                                                                                     ACCEPTED
                                                                                    01-15-00260
                                                                      FIRST COURT OF APPEALS
                                                                              HOUSTON, TEXAS
                                                                            8/17/2015 8:29:47 PM
                                                                           CHRISTOPHER PRINE
                                                                                          CLERK

                        NO. 01-15-00260-CV

                               In The                           FILED IN
                                                         1st COURT OF APPEALS

             First Court of Appeals
                                                             HOUSTON, TEXAS
                                                         8/17/2015 8:29:47 PM
                                                         CHRISTOPHER A. PRINE
                           Houston, Texas                        Clerk



    Joan DeYoung, Stephen DeYoung, M.D., and David DeYoung
                                            Appellants,
                                  v.
Judy Page Maynard, William L. Maynard, and Maynard Properties, L.P.
                                            Appellees.

           On Appeal from the 270th Judicial District Court
                      of Harris County, Texas
                 Trial Court Cause No. 2011-18770

                     BRIEF OF APPELLANTS


                                   Daniel W. Jackson, SBN 00796817
                                   Scott K. Vastine, SBN 24056469
                                   Jennifer H. Frank, SBN 24087537
                                   The Jackson Law Firm
                                   3900 Essex Lane, Suite 1116
                                   Houston, Texas 77027
                                   (713) 522-4435
                                   (713) 527-8850 – fax

                                  Counsel for Appellants

                 ORAL ARGUMENT REQUESTED
          IDENTITY OF PARTIES AND COUNSEL

Appellants/Plaintiffs    Joan DeYoung
                         Stephen DeYoung, M.D.
                         David DeYoung

Counsel for Appellants   Daniel W. Jackson
                         Scott K. Vastine
                         Jennifer H. Frank
                         The Jackson Law Firm
                         3900 Essex Lane, Suite 1116
                         Houston, Texas 77027
                         (713) 522-4435
                         (713) 527-8850 – fax

Appellees/Defendants     William L. Maynard, as Independent
                            Executor of the Estate of Judy Page
                            Maynard
                         William L. Maynard
                         Maynard Properties, L.P.

Counsel for Appellees    Gregory N. Jones
                         Law Office of Gregory N. Jones
                         2323 S. Shepherd, 14th Floor
                         Houston, Texas 77019
                         (713) 979-4691
                         (713) 979-4440 – fax
                         Counsel for Appellee William L.
                         Maynard as Independent Executor of
                         the Estate of Judy Page Maynard

                         William L. Maynard
                         1300 Post Oak Blvd., Suite 2500
                         Houston, Texas 77056
                         (713) 623-0887
                         (713) 960-1527 – fax
                         Counsel for Appellees William L.
                         Maynard and Maynard Properties, L.P.


                            ii
                                     TABLE OF CONTENTS
	  
IDENTITY OF PARTIES AND COUNSEL ................................................... ii	  

INDEX OF AUTHORITIES ........................................................................... v	  

STATEMENT OF THE CASE .................................................................... vii	  

STATEMENT REGARDING ORAL ARGUMENT .................................... viii	  

ISSUE PRESENTED ................................................................................ viii	  

PROCEDURAL BACKGROUND................................................................. 1	  

STATEMENT OF FACTS ............................................................................ 2	  

        Without notice, an appraisal, or compensation, Appellee William
        L. Maynard stripped the Partnership of its property. ........................... 3	  

        Judy and Bill Maynard owed the DeYoungs a fiduciary duty. ............. 5	  

        Bill Maynard also purchased substantial property surrounding
        the Partnershipʼs property................................................................... 7	  

STANDARD OF REVIEW ............................................................................ 8	  

ARGUMENT AND AUTHORITIES .............................................................. 8	  

        I.	   	   The trial court erred in granting final summary judgment
                    because Appellees did not move on all causes of action
                    asserted by the DeYoungs. ....................................................... 9	  

                A.	     Even though the trial court committed reversible
                         error by granting more relief than requested, the
                         Court should treat the summary judgment as a final
                         judgment and consider all issues raised in this
                         appeal............................................................................. 11	  




                                                       iii
        II.	   	   The trial court erred in granting final summary judgment
                     because Appellees failed to specify the elements as to
                     which the DeYoungs purportedly had no evidence. ................ 12	  

        III.	   	   The trial court erred in granting final summary judgment
                      because Appellees improperly used a no-evidence motion
                      to shift the burden of proof back to the DeYoungs on their
                      self-dealing allegation. ............................................................. 15	  

        IV.	   	   The trial court erred in granting final summary judgment
                     because the DeYoungs submitted competent summary
                     judgment evidence establishing each element of their
                     causes of action....................................................................... 16	  

PRAYER .................................................................................................... 19	  

CERTIFICATE OF COMPLIANCE ............................................................ 22	  

CERTIFICATE OF SERVICE..................................................................... 22	  

APPENDICES

Appendix 1:               Defendantsʼ motions for no-evidence and traditional
                          summary judgment (exhibits omitted)

Appendix 2:               Trial courtʼs February 17, 2015 order

Appendix 3:               Text of applicable rules and statutes

Appendix 4:               Cases




                                                       iv
                               INDEX OF AUTHORITIES

Texas Supreme Court Cases	  

Chessher v. Sw. Bell Telephone Co.,
    658 S.W.2d 563 (Tex. 1983) ............................................................... 9

Farm Bureau Cty. Mut. Ins. Co. v. Rogers,
     455 S.W.3d 161 (Tex. 2015) ............................................................. 11

Forbes, Inc. v. Granada Biosciences, Inc.,
     124 S.W.3d 167 (Tex. 2003) ............................................................. 17

Ford Motor Co. v. Ridgway,
     135 S.W.3d 598 (Tex. 2004) ............................................................. 17

G & H Towing Co. v. Magee,
     347 S.W.3d 293 (Tex. 2011) ......................................................... 9, 11

Joe v. Two Thirty Nine Joint Venture,
      145 S.W.3d 150 (Tex. 2004) ............................................................... 8

Kinzbach Tool Co. v. Corbett-Wallace Corp.,
     160 S.W.2d 509 (Tex. 1942) ....................................................... 14, 17

Lehmann v. Har-Con Corp.,
    39 S.W.3d 191 (Tex. 2001) ............................................................... 11

M.R. Champion, Inc. v. Mizell,
     904 S.W.2d 617 (Tex. 1994) ............................................................... 6

Texas Court of Appeals Cases	  

Cluck v. Mecom,
     401 S.W.3d 110
     (Tex. App.—Houston [14th Dist.] 2011, pet. denied) ........................ 15

Jose Fuentes Co., Inc. v. Alfaro,
     418 S.W.3d 280 (Tex. App.––Dallas 2013, pet. denied)............. 12, 13


                                                v
Garcia v. State Farm Lloyds,
     287 S.W.3d 809
     (Tex. App.––Corpus Christi-Edinburg 2009, pet. denied) ................. 13

Harvey v. Casebeer,
     531 S.W.2d 206 (Tex. Civ. App.—Tyler 1975, no writ) ............... 14, 17

In re Estate of Coleman,
      360 S.W.3d 606 (Tex. App.––El Paso 2011, no pet.) ....................... 15

Mathis v. Restoration Builders, Inc.,
     231 S.W.3d 47 (Tex. App.—Houston [14th Dist.] 2007, no pet.) ........ 8

Rose v. Kober Fin. Corp.,
     874 S.W.2d 358 (Tex. App.––Houston [14th Dist.] 1994, no writ) .... 10

Statutory Provisions	  

Tex. Bus. Orgs. Code § 152.205.................................................................. 9

Tex. Bus. Orgs. Code § 152.206.................................................................. 9

Rules	  

Tex. R. Civ. P. 166a(i) .................................................................... 12, 14, 16

Tex. R. Civ. P. 166a(i) (cmt. 1997)............................................................. 14




                                                  vi
TO THE HONORABLE FIRST COURT OF APPEALS:

     COME NOW appellants Joan DeYoung, Stephen DeYoung, M.D.,

and David DeYoung and respectfully present their brief on the merits in the

above-named cause, pursuant to the Texas Rules of Appellate Procedure.

                      STATEMENT OF THE CASE

      Nature of the Case       Judy Page Maynard was trustee of a Texas
                               general partnership, Russell, Page &
                               Partners. Throughout the course of her
                               tenure, the partnership property was
                               transferred to her husband, William L.
                               Maynard, as well as Maynard Properties,
                               L.P., without notice or compensation to the
                               other partners.

                               The DeYoungs sued the Maynard
                               defendants for breach of fiduciary duty (all
                               defendants), breach of duty of loyalty and
                               care (Judy Maynard), conversion (Bill and
                               Judy Maynard), and breach of contract
                               (Judy Maynard).

      Trial Court              The Honorable Brent Gamble, 270th
                               Judicial District Court, Harris County, Texas

      Trial Court              The trial court granted defendantsʼ no-
      Disposition              evidence motion for summary judgment,
                               which was treated as a final judgment even
                               though defendants did not move on all of
                               plaintiffsʼ causes of action.




                                    vii
               STATEMENT REGARDING ORAL ARGUMENT

      Appellants request oral argument. This appeal involves questions of

law that should be evaluated in the context of the specific facts in this case.

Oral argument will aid the Court in making a decision because the parties

will be able to assist with the record.

                             ISSUE PRESENTED

      Whether the trial court erred in granting Appelleesʼ no-evidence

motion for summary judgment when:

      (I)     Appellees did not move on all causes of action asserted
              by the DeYoungs;

      (II)    Appellees failed to specify the elements as to which the
              DeYoungs purportedly had no evidence;

      (III)   Appellees used a no-evidence motion to improperly shift
              the burden of proof back to the DeYoungs as to the
              DeYoungsʼ breach of fiduciary duty cause of action; and

      (IV) The DeYoungs presented more than a scintilla of
           evidence in response to Appelleesʼ defective no-evidence
           motion.




                                          viii
                      PROCEDURAL BACKGROUND

      On October 23, 2014, defendants Judy Page Maynard, William L.

Maynard, and Maynard Properties, L.P. (collectively “the Maynards” or

“Appellees”) filed their motions for no-evidence and traditional summary

judgment. C.R. 161–227; App. 1.

      On January 9, 2015, plaintiffs Joan DeYoung, Stephen DeYoung,

M.D., and David DeYoung (collectively “the DeYoungs” or “Appellants”)

filed plaintiffsʼ response to defendantsʼ no-evidence and traditional motions

for summary judgment, C.R. 233–47, the declaration of Stephen DeYoung,

M.D., C.R. 248–50, and the declaration of Daniel W. Jackson. C.R. 251–

57; Suppl. C.R. 3–218.

      On February 17, 2015, the trial court granted the Maynardsʼ no-

evidence motion for summary judgment, C.R. 276–77 and App. 2, which,

as indicated on the trial courtʼs activity inquiry sheets and electronic docket

sheet, was interlocutory because the Maynards did not move for summary

judgment on all of the DeYoungsʼ causes of action. C.R. 284, 292.

      On March 9, 2015, the trial court entered a second order granting the

Maynardsʼ no-evidence motion for summary judgment, C.R. 278–79, which




                                      1
was identical to the order entered on February 17, 2015, yet designated as

a final judgment. C.R. 292.

       On March 13, 2015, as reflected on the trial courtʼs electronic docket

sheet, the parties were informed that “The Courtʼs order of 2/17/15 was

intended to be a final J disposing of all parties and all claims. Request

parties submit final J in appropriate form.” C.R. 292.

       Although the Maynards submitted a proposed final judgment on

March 16, 2015, C.R. 280–81, and the DeYoungs submitted a proposed

final judgment1 on March 19, 2015, C.R. 282–83, the trial court did not

enter either order.

                            STATEMENT OF FACTS

       In April 1966, the DeYoungs2 each purchased a 3.596% ownership

interest in Russell, Page & Partners (the “Partnership”), a Texas general

partnership formed to invest in real estate in Liberty County, Texas.

C.R. 248, ¶¶ 2–3.

       The Partnershipʼs property consisted of hundreds of acres of real

property, primarily located in the M.G. White survey on the east side of the


1
    Which was approved as to form only.
2
    The ownership interests were actually purchased for the DeYoungs by their
    parents, as they were minors at the time.

                                          2
Trinity River, which was initially held in the name of “Maurice Page,

Trustee.”   Maurice Page is Appellee Judy Page Maynardʼs mother.

C.R. 248, ¶¶ 2–4.

Without notice, an appraisal, or compensation, Appellee
William L. Maynard stripped the Partnership of its property.

     On January 28, 1991, Maurice Page transferred 20.1449 acres of

Partnership property to her son-in-law, Appellee William L. Maynard (“Bill

Maynard”) without providing notice to the DeYoungs. C.R. 248, ¶ 5; Suppl.

C.R. 3–5. The 20.1449 acres was not appraised prior to its transfer to Bill

Maynard, and Bill Maynard did not pay the Partnership for the property.

C.R. 255, ¶¶ 35–37, 42; Suppl. C.R. 209–18.

     In April 1994, Maurice Page resigned as the Partnershipʼs trustee and

appointed her daughter, Appellee Judy Maynard, as substitute trustee.

Suppl. C.R. 6–9.    Bill Maynard prepared the documents to transfer the

property to Judy Page Maynard and to appoint her as substitute trustee.

Suppl. C.R. 6–9. As part of this transition, on May 11, 1994, Maurice Page,

Trustee, transferred approximately 755 acres of Partnership property to

Judy Maynard as trustee. Suppl. C.R. 10–15. The general warranty deed

transferring the partnership property to Judy Maynard was prepared and

filed by Bill Maynard. Suppl. C.R. 10–16.

                                     3
       In December 1994, just seven months after she took over the

Partnershipʼs operations, Judy Maynard transferred 629 acres of the

Partnershipʼs property to Bill Maynard, again without notice to the partners

or an appraisal of the property. Suppl. C.R. 17–20; C.R. 249, ¶ 6; C.R.

255–56, ¶¶ 35, 38, 39; Suppl. C.R. 209–18.                  Although Bill Maynard

produced a 10-year promissory note for $28,305 plus 7% interest,3 thus

revealing the nature of this transaction as an “unsecured, seller financed

transaction,” Suppl. C.R. 21–24, Bill Maynard has been unable to produce

a single document evidencing any payments to the Partnership toward

satisfaction of the promissory note.4 C.R. 255–56, ¶¶ 35, 38, 39, 42; Suppl.

C.R. 209–18.

       On April 20, 2010, Judy Maynard transferred another 47.49 acres of

Partnership property to Appellee Maynard Properties, L.P., a company

owned by Bill Maynard, without notice to the partners, an appraisal, or

compensation. Suppl. C.R. 25–28; C.R. 249, ¶ 7; C.R. 255–56, ¶¶ 35, 40–

42; Suppl. C.R. 209–18.




3
    The prime interest rate in December 1994 was 8.5%.
4
    Although no amounts were actually paid for the 629 acres, the “negotiated price”
    of $45 per acre is significantly less than the $193.17 per acre Bill Maynard
    agreed to pay Exxon in October 1989. Suppl. C.R. 62–66, 68–80.

                                           4
        Finally, on May 21, 2010, $42,170.34 was transferred out of the

Partnershipʼs Wells Fargo account, which was controlled by Judy Maynard.

C.R. 255, ¶ 32; Suppl. C.R. 197–202. The DeYoungs did not receive notice

that the $42,170.34 was being withdrawn from the Partnershipʼs bank

account, have not received an explanation for this withdrawal, and have not

received any of the funds from this unexplained withdrawal.        C.R. 249,

¶ 10.

Judy and Bill Maynard owed the DeYoungs a fiduciary duty.

        There is no legitimate dispute that Bill and Judy Maynard owed the

DeYoungs a fiduciary duty. In April 1994, Judy Maynard was appointed

“Trustee for Russell Page & Partners” and accepted the attendant duties

and obligations.     Suppl. C.R. 6–7.      In fact, Judy Maynard held the

Partnershipʼs    property   as   trustee   and   prepared   and   signed   the

Partnershipʼs tax returns. Suppl. C.R. 10–15, 29; C.R. 180, 191, 194.

        In May 2000, Bill Maynard bought Frankie West-Davidʼs six percent

(6%) interest in the Partnership, Suppl. C.R. 37–38, and, in June 2001,

purchased a five percent (5%) interest from the estate of H.B. Canter.

Suppl. C.R. 39–42. As a result, Bill Maynard was a general partner in the

Partnership, and owed his partners, including the DeYoungs, the attendant


                                       5
fiduciary duties. M.R. Champion, Inc. v. Mizell, 904 S.W.2d 617, 618 (Tex.

1994).

     Although Bill Maynard contends that he wanted to close out the

Partnership because of “its dire financial condition,” C.R. 165, between

1999 and 2006, Bill Maynard attempted to purchase all remaining

partnership interests, Suppl. C.R. 31–60. In fact, in May 2006, Maynard

offered to pay the DeYoungs, Claudia West, and the Nelson Trust $53,157

for their partnership interests.   Suppl. C.R. 47–58.   Not only was Bill

Maynard willing to pay substantial sums of money to purchase a

partnership in “dire financial condition,” Maynard was even willing to

mislead his partners to do so.

     Specifically, on May 1, 2000, Bill Maynard offered to purchase

Frankie West-Davidʼs six percent (6%) partnership interest for $2,500,

which Maynard represented was “slightly less than [Frankieʼs] current

capital account.” Suppl. C.R. 37 (emphasis added). However, less than

a year later, when attempting to purchase Carla Nelsonʼs partnership

interest, Maynard represented to his partner that “Frankie sold Phillips

Estateʼs interest for approximately 50% of capital account value.”

Suppl. C.R. 44 (emphasis added).


                                     6
      In addition to being a general partner, Bill Maynard “assisted Judy

with the preparation of the partnership tax returns” since 1994:




Suppl. C.R. 29.

      Likewise, Bill Maynard was responsible for transmitting the

Partnershipʼs tax returns to the Internal Revenue Service. Suppl. C.R. 30,

35–37.

Bill Maynard also purchased substantial
property surrounding the Partnershipʼs property.

     Although Bill Maynard now contends that the Partnership property

had little value due to its locale and being “used as a land dump,” thus

incurring “damages as a result of oil spills” that were expensive to clean-up,

C.R. 164, n.3, from 1989 through 2010, Bill Maynard, individually and

through Maynard Properties, purchased over 2,200 acres in the same area,

some of which adjoined the Partnershipʼs property. C.R. 253–54, ¶¶ 15–

27; Suppl. C.R. 61–196.




                                      7
                        STANDARD OF REVIEW

     An appellate court reviews a no-evidence motion for summary

judgment de novo. Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150,

156 (Tex. 2004).

     When reviewing a no-evidence summary judgment, the Court must

“review the entire record in the light most favorable to the nonmovant,

indulging every reasonable inference and resolving any doubts against the

motion.   Mathis v. Restoration Builders, Inc., 231 S.W.3d 47, 50 (Tex.

App.—Houston [14th Dist.] 2007, no pet.) (emphasis added).

                    ARGUMENT AND AUTHORITIES

     The trial court committed reversible error in granting final summary

judgment on Appelleesʼ no-evidence motion because: (I) Appellees did not

move on all causes of action asserted by the DeYoungs; (II) Appellees

failed to articulate the elements on which the DeYoungs purportedly have

no evidence; (III) Appellees improperly used the no-evidence motion to shift

the burden of proof back to the DeYoungs to prove self-dealing; and

(IV) the DeYoungs nevertheless provided more than a scintilla of evidence

in response.




                                     8
I.    The trial court erred in granting final summary judgment
      because Appellees did not move on all causes of action
      asserted by the DeYoungs.

      “It is axiomatic that one may not be granted judgment as a matter of

law on a cause of action not addressed in a summary judgment

proceeding.” Chessher v. Sw. Bell Telephone Co., 658 S.W.2d 563, 564

(Tex. 1983).   Summary judgments “may only be granted upon grounds

expressly asserted in the summary judgment motion.” G & H Towing Co. v.

Magee, 347 S.W.3d 293, 297 (Tex. 2011).

      Because Appellees did not move for summary judgment on all

causes of action asserted by the DeYoungs, the trial court erroneously

granted Appellees more relief than they were entitled to. Therefore, the

Court should remand this matter at least with respect to the unaddressed

cause of action.

      On October 10, 2012, the DeYoungs filed their second amended

petition, asserting the following causes of action:

      1.    breach of fiduciary duty (against all Appellees) C.R. 115–
            16;
      2.    breach of the duty of loyalty and care under Texas
            Business Organizations Code §§ 152.205, 152.206
            (against Judy Maynard) C.R. 117;
      3.    conversion (against Bill and Judy Maynard) C.R. 117; and
      4.    breach of contract (against Judy Maynard) C.R. 117.

                                       9
      In their no-evidence motion for summary judgment, Appellees moved

for summary judgment on three of the DeYoungsʼ four causes of action:

“Plaintiffs can produce no evidence to support a cause of action for breach

of fiduciary duty, breach of contract, and conversion against Defendants.”

C.R. 163; App. 1 at 3. Defendants did not move for summary judgment on

the DeYoungsʼ cause of action for breach of the duty of loyalty and care,

much less specify the elements upon which they believed the DeYoungs

had no evidence. C.R. 161–64; App. 1 at 1–4.

      Under factually similar circumstances, the Fourteenth Court of

Appeals remanded a case where the trial court granted final summary

judgment even though the defendant had not expressly set forth the causes

of action in plaintiffsʼ supplemental petition. Rose v. Kober Fin. Corp., 874

S.W.2d 358, 362 (Tex. App.––Houston [14th Dist.] 1994, no writ). The

defendant in Rose argued on appeal that the final summary judgment

should be upheld because it negated the damage element on all of

plaintiffʼs causes of action.

      The Fourteenth Court of Appeals disagreed, reversing and remanding

the case because the summary judgment purported to “grant more relief

than requested.” Id. Accordingly, any argument by Appellees in the instant


                                     10
case that their no-evidence motion was properly granted because they

negated the damage element on each of the DeYoungsʼ causes of action

should, likewise, be rejected by this Court.

       As such, the trial courtʼs final judgment should be reversed and

remanded with respect to the DeYoungsʼ claim for breach of duty of loyalty

and care.

       A.     Even though the trial court committed reversible error by
              granting more relief than requested, the Court should treat
              the summary judgment as a final judgment and consider
              all issues raised in this appeal.

       “When a trial court grants more relief than requested and, therefore,

makes an otherwise partial summary judgment final, that judgment,

although erroneous, is final and appealable.”                 G & H Towing Co., 347

S.W.3d at 298.          “The court of appeals should treat such a summary

judgment as any other final judgment, considering all matters raised and

reversing only those portions of the judgment based on harmful error. Id.5




5
    Lehmann v. Har-Con Corp., 39 S.W.3d 191, 206 (Tex. 2001) (“The record may
    help illumine whether an order is made final by its own language, so that an order
    that all parties appear to have treated as final may be final despite some
    vagueness in the order itself …”); Farm Bureau Cty. Mut. Ins. Co. v. Rogers, 455
    S.W.3d 161, 163–64 (Tex. 2015) (dismissing a case for want of jurisdiction where
    the language of the order did not disposed of all parties and claims, but where
    there was no other evidence of the trial courtʼs intent with respect to the finality of
    the order).

                                             11
      Therefore, the trial courtʼs judgment should be reversed and the case

remanded for further proceedings with respect to the DeYoungsʼ breach of

duty of loyalty and due care claim, and this Court should consider the

merits of the DeYoungsʼ remaining points of error.

II.   The trial court erred in granting final summary judgment
      because Appellees failed to specify the elements as to which
      the DeYoungs purportedly had no evidence.

      Appelleesʼ one-paragraph argument in support of its no-evidence

motion for summary judgment belies Rule 166a(i)ʼs requirement that “[t]he

motion must state the elements as to which there is no evidence.”          In

particular, “a no-evidence motion that only generally challenges the

sufficiency of the non-movantʼs case and fails to state the specific elements

that the movant contends lack supporting evidence is fundamentally

defective and cannot support summary judgment as a matter of law.” Jose

Fuentes Co., Inc. v. Alfaro, 418 S.W.3d 280, 283 (Tex. App.––Dallas 2013,

pet. denied).

      In Alfaro, the movant listed each of the causes of action asserted and

listed the elements of each claim, but argued only that the plaintiffs had no

evidence to support “one or more” of the elements of the claim, without any

further discussion. Id. at 284. The Dallas Court of Appeals remanded the



                                     12
case, finding the no-evidence motion to be legally insufficient as a matter of

law. Id. at 288.

       Similarly, in Garcia v. State Farm Lloyds, State Farm moved for no-

evidence summary judgment on the following grounds:

       (1) there was no evidence that it owed the Garcias more than it
       already paid; (2) there was no evidence that the Garcias had
       any complaint with the way State Farm handled their claims,
       other than that State Farm did not pay enough; and (3) there
       was no evidence of any misrepresentations by State Farm.

287 S.W.3d 809, 818–19 (Tex. App.––Corpus Christi-Edinburg 2009, pet.

denied). The Corpus Christi Court of Appeals likewise found State Farmʼs

no-evidence motion to be insufficient for “only generally attack[ing] a factual

theory, without specifying the elements of the claims being attacked,” and

treated the motion like a traditional motion for summary judgment. Id. at

819.

       In the instant case, Appellees moved for no-evidence summary

judgment on the DeYoungsʼ claims for breach of fiduciary duty, breach of

contract, and conversion. C.R. 163; App. 1 at 3. In their motion, Appellees

first stated that the DeYoungs do not have evidence on one or more

elements of their claims, just as in the Alfaro case. Then, Appellees made

a general attack, as in the Garcia case, merely noting that:



                                      13
       Plaintiff cannot show any evidence that Defendants wrongfully
       engaged in any transactions that injured Plaintiffs or that
       Defendants received any personal benefit as a result of
       transactions related to the sale of partnership property.

C.R. 163; App. 1 at 3. Appelleesʼ conclusory statement fails to identify the

specific elements of the claims as to which they allege the DeYoungs have

no evidence, as required by Rule 166a(i).6

       Moreover, Appelleesʼ conclusory statement further fails because,

even if it had complied with Rule 166a(i), in the context of self-dealing and

breach of fiduciary duty, an injury need not be shown. Kinzbach Tool Co. v.

Corbett-Wallace Corp., 160 S.W.2d 509, 514 (Tex. 1942) (“It would be

dangerous precedent for us to say that unless some affirmative loss can be

shown, the person who has violated his fiduciary relationship with another

may hold on to any secret gain or benefit he may have thereby acquired.”);

Harvey v. Casebeer, 531 S.W.2d 206, 207 (Tex. Civ. App.—Tyler 1975, no

writ) (“Self-dealing transactions may be attacked by the beneficiary even

though he has suffered no damages …”).




6
    A no-evidence motion “must be specific in challenging the evidentiary support for
    an element of a claim or defense; [Rule 166a](i) does not authorize conclusory
    motions or general no-evidence challenges to an opponent's case.” Tex. R. Civ.
    P. 166a(i) (cmt. 1997).

                                           14
       Therefore, the trial courtʼs judgment should be reversed and this case

remanded for further proceedings with respect to the DeYoungsʼ causes of

action for breach of fiduciary duty, breach of contract, and conversion.

III.   The trial court erred in granting final summary judgment
       because Appellees improperly used a no-evidence motion to
       shift the burden of proof back to the DeYoungs on their self-
       dealing allegation.

       “[W]hen a plaintiff alleges self-dealing by the fiduciary as part of a

breach-of-fiduciary-duty claim, a presumption of unfairness automatically

arises, which the fiduciary bears the burden to rebut.” Cluck v. Mecom,

401 S.W.3d 110, 114 (Tex. App.—Houston [14th Dist.] 2011, pet. denied).

A party with the burden of proof on an issue cannot shift the burden of proof

through a no-evidence motion for summary judgment. In fact, “[i]t is error

for a trial court to grant a no-evidence summary judgment on a claim for

which the moving party bears the burden of proof.”           In re Estate of

Coleman, 360 S.W.3d 606, 610 (Tex. App.––El Paso 2011, no pet.).

       It is undisputed that the DeYoungs alleged self-dealing in connection

with their breach of fiduciary duty claim against Appellees. C.R. 116, ¶ 37.

Therefore, Appellees “bear[] the burden to fully disclose [their] activities as

fiduciar[ies] and prove the fairness of [their] personal transactions with the

[Partnership].” Cluck, 401 S.W.3d at 114.

                                      15
      In connection with the DeYoungsʼ breach of fiduciary duty claim, the

trial court improperly allowed Appellees to shift the burden of proof to the

DeYoungs by improvidently granting their no-evidence motion for summary

judgment.

      Because the trial court committed reversible error by granting

Appelleesʼ no-evidence motion for summary judgment on the DeYoungsʼ

breach of fiduciary duty claim, the trial courtʼs judgment should be reversed

and this case remanded for further proceedings with respect to the

DeYoungsʼ breach of fiduciary duty claim

IV.   The trial court erred in granting final summary judgment
      because the DeYoungs submitted competent summary
      judgment evidence establishing each element of their causes of
      action.

      The DeYoungs presented sufficient – actually, abundant – evidence

to defeat Appelleesʼ no-evidence motion.

