
 
 
 
 

NUMBER 13-07-00367-CV

 
COURT OF APPEALS


THIRTEENTH DISTRICT OF TEXAS


CORPUS CHRISTI - EDINBURG



LETICIA ELIZALDE DE PINO, 
DEBRA METZER AND KATHERINE METZER, 		        	Appellants,

v.


JEFFERSON-PILOT LIFE INSURANCE COMPANY,				Appellee.


On appeal from the 103rd District Court of Cameron County, Texas.

 


MEMORANDUM OPINION


Before Chief Justice Valdez and Justices Garza and Benavides

Memorandum Opinion by Justice Benavides


	Appellants, Leticia De Pino, Debra Metzger Finch, and Katherine Metzger sued
appellee, Jefferson-Pilot Life Insurance Company ("Jefferson-Pilot"), alleging among other
things, breach of contract, negligence, and violations of former article 21.21-2 of the
insurance code. (1) See Act of May 27, 1991, 72nd Leg., R.S., ch. 242, § 11.12, 1991 Tex.
Gen. Laws 939, 1060, repealed by Act of May 20, 2003, 78th Leg., R.S., ch. 1274, § 26,
2003 Tex. Sess. Law Serv. 3611, 4138 (Vernon) (current version at Tex. Ins. Code Ann.
§§ 542.001-.014 (Vernon Pamphlet 2008)).  Jefferson-Pilot filed a motion for summary
judgment, which the trial court partially granted without stating its reasoning, (2) thereby
dismissing appellants from the suit.  On appeal, appellants assert four issues.  We affirm.
I.     Factual and Procedural History
	In 1987, Sort-Rite International, Inc. ("Sort-Rite") purchased a $1,500,000 "key
person" life insurance policy insuring the life of Shirley Metzger, who owned eighty-five
percent of Sort-Rite.  The policy was issued by Jefferson-Pilot and contained a "split dollar
endorsement" (3) between the employer, Sort-Rite and co-beneficiaries.  Shirley Metzger
signed the endorsement which listed her as the co-owner of the policy, Sort-Rite as the
employer, and Debra Metzger Finch, Katherine Metzger, and Frances Merrick as co-beneficiaries.  Under the terms of the endorsement, the policy's terms control in the event
of a conflict between the endorsement and the policy.  Additionally, the endorsement
provided that upon Shirley Metzger's death and while the endorsement was in effect, "[t]he
Employer shall receive the greater of (1) $1,000,000 or (2) the Net Premiums.  The Co-Beneficiary shall receive any remainder of the net death proceeds, except that if the net
death proceeds are less than the Net Premiums, the entire net death proceeds shall be
payable to the Employer." 
	In 1995, Shirley Metzger executed a "Change of Beneficiary" form purporting to
cancel the previous beneficiary designations under the policy and naming Leticia de Pino
as primary beneficiary, Debra Ann Metzger as contingent beneficiary, and Katherine Lee
Metzger as second contingent beneficiary.  Typewritten in the signature box is, "Sort-Rite
International, Inc." "Shirley Metzger, President."  Metzger's purported signature appears
in the signature box as well.  According to the appellants, Jefferson-Pilot endorsed and
stamped the change of beneficiary form and recorded it in its books.
	On March 23, 2001, Shirley Metzger died.  Sort-Rite, third-party creditors, and other
claimants asserted rights to the policy proceeds.  On August 15, 2001, Jefferson-Pilot filed
an interpleader action in the United States District Court for the Southern District of Texas,
Brownsville Division.  Jefferson-Pilot was the plaintiff; it sued the claimants, including
appellants, Sort-Rite, and the third-party creditors and sought to interplead the policy
proceeds into the registry of the court.  The District Court accepted the interpleader, and
the policy proceeds were deposited into the Court's registry.
	On December 6, 2001, pursuant to Federal Rule of Civil Procedure 41, Jefferson-Pilot successfully moved to dismiss itself from the case.  See Fed. R. Civ. P. 41(a)(1)(A)(ii). 
All parties, including appellants, agreed to dismiss Jefferson-Pilot from the suit.  See id. 
According to appellants, subsequent to being dismissed, Jefferson-Pilot, asserted for the
first time that the change of beneficiary form was ineffective.  Sort-Rite adopted this
position in the ongoing interpleader litigation, and argued that the change of beneficiary
form required two signatures by Sort-Rite corporate personnel in order to change the
corporate beneficiary.  Without two such signatures, Sort-Rite argued, that the change of
beneficiary form served only to change the beneficiaries on the personal side of the policy. 
	On September 5, 2002, the federal district court granted summary judgment for
Sort-Rite in the interpleader action.  The Court held:
	Because Shirley Metzger had no right to unilaterally change the rights of
Sort-Rite under the policy, any change of beneficiary effected [sic] only the
rights of the beneficiaries she had the right to designate: Katherine Metzger,
Debra Metzger Finch, and Frances Merrick (the original beneficiaries), and
the newly-named beneficiary (Leticia de Pino) to the portion that Shirley
Metzger unilaterally controlled, $500,000.  Therefore, this Court finds that
Sort-Rite has maintained and continues to maintain its interest in the
$1,000,000 "Employer" portion of the policy.  
 
