuel ’ s first i ssu e is overrule d

. 4 In his third issue, Emmanuel claims the trial c o urt ’ s judg men t in t he Izo u k umo r L awsuit vi olate s the Eig hth and Fou rteenth Ame n d ments to th e U nite d S tates Constitution and an unspecified portion of the Texas Con st it ut ion because it is exces sive

. As not ed above, Izoukumor was awarded $1,800 in actual damages , whic h w as the amount she paid Emmanuel to fix and purchase t he car

. See Tex. Bus. & Com. Code A nn. § 1 7 .50(b)(1) (providing that consu mer who prevails on D TP A claim may obtain economic damages). I zo ukumor was also awarded $3,600 under DTPA section 17.50 ( allow ing up to tre ble d am ages ) on the basis that Emmanuel a cted kn owingly

. See Tex. Bus. & Com. Code Ann. § 17.50(b)(1) ( pl ai ntiff may recove r up to t hree times i ts a ctual damages if trier of fact finds defendant violated DTPA “knowingly ” ). Finally , Izouk umor was awarde d

3 See also Fertic v. Spencer , 247 S.W.3d at 24 8 & n.4 (Tex. App.

— El Paso 2007, pet. denied); May v. Nacogdoches M em’l Hosp ., 61 S.W.3d 623, 626 (Tex. App.

— Tyler 2001, no pet.) (concluding tha t nonmovant wa ive d notice issue wh en she particip at ed in hearing , bu t failed to object in writing prior to hear ing); Negrini v. Beale , 822 S.W.2d 822, 823 (Tex. App.

— Houston [14t h Dist.] 1992, no writ ) (stating that nonmovant waived complai nt concernin g 21

- d ay notice re qui rement when nonmo vant received no t ice of hearing, a ppeared at hearing , filed no controverting affidavit, and did not fi le motion for continuance).

4 To the extent Emmanu el ’ s comp laint could be construed as o ne of no notice of the sum m ary - j udgment motion or hearing, despite his appearance at the hearing, we agree with the concurrence that the trial court did not abuse its discretion b y denying E mmanuel ’ s “ M otion to Reopen/New Tri al ” on th at g round

.6

reaso n abl e and necessary attorney ’ s fees in t he amount of $ 10,000. See Tex. Bus. & Com. Code Ann. § 17.50(d ) ; T ex. Civ. Pr a c. & Rem. Code Ann. § 3 8. 001 (8). In his motion for new trial, Emmanuel comp lained the trial court erred in granting $3,600 in damag es and aw a rdi ng attorney ’ s fees of $10,0 00. However, Emmanuel did not assert those a wards violated his constitu tional rights . T he record does not re flect Emmanuel presented his complaint on appeal to the trial court and the trial court ruled, or refu sed to rule, on the issue. Accordingly, nothing is presented for our review

. See Tex. R. App. P. 33.1(a ) ; In re L.M.I

. , 119 S.W.3d 707, 711 (Tex. 2003) (o bserving that Supreme Court of the United States and Supreme Court of Texas have both held that even c onstit utional c l aim s must be raised in trial court to preserve error)

. We overrule Emmanuel ’ s third issue.
T he Emmanuel L awsuit In his secon d issue, Emm a nuel claims the trial court erred by d ismiss ing his claims against Izoukumor

. In su pport of this claim, Em man uel conte n d s the t r ial

cour t did not make any findi ngs of fact. Izoukumor moved to dismiss Emmanuel ’ s clai ms as having no basis in law or fact. Se e Tex. R. Civ. P . 91a. Wh e n, as here, t he tri al cou rt does not spec ify the gro und on which it relied, a p arty appealing the grant of a mo tion to dismiss under Ru le 91a must c hallenge every ground on which the t rial co urt could have granted the motion

. S

ee S humway v. Whispering Hil ls of Comal C t y
. Tex

. Prop . Owners Ass ’ n, Inc ., No. 0 3

- 1 5

- 00513

- CV, 2016 W L 442 9939, at *2 (Te x . A pp.

— Austin Aug . 16, 2016, pet. denied) (mem. op.)

. Emmanuel does not contend the trial court could not have granted Izoukumor ’ s mo t io n to dismiss , w hich a sserted Emmanuel ’ s claim s had no basis in law or were somehow p reclud ed . Since Emma nuel h as not c h a lle nged eve ry gro und upon which the trial court could have relie d when granting the motion to dismiss, we must affirm the trial court ’ s7

decision

. S

ee i d. ( Blizzar d v. Select Portfol io Servicing , No. 03

- 13

- 00716

- CV, 2015 WL 5096710, at *4 (T ex. Ap p.

— Austin Aug . 27, 2015, no pet.) (mem. op.) )

. I ssue two is ov er r

u led. Double

- J

eopardy Claim
L a s t l y , Emmanuel argues we should abat e or s uspend th i s proceeding until the crim inal charges agai nst him for theft o f property h ave been res olved

. He conten ds s uc h action i s n ece s sary to pr otect his Fi f th Amend me nt ri ght again s t d ouble jeopardy

. “Double jeopar dy applies o nly to criminal cases .” Ex parte Wat kins , 73 S.W.3d 264, 267 (T ex. Crim. App. 200 2)

. T he pendency o f a criminal mat ter does not impai r a cou rt ’ s p roceedi ng wit h a contempo r a neous civil matter in vo lving the

same i ssues or parties. Kugle v. Daiml erCh rysler C orp. , 88 S.W.3d 355, 362 (Tex. App.

— San Antonio 2002, pet. deni ed) ; s ee McC ann v. Spencer Plantation Inv s ., Ltd., No. 01

- 16

- 00098

- CV, 2017 W L 769 8 95, at *6 (Te x. App.

— Housto n [1st Dist.] Feb. 2 8 , 2017, pet . den i e d) (mem. op.) (d e clining to appl y double

- je opardy doc trine in civil case) ; F avaloro v. Comm ’ n for Law yer Discipline , 994 S.W.2 d 8 15, 822 (T ex. App.

– Dallas 19 9 9 , pet. stricken) (d eclini ng to apply double

- jeopard y do ctrine in civi l case) ; Underwood v. Bridewell , 931 S

. W.2d 6 45, 647

– 48 (Tex

. App

. — Waco 1996 , ori g. p r oceeding) (a buse o f discretion to abate civ il

- forfeiture action unti l criminal prosecution com plete d ); McInnis v. State , 618 S .W.2d 389, 392

– 93 (Tex. Ci v
. A pp.

— Beaumont 1 981 , writ ref ’ d n.r.e .) (upholding tr i a l co ur t ’ s refusa l to conti nue ci vil disbar ment case until fin al d isposition of related cri minal case)

. Emmanuel ’ s f ourth issu e is over ruled.8 C ONCLUSION The judgment of the t r ial c ourt in trial court c aus e n umbe r D

- 1

- G N

- 17

- 006205 is affirm ed. The judgment o f the trial cou rt in trial court cause number D

- 1

- GN

- 18

- 007239 is affirmed.

/s/ Char les A . Spain Justice

Panel consists of Chief Justic e Frost and J u sti ces Jewell and Spain ( Frost, C.J., concurring)

.