      Again, even if this Court considers Appelleesʼ no-evidence motion to

be in compliance with Rule 166a(i) of the Texas Rules of Civil Procedure,

the only element Appellees challenged was that the DeYoungs did not have

any evidence of an injury. Notwithstanding the fact that the DeYoungs

need not prove injury in connection with their breach of fiduciary duty and




                                     16
breach of the duty of loyalty and care causes of action,7 the DeYoungs

presented ample evidence to defeat Appelleesʼ no-evidence motion for

summary judgment.

       “[I]f the nonmovant presents more than a scintilla of evidence

supporting the disputed issue, summary judgment is improper.” Forbes,

Inc. v. Granada Biosciences, Inc., 124 S.W.3d 167, 172 (Tex. 2003). In

other words, “[a] no-evidence summary judgment is improper if the

respondent brings forth more than a scintilla of probative evidence to raise

a genuine issue of material fact.” Id.

       When determining if more than a scintilla of evidence has been
       produced in response to a Rule 166a(i) motion for summary
       judgment, the evidence must be viewed in the light most
       favorable to the non-movant. We have repeatedly held that
       more than a scintilla of evidence exists if the evidence “rises to
       a level that would enable reasonable and fair-minded people to
       differ in their conclusions.”
                                          ***
       Both direct and circumstantial evidence may be used to
       establish any material fact.

Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex. 2004).



7
    Kinzbach Tool Co., 160 S.W.2d at 514 (“It would be dangerous precedent for us
    to say that unless some affirmative loss can be shown, the person who has
    violated his fiduciary relationship with another may hold on to any secret gain or
    benefit he may have thereby acquired.”); Harvey, 531 S.W.2d at 207 (“Self-
    dealing transactions may be attacked by the beneficiary even though he has
    suffered no damages …”).

                                           17
       The DeYoungs attached exhibits to their summary judgment

response demonstrating that, from January 1991 through April 2010,

Appellees transferred 696.6349 acres of Partnership property to Bill

Maynard and Maynard Properties, without notice to the DeYoungs or

compensation to the Partnership. C.R. 248, ¶ 5; Suppl. C.R. 3–5; C.R. 255,

¶¶ 35–37, 42; Suppl. C.R. 209–18; CR 249, ¶ 6; C.R. 255–56, ¶¶ 35, 38,

39; Suppl. C.R. 17–20; CR 255–56, ¶¶ 35, 38, 39, 42; Suppl. C.R. 209–18;

C.R. 249, ¶ 7; Suppl. 25–28; C.R. 255–56, ¶ 35, 40, 41; Suppl. C.R. 209–

18.

       Although worth much more, Appellees admitted that the property they

stole was worth at least $45 per acre,8 which Bill Maynard never actually

paid to the Partnership. Suppl. C.R. 17–24; C.R. 255–56, ¶¶ 35, 38, 39,

42; Suppl. C.R. 209–18.

       In other words, the DeYoungs suffered damages because: (1) they

were deprived of the value of each of their 3.596% interests in the

partnership as a result of Appellees withdrawing $42,170.34 from the

Partnershipʼs Wells Fargo account, without notice to the DeYoungs or an



8
    On December 5, 1994, in connection with his “purchase” of 629 partnership
    acres, Bill Maynard signed a promissory note for $28,305, which is $45 per acre.
    C.R. 252, ¶ 10; Suppl. C.R. 17–24.

                                          18
explanation, C.R. 255, ¶ 32; Suppl. C.R. 197–202; C.R. 249, ¶ 10; and (2)

the Partnershipʼs real property was transferred to Bill Maynard and

Maynard Properties, without notice or compensation. C.R. 248, ¶ 5; Suppl.

C.R. 3–5; C.R. 255, ¶¶ 35–37, 42; Suppl. C.R. 209–18; C.R. 249, ¶ 6; C.R.

255–56, ¶¶ 35, 38, 39; Suppl. C.R. 17–20; C.R. 255–56, ¶¶ 35, 38, 39, 42;

Suppl. C.R. 209–18; C.R. 249, ¶ 7; Suppl. C.R. 25–28; C.R. 255–56, ¶ 35,

40, 41; Suppl. C.R. 209–18.        In short, the Partnershipʼs assets were

depleted without notice or explanation, much less consideration or

compensation.

       When self-dealing by a fiduciary is alleged, it is the fiduciaryʼs burden

to demonstrate the fairness of the transactions at issue, and the plaintiff

need not prove injury. Nevertheless, the DeYoungs presented more than a

scintilla of evidence establishing that the DeYoungs suffered injury as a

result of Appelleesʼ depletion of the Partnershipʼs assets. Therefore, the

trial court committed reversible error and this matter should be remanded

for trial.

                                   PRAYER

       Appelleesʼ   no-evidence     motion   for   summary     judgment    was

improvidently granted as a final judgment.



                                       19
      It is well settled under Texas law that a party may not be granted

more relief than requested.       However, Appellees were granted final

judgment even though they did not move on all causes of action asserted

by the DeYoungs.

      Texas law undeniably requires that a party moving for summary

judgment on no evidence grounds must specify the elements as to which

the opposing party has no evidence. Appellees failed to adhere to this

requirement, yet obtained final judgment in their favor nonetheless.

      Texas precedent explicitly dictates that when self-dealing is alleged

against a defendant, the defendant has the burden to establish the fairness

of the transactions and cannot use a no-evidence motion to shift the burden

of proof back to the plaintiff. Appellees did just that, but were nevertheless

granted final judgment.

      Texas law demands that any evidence submitted in response to a no-

evidence motion for summary judgment be viewed in a light most favorable

to the non-movant and even allows circumstantial evidence to establish

material facts. The DeYoungs submitted ample evidence that, at the very

least, allow reasonable minds to differ in their conclusions about the

propriety of Bill Maynardʼs actions in “purchasing” Partnership property.


                                     20
Despite the evidence presented by the DeYoungs, the trial court

erroneously granted Appelleesʼ no-evidence motion.

     For these reasons, the trial courtʼs final judgment should be reversed

and this matter should be remanded for trial on each of the DeYoungsʼ

causes of action.

                                        Respectfully submitted,


                                        /s/ Daniel W. Jackson
                                        Daniel W. Jackson, SBN 00796817
                                        Scott K. Vastine, SBN 24056469
                                        Jennifer H. Frank, SBN 24087537
                                        3900 Essex Lane, Suite 1116
                                        Houston, Texas 77027
                                        (713) 522-4435
                                        (713) 527-8850 – fax
                                        daniel@jacksonlaw-tx.com
                                        scott@jacksonlaw-tx.com
                                        jennifer@jacksonlaw-tx.com

                                        Counsel for Appellants




                                   21
                     CERTIFICATE OF COMPLIANCE

      Pursuant to Rule 9.4(i)(1) of the Texas Rules of Appellate Procedure,

I hereby certify that the content to be included in calculating the length of a

document contains 4,217 words.



                                     /s/ Daniel W. Jackson
                                     Daniel W. Jackson, SBN 00796817




                        CERTIFICATE OF SERVICE

      I certify that a copy of the foregoing document has been served on all
counsel of record, via ProDocs and email, on August 17, 2015:

Gregory N. Jones                           William L. Maynard
Law Office of Gregory N. Jones             1300 Post Oak Blvd, Suite 2500
2323 S. Shepherd, 14th Floor               Houston, Texas 77056
Houston, Texas 77019
                                           wmaynard@bmpllp.com
gjones@gnjlaw.net

                                     /s/ Daniel W. Jackson
                                     Daniel W. Jackson




                                      22
                                                                                            10/23/2014 3:02:16 PM
                                                                         Chris Daniel - District Clerk Harris County
                                                                                             Envelope No. 2935065
                                                                                              By: SHELLEY BOONE
                                                                                     Filed: 10/23/2014 3:02:16 PM
                                   NO. 2011-18770

JOAN DEYOUNG, STEPHEN DEYOUNG, M.D.,              §
AND DAVID DEYOUNG,                                §
                                                  §     IN THE DISTRICT COURT OF
      Plaintiffs,                                 §
v.                                                §
                                                  §     HARRIS COUNTY, TEXAS
JUDY PAGE MAYNARD, WILLIAM L.
                                                  §
MAYNARD, MAYNARD PROPERTIES, L.P.,
                                                  §
AND BEIRNE, MAYNARD & PARSONS,
                                                  §
L.L.P.,                                                 270TH JUDICIAL DISTRICT
                                                  §
        Defendants.                               §


                      DEFENDANTS' MOTIONS FOR NO EVIDENCE
                      AND TRADITIONAL SUMMARY JUDGMENT

       COME NOW, Defendants Judy Paige Maynard, 1 William L. Maynard and

Maynard Properties, L.P., 2 and file this their Motions for No Evidence Summary

Judgment and Traditional Summary Judgment. In support thereof, Defendants

would show unto the Court the following:

                                     I. FACTUAL SUMMARY

       Plaintiffs' suit is based on the allegation that Defendants breached duties

owed to a family partnership, Russell, Page & Partners, of which Plaintiffs held a

total interest of 10.788%. To summarize, Plaintiffs have alleged that Defendants

wrongfully transferred land tracts to themselves without paying a fair price for the

land and without notifying Plaintiffs. Plaintiffs cannot present credible evidence to

support their claims. Indeed, the summary judgment evidence as set forth in this

1 Defendant Judy Paige Maynard died in 2013. Accordingly, she is now appearing by and
through her husband, Defendant William L. Maynard.

2Defendant Beirne, Maynard & Parsons, L.L.P.'s motion for summary judgment was granted
by Order of this Court on September 26, 2012. Ex. 1, attached hereto. Thus, Beirne
Maynard is no longer a party to this case.


                                           1                            I         Appendix 1
                                                                                                             I
motion clearly establishes that Plaintiffs knew or, at a minimum, should have known

of the transfers of real estate from the partnership to Defendants at or near the time

they occurred, which was many years before Plaintiffs filed this suit on March 28,

2011.

             II. NO EVIDENCE SUMMARY JUDGMENT STANDARD

        A court may grant a no evidence motion for summary judgment if the movant can

show that adequate time for discovery has passed and the non-movant has no evidence to

support one or more essential elements of its claim or defense. Tex. R. Civ. P. 166a(i).

Defendants contend that a "no-evidence" motion for summary judgment should be

granted pursuant to Texas Rule of Civil Procedure 166a (i). Under the no-evidence

summary judgment standard, "the party with the burden of proof at trial will have the

same burden of proof in a summary judgment proceeding." Galveston Newspapers, Inc.

v. Norris, 981 S. W.2d 797,799 (Tex. App.-Houston [1st Dist.] 1998, pet. denied), citing

Esco Oil & Gas, Inc. v. Sooner Pipe & Supply Cmp., 962 S.W.2d 193,197 n. 3 (Tex.

App.-Houston [1st Dist.] 1997, pet. denied) (commenting that under Rule 166a(i), "the

plaintiff as the non-movant [has] the burden to raise a triable issue on each element

essential to the plaintiffs case against each defendant"). Here, Plaintiffs' claims against

Defendants for breach of fiduciary duty, breach of contract, and conversion must fail

because there is no evidence that Defendants were in any way engaged in the wrongful

conduct that was detrimental to Plaintiffs.

                     III. ADEQUATE TIME FOR DISCOVERY

        Under Rule 166a(i), a no evidence motion for summary judgment is proper if,

after an adequate time for discovery, there is a complete absence of evidence of one or




                                              2
more essential element of a claim or defense on which an adverse party has the burden of

proof at trial. In this case, Plaintiffs have had an adequate time to conduct discovery. This

case has been pending for more than three (3) years. Discovery is substantially complete.

The parties have exchanged extensive written discovery, inspected relevant documents,

and designated expert witnesses. This case is set for trial on December 1, 2014. Plaintiffs

have had more than ample opportunity to gather the evidence necessary to support its

allegations against the Defendants.

             IV. NO EVIDENCE SUMMARY JUDGMENT GROUNDS

       After adequate time for discovery, Plaintiffs can produce no evidence to support a

cause of action for breach of fiduciary duty, breach of contract, and conversion

against Defendants. Accordingly, pursuant to Rule 166a(i) of the Texas Rules of Civil

Procedure, Defendants seek summary judgment on the ground that Plaintiff has failed to

adduce any evidence to support one or more essential elements of its claims.

                       V. ARGUMENTS AND AUTHORITIES

       Defendants contend that entry of a no evidence summary judgment is proper

based on the following:

       There is No Evidence that Defendants Judy Page Maynard, William L.
       Maynard or Maynard Properties, L.P. Engaged in any Conduct Harmful to
       Plaintiffs or to Their own Benefit.

Plaintiff cannot show any evidence that Defendants wrongfully engaged in any

transactions that injured Plaintiffs or that Defendants received any personal benefit as a

result of transactions related to the sale of partnership property. Proving these claims are

obviously essential to Plaintiffs' assertions. There are no depositions, answers to

interrogatories, admissions on file, or any other admissible evidence to support the




                                             3
Plaintiffs' claims. In the absence of such evidence, Plaintiffs cannot establish any

evidence sufficient to sustain their case against Defendants. Thus, Defendant's motion

for summary judgment should be granted.

        VI. DEFENDANTS' TRADITIONAL MOTION FOR SUMMARY JUDGMENT

        Plaintiffs' claims are barred by the statute of limitations. Tex. Civ. Prac. &

Rem. Code §16.004(a)(S). While Plaintiffs' petition admits that Maurice Page

decided in 1994 to retire as Trustee for the partnership and appoint Defendant Judy

Page Maynard as her successor to handle the partnership's business affairs, they do

not contend they were unaware of Ms. Page's transfer to Defendant Judy Page

Maynard. Plaintiffs' Second Amended Petition,      ~~   19-20. In fact, notice of the

transfer was provided to each of the partners, including the Plaintiffs, in the spring

of 1994. Ex. 2, attached hereto and incorporated herein. Moreover, Plaintiffs have

judicially admitted that they knew the value of the partnerships assets were

declining from 1968-1970. Plaintiffs' Second Amended Petition, ~15. Partnership

tax returns mailed to all partners, including Plaintiffs and, as result, they were also

informed that value of the partnership continued to be reduced as a result of sales of

property owned by the partnership. Ex. 3, attached hereto and incorporated herein.

Because the property owned by the partnership did not generate any revenue,

property had to be sold to generate cash for ad valorem taxes and clean-up

expenses. 3 In addition, much of the property did not have clear title and were

encumbered with right-of-way easements. Thus, the appraised valued of the


3 Much of the property owned by the partnership, which was all located in Liberty County,
Texas, was used as a land dump and had incurred damage as a result of oil spills. Needless
to say, clean-up has been expensive.


                                             4
property was not anywhere near $2,500,000, as alleged by Plaintiffs, but was at or

near the prices paid by Defendant William Maynard for the property. See Ex. 4,

attached hereto and incorporated herein.

                                               VII.

       As established by the evidence, Plaintiffs were aware of the partnership's

distressed financial condition. Ex. 3. In the spring of 2000, Defendant William

Maynard directly notified Plaintiffs ofthe impending close-out of the partnership as

a result of its dire financial condition and offered to purchase their interests. 4

Moreover, he again offered to purchase each of their remaining interests in the

partnership for $2,127.00. Ex. 5, attached hereto and incorporated herein. Plaintiffs

did not respond to the correspondence in any fashion. If Plaintiffs had merely called

Defendants or checked the public deed records of Liberty County, Texas they would

have known that sales from the partnership to Defendant William L. Maynard had

occurred as early as 1991, when under control of the predecessor Trustee Maurice

R. Page, and continued thereafter in 1994, 1996, and 2010, when Defendant Judy

Page Maynard had become Trustee. See Exs. 1, 4, 5, 7, & 8 attached to Plaintiffs'

Second Amended Petition and incorporated herein by reference.

                       VIII. ARGUMENT AND AUTHORITIES

       Plaintiffs filed this suit on March 28, 2011, over ten (10) years after

Defendant William L. Maynard's first letter advising Plaintiffs of the partnership

Trustee's decision to "close out" the partnership and over fifteen years after Trustee


4It cannot be disputed that Plaintiffs received the letters from Mr. Maynard. In addition to
his affidavit confirming that they were mailed, the documents contain "De Young" bates
numbers indicating that they came from their files.


                                              5
Maurice Page advised Plaintiffs of her appointment of Defendant Judy Page Maynard

as her successor and her instructions to "direct any further inquiries ... to Judy

Maynard .... " Ex. 2, attached hereto. This notice, when combined with tax returns

and other communications related to the dire financial condition of the partnership,

clearly give rise to the conclusion that Plaintiffs knew, or should have known, that

the partnership was being liquidated and would be closed down.

       Statutes of limitation "operate to prevent the litigation of stale claims; they

'afford plaintiffs what the legislature deems a reasonable time to present their

claims and protect defendants and the courts from having to deal with cases in

which the search of truth may be seriously impaired by the loss of evidence,

whether by death ... or otherwise." Kerlin v. Sauceda, 263 S.W.3d 920, 925 (Tex.

2008). Not only do limitations "preclude claimants from sleeping on their rights,"

they provide both stability and security in personal affairs. Little v. Smith, 943

S.W.2d 414,418 (Tex. 1997). The objective of statutes of limitations is to compel the

assertion of claims within a reasonable period of time, while the evidence is fresh in

the minds of the parties and witnesses. Computer Assoc. Inn Inc. v. Altai, Inc., 918

S.W.2d 453, 455 (Tex 1996).

       Limitations generally begin to run when facts come into existence which

authorize a claimant to seek judicial remedy. Apex Towing Co. v. Tolin 41 S.W.3d

118, 120 (Tex. 2001); see also, Bayou Bend Towers Council of Co-Owners, 866 S.W.2d

740,743-44 (Tex. App.-Houston [14th Dist.] 1993, writ denied). A party need only

be aware of enough facts to be apprised of the right to seek a judicial remedy.

Robinson v. Weaver, 550 S.W.2d 18, 19 (Tex.1977).



                                            6
       The discovery rule operates to toll the limitations period until a plaintiff

discovers or, through the exercise of reasonable care and diligence, should have

discovered the nature of his loss. Moreno v. Sterling Drug, Inc., 787 S.W.2d 348,351

(Tex. 1990). Limitations begin to run- even against a person to whom a fiduciary

duty is owed - when such person "learns of facts or circumstances that would lead a

reasonably prudent person to inquire and therefore discover the concealed cause of

action." Wright v. Greenberg, 2 S.W.3d 666, 675 (Tex. App.-Houston [14th Dist.]

1999, pet. denied). It is this knowledge that triggers the period of time within which

the plaintiff must investigate and determine whether to file suit. Bell v. Showa Denko

KK, 899 S.W.2d 7 49, 754 (Tex. App.-Amarillo 1995, writ denied); Arabian Shield

Dev. Co. v. Hunt, 808 S.W.2d 577,583 (Tex. App.-Dallas 1991, writ denied). The

discovery rule measures "what the [claimant] should have known based on a

reasonable person standard- an objective standard." Trousdale v. Henry, 261

S.W.3d 221, 234-37 (Tex. App.-Houston [14th Dist.] 2008, pet. denied). While a

fiduciary relationship is one of many circumstances to be considered in determining

whether a breach of duty might have been discovered as a result of reasonable

diligence, it does not change the rule that diligence in discovering the breach of

fiduciary duty is required. Courseview, Inc. v. Phillips Petroleum Co., 312 S.W.2d 197,

205 (Tex. 1957).

       The summary judgment evidence in this case clearly establishes that

Defendants did not attempt to conceal anything from Plaintiffs. Indeed, Plaintiffs

were aware that Plaintiff Judy Page Maynard had become Trustee in 1994. Tax

returns were mailed annually to Plaintiffs that revealed the declining value of the



                                           7
partnership's value. Correspondence was sent to Plaintiffs and other family-

member partners that clearly related to the monetary issues faced by the

partnership and its Trustee. Defendant Judy Page Maynard. Exs. 5 & 6, attached

hereto and incorporated herein. With all of this knowledge, Plaintiffs did nothing,

including simply calling Defendants, to inquire about the status of events. Given that

Defendants fully responded to inquiries from other family-member partners, it

should be clear that Defendants would not have withheld any information. Ex. 6,

attached hereto. This is true particularly given the fact that the land sales to Mr.

Maynard were made a matter of public record that anyone could access. Summary

judgment in favor of the Defendants, therefore, is appropriate.

       WHEREFORE, PREMISES CONSIDERED, Defendants Judy Page Maynard,

William L. Maynard, and Maynard Properties, L.P. respectfully request that the Court

GRANT this Motion for No Evidence Summary Judgment and sign an order for final

summary judgment and/or such other relief to which Defendants may be justly entitled.



                                            Respectfully submitted,

                                            LAW OFFICE OF GREGORY N. JONES


                                            By: Gregory N. ones
                                                 Gregory N. Jones
                                                  State Bar No. 10889450
                                                  2323 S. Shepherd, 14th Floor
                                                  Houston, Texas 77019
                                                  (713) 979-4691 (telephone)
                                                  (713) 979-4440 (facsimile)

                                            ATTORNEY FOR DEFENDANTS




                                           8
                              CERTIFICATE OF SERVICE

       I certify that a copy of the foregoing document has been served on all counsel of
record via electronic mail on October 23, 2014:

Daniel W. Jackson, SBN 00796817                   William L. Maynard
Scott K. Vastine, SBN 24056469                    1300 Post Oak Blvd, Suite 2500
3900 Essex Lane, Suite 1116                       Houston, Texas 77056
Houston, Texas 77027                              Fax: (713) 960-1527
(713) 522-4435
(713) 527-8850- fax
daniel@jacksonlaw-tx.com
scott@jacksonlaw-tx.com


                                                    By: Gregory N. Tones
                                                    Gregory N. Jones




                                           9
.
\




        RE~ORDER'S MEMORANDUM                \                                                       219/2015 1:22:12 PM
        ThiS Instrument is or poor qualrly                                     Chris Daniel - District Clerk Harris County
              at the time or rmagrng                                                               Envelope No. 4073073
                                                                                                    By: SHELLEY BOONE
                                                                                              Filed: 219/20151:22:12 PM



                                                 NO. 2011-18770

                                                        §
          JOAN DEYOUNG, STEPHEN DEYOUNG,
                                                        §
          M.D., AND DAVID DEYOUNG,


          v.
                 Plaintiffs,


          JUDY PAGE MAYNARD, WILLIAM L.
                                                        §
                                                        §


                                                        ~
                                                               .      *
                                                              IN THE DISTRICT COURT OF



                                                              HARRISCO+
          MAYNARD, MAYNARD PROPERTIES, L.P.,
          AND BEIRNE, MAYNARD & PARSONS,                §                  ~
          L.L.P.,                                       §
                                                        §
                                                                        T~~«:J
                                                              270TH JUD~.IU.I DISTRICT
                  Defendants.
                                                        §              ~
    \




                                                                                 Appendix 2
;




                                                 Submitted by:
                                                 LAW OFFICE OF GREGORY N. JONES

                                                 By: Is/ Gregory N. Jones
                                                 TSB 10889450
                                                 2323 S. Shepherd, 1~~1oor
                                                 Houston, TX 7701~~
                                                 Tele. (113) 97~
                                               . Fax (713) 979 '
                                                               \"~
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                                                           ~
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                                                      ~
                                                      ~
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                                       2
Rule 166a. Summary Judgment, TX R RCP Rule 166a




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        	 	!"	#

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                                                          


(a) For Claimant. A party seeking to recover upon a claim, counterclaim, or cross-claim or to obtain a declaratory judgment
may, at any time after the adverse party has appeared or answered, move with or without supporting affidavits for a summary
judgment in his favor upon all or any part thereof. A summary judgment, interlocutory in character, may be rendered on the
issue of liability alone although there is a genuine issue as to amount of damages.


(b) For Defending Party. A party against whom a claim, counterclaim, or cross-claim is asserted or a declaratory judgment
is sought may, at any time, move with or without supporting affidavits for a summary judgment in his favor as to all or any
part thereof.


(c) Motion and Proceedings Thereon. The motion for summary judgment shall state the specific grounds therefor. Except
on leave of court, with notice to opposing counsel, the motion and any supporting affidavits shall be filed and served at least
twenty-one days before the time specified for hearing. Except on leave of court, the adverse party, not later than seven days
prior to the day of hearing may file and serve opposing affidavits or other written response. No oral testimony shall be received
at the hearing. The judgment sought shall be rendered forthwith if (i) the deposition transcripts, interrogatory answers, and other
discovery responses referenced or set forth in the motion or response, and (ii) the pleadings, admissions, affidavits, stipulations
of the parties, and authenticated or certified public records, if any, on file at the time of the hearing, or filed thereafter and
before judgment with permission of the court, show that, except as to the amount of damages, there is no genuine issue as to any
material fact and the moving party is entitled to judgment as a matter of law on the issues expressly set out in the motion or in an
answer or any other response. Issues not expressly presented to the trial court by written motion, answer or other response shall
not be considered on appeal as grounds for reversal. A summary judgment may be based on uncontroverted testimonial evidence
of an interested witness, or of an expert witness as to subject matter concerning which the trier of fact must be guided solely by
the opinion testimony of experts, if the evidence is clear, positive and direct, otherwise credible and free from contradictions
and inconsistencies, and could have been readily controverted.


(d) Appendices, References and Other Use of Discovery Not Otherwise on File. Discovery products not on file with the
clerk may be used as summary judgment evidence if copies of the material, appendices containing the evidence, or a notice
containing specific references to the discovery or specific references to other instruments, are filed and served on all parties
together with a statement of intent to use the specified discovery as summary judgment proofs: (i) at least twenty-one days
before the hearing if such proofs are to be used to support the summary judgment; or (ii) at least seven days before the hearing
if such proofs are to be used to oppose the summary judgment.


(e) Case not Fully Adjudicated on Motion. If summary judgment is not rendered upon the whole case or for all the relief
asked and a trial is necessary, the judge may at the hearing examine the pleadings and the evidence on file, interrogate counsel,

                                                                                                           Appendix 3

                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                              1
Rule 166a. Summary Judgment, TX R RCP Rule 166a


ascertain what material fact issues exist and make an order specifying the facts that are established as a matter of law, and
directing such further proceedings in the action as are just.


(f) Form of Affidavits; Further Testimony. Supporting and opposing affidavits shall be made on personal knowledge, shall
set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the
matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto
or served therewith. The court may permit affidavits to be supplemented or opposed by depositions or by further affidavits.
Defects in the form of affidavits or attachments will not be grounds for reversal unless specifically pointed out by objection by
an opposing party with opportunity, but refusal, to amend.


(g) When Affidavits Are Unavailable. Should it appear from the affidavits of a party opposing the motion that he cannot for
reasons stated present by affidavit facts essential to justify his opposition, the court may refuse the application for judgment
or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make
such other order as is just.


(h) Affidavits Made in Bad Faith. Should it appear to the satisfaction of the court at any time that any of the affidavits
presented pursuant to this rule are presented in bad faith or solely for the purpose of delay, the court shall forthwith order the
party employing them to pay to the other party the amount of the reasonable expenses which the filing of the affidavits caused
him to incur, including reasonable attorney's fees, and any offending party or attorney may be adjudged guilty of contempt.


(i) No-Evidence Motion. After adequate time for discovery, a party without presenting summary judgment evidence may move
for summary judgment on the ground that there is no evidence of one or more essential elements of a claim or defense on which
an adverse party would have the burden of proof at trial. The motion must state the elements as to which there is no evidence. The
court must grant the motion unless the respondent produces summary judgment evidence raising a genuine issue of material fact.


Credits
Oct. 12, 1949, eff. March 1, 1950. Amended by orders of Oct. 1, 1951, eff. March 1, 1952; July 20, 1966, eff. Jan. 1, 1967; July
21, 1970, eff. Jan. 1, 1971; July 11, 1977, eff. Jan. 1, 1978; June 10, 1980, eff. Jan. 1, 1981; Dec. 5, 1983, eff. April 1, 1984;
July 15, 1987, eff. Jan. 1, 1988; April 24, 1990, eff. Sept. 1, 1990; Aug. 15, 1997, eff. Sept. 1, 1997.



Notes of Decisions (8176)

Vernon's Ann. Texas Rules Civ. Proc., Rule 166a, TX R RCP Rule 166a
Current with amendments received through 6/1/2015

End of Document                                                       © 2015 Thomson Reuters. No claim to original U.S. Government Works.




                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                    2
Chessher v. Southwestern Bell Telephone Co., 658 S.W.2d 563 (1983)




                                                                           215 Cases that cite this headnote
                     	
	
                 	
                                                                    [2]    Judgment
            	 !""#!                                      Partial Summary Judgment
                         $	                                                Plaintiff, who sought to recover damages against
               %&
 '())                                           defendant telephone utility for alleged breach of
         )%'%*+',! ##	                                    employment contract, wrongful discharge, fraud,
                                                                           and misrepresentation, did not waive his tort
              '	-.	 / %0	!12	                                claims by failing to raise them in his response to
           /    3"#45#"'$	2!12	                             defendant's motion for summary judgment based
                                                                           on the statute of frauds, and since the defendant
Suit was instituted against telephone utility to recover
                                                                           moved for summary judgment on only one of
damages for alleged breach of employment contract,
                                                                           the plaintiff's four causes of action, summary
wrongful discharge, fraud, and misrepresentation. The 189th
                                                                           judgment rendered in favor of defendant on basis
District Court, Harris County, Hughes, J., rendered summary
                                                                           of the statute of frauds was improper insofar as it
judgment in favor of defendant, and plaintiff appealed. The
                                                                           disposed of all four of the causes. V.T.C.A., Bus.
Houston Court of Civil Appeals, Fourteenth Supreme Judicial
                                                                           & C. § 26.01(b)(6); Vernon's Ann.Texas Rules
District Court, Murphy, J., affirmed in an unpublished
                                                                           Civ.Proc., Rule 452.
opinion and plaintiff brought error. The Supreme Court held
that plaintiff did not waive his tort claims by failing to raise           175 Cases that cite this headnote
them in his response to defendant's motion for summary
judgment based on the statute of frauds, and since the
defendant moved for summary judgment on only one of the
plaintiff's four causes of action, summary judgment rendered       Attorneys and Law Firms
in favor of defendant was improper insofar as it disposed of
all four of the causes.                                             *564 Wheat & Rickard, Robert W. Rickard, Houston, for
                                                                   petitioner.
Reversed and remanded.
                                                                   Fulbright & Jaworski, Roger Townsend, Houston, for
                                                                   respondent.