The Court further noted that "there is no evidence that Jefferson-Pilot viewed Sort-Rite's
interest in the $1,000,000 portion as having been changed; in fact, there is evidence to the
contrary."  On December 19, 2002, the Court disbursed the interpleaded amounts with the
$1,000,000 "Employer" portion of the policy plus interest being paid to Sort-Rite and the
remainder to De Pino.  In 2003, the United States Court of Appeals for the Fifth Circuit
affirmed the District Court.  See Jefferson-Pilot Life Ins. Co. v. Sort-Rite Int'l, Inc., 78 F.
App'x 358, 359 (5th Cir. 2003).
	On March 11, 2004, De Pino, individually and as executrix of the estate of Shirley
Metzger, Debra Finch, and Katherine Metzger sued Jefferson-Pilot in state district court. 
They sought damages for breach of contract, negligence, breach of the duty of good faith
and fair dealing, and insurance code violations.  Without stating the grounds therefor, the
trial court rendered partial summary judgment for Jefferson-Pilot and against De Pino
individually, Katherine Metzger, and Debra Finch.  On appeal, the appellants assert four
issues, and Jefferson-Pilot argues, among other things, that the appellants failed to
address one of the grounds upon which summary judgment may have been granted. 
II.     Applicable Law
	To prevail on appeal when the trial court grants summary judgment without stating
its reasons, as the trial court did in the present case, the appellant must demonstrate that
summary judgment would be improper on all grounds presented in the motion.  See
Star-Telegram, Inc. v. Doe, 915 S.W.2d 471, 473 (Tex. 1995); Johnson v. Hoechst
Celanese Corp., 127 S.W.3d 875, 878 (Tex. App.-Corpus Christi 2004, no pet.).  "If the
appellant fails to negate each ground on which the judgment may have been granted, the
appellate court must uphold the summary judgment."  Haas v. George, 71 S.W.3d 904,
912 (Tex. App.-Texarkana 2002, no pet.); see de Laurentis v. United Servs. Auto. Ass'n,
162 S.W.3d 714, 726 (Tex. App.-Houston [14th Dist.] 2005, pet. denied) (citing Lewis v.
Adams, 979 S.W.2d 831, 833 (Tex. App.-Houston [14th Dist.] 1998, no pet.)).
III.     Standing
	The issue of standing was Jefferson-Pilot's first ground in its motion for summary
judgment, and the trial court addressed standing in its letter to the parties as one of two
reasons for granting the motion for summary judgment.  On appeal, Jefferson-Pilot argues
that the partial summary judgment should be upheld on the grounds of standing because
appellants failed to address standing in their brief to this Court.  However, buried in their
limitations argument, appellants state: 
	To the extent the Insurance Company claims Appellants [sic] lack standing
to assert or determine their contract rights, they are incorrect.  All appellants
are either express third party beneficiaries or contingent third party
beneficiaries.[ (4)]  The Insurance Company owes them express contractual
duties and duties of care arising from this insurer/beneficiary relation.  All
appellants are personally aggrieved by the Insurance Company's conduct.