 West Headnotes (2)                                                Opinion

                                                                   PER CURIAM.
 [1]     Judgment
             Actions in Which Summary Judgment Is                  Paul G. Chessher instituted this suit against Southwestern
         Authorized                                                Bell Telephone Company seeking damages for breach
                                                                   of employment contract, wrongful discharge, fraud, and
         Judgment
                                                                   misrepresentation. Summary judgment was rendered in favor
             Weight and Sufficiency
                                                                   of Southwestern Bell on the basis of the Statute of Frauds,
         A movant may not be granted judgment as a                 Tex.Bus. & Comm.Code Ann. art. 26.01(b)(6) (1977), and
         matter of law on a cause of action not addressed          the court of appeals affirmed in an unpublished opinion.
         in a summary judgment proceeding; rather, he              Tex.R.Civ.P. 452. We reverse the judgments of the courts
         must establish his entitlement to a summary               below and remand the cause to the trial court.
         judgment on issues expressly presented to trial
         court by conclusively proving all essential               The record discloses that the sole ground upon which
         elements of his cause of action or defense as a           Southwestern Bell sought summary judgment was the Statute
         matter of law.                                            of Frauds; no defense was raised as to the tort allegations
                                                                   set forth in Chessher's petition. The trial court's judgment,

                                                                                                          Appendix 4
                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                              1
Chessher v. Southwestern Bell Telephone Co., 658 S.W.2d 563 (1983)


                                                                     [2]    Because Southwestern Bell moved for summary
however, disposed of all four of Chessher's causes of action.
                                                                    judgment on only one of Chessher's four causes of action, the
The court of appeals concluded that Chessher had waived
                                                                    court of appeals' affirmation of this judgment was improper
his tort claims by failing to raise them in his response to
                                                                    as to the other causes of action alleged by Chessher. Griffin
the motion for summary judgment. In so holding, the court
                                                                    v. Rowden, 654 S.W.2d 435 (Tex.1983); Puga v. Donna Fruit
committed reversible error.
                                                                    Co., Inc., 634 S.W.2d 677 (Tex.1982); Missouri-Kan.-Tex.
                                                                    R.R. Co. v. City of Dallas, 623 S.W.2d 296 (Tex.1981).
 [1] It is axiomatic that one may not be granted judgment
as a matter of law on a cause of action not addressed in a
                                                                    Pursuant to Tex.R.Civ.P. 483, the application for writ of error
summary judgment proceeding. In City of Houston v. Clear
                                                                    is granted, and without hearing oral argument, the judgments
Creek Basin Auth., 589 S.W.2d 671, 678 (Tex.1979), we
                                                                    of the courts below are reversed and the cause is remanded
wrote, “The movant ... must establish his entitlement to a
                                                                    to the trial court.
summary judgment on the issues expressly presented to the
trial court by conclusively proving all essential elements of
his cause of action or defense as a matter of law.” (emphasis
                                                                    All Citations
added).
                                                                    658 S.W.2d 563

End of Document                                                 © 2015 Thomson Reuters. No claim to original U.S. Government Works.




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                               2
Farm Bureau County Mutual Insurance Company v. Rogers, 455 S.W.3d 161 (2015)
58 Tex. Sup. Ct. J. 270

                                                                     was not expressly granted herein was denied,
                                                                     where order did not resolve parties' competing
                    	

                                                                     requests for attorney fees.
                
                                                                     2 Cases that cite this headnote
             
            !"#$%%#
                           &                                  [2]   Appeal and Error
              %% '(#'                                Finality as to All Parties
                                                                     Appeal and Error
             )*+,-./ 0 *$!)!*)                                    Determination of Controversy
            123!42'2156
,#-,                              The language of an order or judgment can make
                                                                     it final for appellate purposes, even though it
Synopsis
                                                                     should have been interlocutory, if that language
Background: Automobile insurer brought declaratory-
                                                                     expressly disposes of all claims and all parties.
judgment action against insured, seeking declaration that
it was not obligated to defend or indemnify insured and              2 Cases that cite this headnote
seeking award of court costs and attorney fees under Uniform
Declaratory Judgments Act (UDJA). Insured sought recovery
of court costs and attorney fees under Texas Deceptive Trade   [3]   Appeal and Error
Practices Act (DTPA). The County Court at Law, Lamar                    Nature and Scope of Decision
County, William H. Harris, J., denied insurer's motion for           If a trial court's intent to enter a final judgment
summary judgment. Insurer appealed. The Texarkana Court              is clear from the order, then the order is final
of Appeals, 2014 WL 786455, dismissed appeal. Insurer filed          and appealable, even though the record does
petition for review.                                                 not provide an adequate basis for rendition
                                                                     of judgment; in that case, the judgment is
                                                                     erroneous, but final.
[Holding:] The Supreme Court held that order denying                 2 Cases that cite this headnote
motion for summary judgment did not constitute final,
appealable order.
                                                               [4]   Appeal and Error
                                                                        Determination of Controversy
Judgment of Court of Appeals affirmed.                               In determining whether an order denying a
                                                                     motion for summary is final for appellate
                                                                     purposes, there must be evidence in the record
 West Headnotes (4)                                                  to prove the trial court's intent to dispose of any
                                                                     remaining issues when it includes in the order
                                                                     a Mother Hubbard clause, which essentially
 [1]    Declaratory Judgment                                         provides that all relief not granted is denied,
            Appeal and Error                                         given that Mother Hubbard clauses do not,
        Trial court's order denying automobile insurer's             on their face, implicitly dispose of claims not
        motion for summary judgment did not dispose of               expressly mentioned in the order, including
        all parties and claims and thus did not constitute           claims for attorney fees.
        final, appealable order in insurer's declaratory-
                                                                     1 Cases that cite this headnote
        judgment action regarding insurance coverage,
        although order decreed that insurer was required
        to defend and indemnify insured, provided that
        all court costs were taxed against party incurring
        same, and contained Mother Hubbard clause              ON PETITION FOR REVIEW FROM THE COURT OF
        providing that any and all relief sought which         APPEALS FOR THE SIXTH DISTRICT OF TEXAS



               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                         1
Farm Bureau County Mutual Insurance Company v. Rogers, 455 S.W.3d 161 (2015)
58 Tex. Sup. Ct. J. 270

                                                                     Farm Bureau later moved for summary judgment. Rogers
Attorneys and Law Firms                                              opposed the motion but did not file a cross-motion seeking
                                                                     summary judgment in her favor. After a hearing on Farm
Gregory R. Ave, Walters, Balido & Crain, L.L.P., Dallas TX,
                                                                     Bureau's motion, the trial court entered an “Order Denying
for Petitioner.
                                                                     Plaintiff Farm Bureau['s] ... Motion for Summary Judgment.”
George L. Preston, George L. Preston & Associates, Paris,            The order decreed that (1) Farm Bureau “has a duty to defend
TX, for Respondent.                                                  [Rogers] in or as to” the Dominguez suit; (2) Farm Bureau
                                                                     “has a duty to indemnify [Rogers] in or as to” the Dominguez
Opinion                                                              suit; (3) “[a]ll court costs are taxed against the party incurring
                                                                     same”; and (4) “[a]ny and all relief sought in this cause which
PER CURIAM                                                           is not expressly granted herein is DENIED.” The order did
                                                                     not expressly address the parties' claims for attorney's fees.
This case presents the familiar issue of whether a trial court's
order, issued without a full trial and containing a Mother
                                                                     The court of appeals dismissed Farm Bureau's appeal for want
 *162 Hubbard clause, is final for purposes of appeal. In this
                                                                     of jurisdiction, holding that an order denying a motion for
declaratory judgment action involving insurance coverage,
                                                                     summary judgment cannot be final and appealable unless the
the court of appeals held that the trial court's order denying the
                                                                     opposing party filed a cross-motion for summary judgment.
insurer's motion for summary judgment is not final because
                                                                     Farm Bureau petitioned for this Court's review. Relying on
the insured did not file a cross-motion for summary judgment.
                                                                     our decision in Lehmann v. Har–Con Corp., 39 S.W.3d 191
We agree that the order is not final, but for a different reason:
                                                                     (Tex. 2001), Farm Bureau argues that the trial court's order
it did not resolve the parties' competing requests for attorney's
                                                                     is a final and appealable judgment because it disposed of all
fees. We therefore affirm the court of appeals' dismissal of
                                                                     parties and claims, even though Rogers did not file a cross-
this appeal.
                                                                     motion for summary judgment seeking that relief. Rogers
                                                                     responds by arguing that the order is not a final judgment
Farm Bureau County Mutual Insurance Company filed
                                                                     because it did not dispose of the parties' competing claims
this declaratory judgment action against its insured, Cristil
                                                                     for attorney's fees. In reply, Farm Bureau argues that Rogers'
Rogers, seeking a declaration that it had no duty to defend
                                                                     request for attorney's fees under the DTPA was defective
or indemnify her in an underlying tort action (the Dominguez
                                                                     and the trial court implicitly denied both parties' requests for
suit) 1 and requesting an award of court costs and attorney's
                                                                     attorney's fees by expressly taxing court costs to each party
fees under the Uniform Declaratory Judgments Act (UDJA).
                                                                     and denying “[a]ny and all relief ... which is not expressly
See TEX. CIV. PRAC. & REM. CODE § 37.009 (authorizing
                                                                     granted herein.” 2
courts in a declaratory judgment action to award “costs and
reasonable and necessary attorney's fees as are equitable and
just”). Rogers answered the suit and prayed for recovery of          2       We need not consider Farm Bureau's argument that
her court costs and attorney's fees under the Texas Deceptive                Rogers' claim for attorney's fees is defective because,
Trade Practices Act (DTPA), even though she asserted no                      even if it is, Farm Bureau's own claim for attorney's
claims for relief under the DTPA.                                            fees remains pending. See Barshop v. Medina Cnty.
                                                                             Underground Water Conserv. Dist., 925 S.W.2d 618,
                                                                             637–38 (Tex. 1996) (holding that failure to “substantially
1       The plaintiffs in the Dominguez suit sought damages                  prevail[ ]” on a declaratory judgment claim does not
        for injuries they sustained when they were thrown from               preclude recovery of attorney's fees under the UDJA).
        their horses while riding along FM 906 in Lamar County,
        Texas. Their petition alleged that, as Rogers drove past
                                                                      [1] [2] [3] *163 We agree with Farm Bureau that the
        them in a pickup truck, a dog leaped from the bed of         fact that Rogers did not file a cross-motion for summary
        the truck and charged at the horses, causing them to         judgment did not preclude the trial court from entering a
        buck and throw the plaintiffs. The plaintiffs alleged that   “final” judgment. As we explained in Lehmann, “the language
        Rogers proximately caused their injuries by negligently      of an order or judgment can make it final, even though it
        failing to secure her dog. Rogers sought coverage of         should have been interlocutory, if that language expressly
        these claims under her automobile insurance policy with      disposes of all claims and all parties.” Lehmann, 39 S.W.3d
        Farm Bureau.                                                 at 200. If the trial court's intent to enter a final judgment is
                                                                     “clear from the order, then the order is final and appealable,



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                       2
Farm Bureau County Mutual Insurance Company v. Rogers, 455 S.W.3d 161 (2015)
58 Tex. Sup. Ct. J. 270

even though the record does not provide an adequate basis          the judgment final.” Id. Consistent with our statement in
for rendition of judgment.” Id. In that case, “the judgment is     Lehmann, we held that the resolution of a claim for court costs
final—erroneous, but final.” Id. But we agree with Rogers          did not dispose of a claim for attorney's fees and did not serve
that the order at issue here did not dispose of all parties and     *164 as an indicium of finality. See id.; Lehmann, 39 S.W.3d
claims, because neither the language taxing court costs nor        at 205.
the Mother Hubbard clause disposed of the parties' claims for
attorney's fees.                                                    [4] This case is slightly different from McNally because,
                                                                   although Farm Bureau failed to expressly request attorney's
In Lehmann, we held that “a judgment issued without a              fees in its motion for summary judgment, it argues that the
conventional trial is final for purposes of appeal if and only     Mother Hubbard clause, not just the disposition of court costs,
if either [1] it actually disposes of all claims and parties       effectively denied the claim for attorney's fees. However,
then before the court, regardless of its language, or [2] it       the reasoning of Lehmann and McNally control our decision
states with unmistakable clarity that it is a final judgment as    here. Interpreting Mother Hubbard clauses in the manner
to all claims and all parties.” Lehmann, 39 S.W.3d at 192–         Farm Bureau urges would necessarily run afoul of Lehmann
93. We explained that “[a]n order does not dispose of all          because it would allow such clauses to serve as indicia
claims and all parties merely because it is entitled ‘final’, or   of finality for purposes of appeal—the very function we
because the word ‘final’ appears elsewhere in the order, or        prohibited in Lehmann. Thus, Mother Hubbard clauses do
even because it awards costs.” Id. at 205 (emphasis added).        not, on their face, implicitly dispose of claims not expressly
“Rather, there must be some other clear indication that the        mentioned in the order, including claims for attorney's fees.
trial court intended the order to completely dispose of the        Instead, there must be evidence in the record to prove the
entire case.” Id. Attempting to resolve decades of confusion,      trial court's intent to dispose of any remaining issues when
we held that “the inclusion of a Mother Hubbard clause—            it includes a Mother Hubbard clause in an order denying
by which we mean the statement, ‘all relief not granted is         summary judgment. See Lehmann, 39 S.W.3d at 205–06;
denied’, or essentially those words—does not indicate that         McNally, 52 S.W.3d at 196. To hold otherwise would simply
a judgment rendered without a conventional trial is final for      resurrect the issues we put to rest in Lehmann and McNally,
purposes of appeal.” Id. at 203–04. Mother Hubbard clauses         albeit in a slightly different form.
are problematic because they are open to interpretation. Id.
at 204. Sometimes a Mother Hubbard clause “mean[s] only            Like the movant in McNally, Farm Bureau failed to request an
that the relief requested in the motion—not all the relief         award of attorney's fees in its motion for summary judgment
requested by anyone in the case—and not granted by the order       or to attach evidence supporting its claim for fees. Thus,
is denied,” and sometimes it “may also have no intended            as in McNally, there is no reason to presume that the trial
meaning at all, having been inserted for no other reason than      court considered the issue when ruling on Farm Bureau's
that it appears in a form book or resides on a word processor.”    motion. The order's language taxing court costs is of no
Id. We thus rejected the notion that a Mother Hubbard clause       import because our decision in McNally established that such
gives “any indicia of finality in any order not issued after a     language does not, alone, evince a trial court's intent to
conventional trial.” Id.                                           dispose of attorney's fees. And most importantly, the parties
                                                                   presented no evidence from the record suggesting that the trial
After Lehmann, we confirmed that the disposition of a claim        court intended the Mother Hubbard clause to deny attorney's
for court costs does not dispose of a claim for attorney's         fees to either party. 3 In the absence of evidence of the trial
fees, even when doing so would also dispose of all parties         court's intent with respect to the parties' claims for attorney's
and claims. See McNally v. Guevara, 52 S.W.3d 195, 196             fees, we find that the trial court's order did not dispose of all
(Tex. 2001). In McNally, the defendants filed a motion for         parties and claims.
summary judgment but failed to request summary judgment
on their counterclaim for attorney's fees. Although the trial      3       As noted above, Farm Bureau did not need to
court's order granted the motion and taxed court costs against
                                                                           “substantially prevail[ ]” in a suit under the UDJA to
the plaintiff, we concluded that “[n]othing in the trial court's
                                                                           receive attorney's fees. See Barshop, 925 S.W.2d at 637–
judgment, other than its award of costs to the defendants,                 38. Thus, the trial court did not dispose of the issue
suggests that it intended to deny the defendants' claim for                simply by ruling against Farm Bureau with respect to its
attorney fees. The award of costs, by itself, does not make                duty to defend and indemnify Rogers.



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                   3
Farm Bureau County Mutual Insurance Company v. Rogers, 455 S.W.3d 161 (2015)
58 Tex. Sup. Ct. J. 270

Accordingly, without hearing oral argument, we affirm the
                                                                   All Citations
court of appeals' judgment dismissing the appeal for want of
jurisdiction. TEX. R. APP. P. 59.1.                                455 S.W.3d 161, 58 Tex. Sup. Ct. J. 270



End of Document                                                © 2015 Thomson Reuters. No claim to original U.S. Government Works.




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                              4
Forbes Inc. v. Granada Biosciences, Inc., 124 S.W.3d 167 (2003)
32 Media L. Rep. 1498, 47 Tex. Sup. Ct. J. 162



                     	
	                              West Headnotes (14)
                 	

           !"	#
$%%$&	                     [1]   Libel and Slander
                         '	                                                 Actionable words or conduct relating to
            ()")*)!! " +!"	                                  quality or value
           #(#$#	                              To prevail on a business disparagement claim,
                                                                       a plaintiff must establish that (1) the defendant
            "	,-,..	 / )0#1#	                            published false and disparaging information
         2+,,	 / *3$*3	4+,,	                          about it, (2) with malice, (3) without privilege,
                                                                       (4) that resulted in special damages to the
Synopsis                                                               plaintiff.
Background: Related corporations brought business
disparagement claims, and company executives brought                   41 Cases that cite this headnote
defamation and intentional infliction of emotional distress
claims, against magazine publisher, author of article
                                                                 [2]   Libel and Slander
appearing in magazine, and source for article. The 190th
                                                                            Actionable words or conduct relating to
District Court, Harris County, John P. Devine, J., granted
                                                                       quality or value
summary judgment for defendants, and plaintiffs appealed.
The Amarillo Court of Appeals, 958 S.W.2d 215, reversed                The tort of business disparagement differs from
the summary judgment order insofar as it affected plaintiff            defamation in that defamation actions chiefly
companies' business disparagement claims, but affirmed                 serve to protect the personal reputation of an
the remainder of the judgment. On remand, the District                 injured party, while a business disparagement
Court, John P. Devine, J., granted summary judgment                    claim protects economic interests.
for defendants on the business disparagement claims, and
                                                                       32 Cases that cite this headnote
plaintiffs appealed. On overruling of rehearing, the Houston
Court of Appeals, Fourteenth District, Maurice Amidei,
Justice, sitting by assignment, 49 S.W.3d 610, reversed and      [3]   Libel and Slander
remanded. Review was granted.                                               Criticism and comment on public matters
                                                                       and publication of news
                                                                       Public figures cannot recover for damaging
Holdings: The Supreme Court, O'Neill, J., held that:                   statements made about them absent proof of
                                                                       actual malice.
[1] author's statements after article was printed and in
                                                                       3 Cases that cite this headnote
distribution could not be evidence of actual malice at time of
publication, and
                                                                 [4]   Libel and Slander
[2] generic statements about organization of related                        Criticism and comment on public matters
businesses were not made with actual malice and were not               and publication of news
business disparagement as to two corporate subsidiaries, even          “Actual malice” that a public figure plaintiff
if untrue as to them.                                                  must show in a defamation action requires
                                                                       proof that the defendant made a statement with
                                                                       knowledge that it was false or with reckless
Reversed and rendered.
                                                                       disregard of whether it was true or not.

                                                                       9 Cases that cite this headnote


                                                                 [5]   Libel and Slander


               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                         1
Forbes Inc. v. Granada Biosciences, Inc., 124 S.W.3d 167 (2003)
32 Media L. Rep. 1498, 47 Tex. Sup. Ct. J. 162

             Criticism and comment on public matters                 In reviewing a no-evidence summary judgment
        and publication of news                                      motion, the Supreme Court examines the record
        To establish reckless disregard, a public-figure             in the light most favorable to the non-movant; if
        plaintiff must prove in a defamation suit that the           the non-movant presents more than a scintilla of
        defendant entertained serious doubts as to the               evidence supporting the disputed issue, summary
        truth of his publication or had a high degree of             judgment is improper. Vernon's Ann.Texas
        awareness of the probable falsity of the published           Rules Civ.Proc., Rule 166a(i).
        information; reckless disregard is a subjective
                                                                     86 Cases that cite this headnote
        standard focusing on the defendant's state of
        mind, and mere negligence is not enough.
                                                              [10]   Judgment
        6 Cases that cite this headnote                                  Weight and sufficiency
                                                                     A no-evidence summary judgment is improper
 [6]    Libel and Slander                                            if the respondent brings forth more than a
             Criticism and comment on public matters                 scintilla of probative evidence to raise a genuine
        and publication of news                                      issue of material fact. Vernon's Ann.Texas Rules
        Constitutional malice necessary for defamation               Civ.Proc., Rule 166a(i).
        action by public-figure plaintiff generally
                                                                     105 Cases that cite this headnote
        consists of calculated falsehood. U.S.C.A.
        Const.Amend. 1.
                                                              [11]   Judgment
        Cases that cite this headnote                                    Weight and sufficiency
                                                                     Less than a scintilla of evidence exists in
 [7]    Libel and Slander                                            opposition to no-evidence summary judgment
             Criticism and comment on public matters                 motion when the evidence is so weak as to do
        and publication of news                                      no more than create a mere surmise or suspicion
        When the defendant's words lend themselves                   of a fact; more than a scintilla of evidence exists
        to more than one interpretation, a public-figure             if it would allow reasonable and fair-minded
        plaintiff must establish either that the defendant           people to differ in their conclusions. Vernon's
        knew that the words would convey a defamatory                Ann.Texas Rules Civ.Proc., Rule 166a(i).
        message or had reckless disregard for their effect.
                                                                     134 Cases that cite this headnote
        1 Cases that cite this headnote
                                                              [12]   Libel and Slander
 [8]    Libel and Slander                                                Defenses
            Intent, malice, or good faith                            Statements by author after magazine article was
        Actual malice must be proved by clear and                    printed and in distribution could not be evidence
        convincing evidence at trial in defamation                   of actual malice at time of publication of article
        action.                                                      allegedly resulting in business disparagement.

        3 Cases that cite this headnote                              7 Cases that cite this headnote


 [9]    Appeal and Error                                      [13]   Libel and Slander
           Judgment                                                       Criticism and comment on public matters
                                                                     and publication of news
        Judgment
            Weight and sufficiency                                   The actual malice inquiry in a defamation
                                                                     action by a public-figure plaintiff focuses on




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                         2
Forbes Inc. v. Granada Biosciences, Inc., 124 S.W.3d 167 (2003)
32 Media L. Rep. 1498, 47 Tex. Sup. Ct. J. 162

        the defendant's state of mind at the time of             judgment because the plaintiffs produced no evidence that
        publication.                                             Forbes and Barrett acted with actual malice in publishing the
                                                                 article that is the subject of this controversy. Accordingly, we
        2 Cases that cite this headnote                          reverse the court of appeals' judgment and render judgment
                                                                 for Forbes and Barrett.
 [14]   Libel and Slander
            Defenses
        Statements in magazine article about                                                      I
        organization of related businesses were not
        made with actual malice and were not business            In its issue dated November 11, 1991, Forbes published an
        disparagement as to two corporate subsidiaries,          article entitled “The Incredible Shrinking Empire.” 1 The
        even though the author stated that certain generic       article, authored by Barrett, focused on the financial condition
        references to the organization were not intended         of the Granada Corp., a privately held company, and on
        to apply to the subsidiaries; the author was             its chairman, David Eller. Granada Corp. was the parent
        charged with the task of producing a readable            of a number of other private and public entities. While the
        article about an extremely complicated network           Granada organization consisted of dozens of entities, the
        of business entities and was at most guilty of           article only named two of the public entities, Granada Foods
        using imprecise language, and while it would             Corp. (GFC) and Granada Biosciences, Inc. (GBI). In general,
        have been more accurate for the author to                the Granada entities were engaged in developing and applying
        identify the precise entities, the careless use of       advanced technology in the area of agriculture, primarily
        the generic term was no evidence of serious              cattle production. The article noted that the Wall Street
        doubts as to the truth or a high degree of               Journal had described Granada Corp. as a “corporate star[ ]
        awareness of falsity.                                    of the future” in 1989, and that the organization, under Eller's
                                                                 stewardship, had garnered much favorable publicity. But, the
        5 Cases that cite this headnote                          article said, “there is less to Granada than meets the eye.
                                                                 Actually, its total revenues, $1 billion as recently as 1988, will
                                                                 scarcely be $200 million for 1991. Profits: zilch. Granada's
                                                                 work force has shrunk to below 900 from 2,200; its cattle herd
Attorneys and Law Firms                                          has dwindled to 25,000 from 1 million.” The article identified
                                                                 GFC and GBI as the two publicly traded stock companies
*169 Peter D. Kennedy, David H. Donaldson Jr., George &
                                                                 within the Granada organization, and said that they were “so
Donaldson, L.L.P., Austin, for petitioner.
                                                                 broke they haven't been able to publish their 1990 annual
Michael D. Sydow, Ralph S. Carrigan, Sydow, Kormanik,            reports.” It went on to say that “Granada is beset with a
Carrigan & Eckerson, L.L.P., Houston, for respondent.            series of serious shareholder lawsuits,” including one filed by
                                                                 “Fort Worth near-billionaire Edward Bass.” It is undisputed
Thomas S. Leatherbury, Vinson & Ekins, L.L.P., Dallas, for       that, while a person with that name had sued one of the
amicus curiae.                                                   Granada entities, it was not the “Fort Worth near-billionaire.”
                                                                 Furthermore, the article described a number of other signs of
                                                                 serious financial trouble: “Possibly anticipating a bankruptcy
Justice O'NEILL delivered the opinion of the Court, in
                                                                 filing, former Granada employees say officials in recent
which Chief Justice PHILLIPS, Justice HECHT, Justice
                                                                 months have moved some farm equipment and vehicles off
OWEN, Justice JEFFERSON, Justice SMITH, Justice
                                                                 Granada books and gotten rid of backup documentation.”
WAINWRIGHT, and Justice BRISTER joined.

Granada Biosciences, Inc. and Granada Foods Corporation          1       The article is attached as an Appendix to this opinion.
sued Forbes, Inc., publisher of Forbes magazine, and writer      According to Barrett's affidavit, he used the term “Granada”
William P. Barrett for business disparagement. The trial court   in a generic sense to describe the various entities controlled by
rendered summary judgment for Forbes and Barrett, and the        Eller, and when he “intended to specifically address Granada
court of appeals reversed. 49 S.W.3d 610. We hold that the       Biosciences, Inc. or Granada Food Corporation, [he] did so
court of appeals erred in reversing the trial court's summary


               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                 3
Forbes Inc. v. Granada Biosciences, Inc., 124 S.W.3d 167 (2003)
32 Media L. Rep. 1498, 47 Tex. Sup. Ct. J. 162

by *170 name.” The day the article was released, the shares         similar in many respects to a defamation action. Id. The
of GBI and GFC dropped precipitously, and trading was               two torts differ in that defamation actions chiefly serve to
permanently suspended in early 1992.                                protect the personal reputation of an injured party, while a
                                                                    business disparagement claim protects economic interests. Id.
GBI, GFC, Eller, and his wife, Linda, sued Barrett, Forbes,         In Hurlbut, a suit brought by an insurance agent against his
Inc., and Cheryl Munke, an employee of a former Granada             former employer, we noted that a business disparagement
affiliate, for damages allegedly caused by the article's            defendant may be held liable “only if he knew of the falsity
publication. Forbes and Barrett (collectively “Forbes”) filed       or acted with reckless disregard concerning it, or if he acted
joint motions for summary judgment, which the trial                 with ill will or intended to interfere in the economic interest of
court granted. On appeal, the Seventh District court of             the plaintiff in an unprivileged fashion.” Id. (emphasis added)
appeals, to which the case was transferred, reversed, holding       (quoting RESTATEMENT (SECOND) OF TORTS § 623A,
that Forbes's summary judgment motion did not address               cmt. g (1977)).
the plaintiffs' business disparagement claims. Granada
Biosciences, Inc. v. Barrett, 958 S.W.2d 215, 221 (Tex.App.-        The court of appeals noted in this case that GBI and GFC
                                  2
Amarillo 1997, pet. denied). On remand, Forbes filed                did not dispute Forbes's contention that they were “public
a renewed and supplemental summary judgment motion                  figures for the purpose of discussing their respective financial
under Rule 166a(c) and(i), which specifically addressed the         statuses,” a conclusion that GBI and GFC do not challenge
plaintiffs' business disparagement claims. The trial court          here. 49 S.W.3d at 615 n. 2. The court then held that
again granted summary judgment in Forbes's favor, but the           ill will or intent to interfere with the plaintiff's economic
Fourteenth District court of appeals reversed, concluding that      interest will not suffice to establish malice in a business
several fact issues precluded summary judgment. The court           disparagement claim brought by a public figure *171 against
determined that there were fact issues concerning whether           a media defendant. Id. at 618. Instead, the court held that
the article as a whole and several specific passages in the         the constitutional interests at stake—“the conflict between
article were false and disparaging. 49 S.W.3d at 621–22.            constitutionally-protected free expression and a state's power
The court agreed with Forbes's contention that, to recover          to award damages based on a defendant's statements”—
on their business disparagement claims, the plaintiffs were         require proof of actual malice under the standard the United
required to satisfy the constitutional actual-malice standard       States Supreme Court articulated in New York Times. Id. at
the United States Supreme Court established in New York             618. Accordingly, the court held that GFC and GBI must
Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d           establish that Forbes published the article with knowledge
686 (1964), but held that a fact issue on Forbes's state of         that it made false statements about them, or with reckless
mind at the time of publication precluded summary judgment.         disregard as to the statements' truth. Id. In this Court, GBI
We hold that GBI and GFC presented no evidence of actual            and GFC do not challenge the court of appeals' application of
malice under the New York Times standard, and thus reverse          the constitutional malice standard. We thus assume without
the court of appeals' judgment.                                     deciding that the New York Times actual-malice standard
                                                                    applies in a public figure's business disparagement suit
2      The Amarillo court affirmed the summary judgment as          against a media defendant. 3
       to all claims against Munke, and she is no longer a party.
       Granada Biosciences, Inc., 958 S.W.2d at 222. It also        3       We note, however, that the United States Supreme Court
       affirmed the summary judgments as to the Ellers' claims.             has applied the New York Times standard in contexts
       Id. at 222–25.                                                       other than defamation, applying it to an intentional
                                                                            infliction of emotional distress claim, Hustler Magazine
                                                                            v. Falwell, 485 U.S. 46, 56, 108 S.Ct. 876, 99 L.Ed.2d
                                II                                          41 (1988), and to a product disparagement claim, Bose
                                                                            Corp. v. Consumers Union of United States, Inc., 466
 [1]    [2] To prevail on a business disparagement claim,                   U.S. 485, 511–14, 104 S.Ct. 1949, 80 L.Ed.2d 502
a plaintiff must establish that (1) the defendant published                 (1984).
false and disparaging information about it, (2) with malice,
(3) without privilege, (4) that resulted in special damages to
the plaintiff. Hurlbut v. Gulf Atl. Life Ins. Co., 749 S.W.2d                                      III
762, 766 (Tex.1987). A business disparagement claim is


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Forbes Inc. v. Granada Biosciences, Inc., 124 S.W.3d 167 (2003)
32 Media L. Rep. 1498, 47 Tex. Sup. Ct. J. 162

 [3] The actual malice standard articulated in New York            [8] Actual malice must be proved by clear and convincing
Times fortifies our Constitution's guarantees of free speech      evidence at trial. Huckabee, 19 S.W.3d at 420. However, we
and a free press. New York Times, 376 U.S. at 254, 84 S.Ct.       have declined to adopt the clear-and-convincing standard for
710. The relatively demanding standard honors our “profound       summary judgment purposes, because its application would
national commitment to the principle that debate on public        “suggest[ ] that the trial court must weigh the evidence.”
issues should be uninhibited, robust, and wide-open, and          Id. at 421–22. Accordingly, Forbes was entitled to summary
that it may well include vehement, caustic, and sometimes         judgment unless the record reveals a fact issue as to actual
unpleasantly sharp attacks” on public figures. New York           malice.
Times, 376 U.S. at 270, 84 S.Ct. 710. The standard recognizes
that “erroneous statement is inevitable in free debate, and ...
it must be protected if the freedoms of expression are to have
                                                                                              IV
the ‘breathing space’ that they ‘need ... to survive.’ ” Id. at
271, 84 S.Ct. 710 (quoting N.A.A.C.P. v. Button, 371 U.S.         [9]     [10]    [11] In its no-evidence summary judgment
415, 433, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963)). Thus, public      motion, Forbes asserted that there was no evidence of actual
figures cannot recover for damaging statements made about        malice to support the plaintiffs' claims. See TEX.R. CIV.
them absent proof of actual malice. New York Times, 376 U.S.     P. 166a(i). In reviewing a no-evidence summary judgment
at 279–80, 84 S.Ct. 710; WFAA–TV, Inc. v. McLemore, 978          motion, we examine the record in the light most favorable
S.W.2d 568, 571 (Tex.1998).                                      to the nonmovant; if the nonmovant presents more than a
                                                                 scintilla of evidence supporting the disputed issue, summary
 [4] [5] [6] [7] Actual malice, in this context, “is a termjudgment is improper. King Ranch v. Chapman, 118 S.W.3d
of art.” It is not ill will, spite, or evil motive. Huckabee v.  742, 750 (Tex.2003); Wal–Mart Stores, Inc. v. Rodriguez,
Time Warner, 19 S.W.3d 413, 420 (Tex.2000) (citing Casso         92 S.W.3d 502, 506 (Tex.2002). A no-evidence summary
v. Brand, 776 S.W.2d 551, 558 (Tex.1989)). Instead, “actual      judgment is improper if the respondent brings forth more
malice” requires proof that the defendant made a statement “     than a scintilla of probative evidence to raise a genuine
‘with knowledge that it was false or with reckless disregard     issue of material fact. TEX.R. CIV. P. 166a(i); Wal–Mart,
of whether it was true or not.’ ” Huckabee, 19 S.W.3d at         92 S.W.3d at 506. “Less than a scintilla of evidence exists
420 (quoting New York Times, 376 U.S. at 279–80, 84 S.Ct.        when the evidence is ‘so weak as to do no more than create
710). To establish reckless disregard, a public-figure plaintiff a mere surmise or suspicion’ of a fact.” King Ranch, 118
must prove that the defendant “ ‘entertained serious doubts      S.W.3d at 751 (quoting Kindred v. Con/Chem, Inc., 650
as to the truth of his publication.’ ” Huckabee, 19 S.W.3d       S.W.2d 61, 63 (Tex.1983)). More than a scintilla of evidence
at 420 (quoting St. Amant v. Thompson, 390 U.S. 727, 731,        exists if it would allow reasonable and fair-minded people to
88 S.Ct. 1323, 20 L.Ed.2d 262 (1968)). Reckless disregard        differ in their conclusions. King Ranch, 118 S.W.3d. at 751
is a subjective standard, focusing on the defendant's state of   (citing Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d
mind. Bentley v. Bunton, 94 S.W.3d 561, 591 (Tex.2002).          706, 711 (Tex.1997)). Thus, if GBI and GFC presented
Mere negligence is not enough. Id. Rather, the plaintiff must    evidence creating more than a surmise or suspicion that
establish “ ‘that the defendant in fact entertained serious      Forbes published the article with actual malice, summary
doubts as to the truth of his publication,’ ” or had a “ ‘high   judgment is improper. The court of appeals concluded that
degree of awareness of ... [the] probable falsity’ ” of the      fact issues about Forbes's state of mind at the time of
published information. Id. (quoting Harte–Hanks Comm.,           publication precluded summary judgment. 49 S.W.3d at 627.
Inc. v. Connaughton, 491 U.S. 657, 688, 109 S.Ct. 2678, 105      We disagree.
L.Ed.2d 562 (1989)). Constitutional malice generally consists
of “ ‘[c]alculated falsehood.’ ” Bunton, 94 S.W.3d at 591
(quoting *172 Garrison v. Louisiana, 379 U.S. 64, 75, 85
S.Ct. 209, 13 L.Ed.2d 125 (1964)). When the defendant's                                         A
words lend themselves to more than one interpretation, the
                                                                  [12] The court of appeals rested its decision, in large part, on
plaintiff must establish either that the defendant knew that the
                                                                 evidence suggesting that Barrett misled Eller into believing
words would convey a defamatory message, or had reckless
                                                                 that he would have an opportunity to review the article for
disregard for their effect. See Bunton, 94 S.W.3d at 603.
                                                                 accuracy before its publication. 49 S.W.3d at 626. In his
                                                                 affidavit, Eller stated that when Barrett first contacted him



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Forbes Inc. v. Granada Biosciences, Inc., 124 S.W.3d 167 (2003)
32 Media L. Rep. 1498, 47 Tex. Sup. Ct. J. 162

about writing the article, Barrett agreed to let him review it     1977. Plaintiff filed suit on February 22, 1978. In response
before it was published. On Friday, October 25, 1991, Eller        to the defendant's assertion of limitations, the plaintiff relied
received a copy of “what [Barrett] said was a draft of the         on the “multiple-publication rule,” which recognizes a new
article.” According to Eller, he read the article that day and     cause of action each time a copy of the allegedly libelous
telephoned Barrett, telling him that the article “contained        publication is sold. Noting that such a rule would allow stale
innumerable false statements and clearly misleading and false      claims, encourage multiple suits, and create a number of other
innuendos.” Eller's affidavit maintains that he was misled         problems, and recognizing that mass publication of a single
in the conversation into believing that the article could still    defamatory statement constitutes, in effect, a single wrong,
be corrected, and that he told Barrett he would send him           the court adopted what it referred to as the “single-publication
a letter identifying the purported inaccuracies as quickly as      rule.” Id. at 691. Under the court of appeals' articulation of
possible. Eller transmitted the letter to a courier for delivery   that rule, publication is complete “on the last day of the mass
by late the next day. According to the court of appeals, this      distribution of copies of the printed matter” because “[i]t is
evidence “creates a fact question as to Barrett's state of mind    that day when the publisher, editors and authors have done
at the time of publication, provided that the article was not      all they can to relinquish all right of control, title and interest
published until after Barrett's *173 representation.” Id. at       in the printed matter.” Id. at 692. The court emphasized that
625 (emphasis added).                                              defining publication in this manner “provides ample time for
                                                                   a diligent plaintiff to pursue a cause of action for libel and
 [13] The actual malice inquiry focuses on the defendant's         also allows full recovery for any damages suffered.” Id.
state of mind at the time of publication. See Bose Corp. v.
Consumers Union of United States, Inc., 466 U.S. 485, 512,         The single-publication rule's definition of the publication
104 S.Ct. 1949, 80 L.Ed.2d 502 (1984). It is undisputed,           date for limitations purposes is clearly designed to protect
however, that the article had been “locked up”—printed             publishers from repeated liability based on old publications
and mailed to subscribers—on October 21st, before Barrett's        that might be reprinted or back ordered. See ROBERT D.
October 25th conversation with Eller and before Forbes             SACK, SACK ON DEFAMATION: LIBEL, SLANDER,
received Eller's letter. Nevertheless, the court of appeals held   AND RELATED PROBLEMS § 7.2 (2003). It has nothing
that the record presented a fact issue on malice “[b]ecause        to do with determining the publisher's state of mind at
the summary judgment proof raises a question as to whether         the time of publication. Applying the single-publication
the October 25 conversation took place before the article was      rule in this context could lead to virtually uncontrollable
published.” 49 S.W.3d at 627 (emphasis added). The court           liability and potentially absurd results. For example, a media
concluded that the conversation may have taken place before        defendant could be held liable for knowingly publishing
the article was published based on authority holding that, for     false information even if it did not become aware of the
limitations purposes, “ ‘publication is complete on the last       error until the article has *174 been printed and mailed
day of the mass distribution of copies of the printed matter.’ ”   to subscribers or otherwise distributed. Such a result would
Id. at 626 (quoting Holloway v. Butler, 662 S.W.2d 688, 692        have an impermissible “ ‘chilling’ effect ... antithetical to
(Tex.App.-Houston [14th Dist.] 1983, writ ref'd n.r.e.)).          the First Amendment's protection of true speech on matters
                                                                   of public concern.” Philadelphia Newspapers, Inc. v. Hepps,
The court of appeals erred in applying the Holloway                475 U.S. 767, 778, 106 S.Ct. 1558, 89 L.Ed.2d 783 (1986)
limitations standard in this context. Determining the date         (holding that application of state law that did not require
of an article's publication for limitations purposes involves      private media defamation defendant to prove falsity violated
considerations entirely different from those that apply            First Amendment). Moreover, the focus of the actual-malice
when gauging whether actual malice exists at the time of           inquiry is the defendant's state of mind during the editorial
publication. In Holloway, the plaintiff sued for libel based       process. See Herbert v. Lando, 441 U.S. 153, 99 S.Ct. 1635,
upon an article that appeared in Texas Monthly magazine.           60 L.Ed.2d 115 (1979). Evidence concerning events after
662 S.W.2d at 690. Like most mass-media publishers, the            an article has been printed and distributed, has little, if any,
defendant distributed its magazine through the mail and by         bearing on that issue. Because the Forbes article was printed
private delivery in the month prior to the month indicated         and in distribution before Eller's October 25th conversation
on the issue cover. Accordingly, distribution of the March         with Barrett, the conversation cannot constitute evidence of
1977 issue occurred on February 17 and 18, 1977. By special        actual malice at the time of publication.
order, though, some back issues were sold after February 22,



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Forbes Inc. v. Granada Biosciences, Inc., 124 S.W.3d 167 (2003)
32 Media L. Rep. 1498, 47 Tex. Sup. Ct. J. 162

                                                                     In Turner v. KTRK Television, Inc., 38 S.W.3d 103
                                                                     (Tex.2000), for example, we considered a political
                                B
                                                                     candidate's contention that a television news story suggesting
During Barrett's October 25th conversation with Eller, he            that he had participated in a multi-million dollar insurance
acknowledged that he had that day become aware that he               scam defamed him. *175 Turner had drafted a will for
had misidentified the Edward Bass that had sued one of the           a man named Foster shortly before Foster disappeared
                                                                     under suspicious circumstances. Foster, the target of several
Granada entities. 4 GBI and GFC argue that this constitutes
                                                                     criminal investigations, signed the will three days before he
some evidence of actual malice. For the same reason that
                                                                     was reported to have drowned. Foster's life had been insured
any misleading statements Barrett may have made in the
                                                                     for more than $1.7 million, and American authorities learned
October 25th conversation are no evidence of malice, his
                                                                     some time later that he was alive in a Spanish prison. KTRK,
acknowledgment that he had become aware of the Bass error
                                                                     a Houston television station, broadcast a story about the
that day is no evidence of actual malice.
                                                                     connection between Turner and Foster in the midst of Turner's
                                                                     campaign for mayor of Houston. The story omitted several
4       The error was corrected in a later issue of the magazine.    critical contextual facts and juxtaposed others in a misleading
                                                                     manner in the course of suggesting that Turner had engaged
                                                                     in unethical conduct. We therefore held that the broadcast as
                                C
                                                                     a whole conveyed a false and defamatory message. Id. at 119.
 [14] Finally, the plaintiffs contend that the article made          But we rejected Turner's contention that the story's discussion
a number of negative statements about “Granada” that                 of the timing of his work on the will was evidence of actual
Forbes was aware were untrue as to GFC and GBI. By                   malice. Id. at 121. We agreed that a reasonable viewer could
failing to specifically distinguish the public corporations from     take the segment to mean that “Turner ‘drew up’ the will three
other entities within the Granada group, they argue, Forbes          days before Foster disappeared.” Id. But we concluded that
knowingly or recklessly juxtaposed true statements to create         even obviously misleading statements, without more, were
the misleading impression that they applied to GFC and               not enough to constitute clear and convincing evidence of
GBI. They argue that Barrett's affidavit itself provides some        actual malice:
evidence of malice because he testified that he used the
                                                                                  We agree that there was a discrepancy
term “Granada” to describe “the organization of subsidiaries,
                                                                                  in the segment's language and that it
affiliates, limited partnerships, joint ventures and other
                                                                                  is possible that [the reporter] cleverly
business organizations that were managed or otherwise under
                                                                                  manipulated this language to deceive
the direction and control of David Eller,” a group that
                                                                                  viewers. But it is equally possible that
includes GFC and GBI. Because Barrett also testified that
                                                                                  [the reporter] simply failed to choose
certain of the generic Granada references were not intended
                                                                                  his words with proper precision, that
to apply to GBI or GFC, the plaintiffs maintain that the
                                                                                  is, by stating that Foster “drew up”
article is admittedly false with respect to those statements.
                                                                                  rather than “signed” the will (outside
In essence, the plaintiffs contend that Forbes should have
                                                                                  of Turner's presence) three days before
included qualifying language specifically excluding GBI and
                                                                                  he disappeared. Because there is no
GFC whenever the article referred to “Granada.”
                                                                                  other evidence that [the reporter]
                                                                                  knew or strongly suspected that this
Read fairly, Barrett's affidavit establishes, at most, that Forbes
                                                                                  segment would mislead viewers, its
was “ ‘guilty of using imprecise language in the article—
                                                                                  lack of clarity alone is not clear and
perhaps resulting from an attempt to produce a readable
                                                                                  convincing evidence of actual malice.
article.’ ” Bose, 466 U.S. at 492, 104 S.Ct. 1949 (quoting
Bose Corp. v. Consumers Union of United States, Inc., 692            Id. at 121–22.
F.2d 189, 197 (1st Cir.1982)). Both we and the United States
Supreme Court have repeatedly held that a media defendant's          In Huckabee, we affirmed summary judgment granted to a
poor choice of words or content, without more, does not              media defamation defendant that had been sued for statements
amount to actual malice.                                             in a documentary about four southeast Texas cases in which
                                                                     family courts granted custody of a child to the father after the


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Forbes Inc. v. Granada Biosciences, Inc., 124 S.W.3d 167 (2003)
32 Media L. Rep. 1498, 47 Tex. Sup. Ct. J. 162

mother accused him of child abuse. Huckabee, 19 S.W.3d at          though reflecting a misconception, does not place the
417. One of the judges who presided over two of the custody        speech beyond the outer limits of the First Amendment's
disputes sued Time–Warner, alleging that the documentary           broad protective umbrella.... The statement in this case
omitted key information in an effort to depict him as biased       represents the sort of inaccuracy that is commonplace in the
or corrupt. We acknowledged that a publisher might present         forum of robust debate to which the New York Times rule
such an incomplete or unbalanced picture of the facts as to        applies.... “Realistically, ... some error is inevitable; and
constitute evidence of actual malice. Id. at 426. On the facts     the difficulties of separating fact from fiction convinced the
of that case, however, we held that the record presented no        Court in New York Times [and other cases] to limit liability
evidence of actual malice, even though the story might have        to instances where some degree of culpability is present in
been misleading:                                                   order to eliminate the risk of undue self-censorship and the
                                                                   suppression of truthful material.”
            Although the facts omitted might
            or might not have led a reasonable                   Id. at 513, 104 S.Ct. 1949 (citations omitted).
            viewer to suspend judgment or even
            to reach an opposite conclusion                      Here, Barrett was charged with the task of producing a
            regarding Judge Huckabee's order,                    readable article about an extremely complicated network of
            their omission did not grossly distort               business entities related to the Granada Corp. While it would
            the story. At most, HBO's failure to                 have been more accurate for Forbes to identify the precise
            capture accurately all the story's details           entities within that group to which it was referring, Forbes's
            suggests an error in judgment, which is              careless use of the generic “Granada” is no evidence that
            no evidence of actual malice.                        Forbes entertained serious doubts as to the statements' truth
                                                                 or had a high degree of awareness of their falsity. See Turner,
Id.
                                                                 38 S.W.3d at 121.
Similarly, in Bose, the Supreme Court considered a
manufacturer's claim that a Consumer Reports article
describing a new Bose speaker system disparaged the                                            V
product. The district court had ruled that the article falsely
stated as fact that “instruments heard through the Bose system   The record before us presents no evidence that Forbes
‘tended to wander about the room,’ ” and rendered judgment       published defamatory statements about GBI and GFC with
for Bose, the manufacturer. Bose, 466 U.S. at 488, 104           actual malice. Accordingly, we reverse the court of appeals'
S.Ct. 1949. Applying the New York Times' actual-malice           judgment and render judgment that the plaintiffs take nothing.
standard, the Supreme Court *176 rendered judgment for
the publisher. The Court observed that the circuit court
correctly concluded “that there is a significant difference      Justice SCHNEIDER did not participate in the decision.
between proof of actual malice and mere proof of falsity.”
Id. at 511, 104 S.Ct.1949 (citations omitted). The district
court had found that the writer's actual perception was that                          *177 APPENDIX
sound moved “along the wall” rather than “about the room.”
Id. Nevertheless, the Court held that the writer's choice of
language,




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                            8
Forbes Inc. v. Granada Biosciences, Inc., 124 S.W.3d 167 (2003)
32 Media L. Rep. 1498, 47 Tex. Sup. Ct. J. 162

                             APPI:NDIX: Forbes article
Houston's Granada Corp. talks ol l991 revenues       :;:~;/;;.: ~~-=.,~~o~~
or $2 billion. Try $200 million. This much-touted    c:Ns whiz ·b""• cW.,oto;rr""«~ •o
high-tech food concem is near collapse.              be "' « pc•,;,., du• ol<i-fwvoncd
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 ••

*178




Westlaw Next © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                                         9
Forbes Inc. v. Granada Biosciences, Inc., 124 S.W.3d 167 (2003)
32 Media L. Rep. 1498, 47 Tex. Sup. Ct. J. 162


                                                            All Citations

                                                            124 S.W.3d 167, 32 Media L. Rep. 1498, 47 Tex. Sup. Ct.
                                                            J. 162




End of Document                                         © 2015 Thomson Reuters. No claim to original U.S. Government Works.




              © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                      10
Ford Motor Co. v. Ridgway, 135 S.W.3d 598 (2004)
Prod.Liab.Rep. (CCH) P 16,878, 47 Tex. Sup. Ct. J. 266


                                                                      344 Cases that cite this headnote
                     	
	
                 	
                                                                [2]   Judgment
                 !"#$                                       Weight and Sufficiency
                          %	                                          For purposes of motion for summary judgment, a
            &'()*
!#+,-+-./0	                           genuine issue of material fact exists if more than
                                                                      a scintilla of evidence establishing the existence
            "	12312	 4 !.	1$                         of the challenged element is produced. Vernon's
          211	 4 '-5	6$2117	                             Ann.Texas Rules Civ.Proc., Rule 166a(i).
          4 8-+.+-&+2$2117	
                                                                      349 Cases that cite this headnote
Synopsis
Background: Injured motorist brought action against
                                                                [3]   Products Liability
automobile manufacturer for products liability and
                                                                          Manufacturing Defect
negligence. The 131st District Court, Bexar County, Phylis
J. Speedlin, J., granted summary judgment in favor of the             A “manufacturing defect” exists when a product
manufacturer. Motorist appealed. The Court of Appeals, 82             deviates, in its construction or quality, from the
S.W.3d 26, affirmed in part, reversed and remanded in part.           specifications or planned output in a manner that
                                                                      renders it unreasonably dangerous.

                                                                      33 Cases that cite this headnote
Holdings: On grant of manufacturer's petition for review, the
Supreme Court, Phillips, C.J., held that
                                                                [4]   Products Liability
                                                                          Manufacturing Defect
[1] expert's affidavit failed to identify any defect at time
motorist's pick-up truck left the manufacturer and                    Products Liability
                                                                          Proximate Cause
[2] the manufacturer was not liable for causing the fire.             A plaintiff must prove that a manufacturing
                                                                      defect was defective when it left the hands of the
                                                                      manufacturer and that the defect was a producing
Reversed.                                                             cause of the plaintiff's injuries.

Hecht, J., filed a concurring opinion, in which Owen, J.,             23 Cases that cite this headnote
joined.
                                                                [5]   Judgment
                                                                          Torts
 West Headnotes (11)                                                  Summary judgment affidavit of motorist's expert
                                                                      failed to identify a defect in motorist's pick-
                                                                      up truck at time it left the manufacturer, and
 [1]    Judgment
                                                                      thus, affidavit was insufficient to show that
            Presumptions and Burden of Proof
                                                                      manufacturer was liable for product defect for
        The non-movants on no-evidence motion for                     fire that the expert “suspected” was caused by
        summary judgment must produce summary                         truck's electrical system. Vernon's Ann.Texas
        judgment evidence raising a genuine issue of                  Rules Civ.Proc., Rule 166a(i).
        material fact to defeat summary judgment.
        Vernon's Ann.Texas Rules Civ.Proc., Rule                      8 Cases that cite this headnote
        166a(i).

                                                                [6]   Judgment



               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                         1
Ford Motor Co. v. Ridgway, 135 S.W.3d 598 (2004)
Prod.Liab.Rep. (CCH) P 16,878, 47 Tex. Sup. Ct. J. 266

             Presumptions and Burden of Proof                         Motorist, the third owner of pick-up truck,
        When determining if more than a scintilla of                  produced no direct evidence of cause of fire in
        evidence has been produced in response to                     truck, in which fuel system had been previously
        no-evidence motion for summary judgment,                      repaired by second owner to improve truck's poor
        evidence must be viewed in light most favorable               gas mileage, and only circumstantial evidence
        to non-movant. Vernon's Ann.Texas Rules                       that a manufacturing defect existed in truck when
        Civ.Proc., Rule 166a(i).                                      it left manufacturer, and thus, manufacturer was
                                                                      not liable for causing fire as result of a product
        305 Cases that cite this headnote                             defect.

                                                                      15 Cases that cite this headnote
 [7]    Judgment
            Weight and Sufficiency
                                                               [11]   Products Liability
        When evidence offered to prove a vital fact in
                                                                          Automobiles
        response to a motion for summary judgment is so
        weak as to do no more than create a mere surmise              Products Liability
        or suspicion of its existence, the evidence is no                  Nature of Product and Existence of Defect
        more than a scintilla and, in legal effect, is no             or Danger
        evidence. Vernon's Ann.Texas Rules Civ.Proc.,                 Products Liability
        Rule 166a(i).                                                     Proximate Cause
                                                                      Section of Restatement of Torts, providing
        376 Cases that cite this headnote
                                                                      circumstance under which it may be inferred
                                                                      that the harm sustained by the plaintiff was
 [8]    Judgment                                                      caused by a product defect existing at the time
            Weight and Sufficiency                                    of sale or distribution, without proof of a specific
        Both direct and circumstantial evidence may be                defect, was inapplicable to product liability
        used to establish any material fact in response               action against pick-up truck manufacturer for
        to motion for summary judgment. Vernon's                      damages suffered by motorist from fire in truck,
        Ann.Texas Rules Civ.Proc., Rule 166a(i).                      where vehicle was not new or almost new
                                                                      product and had been modified or repaired by
        10 Cases that cite this headnote                              previous owner. Restatement (Third)of Torts:
                                                                      Product Liability, Sec. 3.
 [9]    Judgment
                                                                      7 Cases that cite this headnote
            Weight and Sufficiency
        To raise a genuine issue of material fact in
        response to motion for summary judgment,
        the evidence must transcend mere suspicion;           Attorneys and Law Firms
        evidence that is so slight as to make any inference
        a guess is in legal effect no evidence. Vernon's      *599 Chris A. Blackerby, Michael W. Eady, Kurt Howard
        Ann.Texas Rules Civ.Proc., Rule 166a(i).              Kuhn, Brown McCarroll, L.L.P., Austin, for Petitioner.

        115 Cases that cite this headnote                     Tina Cheryl Torres, Robert E. Hughes, Law Office of Peter
                                                              Torres, Jr., P.C., San Antonio, for Respondent.
 [10]   Products Liability                                    William A. Worthington, Strasburger & Price, Houston, for
            Automobiles                                       Amicus Curiae.
        Products Liability
            Proximate Cause




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                           2
Ford Motor Co. v. Ridgway, 135 S.W.3d 598 (2004)
Prod.Liab.Rep. (CCH) P 16,878, 47 Tex. Sup. Ct. J. 266

                                                                   court's judgment on plaintiffs' negligence claim but reversed
Opinion                                                            on products liability. We granted Ford's petition for review
                                                                   to determine whether the Ridgways presented more than a
Chief Justice PHILLIPS delivered the opinion of the Court.
                                                                   scintilla of evidence in support of their claim.
We must decide whether the evidence offered by plaintiffs in
response to the defendant's Rule 166a(i) summary judgment
motion created a genuine issue of material fact that a                                           II
manufacturing defect in the defendant's product caused the
plaintiff's injuries. Because we hold that the court of appeals     [1] [2] We first review the trial court's summary judgment
erred in holding that the evidence was sufficient, we reverse      under the standards of Rule 166a(i). The non-movants, here
the judgment of the court of appeals, 82 S.W.3d 26, and render     the plaintiffs, must produce summary judgment evidence
judgment that the plaintiffs take nothing.                         raising a genuine issue of material fact to defeat the summary
                                                                   judgment under that provision. Tex.R. Civ. P. 166a(i). A
                                                                   genuine issue of material fact exists if more than a scintilla
                                                                   of evidence establishing the existence of the challenged
                               I
                                                                   element is produced. Morgan v. Anthony, 27 S.W.3d 928,
Jack Ridgway sustained serious injuries when his two-year-         929 (Tex.2000). If the plaintiffs fail to produce more than a
old Ford F–150 pick-up truck caught fire while he was              scintilla of evidence under that burden, then there is no need
driving. Ridgway was the truck's third owner. The first owner      to analyze whether Ford's proof satisfied the Rule 166a(c)
drove the truck approximately 7,000 miles and installed a          burden.
spotlight on the front left “A” pillar, which is the front
part of the door frame. The second owner drove the truck            [3]    [4] A manufacturing defect exists when a product
approximately 47,000 more miles and had the truck repaired         deviates, in its construction or quality, from the specifications
four times at the Red McCombs Ford dealership in San               or planned output in a manner that renders it unreasonably
Antonio (“Red McCombs”). Each repair attempted to fix a            dangerous. Torrington Co. v. Stutzman, 46 S.W.3d 829, 844
clunking noise that occurred during hard turns. Three of the       (Tex.2000); Am. Tobacco Co. v. Grinnell, 951 S.W.2d 420,
four repairs also involved the fuel system and attempted to        434 (Tex.1997). A plaintiff must prove that the product was
improve the truck's poor gas mileage. The Ridgways drove           defective when it left the hands of the manufacturer and that
the truck for only one month before the fire, making no repairs    the defect was a producing cause of the plaintiff's injuries.
or modifications.                                                  Torrington Co., 46 S.W.3d at 844.