Additionally, in their fourth issue, the appellants assert that "[n]one of [Jefferson-Pilot's]
grounds of summary judgment below should have been granted.  Appellants expressly
deny that summary judgment should have been granted and move the Court to remand."
	Appellants cite Malooly Bros., Inc. v. Napier to support their assertion that their brief
sufficiently argued the standing issue.  461 S.W.2d 119, 121 (Tex. 1970).  Malooly
provides that a general point of error stating that the trial court erred in granting summary
judgment is sufficient "to allow argument as to all the possible grounds upon which
summary judgment should have been denied."  Id.; see also Plexchem Int'l, Inc. v. Harris
County Appraisal Dist., 922 S.W.2d 930, 930-31 (Tex. 1996) (per curiam).
	Subsequent decisions by appellate courts have interpreted Malooly to allow "the
non-moving party to argue broadly on appeal under a general point of error"; however, it
does not "relieve[] an appellant of the burden to challenge the grounds for the summary
judgment and present at least some argument for his case on appeal."  Pena v. State Farm
Lloyds, 980 S.W.2d 949, 959 (Tex. App.-Corpus Christi 1998, no pet.) (citing Malooly, 461
S.W.2d at 121). (5)
  By presenting the Malooly point, appellants sufficiently raised the general
issue of the propriety of the trial court's granting the partial summary judgment.  See id.;
see also Sparkman v. Reliastar Life Ins. Co., No. 13-03-500-CV, 2008 Tex. App. LEXIS
3517, **18-19 (Tex. App.-Corpus Christi May 15, 2008, pet. filed) (mem. op.) ("[A]
sufficiently raised issue is not the end of an appellant's burden--an appellant must not only
raise a proper issue, he or she must present arguments and supporting authority for the
court to reverse a summary judgment.").  However, appellants have failed to attack every
basis for summary judgment raised in the trial court.  Nat'l Union Fire Ins. Co. of Pittsburgh,
Pa. v. John Zink Co., 972 S.W.2d 839, 845-46 (Tex. App.-Corpus Christi 1998, pet.
denied).  For example, in National Union Fire Insurance Co., in addition to asserting a
Malooly point of error, appellant's "arguments address[ed] the various elements" of the
appellee's grounds for summary judgment.  Id. at 846.  Additionally, the Texas Supreme
Court has held that three pages of arguments and authorities is sufficient to challenge, on
appeal, a specific ground for summary judgment when the non-movant raises a Malooly
point but does not expressly assign error as to that specific ground.  Plexchem Int'l, Inc.,
922 S.W.2d at 931.  
	In the present case, though the appellants did raise a Malooly point, their four
sentences of commentary regarding standing buried in their specific challenge to Jefferson-Pilot's limitations defense are not sufficient to assign error on the ground of standing.  In
the context of standing, the appellants present no authority for their assertions that they
are third-party beneficiaries nor that Jefferson-Pilot owed a duty to them as such.  The
appellants cite one case which merely states that to have standing, one must be personally
aggrieved.  See Nootsie, Ltd. v. Williamson County Appraisal Dist., 925 S.W.2d 659, 661
(Tex. 1996). (6)  While we do not believe that three pages of authorities and arguments are
necessarily required for every challenge raised under a Malooly point, see Plexchem Int'l,
Inc., 922 S.W.2d at 931, we hold that the bare assertion of standing in this case is
inadequate to attack the ground of standing upon which the trial court may have based its
partial grant of summary judgment.  See Pena, 980 S.W.2d at 959; Nat'l Union Fire Ins.
Co., 972 S.W.2d at 845-46.  IV.     Conclusion
	Because appellants failed to negate each ground upon which the summary
judgment may have been granted, we must affirm the summary judgment.  See Haas, 71
S.W.3d at 912.