The fire occurred when Ridgway was driving home from                [5] In an attempt to defeat Ford's motion, the Ridgways
work on a paved county road in Bandera County. Driving             presented affidavits from all three of the truck's owners and
at or below the speed limit, he looked into the *600 rear-         from Bill Greenlees, an expert who inspected the truck after
view mirror and noticed flames curling up around the cab of        the accident. The owners explained when and where they
the truck. Before he could jump out of the truck, Ridgway          purchased the truck, how many miles they drove it, and any
sustained second-degree burns to 20 percent of his body.           modifications or repairs they made. In addition, Ridgway
                                                                   described when he first noticed the fire, how he reacted, and
Ridgway and his wife Linda sued Red McCombs and Ford,              the injuries he sustained. Greenlees explained that his expert
alleging products liability, breach of express and implied         opinion was based on his visual inspection of the truck after
warranties, violations of the Texas Deceptive Trade Practices      the accident, a visual comparison of a similar but undamaged
Act, and negligence. After both defendants moved for               truck, a review of Ford service manuals, and a review
summary judgment, the Ridgways nonsuited Red McCombs,              of the National Highway Traffic Safety Administration's
leaving only their negligence and strict products liability        database. Based on the areas of greatest damage to the truck
claims against Ford. After adequate time for discovery,            and an indication of a “hot spot in the left center area
Ford moved for summary judgment under Rule 166a(i) and             of the engine compartment,” Greenlees concluded that the
alternatively under Rule 166a(c). The trial court granted          fire originated within the engine compartment and opined
summary judgment without specifying on which provision it          that “a malfunction of the electrical system in the engine
relied. On appeal, a divided court of appeals affirmed the trial   compartment is suspected of having caused this accident.”



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                           3
Ford Motor Co. v. Ridgway, 135 S.W.3d 598 (2004)
Prod.Liab.Rep. (CCH) P 16,878, 47 Tex. Sup. Ct. J. 266

Greenlees, however, declined to eliminate all portions of the        Because Greenlees could not rule out part of the fuel system as
fuel system as a possible cause of the accident and conceded         a possible cause and because there is no proof that identified
that “the actual cause of the fire has not been determine [sic]      a defect in the truck at the time it left the manufacturer,
yet.” Although Greenlees suggested that further investigation        Greenlees' affidavit is not sufficient to raise a fact issue.
might yield a more definitive conclusion, particularly *601
if the vehicle were disassembled, the Ridgways made no                [11] The Ridgways argue that this proof is nevertheless
motion for further testing and did not complain that the trial       sufficient under section 3 of the Third Restatement of Torts,
court failed to allow adequate time for or sufficient scope of       which provides:
discovery. 1
                                                                       It may be inferred that the harm sustained by the plaintiff
                                                                       was caused by a product defect existing at the time of sale
1      Greenlees' affidavit stated: “The inspection of the subject     or distribution, without proof of a specific defect, when the
       Ford was a visual inspection only. No disassembly nor           incident that harmed the plaintiff:
       alterations have been performed as of this time.” In
       oral argument, the Ridgways' attorney suggested that            (a) was of the kind that ordinarily occurs as a result of a
       Greenlees could not perform destructive testing on the          product defect; and
       vehicle because it was severely damaged.
 [6]     [7] When determining if more than a scintilla of              (b) was not, in the particular case, solely the result of causes
evidence has been produced in response to a Rule 166a(i)               other than the product defect existing at the time of sale or
motion for summary judgment, the evidence must be viewed               distribution.
in the light most favorable to the non-movant. Johnson v.
                                                               Restatement (Third) of Torts: Products Liability ʹ′3 (1998).
Brewer & Pritchard, P.C., 73 S.W.3d 193, 208 (Tex.2002).
                                                               No Texas court has ever cited this section, and we do not
We have repeatedly held that more than a scintilla of
                                                               decide today whether it reflects the law of this state. Even if
evidence exists if the evidence “rises to a level that would
                                                               § 3 were the law in Texas, it would generally apply only to
enable reasonable and fair-minded people to differ in their
                                                               new or almost new products. Such products typically have not
conclusions.” Merrell Dow Pharm., Inc. v. Havner, 953
                                                               been modified or repaired, therefore making a product defect
S.W.2d 706, 711 (Tex.1997); Burroughs Wellcome Co. v.
                                                               the likely cause of an accident. The *602 drafters of the
Crye, 907 S.W.2d 497, 499 (Tex.1995); Transp. Ins. Co. v.
                                                               Restatement realized this limitation and noted: “The inference
Moriel, 879 S.W.2d 10, 25 (Tex.1994). On the other hand,
                                                               of defect may not be drawn ... from the mere fact of a product-
“[w]hen the evidence offered to prove a vital fact is so weak
                                                               related accident.... Evidence that the product may have been
as to do no more than create a mere surmise or suspicion of
                                                               used improperly or was altered by repair people weakens the
its existence, the evidence is no more than a scintilla and, in
                                                               inference [that there was a product defect].” Id. at reporters'
legal effect, is no evidence.” Kindred v. Con/Chem, Inc., 650
                                                               notes to cmt. d (citations omitted). The reporters' notes also
S.W.2d 61, 63 (Tex.1983).
                                                               provide several examples to illustrate when a product defect
                                                               cannot be inferred without proof of a specific defect because
 [8]    [9] Both direct and circumstantial evidence may
                                                               of the product's age or the presence of modifications or
be used to establish any material fact. Lozano v. Lozano,
                                                               repairs. Compare Woodin v. J.C. Penney Co., 427 Pa.Super.
52 S.W.3d 141, 149 (Tex.2001); Browning–Ferris, Inc. v.
                                                               488, 629 A.2d 974, 976–77 (1993) (recognizing that a product
Reyna, 865 S.W.2d 925, 928 (Tex.1993). To raise a genuine
                                                               defect cannot be inferred in a freezer cord when it functioned
issue of material fact, however, the evidence must transcend
                                                               flawlessly for eight years before catching fire), and Walker v.
mere suspicion. Evidence that is so slight as to make any
                                                               Gen. Elec. Co., 968 F.2d 116, 120 (1st Cir.1992) (holding that
inference a guess is in legal effect no evidence. Lozano, 52
                                                               the mere fact that a six-year-old toaster oven caught fire does
S.W.3d at 148; Browning–Ferris, Inc., 865 S.W.2d at 928.
                                                               not support an inference that a manufacturing defect exists),
                                                               with Dietz v. Waller, 141 Ariz. 107, 685 P.2d 744, 748 (1984)
 [10] The Ridgways produced no direct evidence of the fire's
                                                               (stating that a boat that broke in half after only ten hours
cause, and their circumstantial evidence that a manufacturing
                                                               of use gives rise to an inference of a manufacturing defect).
defect existed in the Ford F–150 when it left the manufacturer
                                                               When courts have cited section 3, they have also noted this
does not exceed a scintilla. Ridgway's affidavit establishes
                                                               limitation on the Restatement's operation. See Jarvis v. Ford
only that a fire occurred, and Greenlees could say no more
                                                               Motor Co., 283 F.3d 33, 44 (2nd Cir.2002) (applying a New
than that he “suspects” the electrical system caused the fire.


                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                 4
Ford Motor Co. v. Ridgway, 135 S.W.3d 598 (2004)
Prod.Liab.Rep. (CCH) P 16,878, 47 Tex. Sup. Ct. J. 266

York law similar to section 3 to excuse a plaintiff from
proving a specific defect, instead inferring a defect from              (a) was of a kind that ordinarily occurs as a result of product
proof that a six-day-old vehicle did not perform as intended);          defect; and
Myrlak v. Port Auth., 157 N.J. 84, 723 A.2d 45, 56 (1999)
                                                                        (b) was not, in the particular case, solely the result of causes
(adopting section 3 in a case involving a collapsed five-week-
                                                                        other than *603 product defect existing at the time of sale
old chair). Therefore, we reiterate that because section 3 is not
applicable to the facts of this case, we need not decide if it is       or distribution. 2
an accurate statement of Texas law.
                                                                    2        Restatement (Third) of Torts: Products Liability ʹ′3
                                                                             (1998).

                               III                                  “It may be inferred” cannot mean “it is always proper to
                                                                    infer”, as the present case demonstrates. Section 3(a) requires
Under the circumstances of this case, the Ridgways' summary         only that an injury-causing incident be the kind of thing that
judgment proof is no more than a scintilla of evidence that         ordinarily results from a product defect, not that the incident
a manufacturing defect was present when the truck left the          is the kind of thing that ordinarily does not result unless there
manufacturer. Therefore, the Ridgways have not met their            is a defect. A pickup suddenly bursting into flame for no
burden of showing that a genuine issue of material fact exists      discernible reason is the kind of thing that ordinarily occurs as
regarding a manufacturing defect. We accordingly reverse the        a result of product defect in the sense that product defects do
judgment of the court of appeals and render judgment that the       cause such things. Thus Ridgway has satisfied section 3(a),
plaintiffs take nothing.                                            even though it is also true that fires in vehicles ordinarily
                                                                    occur for many reasons other than product defect. 3 As for
                                                                    section 3(b), although Ridgway cannot conclusively negate
Justice HECHT filed a concurring opinion, in which Justice          that the fire was caused solely by something other than a
OWEN joined.                                                        defect, Ford cannot point to anything as the sole cause of
                                                                    the fire. Therefore, Ridgway argues, section 3 entitles him
                                                                    to an inference that his pickup was defective and the further
Justice HECHT, joined by Justice OWEN, concurring.                  inference that the defect existed when Ford sold the pickup.
I join in the Court's opinion and write only to explain that        The Court rejects Ridgway's argument, not because of the
while Texas law would allow proof of products liability by          text of the rule, but because comment d to section 3, the
circumstantial evidence in certain cases, 1 the black-letter        reporter's notes, and cases allowing proof of products liability
rule of section 3 of the Restatement (Third) of Torts: Products     by circumstantial evidence limit the stated rule. In other
Liability does not accurately restate Texas law.                    words, the section 3 rule means much less than it appears to
                                                                    say.
1        See, e.g., General Motors Corp. v. Hopkins, 548 S.W.2d
         344 (Tex.1977), overruled on other grounds by Turner       3        See U.S. Fire Administration, Highway Vehicle Fires, 2
         v. Gen. Motors Corp., 584 S.W.2d 844 (Tex.1979) and                 Topical Fire Research Series No. 4 (July 2001, revised
         Duncan v. Cessna Aircraft Co., 665 S.W.2d 414 (1984);               Mar. 2002) (reporting that highway vehicle fires are
         Darryl v. Ford Motor Co., 440 S.W.2d 630 (Tex.1969);                due 66% to mechanical or design problems 18% to
         see also Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63               incendiary or suspicious origins, 8% to misuse, 4%
         (Tex.1983) (citing Hopkins, 548 S.W.2d 344).                        to operational deficiency, and 3% to other design,
Section 3 states:                                                            construction, and installation deficiencies), available at
                                                                             http:// www.usfa.fema.gov/downloads/pdf/tfrs/v2i4.pdf
    Circumstantial Evidence Supporting Inference of Product                  (last visited Feb. 5, 2004).
    Defect                                                          “It may be inferred” really means “it is sometimes proper to
                                                                    infer”, but while this reading makes the rule stated in section
    It may be inferred that the harm sustained by the plaintiff
                                                                    3 accurate, it also makes the rule not very helpful. Few would
    was caused by a product defect existing at the time of sale
                                                                    question the use of circumstantial evidence to prove products
    or distribution, without proof of a specific defect, when the
                                                                    liability in appropriate cases. The hard issue is not whether
    incident that harmed the plaintiff:
                                                                    it can be done, but when and how. The comments to section


                 © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                      5
Ford Motor Co. v. Ridgway, 135 S.W.3d 598 (2004)
Prod.Liab.Rep. (CCH) P 16,878, 47 Tex. Sup. Ct. J. 266

3 and the cases cited in support of it illustrate the kinds of       Texas law of res ipsa loquitur is at least as strict as section
considerations courts have taken into account in deciding            328D. We require the first condition stated in section 328D(1)
whether to allow an inference of pre-sale defect in a product,       (a), and instead of the second condition stated in section
but these considerations are not reflected the in the black-         328D(1)(b), we require that the instrumentality causing harm
letter rule itself. One looks to comments to explain the rule;       have been under the defendant's management and control. 7
one does not look to comments to find the rule.
                                                                     7       Haddock v. Arnspiger, 793 S.W.2d 948, 950 (Tex.1990)
Section 3 is modeled on section 328D of the Restatement
                                                                             (“Res ipsa loquitur is applicable only when two factors
(Second) of Torts, 4 which states:                                           are present: (1) the character of the accident is such that it
                                                                             would not ordinarily occur in the absence of negligence;
4       Proceedings at 72nd Annual Meeting: American Law                     and (2) the instrumentality causing the injury is shown
        Institute, 72 A.L.I. Proc. 179, 231 (1996) (remarks of               to have been under the management and control of the
        James A. Henderson, Reporter, introducing Restatement                defendant.”) (citing Mobil Chem. Co. v. Bell, 517 S.W.2d
        (Third) of Torts: Products Liability § 3 (Tentative Draft            245, 251 (Tex.1974) and Marathon Oil Co. v. Sterner,
        No. 2, 1995)) (“Section 3 is derived quite faithfully from           632 S.W.2d 571, 573 (Tex.1982)).
        § 328D of the Restatement, Second, of Torts.”).
                                                                         We have explained that
    Res Ipsa Loquitur
                                                                           the “control” requirement is not a rigid rule that the
      (1) It may be inferred that harm suffered by the plaintiff           instrumentality must have always been in the defendant's
      is caused by negligence of the defendant when                        possession or even that it must have been in the
                                                                           defendant's control at the time of the injury. It is
      (a) the event is of a kind which ordinarily does not occur           sufficient if the defendant was in control at the time that
      in the absence of negligence;                                        the negligence inferable from the first factor probably
                                                                           occurred, so that the reasonable probabilities point to
      (b) other responsible causes, including the conduct of the           the defendant and support a reasonable inference that
      plaintiff and third persons, are sufficiently eliminated by          he was the negligent party. The possibility of other
      evidence; and                                                        causes does not have to be completely eliminated, but
                                                                           their likelihood must be so reduced that the jury can
      (c) the indicated negligence is within the scope of the
                                                                           reasonably find by a preponderance of the evidence that
      defendant's duty to the plaintiff. 5
                                                                           the negligence, if any, lies at the defendant's door. 8
5       Restatement (Second) of Torts § 328D (1965).                 8       Mobil Chem. Co., 517 S.W.2d at 251 (citations omitted).
 *604 But the differences in the two provisions are such that
                                                                     The rule of res ipsa loquitur allows an inference of negligence,
section 3 is not an analogue of section 328D but rather a
                                                                     absent direct proof, only when injury would ordinarily not
kind of res ipsa B lite! Sections 3(a) and (b) are less strict
                                                                     have occurred but for negligence, and defendant's negligence
than the parallel provisions in sections 328D(1)(a) and (b),
                                                                     is probable.
at least in a case like the present one. It cannot be said that
fires in pickups do not ordinarily occur absent a product
                                                                     There is no reason to allow an inference of products liability
defect; they ordinarily occur for all sorts of reasons. 6 Nor        any more freely than an inference of negligence. An inference
has Ridgway “eliminated by evidence” the existence of other          of products liability is really two inferences: that the product
responsible causes of the fire. The most he can say is that Ford     was defective, and that the defect existed at the time of sale.
has offered no evidence of another cause. He has not shown           Applying the principle underlying res ipsa loquitur, neither
that, given the circumstances, another cause was impossible          inference can be drawn without evidence that the injury would
or even improbable. If section 3 were as strictly worded as          not ordinarily have occurred absent a product defect and that
section 328D, Ridgway's claim would clearly fail.                    that defect probably existed when the product was sold. This
                                                                     is not what section 3 says.
6       See infra note 3.




                 © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                          6
Ford Motor Co. v. Ridgway, 135 S.W.3d 598 (2004)
Prod.Liab.Rep. (CCH) P 16,878, 47 Tex. Sup. Ct. J. 266

All Citations

135 S.W.3d 598, Prod.Liab.Rep. (CCH) P 16,878, 47 Tex.
Sup. Ct. J. 266

End of Document                                          © 2015 Thomson Reuters. No claim to original U.S. Government Works.




                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                       7
G & H Towing Co. v. Magee, 347 S.W.3d 293 (2011)
54 Tex. Sup. Ct. J. 1751

                                                                     an otherwise partial summary judgment final,
                                                                     remand was not necessary, in action concerning
                      	
	
                                                                     an employer's alleged liability for fatal vehicle
                  	
                                                                     accident involving one of its employees. Rules
       
 !"# $%&	%"''(%                    App.Proc., Rule 44.1(a); Vernon's Ann.Texas
                        )	                                           Rules Civ.Proc., Rule 166a(c).
         *
*(!#++%&	%,((	
                                                                     18 Cases that cite this headnote
                	-./.-0	 1 #2	3%.--	
                                                               [2]   Labor and Employment
Synopsis                                                                 Scope of Employment
Background: Automobile accident victims' relatives,
                                                                     Generally, a master is vicariously liable for the
individually and as legal representative of estates, brought
                                                                     torts of its servants committed in the course and
action against driver, truck owner, and their employer
                                                                     scope of their employment.
to recover for negligence, negligent hiring, and negligent
entrustment. The Probate Court No. 1, Harris County, Russell         2 Cases that cite this headnote
P. Austin, J., entered summary judgment in favor of owner
and employer. The Court of Appeals affirmed in part,
reversed in part, and remanded, 312 S.W.3d 807. Owner and      [3]   Appeal and Error
employer petitioned for review, which was granted.                      Judgment or Order
                                                                     Judgment
                                                                         Motion or Other Application

[Holding:] The Supreme Court held that entry of summary              Summary judgments may only be granted upon
judgment on vicarious liability claim that was not addressed         grounds expressly asserted in the summary
in summary judgment motion was rendered harmless upon                judgment motion; granting a summary judgment
Court of Appeals holding that employee had not committed             on a claim not addressed in the summary
a tort.                                                              judgment motion therefore is, as a general
                                                                     rule, reversible error. Vernon's Ann.Texas Rules
                                                                     Civ.Proc., Rule 166a(c).
Reversed and remanded for further proceedings.
                                                                     42 Cases that cite this headnote


                                                               [4]   Appeal and Error
 West Headnotes (7)
                                                                         Extent of Review Dependent on Nature of
                                                                     Decision Appealed from
 [1]      Appeal and Error                                           Summary judgments may be affirmed even
             Judgment or Order                                       though the underlying motion omitted one of
          Appeal and Error                                           multiple causes of action when: (1) the movant
              Ordering New Trial, and Directing Further              has conclusively proved or disproved a matter,
          Proceedings in Lower Court                                 usually corresponding to a claim's element or to
          Erroneous entry of summary judgment on                     an affirmative defense, that would also preclude
          vicarious liability claim that was not expressly           the unaddressed claim as a matter of law, or
          presented in the summary judgment motion                   (2) when the unaddressed claim is derivative
          was rendered harmless upon Court of Appeals                of the addressed claim, and the movant proved
          holding, on review of another substantive issue,           its entitlement to summary judgment on that
          that employee had not committed a tort, which              addressed claim.
          necessarily precluded vicarious liability claim,
                                                                     8 Cases that cite this headnote
          and thus, even though trial court granted
          more relief than requested and, therefore, made


                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                      1
G & H Towing Co. v. Magee, 347 S.W.3d 293 (2011)
54 Tex. Sup. Ct. J. 1751


 [5]    Appeal and Error                                      Opinion
            Prejudice to Rights of Party as Ground of
        Review                                                PER CURIAM.

        The harmless error rule applies to all errors.        This summary judgment appeal involves an employer's
        Rules App.Proc., Rule 44.1(a).                        liability for a tragic vehicular accident involving one of
                                                              its employees. At the time of the accident, the employee
        13 Cases that cite this headnote
                                                              had left work and was driving a personal *295 vehicle
                                                              that he borrowed from a co-worker. The representatives
 [6]    Appeal and Error                                      of the decedent-occupants of the other vehicle sued
           Judgment or Order                                  the employer, alleging negligence, negligent hiring, and
        Although a trial court errs in granting a             negligent entrustment. These plaintiffs also sued the co-
        summary judgment on a cause of action not             worker, alleging negligent entrustment, and the employee,
        expressly presented by written motion, the error      alleging negligence. Both the employer and the co-worker
        is harmless when the omitted cause of action is       obtained summary judgments, which after severance orders,
        precluded as a matter of law by other grounds         the plaintiffs appealed.
        raised in the case.
                                                              The court of appeals affirmed the co-worker's summary
        18 Cases that cite this headnote                      judgment, concluding that as a matter of law the co-
                                                              worker had not negligently entrusted his vehicle to the other
 [7]    Appeal and Error                                      employee. 312 S.W.3d 807, 809, 812 (Tex.App.-Houston
           Nature and Scope of Decision                       [1st Dist.] 2009). The court of appeals, however, reversed
                                                              the employer's summary judgment because its summary
        Appeal and Error
                                                              judgment motion did not specifically address one of the
           Reversal in Part
                                                              plaintiffs' claims: the claim that the employer was vicariously
        When a trial court grants more relief than            liable for its agent's (the co-worker's) negligent entrustment.
        requested and, therefore, makes an otherwise          Id. at 810–11. Concluding that the employer's summary
        partial summary judgment final, that judgment,        judgment granted more relief than requested, the court
        although erroneous, is final and appealable;          remanded the case against the employer without considering
        the Court of Appeals should treat such a              the plaintiffs' other claims or the employer's related grounds
        summary judgment as any other final judgment,         for summary judgment. Id. at 813.
        considering all matters raised and reversing only
        those portions of the judgment based on harmful       Because an employer cannot be vicariously liable in tort when
        error.                                                its agent or employee has not engaged in tortious conduct,
                                                              we conclude that the court of appeals erred in remanding the
        3 Cases that cite this headnote
                                                              vicarious liability claim while simultaneously holding that
                                                              the employee had not committed a tort. We reverse the court
                                                              of appeals' judgment and remand the cause to that court for
                                                              consideration of the other grounds for summary judgment.
Attorneys and Law Firms
                                                              William Colson and Joseph Violante were employed by G
*294 J. Mike Johanson, Chris M. Volf, Johanson & Fairless,
                                                              & H Towing as tugboat quartermasters. They worked on
L.L.P., Sugar Land, TX, for G & H Towing Company.
                                                              the same tugboat, but they were on different schedules. One
Kathryn V. Smyser, Kathryn Smyser PLLC, Benjamin L. Hall      would work for several days and then be relieved by the other,
III, Elizabeth B. Hawkins, Kimberly R. Bennett, The Hall      who then worked for a similar period. Because the tugboats
Law Firm, Houston, TX, for Cory Wayne Magee.                  did not have a regular route that allowed each man to return
                                                              to the place he began his shift, the men would loan their
Jeffrey A. Fanaff, Acosta & Soule, Houston, TX, for William   personal vehicles to one another to drive home at the end of a
C. Colson.



               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                        2
G & H Towing Co. v. Magee, 347 S.W.3d 293 (2011)
54 Tex. Sup. Ct. J. 1751

shift. Whether G & H required or endorsed this practice was       809. In separate judgments, the court affirmed Colson's take-
disputed.                                                         nothing summary judgment but reversed and remanded the
                                                                  summary judgment favoring G & H Towing. Id. at 813.
As was their custom, Violante borrowed Colson's vehicle at
the end of one shift and drove himself home. Some time later,     The court of appeals concluded that the trial court correctly
Violante drove Colson's vehicle to a bar at which he became       granted Colson's no-evidence summary judgment because
inebriated. After leaving the bar, Violante was involved in a     there was no evidence of at least one element of the Magees'
collision that killed Douglas and Lois Magee. Violante was        negligent entrustment claim against him. Id. at 812. The court
subsequently convicted of intoxication manslaughter.              accordingly affirmed Colson's summary judgment, and the
                                                                  Magees have not appealed that judgment.
The Magees' adult children (the Magees) sued Violante,
Colson, G & H Towing, and others connected to the                 The court further concluded that the trial court had erred
bar, asserting theories of negligence, negligent hiring, and      in rendering a take-nothing summary judgment in favor of
negligent entrustment. The claims against G & H were both         G & H Towing because G & H's motion for summary
direct and vicarious. Regarding the latter, the Magees asserted   judgment failed to address the Magees' claim that G & H
that G & H was vicariously liable for Colson's negligent          was vicariously liable for Colson's negligent entrustment of
entrustment of his vehicle to Violante because Colson was         his vehicle to Violante. Id. at 810–11. G & H's summary
acting as G & H's employee and agent at the time. The Magees      judgment motion addressed its direct responsibility for
further asserted that Colson had a duty to make inquiry about     allegedly entrusting the vehicle to Violante, but the motion
Violante's competence as a driver because G & H had a             did not also address its alleged vicarious liability for Colson's
company policy of checking the driving records of employees       negligent entrustment. Because of this omission, the court
who would be driving in the course of their employment.           of appeals held the motion to be “legally insufficient as a
                                                                  matter of law in regard to that ground.” Id. at 811 (citing
G & H Towing filed a motion for summary judgment,                 McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337,
which the trial court granted, rendering an interlocutory take-   342 (Tex.1993)). The court, with one justice dissenting,
nothing summary judgment. The Magees thereafter moved             reversed the summary judgment and remanded the cause
to sever their claims against G & H from the remainder of         without considering the other grounds raised in the motion for
the case, and the trial court granted the motion making the       summary judgment. Id. at 813.
summary judgment a final, appealable order. Colson also filed
a *296 motion for summary judgment, which the trial court          [1] [2] G & H Towing again argues here that any error in
similarly granted and then severed, making Colson's take-         granting summary judgment on this vicarious liability claim
nothing summary judgment final. The Magees appealed both          was harmless in light of the court's conclusion that there was
summary judgments.                                                no evidence to support the Magees' negligent entrustment
                                                                  claim against Colson. Generally, a master is vicariously liable
The Magees moved to consolidate their two appeals, but the        for the torts of its servants committed in the course and scope
court of appeals denied the motion. The court also declined       of their employment. GTE Sw., Inc. v. Bruce, 998 S.W.2d 605,
to hear oral argument in either case. G & H contended on          617 (Tex.1999). But having concluded as a matter of law that
appeal that its motion for summary judgment encompassed           its alleged agent, Colson, did not commit the tort of negligent
the issue of its vicarious liability for Colson's actions. In     entrustment, G & H submits that the trial court's error is
the alternative, G & H urged that even if its motion omitted      harmless and that remanding the vicarious liability claim is
this issue, the trial court's error in granting final summary     a meaningless gesture because its liability is derivative of
judgment on the omitted issue was nevertheless harmless           Colson's. See Knutson v. Morton Foods, Inc., 603 S.W.2d
because of the court's determination that Colson had not          805, 807 n. 2 (Tex.1980) (noting “that where the employer's
negligently entrusted his vehicle to Violante. G & H reasoned     liability rests solely on respondeat superior, an adjudication
that if Colson did not negligently entrust his vehicle, G & H     acquitting the employee of negligence will [bar] a subsequent
could not be vicariously liable for negligent entrustment.        suit against the employer”).

Although the appeals remained separate, the court discussed        [3] The purpose of a summary judgment is to “provide
their respective merits in a single opinion. 312 S.W.3d at        a method of summarily *297 terminating a case when it



               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                              3
G & H Towing Co. v. Magee, 347 S.W.3d 293 (2011)
54 Tex. Sup. Ct. J. 1751

clearly appears that only a question of law is involved and that                 to an affirmative defense) that would
there is no genuine issue of fact.” Gaines v. Hamman, 163                        also preclude the unaddressed claim
Tex. 618, 358 S.W.2d 557, 563 (1962). Summary judgments,                         as a matter of law or (2) when the
however, may only be granted upon grounds expressly                              unaddressed claim is derivative of
asserted in the summary judgment motion. TEX.R. CIV. P.                          the addressed claim, and the movant
166a(c); see also McConnell, 858 S.W.2d at 341 (holding                          proved its entitlement to summary
that a motion for summary judgment must expressly present                        judgment on that addressed claim. For
grounds on which it is made). Granting a summary judgment                        the exception to apply, this Court
on a claim not addressed in the summary judgment motion                          has always required a very tight fit
therefore is, as a general rule, reversible error. Chessher v. Sw.               between what was proved or disproved
Bell Tel. Co., 658 S.W.2d 563, 564 (Tex.1983) (per curiam).                      in the motion and what elements the
                                                                                 unaddressed claim, as it was alleged,
Several appellate courts have recognized a limited exception                     required: otherwise, the exception
to this general rule. These courts have affirmed summary                         could swallow the rule.
judgments, even though the underlying motion omitted one
of multiple causes of action, when the omitted ground was            Wilson v. Davis, 305 S.W.3d 57, 73 (Tex.App.-Houston [1st
intertwined with, and precluded by, a ground addressed in            Dist.] 2009, no pet.) (internal footnotes omitted).
the motion. See, e.g., Zarzosa v. Flynn, 266 S.W.3d 614, 621
(Tex.App.-El Paso 2008, no pet.) (holding reversal would              [5] [6] The harmless error rule states that before reversing
be meaningless because questioned recovery precluded as a            a judgment because of an error of law, the reviewing court
matter of law); Withrow v. State Farm Lloyds, 990 S.W.2d             must find that the error amounted to such a denial of the
432, 437–38 (Tex.App.-Texarkana 1999, pet. denied) (same);           appellant's rights as was reasonably calculated to cause and
Vogel v. Travelers Indem. Co., 966 S.W.2d 748, 754–55                probably did cause “the rendition of an improper judgment,”
(Tex.App.-San Antonio 1998, no pet.) (same); Cissne v.               or that the error “probably prevented the appellant from
Robertson, 782 S.W.2d 912, 918 (Tex.App.-Dallas 1989, writ           properly presenting the case [on appeal].” TEX.R.APP. P.
denied) (same). One authority states the exception as follows:       44.1(a). The rule applies to all errors. Lorusso v. Members
“If the defendant has conclusively disproved an ultimate             Mut. Ins. Co., 603 S.W.2d 818, 819–20 (Tex.1980). Although
fact or element which is common to all causes of action               *298 a trial court errs in granting a summary judgment on
alleged, or the unaddressed causes of action are derivative          a cause of action not expressly presented by written motion,
of the addressed cause of action, the summary judgment               we agree that the error is harmless when the omitted cause
may be affirmed.” TIMOTHY PATTON, SUMMARY                            of action is precluded as a matter of law by other grounds
JUDGMENTS IN TEXAS: PRACTICE, PROCEDURE                              raised in the case. See, e.g., Withrow, 990 S.W.2d at 437–
AND REVIEW § 3.06[3] at 3–20 (3d ed.2010) (collecting                38 (affirming summary judgment on cause of action not
cases).                                                              specifically addressed in movant's motion where reversing the
                                                                     summary judgment would be meaningless because omitted
 [4] Although the court of appeals did not apply this                cause of action was precluded as a matter of law); cf.
exception here, it has previously recognized it. In fact, a          Mercedes–Benz Credit Corp. v. Rhyne, 925 S.W.2d 664,
different panel of the court surveyed the Texas decisions            667 (Tex.1996) (holding that wrongful denial of jury trial
discussing this limited exception and wrote the following just       is harmful error only when the case contains a question
a few months before the decision in this case:                       of material fact). The undisputed facts and Colson's final
                                                                     judgment establish that Colson did not negligently entrust his
             [S]ome courts of appeals, including                     vehicle. G & H therefore cannot have vicarious liability for
             our own, have recognized a very                         negligent entrustment because its agent did not commit the
             limited exception to the general rule.                  tort.
             Although the exception's application
             has been expressed in various ways,                      [7] When a trial court grants more relief than requested
             it can be reduced to two: (1)                           and, therefore, makes an otherwise partial summary judgment
             when the movant has conclusively                        final, that judgment, although erroneous, is final and
             proved or disproved a matter (usually                   appealable. See Bandera Elec. Coop. v. Gilchrist, 946 S.W.2d
             corresponding to a claim's element or                   336, 337 (Tex.1997) (per curiam). The court of appeals


                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                           4
G & H Towing Co. v. Magee, 347 S.W.3d 293 (2011)
54 Tex. Sup. Ct. J. 1751

                                                                    and remand the case to that court for further proceedings. See
should treat such a summary judgment as any other final
                                                                    TEX.R.APP. P. 59.1.
judgment, considering all matters raised and reversing only
those portions of the judgment based on harmful error.
Page v. Geller, 941 S.W.2d 101, 102 (Tex.1997) (per
                                                                    All Citations
curiam). Because the court of appeals did not follow this
procedure, we grant the petition for review and, without            347 S.W.3d 293, 54 Tex. Sup. Ct. J. 1751
hearing oral argument, reverse the court of appeals' judgment

End of Document                                                 © 2015 Thomson Reuters. No claim to original U.S. Government Works.




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                               5
Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150 (2004)
47 Tex. Sup. Ct. J. 1058


                                                                       1 Cases that cite this headnote
                     	
	
                 	
                                                                 [2]   Estoppel
         	  ! "#$%&'$(                             Nature and Application of Estoppel in Pais
        )*$ %$ (*$$ (                       Equitable estoppel is not a cause of action, but
                          +	                                           may be asserted as a defensive plea to bar a
             
,-./,/,/                                     defendant from raising a particular defense.
               0/1-(-  	
                                                                       8 Cases that cite this headnote
             /	2324	 5 )6)$%
         7(2	 5 8&$	(2	                     [3]   Appeal and Error
                                                                          Cases Triable in Appellate Court
Synopsis
Background: Client brought action for malpractice and                  Summary judgments are reviewed de novo.
breach of fiduciary duty against attorney and law firm
                                                                       150 Cases that cite this headnote
after attorney, a member of city council, voted in favor
of construction moratorium adverse to client. The 14th
Judicial District Court, Dallas County, John Marshall, J.,       [4]   Appeal and Error
granted summary judgment for attorney and law firm. Client                Judgment
appealed. The Dallas Court of Appeals, Barbara Rosenberg,              When reviewing a summary judgment, the
J., 60 S.W.3d 896,reversed and remanded. Review was                    Supreme Court takes as true all evidence
granted.                                                               favorable to the nonmovant and indulges every
                                                                       reasonable inference and resolves any doubts in
                                                                       the nonmovant's favor.
Holdings: The Supreme Court, Wainwright, J., held that:
                                                                       141 Cases that cite this headnote

[1] legislative immunity shielded attorney from liability for
any conflict of interest;                                        [5]   Appeal and Error
                                                                          Scope and theory of case
[2] the law firm was not liable since the attorney was immune;         The Supreme Court affirms a summary judgment
                                                                       if any of the theories presented to the trial
[3] firm owed no duty to inform client of city council meeting         court and preserved for appellate review are
at which attorney voted in favor of moratorium; and                    meritorious.

[4] attorney had official immunity from liability.                     107 Cases that cite this headnote


                                                                 [6]   Municipal Corporations
Reversed and rendered.
                                                                          Duties and liabilities
                                                                       Individuals acting in a legislative capacity are
                                                                       immune from liability for those actions.
 West Headnotes (26)
                                                                       1 Cases that cite this headnote

 [1]    Municipal Corporations
           Duties and liabilities                                [7]   Municipal Corporations
                                                                          Duties and liabilities
        Legislative immunity shields lawyer-legislators
        from civil liability for activities within their               States
        legislative capacities.                                             Privileges and exemptions


               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                        1
Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150 (2004)
47 Tex. Sup. Ct. J. 1058

        United States                                                     Duties and liabilities
            Judicial intervention and immunity in                    Law firm was not liable to client for its
        general                                                      attorney's legitimate legislative activities as city
        Legislative immunity applies to legislators at               council member, for alleged conflict of interest
        the federal, state, regional, and local levels of            created by attorney's activities, or for failure to
        government—including city council members                    disclose alleged conflict; legislative immunity
        —who are performing legitimate legislative                   protected the attorney, and the firm's liability was
        functions.                                                   derivative.

        2 Cases that cite this headnote                              Cases that cite this headnote


 [8]    Attorney and Client                                   [11]   Attorney and Client
            Acting for party adversely interested                         Elements of malpractice or negligence
        Municipal Corporations                                       action in general
           Duties and liabilities                                    To recover on a claim for legal malpractice,
        Legislative immunity shielded attorney from                  the plaintiff must establish that: (1) the attorney
        liability to his law firm's client for any conflict          owed the plaintiff a duty, (2) the attorney
        of interest created by legitimate legislative                breached that duty, (3) the breach proximately
        functions undertaken in connection with his                  caused the plaintiff's injuries, and (4) damages
        position as a city council member.                           occurred.

        Cases that cite this headnote                                4 Cases that cite this headnote


 [9]    Attorney and Client                                   [12]   Attorney and Client
            Acting for party adversely interested                        Nature of attorney's duty
        Municipal Corporations                                       Generally, a lawyer's fiduciary duties to a client,
           Duties and liabilities                                    although extremely important, extend only to
                                                                     dealings within the scope of the underlying
        Attorney, who was city council member,
                                                                     relationship of the parties.
        engaged in legitimate legislative functions
        when supporting moratorium on construction                   10 Cases that cite this headnote
        of apartment buildings and, therefore, was
        protected by legislative immunity from liability
        to his law firm's client that was adversely           [13]   Attorney and Client
        affected by the moratorium and claimed a                         Nature of attorney's duty
        conflict of interest; ordinance was a law of                 While an attorney owes to a client a duty to
        general application based on concerns over                   inform the client of matters material to the
        zoning and commercial development, and the                   representation, this duty to inform does not
        attorney's alleged leadership role, discussions,             extend to matters beyond the scope of the
        persuasion of colleagues, and vote on the                    representation.
        ordinance were legitimate legislative functions.
                                                                     6 Cases that cite this headnote
        1 Cases that cite this headnote
                                                              [14]   Attorney and Client
 [10]   Attorney and Client                                              Employment and authority of counsel
             Acts and omissions of partners and                      A lawyer may not act beyond the scope of the
        associates                                                   contemplated representation without additional
        Municipal Corporations                                       authorization from the client. State Bar Rules,



               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                          2
Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150 (2004)
47 Tex. Sup. Ct. J. 1058

        V.T.C.A., Government Code Title 2, Subtitle G
        App. A, Art. 10, § 9, Rules of Prof.Conduct, Rule            94 Cases that cite this headnote
        1.02.
                                                              [19]   Municipal Corporations
        3 Cases that cite this headnote
                                                                        Duties and liabilities
                                                                     Official immunity protected city council member
 [15]   Attorney and Client                                          from liability to his law firm's client if the
            Acting for party adversely interested                    actions of which the client complained were
        Law firm owed no duty to inform client of                    (1) discretionary duties, (2) within the scope of
        city council meeting at which attorney in firm               member's authority as a city council person, and
        voted in favor of moratorium on construction                 (3) performed in good faith under an objective
        of apartment buildings; scope of representation              reasonableness standard.
        included review and drafting of documents for
        sale of client's property, but not matters before            3 Cases that cite this headnote
        city council.
                                                              [20]   Judgment
        5 Cases that cite this headnote
                                                                         Hearing and determination
                                                                     Denial of motion by law firm's client for
 [16]   Appeal and Error                                             continuance in order to conduct additional
           Continuance                                               discovery on attorney's actions as city council
        When reviewing a trial court's order denying                 member was not abuse of discretion in
        a motion for continuance, the Supreme Court                  response to attorney's summary judgment motion
        considers whether the trial court committed a                based on official immunity; attorney supported
        clear abuse of discretion on a case-by-case basis.           moratorium on construction of apartment
                                                                     buildings, this moratorium adversely affected
        72 Cases that cite this headnote                             client in connection with sale of land, and
                                                                     although the client sought discovery to determine
 [17]   Appeal and Error                                             whether attorney acted as legal counsel for the
           Abuse of discretion                                       city and possibly a faction of citizens and to
                                                                     uncover the nature of the advice provided to
        Trial court abuses its discretion when it reaches
                                                                     the city and the citizens group, none of the
        a decision so arbitrary and unreasonable as to
                                                                     discovery could have raised a fact issue as to
        amount to a clear and prejudicial error of law.
                                                                     whether the attorney was acting within the scope
        58 Cases that cite this headnote                             of his authority as a council member as he
                                                                     conducted legal research on issues related to
                                                                     the moratorium, met with constituents, prepared
 [18]   Judgment
                                                                     for the council meetings, and participated in the
            Hearing and determination
                                                                     deliberation and vote. Vernon's Ann.Texas Rules
        The following nonexclusive factors may be                    Civ.Proc., Rule 166a(g).
        considered when deciding whether a trial court
        abused its discretion in denying a motion for                34 Cases that cite this headnote
        continuance seeking additional time to conduct
        discovery prior to summary judgment: length
                                                              [21]   Municipal Corporations
        of time the case has been on file, materiality
                                                                        Duties and liabilities
        and purpose of the discovery sought, and
                                                                     A city council member is immune from liability
        due diligence to obtain the discovery sought.
                                                                     for actions taken (1) within the scope of authority
        Vernon's Ann.Texas Rules Civ.Proc., Rule
                                                                     (2) in performing the discretionary duties of the
        166a(g).
                                                                     office in (3) good faith.



               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                         3
Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150 (2004)
47 Tex. Sup. Ct. J. 1058


        1 Cases that cite this headnote                               6 Cases that cite this headnote


 [22]   Attorney and Client                                    [25]   Officers and Public Employees
            Acting for party adversely interested                          Liabilities for official acts
        Municipal Corporations                                        To determine whether a public official has acted
           Duties and liabilities                                     in good faith and is entitled to official immunity,
        Attorney, who as city council member supported                courts use an objective standard, asking whether
        moratorium on construction of apartment                       a reasonably prudent official, under the same
        buildings, had official immunity from liability to            or similar circumstances, could have believed
        his law firm's client that was adversely affected             that his conduct was justified based on the
        by the moratorium and claimed a conflict of                   information he possessed when the conduct
        interest; legal research by the attorney was in               occurred.
        preparation for the council meeting, and he acted
                                                                      17 Cases that cite this headnote
        in objective good faith within the scope of
        authority as council member and not as attorney
        for city or citizens group.                            [26]   Officers and Public Employees
                                                                           Liabilities for official acts
        1 Cases that cite this headnote
                                                                      The standard of good faith as an element of
                                                                      official immunity is not a test of carelessness
 [23]   Attorney and Client                                           or negligence, or a measure of an official's
            What constitutes a retainer                               motivation.
        Legal research that attorney conducted as city
                                                                      2 Cases that cite this headnote
        council member in preparation for a city council
        vote did not create an attorney-client relationship
        with city, even though the attorney shared that
        information with fellow council members as part
        of deliberations.                                     Attorneys and Law Firms

        1 Cases that cite this headnote                       *153 Jeff Archer, Austin, for Amicus Curiae J.E. “Buster”
                                                              Brown.

 [24]   Judgment                                              Roger Townsend, Alexander Dubose Jones & Townsend
            Evidence and Affidavits in Particular Cases       LLP, Houston, for Amicus Curiae Greenberg Traurig of New
        Judgment                                              York.
            Attorneys
                                                              Reagan W. Simpson, King & Spalding LLP, Houston, for
        Speculation by client's principal was not             Amicus pro se.
        evidence of an attorney-client relationship
        between council member and a citizens group           N. Bennett Sandlin, Austin, for Amicus Curiae Texas
        favoring construction moratorium adverse to           Municipal Leaguetexas Municipal League.
        client of member's law firm and, therefore,
        did not create a fact issue precluding summary        Amy Warr, Office of Attorney Gen., Austin, for Amicus
        judgment on whether member was acting outside         Curiae The State of Texas.
        the scope of his authority as a council member
                                                              Boyd Aaron Mouse, Kane Russell Coleman & Logan, David
        during his interactions with constituents or
                                                              L. Patterson, Godwin & Gruber, L.L.P., Dallas, for other
        during his preparations and research for city
                                                              interested parties.
        council meetings and was not entitled to official
        immunity from liability for alleged conflict of
        interest.


               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                          4
Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150 (2004)
47 Tex. Sup. Ct. J. 1058

                                                                     In 1992 William Thau, an attorney and shareholder with the
Russell James DePalma, Michael P. Lynn, John T Cox, Lynn             law firm of Jenkens & Gilchrist, P.C. (Jenkens), began his
Tillotson & Pinker, LLP, Robert E. Goodfriend, McKool                representation of Two Thirty Nine Joint Venture (239 JV).
Smith, P.C., B. Prater Monning III, Monning & Wynne,                 He provided legal services for 239 JV's formation and its
L.L.P., Dallas, for Petitioners.                                     acquisition, development, and sale of 239 acres of land in
                                                                     Irving, Texas. By the summer of 1994, 239 JV had sold all but
Donald E. Godwin, David L. Patterson, Chad Michael
                                                                     11 of the 239 acres. At the request of 239 JV, Thau reviewed a
Ruback, Godwin & Gruber, L.L.P., Dallas, for Respondent.
                                                                     contract for the sale of the remaining 11 acres as an apartment
Opinion                                                              tract and drafted an amendment to the contract. The contract
                                                                     provided the potential buyer with a review period and a right
*154 Justice WAINWRIGHT delivered the opinion of the                 to reject the contract before September 17, 1994.
Court.
                                                                     On Sunday, September 4, 1994, the Irving City Council
 [1] We consider the applicability of legislative and official       posted a 72–hour notice of a meeting to consider, among other
immunity to legislators, who are also practicing attorneys,          items, an ordinance that would place a 120–day moratorium
when their public and private professional responsibilities          on apartment construction in Irving. At the September 7,
conflict. Our legal system has long recognized the vital role        1994 Council meeting at which the ordinance was discussed,
of the fiduciary duties that attorneys owe their clients. Our        Councilperson Harry Joe, also a shareholder at Jenkens,
system of government charges legislators with fidelity to            moved to impose the moratorium. The ordinance imposing
the public trust in the discharge of their official duties. We       the moratorium passed unanimously. As a result, the potential
affirm the vitality of both obligations. However, when these         buyer of 239 JV's 11 acres cancelled the contract. Joe had
obligations conflict, we hold that legislative immunity shields      not told anyone at Jenkens or 239 JV about the meeting, its
lawyer-legislators from civil liability for activities within        agenda, or his position on the moratorium.
their legislative capacities.
                                                                     On November 9, 1994, Arthur Hewett and Jerry Ragsdale,
A shareholder in a law firm, who also served as a legislator on      principals of 239 JV, met with Joe to discuss the impact of
a city council, voted in favor of an ordinance that adversely        the moratorium on 239 JV's property. Hewett and Ragsdale
affected a firm client. The client sued the shareholder and          explained that they felt Joe should “be working to support
his firm for malpractice for (1) negligently failing to inform       [239 JV's] interest,” stop providing leadership to those in
the client in advance of the city council meeting at which the       favor of the moratorium, “stop voting against [239 JV]
ordinance was passed and (2) breach of fiduciary duty arising        and stop influencing the votes of others against [239 JV].”
from a failure to avoid or disclose a conflict of interest created    *155 In a memorandum to Joe, Thau later described Joe's
by the shareholder's support of the ordinance and his vote. We       actions as “le[a]d[ing] the charge to impose and continue the
conclude, based on undisputed summary judgment evidence,             moratorium against the building of any apartment projects”
that notifying the client of the council meeting was outside the     in certain Irving neighborhoods. The parties acknowledge
agreed scope of the representation, and therefore, there was         that Joe did not agree to stop supporting the moratorium at
no duty to inform the client of the meeting. We also conclude        this meeting. On December 15, 1994, after the moratorium's
that the lawyer-legislator is immune from liability for any          initial 120–day period expired, the City Council voted to
conflict of interest arising from his support of, preparation        extend the moratorium until May 26, 1995. Joe voted in favor
for, and vote on the ordinance. Because the client's claims          of the extension.
against the firm derive from the actions of the shareholder, the
firm is not liable for failing to disclose a conflict of interest    After the extension passed, 239 JV began the process
arising from the shareholder's legislative and official actions.     of seeking a waiver from the moratorium and discussed
We reverse the court of appeals and render judgment in favor         its options with Thau and Joe. Joe indicated to 239 JV
of the lawyer-legislator and the law firm.                           representatives that he believed the 11–acre tract would be
                                                                     eligible for a waiver but that to secure a waiver of the
                                                                     moratorium, 239 JV would need citizen support. Both Hewett
          I. Factual and Procedural Background                       and Ragsdale testified that after these conversations, they
                                                                     considered Joe, as well as Thau, to be 239 JV's lawyer. There



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                              5
Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150 (2004)
47 Tex. Sup. Ct. J. 1058

is no dispute that at this time no Jenkens attorney represented     entitled “estoppel/quasi *156 estoppel.” 1 239 JV described
239 JV on matters before the City Council.                          the basis of its claims as Joe's and Jenkens's failure to disclose
                                                                    the alleged conflict of interest created by Joe's involvement
In anticipation of a May 18, 1995 City Council meeting              with the moratorium while Jenkens represented 239 JV in
at which another extension of the moratorium would be               ongoing efforts to sell a tract of land for an apartment building
discussed, Joe used the Jenkens library to research the legality    and failure to disclose matters that were material to Jenkens's
of extending the moratorium. Although the City of Irving later      representation of 239 JV (including the Council's September
reimbursed Jenkens for copying and paralegal expenses, as           1994 meeting). 239 JV claims that timely disclosure of the
was customary, there is no evidence that the City paid Jenkens      meeting would have allowed it to grandfather its property
or Joe for any legal advice. Also in anticipation of the May 18     before the moratorium passed.
Council meeting, Joe sent two firm-wide voice mails advising
his fellow shareholders of the subject of the upcoming vote         1       In this section, 239 JV's pleadings allege (1) that the
and asking if any clients would be affected. Joe also asked
                                                                            conduct by Jenkens and Joe regarding efforts to assist
the Irving city attorney to provide a written opinion regarding
                                                                            239 JV in obtaining a waiver from the moratorium
Joe's potential conflict of interest. The city attorney's May 16,           constituted concealment or false representation of
1995 opinion concluded that no conflict existed, but it was                 material facts, and in light of the fiduciary duty owed,
expressly predicated on Joe's representation that at that time              239 JV materially relied upon these representations to
Jenkens was not representing any clients who had an interest                its detriment; and (2) that 239 JV reasonably relied upon
in property that would be impacted by the moratorium. Two                   Jenkens's representations and fraudulent concealment in
days later, the City Council voted to extend the moratorium                 its decision to delay litigation. These allegations raise the
by another unanimous vote, including Joe's.                                 defense of equitable estoppel and appear to be intended
                                                                            to rebut defendants' assertion of the two-year statute of
In June 1995, 239 JV sought a waiver of the moratorium for                  limitations. See Schroeder v. Tex. Iron Works, Inc., 813
                                                                            S.W.2d 483, 489 (Tex.1991). Equitable estoppel is not
the remaining 11–acre tract. The application for the waiver
                                                                            a cause of action but may be asserted as a defensive
was denied by city officials, and 239 JV appealed to the
                                                                            plea to bar a defendant from raising a particular defense.
City Council. On June 22, 1995, the Council voted to table
                                                                            See, e.g., Leonard v. Eskew, 731 S.W.2d 124, 132 n.
the appeal. Joe attended this meeting but abstained from the                2 (Tex.App.-Austin 1987, writ ref'd n.r.e.). However,
Council vote. On July 6, 1995, the city attorney issued a                   neither Jenkens nor Joe raised statute of limitations in
second opinion at Joe's request concerning Joe's potential                  their summary judgment motions, so just as the statute of
conflict of interest. Based on Joe's representation that Jenkens            limitations defense is not before us, neither is 239 JV's
“had no active file nor active work for Two Thirty Nine                     response to that affirmative defense.
Joint Venture in May and June, 1995,” the opinion concluded
                                                                    On June 12, 1997, Joe moved for summary judgment based on
that no conflict existed. However, Jenkens's billing records
                                                                    official immunity. 239 JV requested a continuance to conduct
show that Bill Thau performed legal work for 239 JV
                                                                    discovery, which the trial court denied. The trial court granted
during that period. After the Council tabled 239 JV's appeal,
                                                                    Joe's motion for summary judgment on July 11, 1997. Over
representatives from 239 JV met with members of Jenkens's
                                                                    a year later, after Jenkens and 239 JV conducted discovery,
executive committee. At this meeting, Jenkens shareholders
                                                                    Jenkens filed an amended motion for summary judgment on
promised to represent 239 JV in obtaining a waiver at no
                                                                    six grounds: (1) Joe was entitled to legislative and official
charge and asked 239 JV not to pursue legal action until
                                                                    immunity, and Jenkens was entitled to assert any defenses
Jenkens had an opportunity to try to secure the waiver.
                                                                    that Joe could have raised since he was responsible for all of
Jenkens was unable to secure the waiver for 239 JV, but the
                                                                    the allegedly tortious conduct, (2) chapter 171 of the Local
tract eventually sold in 1997 for an amount near the 1994
                                                                    Government Code provides 239 JV's exclusive remedy, (3)
contract price.
                                                                    Jenkens had no duty to influence or control Joe's actions as a
                                                                    public servant, (4) 239 JV cannot establish proximate cause
 [2] On April 18, 1997, 239 JV filed this lawsuit. The live
                                                                    as a matter of law because the moratorium and extensions
pleadings included claims that Joe and Jenkens owed 239
                                                                    may have passed without Joe's support, (5) 239 JV waived
JV “a duty of ordinary care and a fiduciary duty and one of
                                                                    any conflict or claim for malpractice when it consented to
loyalty” and that the actions of Jenkens and Joe constituted a
                                                                    representation by Jenkens, and (6) 239 JV's theory of damages
breach of those duties. The pleadings also included a section
                                                                    was impermissibly speculative as a matter of law. The trial



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                         6
Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150 (2004)
47 Tex. Sup. Ct. J. 1058

court granted summary judgment in favor of Jenkens on             and vote regarding the moratorium created an impermissible
September 23, 1998, and 239 JV appealed. A divided court of       conflict, the nondisclosure of which breached the fiduciary
appeals reversed and remanded all claims against Jenkens and      duty and duty of loyalty Joe and Jenkens owed to 239 JV.
Joe. The court of appeals reversed the trial court's judgment     Jenkens contends that Joe's legislative immunity shields Joe
in favor of Joe because it concluded that the trial court abused  from liability for 239 JV's claims for breach of its fiduciary
its discretion in denying 239 JV's motion for a continuance to    duty and duty of loyalty and that the potential liability that
obtain discovery before the summary judgment hearing. The         Jenkens faces derives from its shareholder's actions as a city
court of appeals reversed the judgment in favor of Jenkens        councilperson. We agree that without Joe's actions in this
because (1) a fact issue existed regarding whether Joe and        case, no conflict of interest would exist on which to predicate
Jenkens breached a duty to disclose a conflict of interest        Jenkens's potential liability to 239 JV. Thus, if Joe is immune
arising out of Joe's activities as a public official, (2) Jenkens from liability, Jenkens cannot be derivatively liable for Joe's
did not conclusively establish that Joe was immune from           actions. See DeWitt v. Harris County, 904 S.W.2d 650, 654
liability, and (3) fact issues existed as to proximate cause,     (Tex.1995) (holding that an employer is entitled to assert
damages, and waiver of a conflict of interest. Joe and Jenkens    any affirmative defenses—including official immunity—that
petitioned this Court for review.                                 its employee may assert); accord Harris County v. Louvier,
                                                                  956 S.W.2d 106, 110 n. 8 (Tex.App.-Houston [14th Dist.]
                                                                  1997, no pet.); see also Cameron Compress Co. v. Kubecka,
                                                                  283 S.W. 285, 287 (Tex.Civ.App.-Austin 1926, writ ref'd)
                   II. Standard of Review
                                                                  (Respondeat superior “declares the act of the servant to be
 [3] [4] [5] Jenkens moved for summary judgment under the act of the master, and that which excuses or justifies the
Texas Rules of Civil Procedure 166a(c) and 166a(i). Joe           one will in like manner excuse and justify the other.”). We
moved for summary judgment under Rule 166a(c). We                 therefore initially address the parties' contentions regarding
review the trial court's summary judgments de novo. See FM        legislative immunity for Joe's actions.
Props. Operating *157 Co. v. City of Austin, 22 S.W.3d
868, 872 (Tex.2000). When reviewing a summary judgment,            [6] [7] This Court has recognized that individuals acting
we take as true all evidence favorable to the nonmovant,          in  a legislative capacity are immune from liability for
and we indulge every reasonable inference and resolve any         those actions. In re Perry, 60 S.W.3d 857, 859 (Tex.2001).
doubts in the nonmovant's favor. Southwestern Elec. Power         Legislative immunity applies to legislators at the federal,
Co. v. Grant, 73 S.W.3d 211, 215 (Tex.2002); Sci. Spectrum,       state, regional, and local levels of government—including
Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex.1997). Under           city council members—who are performing “legitimate
Texas Rule of Civil Procedure 166a(c), the party moving for       legislative functions.” Bogan v. Scott–Harris, 523 U.S. 44,
summary judgment bears the burden to show that no genuine         53, 118 S.Ct. 966, 140 L.Ed.2d 79 (1998) (stating that
issue of material fact exists and that it is entitled to judgment legislative immunity extends to local legislators); Tenney
as a matter of law. Haase v. Glazner, 62 S.W.3d 795, 797          v. Brandhove, 341 U.S. 367, 376, 71 S.Ct. 783, 95 L.Ed.
(Tex.2001); Rhone–Poulenc, Inc. v. Steel, 997 S.W.2d 217,         1019 (1951) (noting that legislative immunity only protects
223 (Tex.1999). We affirm the summary judgment if any             actions within “the sphere of legitimate legislative activity”);
of the theories presented to the trial court and preserved for    In re Perry, 60 S.W.3d at 860; see, e.g., Clear Lake City
appellate review are meritorious. Cincinnati Life Ins. Co. v.     Water Auth. v. Salazar, 781 S.W.2d 347 (Tex.App.-Houston
Cates, 927 S.W.2d 623, 626 (Tex.1996); Carr v. Brasher, 776       [14th Dist.] 1989, orig. proceeding [leave denied] ); see
S.W.2d 567, 569 (Tex.1989).                                       also Lake Country Estates, Inc. v. Tahoe Reg'l Planning
                                                                  Agency, 440 U.S. 391, 402–05, 99 S.Ct. 1171, 59 L.Ed.2d
                                                                  401 (1979) (extending absolute immunity to members of a
                                                                  regional planning agency, which was created by two states'
      III. Jenkens's Motion for Summary Judgment                  compact and consented to by Congress); *158 Butz v.
                                                                  Economou, 438 U.S. 478, 511–13, 98 S.Ct. 2894, 57 L.Ed.2d
                    A. Conflict of Interest                       895(1978) (recognizing absolute immunity for Department
                                                                  of Agriculture officials when performing legislative and
239 JV claims that it retained Jenkens to assist it in selling 11 prosecutorial functions).
acres and that Joe's leadership role, discussion, preparation,



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                          7
Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150 (2004)
47 Tex. Sup. Ct. J. 1058

 [8]     [9]    The Court assumes, without deciding, that          he communicated with several constituents regarding the
Joe's activities in support of the moratorium on apartment         moratorium and their concerns about the increased number
construction created an impermissible conflict with his duties     of multi-family dwellings in the area. Just as voting to
to 239 JV as a Jenkens shareholder. We hold that legislative       impose and extend a moratorium on apartment construction
immunity shields Joe from liability for any conflict of interest   constituted a legitimate legislative function, so was Joe's
created by legitimate legislative functions undertaken in          involvement with his constituents regarding a pending issue
connection with his position as a city councilperson. We now       before the City Council. 2 Jenkens established *159 as a
analyze whether Jenkens established as a matter of law that        matter of law that the actions on which 239 JV bases the
the actions on which 239 JV based the alleged conflict of          alleged conflict of interest constitute legitimate legislative
interest constitute legitimate legislative functions.              functions.