							________________________________
							GINA M. BENAVIDES,
							Justice


Memorandum Opinion delivered and
filed this the 2nd day of April, 2009.
1.  The original plaintiffs were De Pino, individually and as executrix of the estate of Shirley Metzger,
Debra Metzger Finch, and Katherine Metzger.  After the partial granting of Jefferson-Pilot's motion for
summary judgment and dismissing the claims of De Pino individually, Debra Metzger and Katherine Metzger,
the trial court severed the partial summary judgment for purposes of appeal.  See Cherokee Water Co. v.
Forderhouse, 641 S.W.2d 522, 525 (Tex. 1982).  The causes of action relating to De Pino as executrix of the
estate of Shirley Metzger are not presently before this Court.
2.  In a letter to the parties, the trial court expressly stated that it was granting partial summary judgment
on the grounds of res judicata and on standing.  However, this letter was not the trial court's final judgment. 
See Goff v. Tuchscherer, 627 S.W.2d 397, 398-98 (Tex. 1982) ("Letters to counsel are not the kind of
documents that constitute a judgment, decision or order from which an appeal may be taken."); Stevens v.
State Farm Fire and Cas. Co., 929 S.W.2d 665, 669 (Tex. App.-Texarkana 1996, writ denied); but see Barron
v. Vanier, 190 S.W.3d 841, 846 (Tex. App.-Fort Worth 2006, no pet.) (op. on reh'g) (noting that in certain
circumstances, letters from judges may be final and appealable orders).
3.  "Split dollar insurance" is defined as a "[t]ype of insurance in which the insurer divides the premium
dollar between life insurance protection and investment for the benefit of the insured."  Black's Law
Dictionary 806 (6th ed. 1991).
4.  According to a footnote in the federal district court's order in the interpleader action, "Debra Ann
Metzger Finch and Katherine Lee Metzger [did] not contend that they [were] presently beneficiaries under the
Policy; instead their interest [was] through an agreement with de Pino to share in any proceeds which de Pino
may recover as a result of [the interpleader]."
5.  See McCoy v. Rogers, 240 S.W.3d 267, 272 (Tex. App.-Houston [1st Dist.] 2007, pet. denied) ("The
challenging party must also, however, present those arguments and supporting authority in order to merit
reversal."); Cruikshank v. Consumer Direct Mortgage, Inc., 138 S.W.3d 497, 502-03 (Tex. App.-Houston [14th
Dist.] 2004, pet. denied) ("Although Cruikshank has made a general Malooly point of error, we hold this is only
sufficient to preserve a complaint if the specific ground challenged on appeal is supported by argument.");
Williams v. Bank One, Tex., N.A., 15 S.W.3d 110, 116 n.3 (Tex. App-Waco 1999, no pet.) (holding that
although appellant generally asserted error in granting the motion for summary judgment, appellant's failure
to challenge a specific issue results in that issue not being properly presented for review); Nat'l Union Fire Ins.
Co. of Pittsburgh, Pa. v. John Zink Co., 972 S.W.2d 839, 845-46 (Tex. App.-Corpus Christi 1998, pet. denied)
(holding that where party on appeal attacks, under a general, Malooly point of error, each of the elements of
res judicata and collateral estoppel, two of the grounds upon which summary judgment may have been
granted, the party has sufficiently assigned error as to those grounds); State ex rel. White v. Bradley, 956
S.W.2d 725, 734-35 (Tex. App.-Fort Worth 1997) ("By complaining that the trial court erred in granting [the
Appellee's] motion for summary judgment, the [Appellant] has complied with [Texas Rule of Appellate
Procedure 38.1(e)] and is entitled to brief and argue all possible grounds upon which [the Appellee's] summary
judgment motion should have been denied.") rev'd on other grounds by 990 S.W.2d 245 (Tex. 1999); see also
Hernandez v. State and County Mut. Ins. Co., No. 13-06-634-CV, 2008 WL 2151537, at *1 (Tex. App.-Corpus
Christi May 22, 2008, no pet.) (mem. op.) (noting that merely raising an issue does not satisfy the appellant's
burden and that for the court to reverse a summary judgment, the appellant must also present argument and
authorities); Engel v. Bunn-O-Matic Corp., No. 2-05-064-CV, 2006 Tex. App. LEXIS 1484, at *6 (Tex.
App.-Fort Worth, Feb. 23, 2006, pet. denied) (mem. op.).
6.  A personal grievance is necessary but not sufficient to establish standing.  See Nootsie, Ltd. v.
Williamson County Appraisal Dist., 925 S.W.2d 659, 662 (Tex. 1996).