239 JV's pleading claimed that Joe's “leadership role,             2      Texas Disciplinary Rule of Professional Conduct 1.13
discussion or vote” in favor of the moratorium created
                                                                          indicates that under some circumstances not present here,
a conflict of interest that adversely affected 239 JV.
                                                                          an attorney's involvement with certain public interest
Specifically, 239 JV claimed that Joe was the “acknowledged               activities could create a conflict of interest:
leader of the faction of Irving citizens who oppose[d]                         A lawyer serving as a director, officer or member
apartment construction.” 239 JV also alleged that Joe “used                    of a legal services, civic, charitable or law reform
the resources available to him at [Jenkens] and ... had legal                  organization, apart from the law firm in which the
research performed at his request and under his direction                      lawyer practices, shall not knowingly participate in
to further the interests of the citizens group opposed to                      a decision or action of the organization:
apartment construction and his political goals and interests to                (a) if participating in the decision would violate the
the detriment of 239 JV.”                                                      lawyer's obligations to a client under Rule 1.06; or
                                                                               (b) where the decision could have a material adverse
                                                                               effect on the representation of any client of the
Jenkens's summary judgment evidence establishes as a matter
                                                                               organization whose interests are adverse to a client
of law that the actions that 239 JV claims created a conflict
                                                                               of the lawyer.
of interest were legitimate legislative functions undertaken
                                                                            TEX. DISCIPLINARY R. PROF'L CONDUCT
by Joe as a councilperson. First, we consider Joe's vote in                 1.13, reprinted in TEX. GOV'T CODE, tit. 2,
favor of and discussion with council members regarding the                  subtit. G app. A. However, Rule 1.13 does not
moratorium. The text of the ordinance, the City Council                     encompass the legislative activity Joe engaged in as
minutes, and Joe's affidavit establish that the ordinance at                a city councilperson and instead limits an attorney's
issue was a law of general application based on concerns                    involvement in “legal services, civic, charitable
over zoning and commercial development facing the Irving                    or law reform organization[s].” In addition, we
community. Joe testified that he spoke in favor of the                      note that the Rules do not define standards of
moratorium at the September City Council meeting. Hewett's                  civil liability of lawyers for professional conduct.
deposition testimony that “[i]t was generally believed there                TEX. DISCIPLINARY R. PROF. CONDUCT
was a voting block, including Harry Joe, that Harry Joe                     PREAMBLE ¶ 15.
controlled” does not remove Joe's legislative acts from             [10] 239 JV's claims against Jenkens based on a conflict
the protection of legislative immunity. We hold that Joe's         created by Joe's legislative actions fail because 239 JV's
discussion, persuasion of colleagues, and vote on the              claims against Jenkens derive from Joe's actions. Because
ordinance were legitimate legislative functions.                   Joe is immune from liability for any conflict of interest
                                                                   that may have been created by acts within the sphere of
We also conclude that Joe's alleged leadership role                legitimate legislative activity, Jenkens cannot be liable for
in supporting the moratorium and opposing apartment                those activities or for a conflict of interest created by those
construction constituted legitimate legislative functions. Joe     activities. We conclude that the trial court properly granted
testified that citizens expressed concerns that an increasing      Jenkens's motion for summary judgment because Joe is
number of multi-family dwellings would impact crime,               immune from liability for failing to disclose a conflict of
gangs, schools, and parks in the area, and he concluded that       interest, and because of this immunity, Jenkens cannot be held
the moratorium was appropriate until Irving could adopt a          derivatively liable. See DeWitt, 904 S.W.2d at 654.
new comprehensive plan for development. Joe testified that



               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                      8
Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150 (2004)
47 Tex. Sup. Ct. J. 1058

We briefly address the summary judgment evidence showing          representation. See, e.g., Joseph, 3 S.W.3d at 639 (noting that
that Joe met with representatives from 239 JV to discuss          an attorney could not render ineffective representation to a
whether the 11–acre tract would be appropriate for a              criminal defendant on offenses for which she was not retained
waiver from the ordinance. 239 JV claims that Joe gave            to represent defendant); Klager v. Worthing, 966 S.W.2d 77,
its representatives legal advice that 239 JV was a good           83 (Tex.App.-San Antonio 1996, no writ) (holding that law
candidate to obtain a waiver. Whether Joe's comments could        firm did not assume a duty to supervise a client's medical
be construed as legal advice does not change our analysis. 239    care despite agreeing to represent client in silicone breast
JV complains that Joe's actions in favor of the moratorium        implant litigation); Restatement § 50 cmt. d (a lawyer is not
were contrary to 239 JV's interests and therefore constituted a   liable for failing to act beyond the scope of representation).
conflict of interest. We conclude that despite 239 JV's status    In fact, the lawyer may not act beyond the scope of the
as a Jenkens client and Joe's position as a shareholder in the    contemplated representation without additional authorization
firm, Joe is immune from liability for conflicts created by       from the client. Tex. Disciplinary R. Prof'l Conduct 1.02;
his legislative acts. Thus, even if Joe provided 239 JV with      Restatement § 16, cmt. c; § 27, cmt. e.
legal advice, Joe is immune from claims that his legislative
activities created a conflict with the client's interests.        [15] In this case, 239 JV argues that Joe and Jenkens
                                                                 had a duty to inform 239 JV of the September 7, 1994
                                                                 meeting. Viewing the facts in the light most favorable to
                                                                 239 JV, the scope of Jenkens's representation included Thau's
                  B. Scope of Representation
                                                                 reviewing and drafting sale documents for the 11–acre tract
 [11] 239 JV alleges that Joe and Jenkens committed legal but did not include representation of 239 JV in matters
malpractice by negligently failing to inform 239 JV of a         before the Irving City Council. Arthur Hewett, a principal
matter material to the representation, the September 7, 1994     in 239 JV, confirmed that 239 JV handled its planning and
Irving City Council meeting at which the moratorium on           zoning issues before the Irving City Council internally and
apartment construction passed. 239 JV claims that timely         that Jenkens never represented 239 JV in such matters. Such
disclosure of the impending Council vote on the moratorium       matters were thus beyond the agreed scope of representation
would have allowed it to grandfather its property under          between 239 JV and Jenkens. Moreover, the scheduling of
an exception to the moratorium and then consummate the           the September 7th Council meeting was a matter of public
pending contract on the 11–acre tract. To recover on a claim     record to which 239 JV had access. The nature of the meeting
for legal malpractice, the plaintiff must establish: (1) the     was publicly available, as evidenced by the fact that other
attorney owed the plaintiff a duty, (2) the attorney breached    developers took action to grandfather their plats upon learning
that duty, (3) the breach proximately caused the plaintiff's     of the pending moratorium. Because representing 239 JV
injuries, and (4) damages occurred. Peeler v. Hughes & Luce,     before the City Council was not included in the scope of
909 S.W.2d 494, 496 (Tex.1995).                                  Jenkens's representation, Jenkens had no duty to inform 239
                                                                 JV of the September 7, 1994 meeting. Thus, the trial court
 [12]     [13]     [14] Generally, a lawyer's fiduciary duties properly granted summary judgment in favor of Jenkens on
to a client, although extremely important, “extend[ ] only       239 JV's claim that Jenkens negligently failed to inform 239
to dealings within the scope of the underlying relationship      JV about the September 7, 1994 City Council meeting on the
of the parties.” See Rankin v. Naftalis, 557 S.W.2d 940,         moratorium.
944 (Tex.1977); see also Joseph v. State, 3 S.W.3d 627,
639 (Tex.App.-Houston [14th Dist.] 1999, no pet.) (“The
nature of the attorney-client relationship defines an attorney's          IV. Joe's Motion for Summary Judgment
duties and the professional services to be rendered.”); *160
Restatement (Third) of the Law Governing Lawyers § 16            Less than two months after 239 JV filed this lawsuit, Joe
cmt. c; § 50 cmt. d (2000) (a lawyer's duties are ordinarily     moved for summary judgment based solely on the affirmative
limited to matters covered by the representation). While it      defense of official immunity. 239 JV filed a motion for
is true that an attorney owes a client a duty to inform the      continuance and a response to Joe's motion for summary
client of matters material to the representation, Willis v.      judgment. The trial court denied 239 JV's motion for
Maverick, 760 S.W.2d 642, 645 (Tex.1988), this duty to           continuance and granted Joe's motion for summary judgment
inform does not extend to matters beyond the scope of the        on official immunity. The court of appeals reversed the trial



               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                            9
Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150 (2004)
47 Tex. Sup. Ct. J. 1058

court's denial of 239 JV's motion for continuance. We reverse     within the scope of Joe's authority as a city councilperson, and
the court of appeals and address the merits of Joe's motion for   (3) performed in good faith under an objective reasonableness
summary judgment on official immunity.                            standard. Ballantyne v. Champion Builders, Inc., 144 S.W.3d
                                                                  417, 422, 2004 WL 1533950 (Tex.2004); City of Lancaster
                                                                  v. Chambers, 883 S.W.2d 650, 656 (Tex.1994). In its motion
                                                                  for continuance, 239 JV argued that it needed additional
            A. 239 JV's Motion for Continuance
                                                                  discovery on the second element of official immunity,
In its motion for continuance, 239 JV argued that because         claiming that “serious questions exist as to whether [Joe]
the case had been on file for less than two months, 239 JV        acted as legal counsel for the City of Irving and certain
had been deprived of an adequate opportunity to conduct           of its constituents, rather than as councilman” and more
discovery to respond to Joe's motion for summary judgment.        time was required to investigate “the nature of the advice
239 JV also explained that its lead counsel had been in trial for provided by [Jenkens and Joe] to the City of Irving and
approximately three weeks during the pendency of 239 JV's         possibly members of the Valley Ranch Concerned Citizens
suit and attached an affidavit from counsel *161 in support.      Coalition, the faction of Irving citizens who oppose apartment
The trial court denied 239 JV's motion for continuance.           construction.” Specifically, 239 JV contended that it needed
                                                                  to depose Irving City Council members, members of the
 [16] [17] [18] The trial court may order a continuance citizens group, Jenkens representatives with knowledge of
of a summary judgment hearing if it appears “from the             the firm's representation of 239 JV, and the Irving city
affidavits of a party opposing the motion that he cannot for      attorney. 239 JV attached the affidavit of Arthur Hewett, one
reasons stated present by affidavit facts essential to justify    of its principals, in support of these contentions. Hewett's
his opposition.” Tex.R. Civ. P. 166a(g). When reviewing           affidavit stated that “from information available to me and
a trial court's order denying a motion for continuance, we        other representatives of 239 JV, it appears that Joe acted
consider whether the trial court committed a clear abuse          in the capacity as legal counsel to the City Council of the
of discretion on a case-by-case basis. BMC Software Belg.,        City of Irving and possibly gave legal advice to the citizens
N.V. v. Marchand, 83 S.W.3d 789, 800 (Tex.2002). A trial          group in Irving opposing apartment construction.” Attached
court abuses its discretion when it reaches a decision so         to Hewett's affidavit was a Jenkens invoice for reimbursement
arbitrary and unreasonable as to amount to a clear and            of research expenses regarding the moratorium, which Hewett
prejudicial error of law. Id. We have considered the following    claims was sent to the City of Irving, and notes from a
nonexclusive factors when deciding whether a trial court          Jenkens librarian regarding research she performed on the
abused its discretion in denying a motion for continuance         moratorium. Finally, 239 JV attached correspondence in
seeking additional time to conduct discovery: the length of       which attorneys for 239 JV attempted to work with opposing
time the case has been on file, the materiality and purpose       counsel to schedule depositions.
of the discovery sought, and whether the party seeking
the continuance has exercised due diligence to obtain the          *162 We cannot conclude that the trial court's denial of
discovery sought. Id. (diligence and length of time on file);     the  motion was so arbitrary and unreasonable as to amount
Tenneco Inc. v. Enter. Prods. Co., 925 S.W.2d 640, 647            to a clear and prejudicial error of law. See Marchand, 83
(Tex.1996) (materiality and purpose); Nat'l Union Fire Ins.       S.W.3d at 800–01. We acknowledge 239 JV's attempts to
Co. v. CBI Indus., Inc., 907 S.W.2d 517, 521–22 (Tex.1995)        obtain the requested discovery in the short time the case was
(materiality); State v. Wood Oil Distrib., Inc., 751 S.W.2d       on file and see no indication that 239 JV was merely trying
863, 865 (Tex.1988) (diligence); see also Perrotta v. Farmers     to delay the summary judgment hearing. However, we do not
Ins. Exch., 47 S.W.3d 569, 576 (Tex.App.-Houston [1st             agree that the discovery sought by 239 JV was material to its
Dist.] 2001, no pet.) (using these factors to decide whether      response to Joe's motion for summary judgment on official
a trial court abused its discretion in denying a motion for       immunity. 239 JV describes its claims as arising from Joe
continuance).                                                     and Jenkens's failure to disclose a conflict of interest created
                                                                  by Joe's involvement with the moratorium while Jenkens
 [19] [20] Here, Joe's motion for summary judgment raised represented 239 JV in ongoing efforts to sell a tract of land
a single defense to 239 JV's claims—official immunity.            for an apartment building and failure to disclose matters that
Official immunity protects Joe from liability if the actions of   were material to Jenkens's representation of 239 JV (including
which 239 JV complains were (1) discretionary duties, (2)         the Council's September 1994 special meeting to consider



               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                            10
Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150 (2004)
47 Tex. Sup. Ct. J. 1058

the moratorium). 239 JV argued that to respond to Joe's             Westlaw research cover page containing written notes, and
defense that he was officially immune from any liability            the minutes from the June 22, 1995 Irving City Council
from these causes of action, it needed additional discovery to      meeting.
determine whether Joe acted as legal counsel for the City of
Irving and possibly a faction of Irving citizens who opposed        3      239 JV objected to Joe's affidavit because (1) the
apartment construction in the area and to uncover the nature               affidavit failed to state that the affidavit is based upon
of the advice Joe and Jenkens provided to the City and the                 Joe's personal knowledge and that the facts stated are
citizens group. However, none of the discovery described                   true and correct and (2) the final paragraph is improper
could have raised a fact issue as to whether Joe was acting                affidavit testimony because it contains legal conclusions
within the scope of his authority as a city councilperson                  not supported by factual assertions and because Joe is not
as he conducted legal research on issues related to the                    authorized to testify about whether Jenkens represented
moratorium, met with constituents, prepared for the City                   239 JV. On July 10, 1997, Joe filed motion for leave to
Council meetings, and participated in the deliberation and                 file an amended affidavit, which the trial court granted.
                                                                           Joe's amended affidavit explicitly stated that it was based
vote at the Council meeting. These are the type of activities
                                                                           on personal knowledge and that the facts included in his
that Joe has a duty to participate in as a city councilperson
                                                                           affidavit were true and correct. Joe also filed objections
and therefore fall well within the scope of his authority as a
                                                                           to Arthur Hewett's affidavit, which was attached to 239
public official. The fact that Joe, as a City Council member,              JV's response to Joe's motion for summary judgment.
utilized his legal experience in evaluating and discussing                 The record does not indicate that the trial court ruled
issues on the Council's agenda does not mean that he became                on either parties' objections but on July 11, 1997
the Council's attorney. We conclude 239 JV failed to identify              granted Joe's motion for summary judgment, relying on
“facts essential to justify [its] opposition” to Joe's motion for          “the Motion, supporting affidavits, the Response and
summary judgment, and therefore, the trial court did not abuse             supporting affidavits (to the extent admissible), and the
its discretion in denying 239 JV's motion for continuance.                 pleadings.” We consider Joe's amended affidavit and
                                                                           Hewett's affidavit as filed.
                                                               239 JV claims that Joe's position and actions related to the
                    B. Official Immunity                       moratorium created an impermissible conflict of interest that
                                                               Joe had a duty to avoid or disclose to 239 JV. Assuming
 [21] [22] In reviewing the trial court's summary judgment that a conflict of interest between Joe's obligations to 239
in favor of Joe on official immunity, we consider whether      JV as a firm client and his actions as a city councilperson
Joe established each element of the defense as a matter of     existed, we hold that official immunity extends to protect Joe
law. Ballantyne, 144 S.W.3d at 424. A city councilperson is    from liability for any conflict of interest that his vote or other
immune from liability for actions taken (1) within the scope   discretionary duties undertaken in good faith and within the
of authority (2) in performing the discretionary duties of the scope of his authority as a councilperson may have created.
office in (3) good faith. See id. In his motion for summary    We now analyze whether Joe established as a matter of law
judgment, Joe argues that “on the occasions in question        that he was acting in good faith and within the scope of
he was performing his discretionary duties as Irving City      his authority as a city councilperson in performance of the
Councilperson and Mayor Pro Tem, in good faith, and was        discretionary duties of the office.
acting within his authority as City Councilperson and Mayor
Pro Tem” and is therefore, immune from suit. Joe attached      In his affidavit, Joe explains that he was a member of
his affidavit to support his motion. 3 239 JV contended that   the Irving City Council on September 7, 1994, and after
“serious *163 questions exist as to whether [Joe] acted        considering alternative courses of action, he voted to adopt
in good faith and within the scope of his authority.” 239      an ordinance that imposed a moratorium on the acceptance
JV contends its evidence creates a fact issue that precludes   and processing of multi-family development permits for
summary judgment in favor of Joe. 239 JV attached the          90 days at the September 7 City Council meeting. We
following evidence to its response: the affidavit of Arthur    conclude that Joe's affidavit established as a matter of law
Hewett (a principal of 239 JV), Jenkens's billing statements   that his actions involved personal deliberation, decision,
addressed to 239 JV, a letter to the Irving city attorney      and judgment characteristic of a discretionary act that was
from Bill Thau, two memos from the city attorney to Joe,       delegated to him as a public official. See Ballantyne, 144
an unaddressed expense reimbursement from Jenkens, a           S.W.3d at 425. In its response to Joe's motion for summary



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                 11
Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150 (2004)
47 Tex. Sup. Ct. J. 1058

judgment, 239 JV did not dispute that Joe was performing
discretionary duties as a councilperson.                                      I was present at the Irving City
                                                                              Council Meeting held on or about
Joe's affidavit establishes that voting on the moratorium                     June 22, 1995, wherein 239 JV's
was within the scope of his authority as an Irving city                       request for an exemption from the
councilperson, and 239 JV does not dispute that. However,                     moratorium was considered. At one
239 JV argues that Joe's other activities concerning the                      point during the meeting, a gentleman
moratorium fall outside the scope of Joe's authority as a                     named Jim Parrow, identified himself
councilperson. Joe's affidavit states that in the spring of                   by name and as a proponent of the
1995, he conducted legal research, with the assistance of                     moratorium. This gentleman then cited
his firm's librarian, to study the legality of extending the                  5th Circuit case law to the City
moratorium because of threatened litigation against the City                  Council in support of the legality of
regarding the legality of the moratorium and “to confirm that                 the moratorium. Based upon these
an extension of the moratorium was in Irving's best interest.”                and other facts, it is my belief that
In its response to Joe's motion for summary judgment, 239                     Mr. Joe requested that legal research
JV argues that Joe's legal research on the legality of the                    be performed at [Jenkens] for the
moratorium was inappropriate because (1) his actions were                     purpose of advising the Irving City
beyond the scope of authority of a councilperson and created                  Council of the power of the City
an attorney-client relationship between the City and Joe, and                 Council to impose the moratorium and
(2) Joe developed an attorney-client relationship with the                    supporting the citizens group favoring
Citizen's Coalition Group in Irving by “apparently [giving]                   the moratorium.
citizens of Irving the legal research he developed to help them
                                                                  Nothing in this paragraph indicates that Joe served as a
further his cause.” 239 JV argues that these actions created a
                                                                  lawyer for a citizens group. Hewett's speculation is not
conflict of *164 interest that Joe was required to avoid or
                                                                  evidence of an attorney-client relationship between Joe and
disclose and resolve with 239 JV.
                                                                  a citizens group and therefore, does not create a fact issue
                                                                  on whether Joe was acting outside the scope of his authority
 [23] We conclude that 239 JV's evidence does not create
                                                                  as a councilperson during his interactions with constituents
a fact issue that Joe was acting beyond the scope of his
                                                                  or during his preparations and research for city council
authority as a city councilperson. Conducting legal research
                                                                  meetings. Joe's evidence establishes that he acted within the
in preparation for a city council vote does not create an
                                                                  scope of his authority as a councilperson as a matter of law.
attorney-client relationship between Joe and the City, and
sharing that information with fellow council members as part
                                                                   [25] [26] We now turn to whether Joe acted in good faith
of deliberations does not change that conclusion. 239 JV
                                                                  while executing the discretionary functions required of him as
points to a Jenkens billing statement titled “Gen. Expense
                                                                  a city councilperson. To determine whether a public official
Reimbursement–H. Joe” as evidence that Joe and the City
                                                                  has acted in good faith, we use an objective standard, asking
had an attorney-client relationship. The statement, which
                                                                  whether a reasonably prudent official, under the same or
239 JV argues was submitted to the City for payment, is
                                                                  similar circumstances, could have believed that his conduct
an administrative reimbursement for the librarian's retrieval
                                                                  was justified based on the information he possessed when the
of requested case law and did not include any charges for
                                                                  conduct occurred. Ballantyne, 144 S.W.3d at 426; Chambers,
Joe's services. Thus, Joe's motion for summary judgment
                                                                  883 S.W.2d at 656. The standard of good faith as an element
establishes that Joe's research was in preparation for a city
                                                                  of official immunity is not a test of carelessness or negligence,
council meeting, was not part of legal services provided to
                                                                  or a measure of an official's motivation. Ballantyne, 144
the City of Irving, and does not create an attorney-client
                                                                  S.W.3d at 426.
relationship between Joe and the City as a matter of law.

                                                                  Joe's motion for summary judgment and accompanying
 [24] The only evidence that 239 JV cites to support its
                                                                  affidavit establishes that he acted in objective good faith
contention that Joe developed an attorney-client relationship
                                                                  when he prepared for the Council meetings and voted on
with the Citizen's Coalition Group in Irving is the following
                                                                  the moratorium and its extensions. In his affidavit, Joe
paragraph from Hewett's affidavit:
                                                                  details Irving's growing number of multi-family dwellings


               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                          12
Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150 (2004)
47 Tex. Sup. Ct. J. 1058

                                                                    completely disregard his private clients in pursuing his
compared to single family residences and contrasts that ratio
                                                                    political agenda thereby ignoring potential conflict issues.”
to neighboring communities *165 with specific numbers.
                                                                    Neither this argument, nor 239 JV's evidence in response to
He explains his constituents' and the mayor's concerns
                                                                    Joe's motion for summary judgment, refute Joe's evidence
regarding the increase of multi-family dwellings in Irving
                                                                    that he acted in objective good faith. Joe established, as a
and the increasing ratio of multi-family dwellings to single
                                                                    matter of law, that a reasonably prudent official, under the
family dwellings. In addition, Joe states that the council
                                                                    same or similar circumstances, could have believed that his
members, including himself, considered alternative actions
                                                                    conduct, preparing for and voting in favor of the moratorium,
before voting to impose a temporary moratorium on the
                                                                    was justified. Thus, Joe established as a matter of law
acceptance and processing of multi-family development
                                                                    that he was officially immune from liability for the alleged
permits. In his affidavit, Joe also explains that when the
                                                                    conflict of interest arising from his activities as an Irving city
City Council considered extending the moratorium in May
                                                                    councilperson.
1995, Joe “concluded that the moratorium should in fact
be extended, at least until the City of Irving was able to
adopt a new comprehensive plan for further multi-family
development” “[a]s a result of input from citizens, and based                               V. Conclusion
upon [his] own observations.”
                                                                    For the foregoing reasons, we reverse the court of appeals'
239 JV's response to Joe's motion for summary judgment              judgment and render judgment that 239 JV take nothing.
provides no relevant evidence to support its contention that
Joe failed to act in objective good faith when voting on
the moratorium or conducting research in preparation to             Justice SCHNEIDER did not participate in the decision.
vote on the moratorium. Instead, in its briefing to this
Court, 239 JV argues that “Joe misrepresented the existing          All Citations
attorney-client relationship between [Jenkens] and 239 JV
to avoid any accusations of a conflict of interest” and             145 S.W.3d 150, 47 Tex. Sup. Ct. J. 1058
that “[n]o reasonable private attorney/public official would

End of Document                                                 © 2015 Thomson Reuters. No claim to original U.S. Government Works.




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                               13
Kinzbach Tool Co. v. Corbett-Wallace Corp., 138 Tex. 565 (1942)
160 S.W.2d 509

                                                                               Nature of Agent's Obligation
                      	
                                        It is the duty of a fiduciary to deal openly and to
                 			
                                  make full disclosure to the party with whom he
                                                                          stands in such relationship.
             ! "#$"
                      %                                                  22 Cases that cite this headnote
        &'(!!' &) & 	*
                                                                    [3]   Principal and Agent
             +, - .$/0"10,                                     Nature of Agent's Obligation
           - &	/	2#34	#2	52*"10,
                                                                          One occupying a fiduciary relationship to
Error from Court of Civil Appeals for First Supreme Judicial              another must measure his conduct by high
District, Harris County.                                                  equitable standards and not by the standards
                                                                          required in dealings between ordinary parties.
Suit by the Kinzbach Tool Company, Inc., against the
                                                                          29 Cases that cite this headnote
Corbett-Wallace Corporation and G. E. Turner to establish
a trust against the amount of a commission to be paid
by the first-named defendant to the last-named defendant,           [4]   Principal and Agent
which suit was consolidated with a suit by the Corbett-                       Acting for Parties Adversely Interested
Wallace Corporation against the Kinzbach Tool Company,                    Where seller of contract right had agreed to
Inc., to recover the amount alleged to be due under a                     pay commission to buyer's trusted employee if
contract involving sales rights to a patented tool known as a             employee was successful in negotiating sale, but
‘whipstock’, wherein the defendant filed a cross-action. To               directed that employee refrain from disclosing
review a judgment of the Court of Civil Appeals, 145 S.W.2d               price for which the seller would sell, it was
235, reversing the judgment of the district court in favor of the         the duty of employee as a fiduciary, on being
Corbett-Wallace Corporation, the Kinzbach Tool Company,                   instructed by buyer to get a price, to give buyer
Inc., brings error.                                                       such information and disclose that he was getting
                                                                          a commission from the seller.
Judgments of the Court of Civil Appeals and the district court
reversed and the cause remanded with instructions.                        3 Cases that cite this headnote


                                                                    [5]   Principal and Agent
 West Headnotes (12)                                                          Acting for Parties Adversely Interested
                                                                          Where seller of contract right agreed to pay
                                                                          buyer's trusted employee a commission for
 [1]     Principal and Agent                                              negotiating the sale and employee successfully
             Acting for Parties Adversely Interested                      negotiated the sale without disclosing to buyer
         Where seller promised to pay commission                          amount for which seller would have been willing
         to buyer's trusted employee if employee was                      to sell, or fact that employee was to receive
         successful in negotiating sale of a contract right,              a commission from seller, employee and seller
         relationship of employee to buyer was that of                    could not justify payment of commission to
         a “fiduciary”, and employee in representing                      employee on ground that buyer suffered no
         both parties without disclosing to buyer his                     damages because he received full value under the
         adverse interest in the deal violated his duty as                sales agreement.
         a fiduciary.
                                                                          1 Cases that cite this headnote
         36 Cases that cite this headnote

                                                                    [6]   Trusts
 [2]     Principal and Agent


                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                             1
Kinzbach Tool Co. v. Corbett-Wallace Corp., 138 Tex. 565 (1942)
160 S.W.2d 509

             Individual Interest in Transactions                     negotiating the sale, and after the deal was closed
        Where a fiduciary takes any gift in violation                seller paid employee $500 and agreed to pay an
        of his duty or acquires an interest adverse                  additional $500 when buyer made installment
        to his principal without a full disclosure, he               payment of $2,500, buyer on learning the facts
        has betrayed his trust and must account to his               properly tendered $1,500 only in full settlement
        principal for all he has received.                           of the installment, since it had right to deduct
                                                                     amount already paid to employee by seller and
        16 Cases that cite this headnote                             amount agreed to be paid from proceeds of
                                                                     installment.
 [7]    Principal and Agent                                          4 Cases that cite this headnote
            Nature of Agent's Obligation
        Where seller of contract right agreed to pay
                                                              [11]   Tender
        commission to buyer's trusted employee for
                                                                         Refusal to Accept
        negotiating sale and employee negotiated the
        sale without disclosing to buyer that he was                 An actual tender is not required when party to
        acting in a dual capacity, fact that buyer had               whom money is due has signified in advance that
        not complained of prior similar conduct by                   he will refuse to accept it.
        employee did not justify employee's violation of
                                                                     9 Cases that cite this headnote
        his fiduciary relationship.

        4 Cases that cite this headnote                       [12]   Sales
                                                                          Excuses for Default or Delay
 [8]    Principal and Agent                                          Where buyer's trusted employee had breached
            Torts by Third Persons                                   his fiduciary obligation by acting for seller
        A third party knowingly participating in a breach            in negotiating sale, and seller rejected buyer's
        of duty by a fiduciary becomes a joint tort-feasor           tender, in settlement of first installment, of
        with the fiduciary and is liable as such.                    amount of installment less commission paid by
                                                                     seller to employee and amount agreed to be
        86 Cases that cite this headnote                             paid from proceeds ofinstallment, no further
                                                                     tenders were required of buyer, since it was
                                                                     obvious that tender of subsequent installments
 [9]    Principal and Agent
                                                                     with employee's commission deducted would be
            Torts by Third Persons
                                                                     rejected.
        Where seller of contract right without buyer's
        knowledge agreed to pay buyer's trusted                      9 Cases that cite this headnote
        employee a commission for negotiating sale,
        seller became a party to employee's breach of his
        fiduciary duty and therefore became a joint tort-
        feasor with employee with regard to rights of the    Attorneys and Law Firms
        buyer.
                                                              **510 Kayser, Liddell, Benbow & Butler, Frank A. Liddell,
        44 Cases that cite this headnote                     and *566 Hardway, Woodruff & Austin, all of Houston, for
                                                             plaintiff in error.
 [10]   Principal and Agent
                                                             Sewell, Taylor, Morris & Connally, of Houston, for defendant
            Acting for Parties Adversely Interested
                                                             in error turner.
        Where seller of contract right without buyer's
        knowledge had agreed to pay buyer's trusted          T. J. Stovall and W. F. Tarver, both of Houston, for defendant
        employee a commission of $5,000 for                  in error Corbett-Wallace Corporation.



              © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                          2
Kinzbach Tool Co. v. Corbett-Wallace Corp., 138 Tex. 565 (1942)
160 S.W.2d 509

                                                                  of these interviews were the instructions to Turner above
Opinion                                                           mentioned altered.
CRITZ, Justice.
                                                                  At the times above mentioned, and at all times involved
The pertinent facts of this case, as presented by the record,     in this case, Turner was a trusted employee of Kinzbach,
viewed in the light of the trial court's findings and judgment,   receiving a regular monthly salary. His duties were to sell
are as follows:                                                   Kinzbach's products, and he performed such other services as
                                                                  his employer directed.
This suit grows out of a transaction had between Kinzbach
Tool Company and the Corbett-Wallace Corporation, both            After the conversation between E. B. Corbett and Turner,
private corporations. For convenience, we will hereinafter        above detailed, Turner approached the officers of Kinzbach
refer to the Corbett-Wallace Corporation as Corbett, and to        **511 about buying the whipstock contract from Corbett.
Kinzbach Tool Company as Kinzbach. During the time here           Kinzbach advised Turner that they were interested. Frank
involved, Kinzbach and Corbett were engaged in the oil field      Kinzbach, the president of Kinzbach, expressly instructed
tool business in the City of Houston, Texas. In March, 1937,      Turner to find out what Corbett would sell for, but not to quote
Corbett was owner of a sales right contract on a patented tool    any price.
called ‘whipstock.’ Corbett decided that it would make an
attempt to sell such contract right to Kinzbach. E. B. Corbett,   It appears that there were several conversations regarding this
was the present of Corbett and its majority stockholder.          deal between E. B. Corbett and Wallace, and Turner, on the
Robert Kinzbach was the vice president of Kinzbach. E.            one hand, and Frank Kinzbach, Robert Kinzbach, and Turner,
B. Corbett and Robert Kinzbach were unfriendly with each          on the other. At some time during these conversations *568
other. About March 1, 1937, E. B. Corbett sent word to            Turner was advised by Kinzbach that it would probably be
one G. E. Turner, an employee of Kinzbach, that he wanted         willing to pay as much as $25,000 for the whipstock contract.
to see him. *567 E. B. Corbett knew that Turner was
an employee of Kinzbach. In response to E. B. Corbett's           At none of the conversations between Turner and his
message, Turner went to see him. At such meeting E. B.            employer, Kinzbach, did Turner ever disclose that he was to
Corbett told Turner that Corbett wanted to sell the whipstock     get a commission from Corbett if the whipstock contract was
contract to Kinzbach. Corbett then told Turner to see what        sold to it, Kinzbach. Furthermore, Turner never in any way
he could do, and come back and report. In this interview          disclosed to Kinzbach that Corbett might take $20,000, and
Corbett agreed to pay Turner a commission if the whipstock        even pay him a commission out of that amount. All this was
contract was sold to Kinzbach. Also, in this interview Corbett    in spite of the fact that Turner had been instructed by his
informed Turner that it wanted $20,000 for the whipstock          employer to get from Corbett this very information.
contract, and would pay Turner a commission out of that
figure. In such interview Corbett instructed Turner not to        After the above events had transpired, and as a culmination
mention to his (Turner's) employer, Kinzbach, what the            of prior events, Frank Kinzbach, acting for Kinzbach, and
whipstock contract could be bought for. The general trend         W. F. Tarver, acting for Corbett, closed a deal by which
of this conversation between E. B. Corbett and Turner was         Kinzbach agreed to pay Corbett $25,000 for this whipstock
that Turner was given to understand that Corbett wanted to        contract. Under such sale contract Kinzbach paid Corbett
get as much as possible from Kinzbach for the whipstock           $2,500 in cash. The balance, $22,500, was made payable
contract, and would not take less than $20,000 for it. Turner     $2,500 January 1, 1938, and $5,000 on June 1st of each
was cautioned not to make known this figure to his employer.      succeeding year until the full purchase price was paid. The
Turner was to see what Kinzbach would pay, but was not to         deferred payments were to bear no interest until maturity.
give Kinzbach any information as to what Corbett wanted for       A right of acceleration of installments was provided in the
the contract. Turner was to get Kinzbach to make Corbett an       event of default in the payment of any installment for six
offer, but was not to give him any information as to price.       months. The contract also provided for the usual ten per cent.
It appears that E. B. Corbett, and also one Wallace, vice         attorney's fees. It is not shown that W. F. Tarver had any
president of Corbett, had many interviews with Turner after       knowledge of any transactions with Turner.
the first one above detailed, in regard to this deal. In none




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                             3
Kinzbach Tool Co. v. Corbett-Wallace Corp., 138 Tex. 565 (1942)
160 S.W.2d 509

After the above deal was fully consummated, Kinzbach               Kinzbach answered Corbett's amended petition. In such
for the first time discovered that Turner was to receive a         answer Kinzbach pleaded as before, and, in addition thereto,
commission of $5,000 for the sale of this whipstock contract        **512 pleaded estoppel against Corbett. Corbett asserted the
to it. Kinzbach immediately discharged Turner. It appears that     right to mature its entire contract.
prior to the consummation of the deal Corbett had agreed
to pay Turner a commission, but had not agreed what it             Simply stated, Kinzbach prosecutes and defends this suit
would be. After the deal was closed Corbett paid Turner            on the theory that the facts we have recited constitute such
$500, being twenty per cent. of the $2,500 cash paid by            wrongful conduct on the part of Corbett and Turner as entitled
Kinzbach. Corbett further agreed to pay Turner twenty per          it, Kinzbach, to recover against them the $5,000 commission
cent. additional, if and when the balance of the payments were     paid, and agreed to be paid, by Corbett to Turner. As we
made. This left $4,500 of Turner's commission unpaid. Under        understand its pleadings, brief, and argument, Kinzbach in
their agreement Turner was to get $500 when Kinzbach made          effect contends that it is entitled to have its first $2,500
payment of the first $2,500 deferred installment, and $1,000       deferred installment credited by $1,000 being the $500 paid
out of each of the four $5,000 deferred installments, when         Turner and the $500 he would get out of the proceeds of
paid.                                                              such installment if paid. Kinzbach then contends that it *570
                                                                   is entitled to have the four $5,000 installments credited by
When the first deferred installment of $2,500 on this contract     $1,000 each. Of course, if this is done, it would follow that
became due, Kinzbach, having found out about Turner's              Corbett's obligation to Turner for $4,500 should be cancelled.
commission, tendered to Corbett the sum of $1,500 in full
 *569 settlement thereof. Such tender was made on the theory       The district court, where the case was tried without a jury,
that the $2,500 installment should be credited by the $500         entered the following judgment:
commission theretofore paid by Corbett to Turner, and by the
additional $500 that Turner was to receive out of the proceeds     1. Kinzbach was awarded a judgment against Turner for $500,
of such first deferred installment. This tender was rejected       being the commission Corbett had paid Turner on the $2,500
by Corbett. On June 23, 1938, Kinzbach tendered to Corbett         cash payment made by Kinzbach to Corbett.
the sum of $2,500, on the condition that Corbett would give
Kinzbach a receipt showing that such payment was made and          2. Corbett was awarded a judgment cancelling its obligation
received without prejudice to any rights Kinzbach might have       to pay Turner $4,500, and the obligation of Kinzbach to
against Corbett and Turner. This additional tender was also        Corbett was credited by that sum.
rejected by Corbett. In November, 1938, Kinzbach tendered
to Corbett the $2,500 installment unconditionally. This tender     3. Corbett was adjudged to have rightfully accelerated the due
was also rejected by Corbett.                                      dates of the installments due under the contract between it and
                                                                   Kinzbach.
After the above events, Kinzbach filed suit against Corbett
and Turner, seeking to establish a trust against the $5,000 to     4. It was adjudged that Corbett had the right to recover from
be paid Turner. Also, on the same day the Kinzbach suit was        Kinzbach the ten per cent. attorney's fees on the sum of
filed, Corbett filed suit in the same court against Kinzbach, to   $22,500 represented by the face of the Kinzbach contract.
recover the $2,500 installment due June 1, 1938, with ten per
cent. attorney's fees. This installment was past due. Both suits   As a final result of the above, as between Corbett and
were consolidated and tried as one. Kinzbach answered the          Kinzbach, Corbett recovered a judgment from Kinzbach for
Corbett suit, and set up its defenses, and asked for affirmative   $20,250. We infer that this sum was arrived at by taking
relief by way of cross-action against both Corbett and Turner.     the face of the Kinzbach contract, $22,500, and adding ten
                                                                   per cent. thereof thereto, $2,250, as attorney's fees, and
During the pendency of this suit Corbett filed an amended          then deducting from the sum produced the cancelled Turner
petition, in which it sought to mature this entire contract        commission of $4,500.
with Kinzbach, and sought recovery thereon in the amount of
$22,500, with ten per cent. attorney's fees, $2,250.               On appeal thereto, the Court of Civil Appeals ruled:




                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                            4
Kinzbach Tool Co. v. Corbett-Wallace Corp., 138 Tex. 565 (1942)
160 S.W.2d 509

(1) That Corbett's obligation to pay Turner was valid in all        obligation, as the basis of the transaction. The term includes
respects; and, therefore, same should not be cancelled or           those informal relations **513 which exist whenever one
annulled.                                                           party trusts and relies upon another, as well as technical
                                                                    fiduciary relations. 25 C.J. p. 1118; Peckham v. Johnson,
(2) That Kinzbach's $22,500 obligation to Corbett should not        Tex.Civ.App., 98 S.W.2d 408; Johnson v. Peckham, 132 Tex.
be credited by the sum of $4,500.                                   148, 120 S.W.2d 786, 120 A.L.R. 720; Swiney v. Womack,
                                                                    343 Ill. 278, 175 N.E. 419; Abbitt v. Gregory, 201 N.C. 577,
(3) That Turner was rightfully entitled to retain the $500 paid     160 S.E. 896; Niland v. Kennedy, 316 Ill. 253, 147 N.E. 117;
him by Corbett.                                                     Lindholm v. Nelson, 125 Kan. 223, 264, P. 50; Roecher v.
                                                                    Story, 91 Mont. 28, 5 P.2d 205; Roberts v. Parsons, 195 Ky.
(4) That in all other respects than as above shown, the             274, 242 S.W. 594; Seely v. Rowe, 370 Ill. 336, 18 N.E.2d
judgment of the district court should be affirmed.                  874; Bliss v. Bahr, 161 Or. 79, 87 P.2d 219. Authorities could
                                                                    be cited from practically every State in the Union, supporting
As a result of the above rulings, the Court of Civil Appeals        the above-stated rule, but we deem that the ones above cited
reversed the judgment of the trial court, and rendered              are sufficient.
judgment as follows:
                                                                     *572 [1] We now come to determine whether Turner
 *571 I. The judgment of the trial court cancelling Corbett's       occupied the relationship of a fiduciary to Kinzbach in
$4,500 obligation to Turner was reversed, and such obligation       his transactions regarding this deal. During the negotiations
was decreed to be valid and binding.                                leading to the consummation of this contract, Turner was a
                                                                    trusted employee of Kinzbach, receiving his pay regularly
II. The judgment of the trial court in favor of Kinzbach and        by the month. He had been such employee for some seven
against Turner for $500 was reversed, and judgment rendered         years. His duties were to act as a salesman, but he rendered
that Kinzbach take nothing against Turner.                          such other services as his employer instructed. Corbett and
                                                                    Kinzbach were not friendly with each other, and could
III. Corbett was awarded a judgment against Kinzbach for            not deal directly. Turner knew this. Corbett decided that it
the sum of $22,500, plus $2,250 attorney's fees, or a total of      wanted to sell this whipstock contract to Kinzbach. Corbett
$24,750. 145 S.W.2d 235.                                            called Turner, Kinzbach's employee, over the telephone, and
                                                                    arranged an interview with him. At this interview Corbett
This case is before this Court on writ of error granted on          informed Turner that it wanted to sell this whipstock contract
application of Kinzbach.                                            to Kinzbach. In this interview Corbett instructed Turner to
                                                                    see what he could do, and stated that if the deal was made
As we interpret the opinion of the Court of Civil Appeals, it       it ‘would take care of him’; meaning Turner would be paid
holds that Turner had a lawful right in this instance to contract   for his services. In this conversation Corbett gave Turner
for and accept a secret commission from Corbett, for services       to understand that it might sell the whipstock contract to
rendred Corbett in assisting it to sell this whipstock contract     Kinzbach for $20,000, and would pay him a commission
to Kinzbach. We interpret such holding to be based upon the         out of that sum. Also, in this interview Turner was told to
further holding that Turner did not occupy the status of a          keep secret from his employer, Kinzbach, what the whipstock
fiduciary of Kinzbach in the transactions he had with Corbett       contract could be bought for, as Corbett wanted to get as much
and Kinzbach, in an effort to further the consummation of           as it could for it. Turner carried out Corbett's instructions, and
the contract in question here. We are not in accord with such       approached his employer, Kinzbach, in regard to the purchase
holding.                                                            of the whipstock contract. Kinzbach advised Turner that it
                                                                    was interested in making the purchase, and instructed Turner
The term ‘fiduciary’ is derived from the civil law. It              to find out what Corbett would sell for, but not to quote it a
is impossible to give a definition of the term that is              price. To make a long story short, Turner, Kinzbach's trusted
comprehensive enough to cover all cases. Generally speaking,        employee, permitted his employer to consummate a contract
it applies to any person who occupies a position of peculiar        whereby it bought for $25,000 that which he, Turner, knew
confidence towards another. It refers to integrity and fidelity.    might be bought for $20,000. Turner purportedly accepted the
It contemplates fair dealing and good faith, rather than legal      instructions of his employer to see what the contract could



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                               5
Kinzbach Tool Co. v. Corbett-Wallace Corp., 138 Tex. 565 (1942)
160 S.W.2d 509

be bought for, without disclosing to it that it could be bought
for $20,000, and without disclosing to it the fact that he was         [5] [6] It is beside the point for either Turner or Corbett
acting for the opposite side in the deal for a profit to himself.     to say that Kinzbach suffered no damages because it received
Certainly such a record justified the trial court in concluding       full value for what it has paid and agreed to pay. A fiduciary
that Turner had no right to collect a commission from Corbett.        cannot say to the one to whom he bears such relationship:
Further, we think that the above record shows, as a matter            You have sustained no loss by my misconduct in receiving a
of law, that Turner abused his fiduciary relationship with            commission from a party opposite to you, and therefore you
Kinzbach. Certainly good conscience and fair dealing called           are without remedy. It would be a dangerous precedent for
on Turner, as a trusted employee of Kinzbach, when he was             us to say that unless some affirmative loss can be shown,
told by it to get a price from Corbett, to disclose his adverse       the person who has violated his fiduciary relationship with
interest in the deal. His failure to do this was a violation of his   another may *574 hold on to any secret gain or benefit he
duty, and, therefore, a wrongful act.                                 may have thereby acquired. It is the law that in such instances
                                                                      if the fiduciary ‘takes any gift, gratuity, or benefit in violation
 *573 Turner contends that he committed no wrong against              of his duty, or acquires any interest adverse to his principal,
his employer, Kinzbach, in rendering services to Corbett,             without a full disclosure, it is a betrayal of his trust and a
(a) because the matter was entirely separate and apart from           breach of confidence, and he must account to his principal for
the ordinary course of his employ ment with Kinzbach; (b)             all he has received.’ United States v. Carter, 217 U.S. 286,
because he did not purport to represent either Kinzbach or            30 S.Ct. 515, 520, 54 L.Ed. 769, 775, 19 Ann.Cas. 594. See
Corbett in the transaction, and had no authority to represent         also Ash v. A. B. Frank Co., Tex.Civ.App., 142 S.W. 42;
them; (c) because he violated no confidence or breach of duty         Armstrong v. O'Brien, 83 Tex. 635, 19 S.W. 268.
to Kinzbach; (d) because Kinzbach suffered no damage or
loss as a result of his, Turner's, acts; and (e) because Kinzbach[7] It is contended that on a former occasion, in a matter
had allowed Turner to do a similar act once before. Corbett,    involving a small amount, Turner was guilty of conduct
in substance, makes the same contentions as does Turner.        similar to this as regards Kinzbach, and that Kinzbach knew
                                                                such fact and did not complain thereof. We do not think that
 [2] [3] [4] We are unable to agree that the facts of this the mere fact that Kinzbach may have overlooked such former
case bring it within any rule that would make Turner's act and  act, licensed Turner, as a matter of law, to violate his fiduciary
conduct in this instance measure up to the rule of fair dealing relationship in this instance.
and good faith towards Kinzbach, which the law required
of him. It is the duty of a fiduciary to deal openly, and to     [8] [9] It is settled as the law of this State that where a
make full disclosure to the party with whom he stands in such   third party knowingly participates in the breach of duty of a
relationship. Mecham on Agency, p. 784, sec. 953; Id., p.       fiduciary, such third party becomes a joint tortfeasor with the
314, sec. 469; Parks v. Schoellkopf Co., Tex.Civ.App., 230      fiduciary and is liable as such. 2 Tex.Jur., p. 557; Miller v.
S.W. 704; Scott v. Weaver, Tex.Civ.App., 2 S.W.2d 870;          Himebaugh, Tex.Civ.App., 153 S.W. 338; William Cameron
Peckham v. Johnson, Tex.Civ.App., 98 S.W.2d 408; **514          & Co. v. Blackwell, 53 Tex.Civ.App. 414, 115 S.W. 856. It
Johnson v. Peckham, 132 Tex. 148, 120 S.W.2d 786, 120           follows that when Corbett employed Turner, who it knew was
A.L.R. 720. One occupying a fiduciary relationship to another   Kinzbach's fiduciary, under the circumstances and conditions
must measure his conduct by high equitable standards, and       we have already detailed, it became a party to the breach of
not by the standards required in dealings between ordinary      duty committed by Turner, and therefore became a joint tort-
parties. Peckham v. Johnson, supra; Johnson v. Peckham,         feasor with Turner with regard to the rights of Kinzbach.
supra. Turner's position as a trusted employee of Kinzbach,
in the capacity already detailed, called on him to make full     [10] [11] [12] It appears that when the first installment
disclosure to his employer of all the facts and circumstances   of $2,500 became due on this contract, Kinzbach tendered
concerning his dealings with Corbett. Also, when he received    to Corbett, in payment thereof, the sum of $1,500. This was
instructions from Kinzbach to get a price from Corbett it       all that was due, because Kinzbach had a right to deduct
was his duty as a fiduciary to inform his employer what the     therefrom the $500 Turner had received on the $2,500 cash
whipstock contract might be bought for. It was also his duty    payment it had made and the $500 Turner was to receive
to make disclosure to his employer that he was getting a        out of the proceeds of such installment. Corbett absolutely
commission from Corbett.                                        rejected such tender, thereby absolutely rejecting Kinzbach's



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                6
Kinzbach Tool Co. v. Corbett-Wallace Corp., 138 Tex. 565 (1942)
160 S.W.2d 509

right to any credit for Turner's commissions. It is therefore
                                                                       (6) Any matters which may come before the trial court, not
evident that it would have been useless for Kinzbach to
                                                                       covered by the above instructions, are left to be adjudicated
make any tender of payment on any subsequent installment
                                                                       by that court.
due under this contract, with Turner's commission thereon
deducted therefrom. The law does not require an actual tender
when the party to whom the money is due has signified in
advance that he will *575 refuse to accept it. It is sufficient                      Motions for Rehearing and to
to say that we think Kinzbach has made all tenders that were                      Further Instruct The District Court.
required of him under the facts of this record.
                                                                       This cause is before us on two motions, viz.:
It appears that all installments due to be paid by Kinzbach
to Corbett under this contract are now due without any                  *576 (a) Motion No. 15475, which is a motion for rehearing
acceleration.                                                          filed by the Corbett-Wallace Corporation.

The judgments of the Court of Civil Appeals and district court         (b) Motion No. 15476, which is a motion filed by Kinzbach
are both reversed and set aside, and this cause is remanded to         Tool Company, Inc., to further instruct the district court.
the district court with instructions as follows:
                                                                       We have read and carefully considered the motion for
(1) If Kinzbach promptly tenders into court, for the benefit of        rehearing filed herein by the Corbett-Wallace Corporation,
Corbett, the sum of $17,500, such sum shall be awarded to              and still adhere to the views expressed in our original opinion.
Corbett in full payment of Kinzbach's obligation to it on this         It is therefore ordered that same be in all things overruled.
contract. This sum is arrived at by deducting from the $22,500
the $5,000 Turner commission.                                          We have read and carefully considered the motion to further
                                                                       instruct the district court filed herein by Kinzbach Tool
(2) Corbett's obligation to Turner, in the sum of $4,500, shall        Company, Inc., and, in our opinion, same should be granted.
be cancelled.                                                          It is therefore ordered and adjudged that in addition to the
                                                                       instructions given to the trial court in our original opinion and
(3) If Kinzbach fails to make prompt payment to Corbett in             judgment the following instruction is given:
the sum of $17,500, as above indicated, the court will enter
judgment **515 for that amount plus ten per cent. thereof              (4-A) If it should appear on remand that Corbett has enforced
as attorney's fees, in favor of Corbett and against Kinzbach.          the erroneous judgment of the trial court by execution or
                                                                       otherwise, then the trial court shall render judgment that
(4) If Kinzbach makes prompt payment of the $17,500, as                plaintiff take nothing by its suit, and that Kinzbach on its
above directed, judgment shall be entered against Corbett              cross-action recover of Corbett that portion of the $5,000
and Turner for all costs in this case in the district court.           secret commission remaining after deducting enough thereof,
If Kinzbach fails to make such payment, and judgment is                which, together with the amount collected by Corbett plus
entered for Corbett against Kinzbach for $17,500 plus ten per          interest at the legal rate on the $2,250 attorney's fee and on the
cent. attorney's fees, the trial court is left with the power to       accelerated installments from the date collected, will equal
apportion costs as in his sound judgment may be just and               and extinguish $22,500, the balance of the contract price.
right, giving due consideration to the matters litigated herein
and the things which have caused the accumulation of costs.
                                                                       All Citations
(5) Corbett and Turner shall pay all costs occasioned by this          138 Tex. 565, 160 S.W.2d 509
appeal in the Court of Civil Appeals and in this Court.

End of Document                                                    © 2015 Thomson Reuters. No claim to original U.S. Government Works.




                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                   7
Lehmann v. Har-Con Corp., 39 S.W.3d 191 (2001)
44 Tex. Sup. Ct. J. 364

                                                                         Whether a judicial decree is a final, appealable
                                                                         judgment must be determined from its language
                     	

                                                                         and the record in the case.
                 
                                                                         39 Cases that cite this headnote
               !!"

           #$$"$%""&'$$"&
                         (                                        [3]   Judgment
      )*+!+)'+) ,+!&)"
"                                        Final judgment
 ($"-$"
"$&'$$"&                     A judgment that finally disposes of all remaining
                         (                                              parties and claims, based on the record in the
       .$"/&)"
"                                case, is final, regardless of its language.

                                                                         127 Cases that cite this headnote
         !*0102&*012 3      

       4"52&5000 3 6$
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7.&500
                                                                   [4]   Judgment
In personal injury action, the 129th District Court, Harris                  Final judgment
County, granted summary judgment in favor of one
                                                                         A judgment that actually disposes of every
defendant. Plaintiffs appealed. In unrelated action for tort and
                                                                         remaining issue in a case is not interlocutory
breach of contract, the 281st District Court, Harris County,
                                                                         merely because it recites that it is partial or refers
granted summary judgment for one defendant. Plaintiffs
                                                                         to only some of the parties or claims.
appealed. The Houston Court of Appeals, Fourteenth District,
1998 WL 429853 and 1999 WL 211859, dismissed appeals                     11 Cases that cite this headnote
as untimely perfected. Plaintiffs in both cases petitioned for
review, and cases were consolidated. The Supreme Court,
Hecht, J., held that: (1) inclusion of a Mother Hubbard            [5]   Judgment
clause does not indicate that a judgment rendered without a                  Final judgment
conventional trial is final for purposes of appeal, overruling           If a court has dismissed all of the claims in a case
Mafrige, 866 S.W.2d 590, and (2) orders from which                       but one, an order determining the last claim is
plaintiffs had appealed were not final, appealable judgments.            final.

Reversed and remanded.                                                   17 Cases that cite this headnote


Baker, J., filed concurring opinion in which Enoch and             [6]   Appeal and Error
Hankinson, JJ., joined in part.                                             Nature and Scope of Decision
                                                                         If the intent to dispose of all claims is clear from
                                                                         the order, then the order is final and appealable,
 West Headnotes (12)                                                     even though the record does not provide an
                                                                         adequate basis for rendition of judgment.

 [1]     Appeal and Error                                                63 Cases that cite this headnote
            Necessity of final determination
         As a general rule, an appeal may be taken only            [7]   Appeal and Error
         from a final judgment.                                             Nature and Scope of Decision
                                                                         Inclusion of a Mother Hubbard clause—which is
         342 Cases that cite this headnote
                                                                         the statement, “all relief not granted is denied,”
                                                                         or essentially those words—does not indicate
 [2]     Appeal and Error                                                that a judgment rendered without a conventional
            Final Judgments or Decrees



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                               1
Lehmann v. Har-Con Corp., 39 S.W.3d 191 (2001)
44 Tex. Sup. Ct. J. 364

        trial is final for purposes of appeal; overruling                Order that did not indicate that it was a final
        Mafrige v. Ross, 866 S.W.2d 590.                                 judgment and did not dispose of all pending
                                                                         claims and parties was not a final, appealable
        115 Cases that cite this headnote                                judgment.

                                                                         367 Cases that cite this headnote
 [8]    Appeal and Error
           Nature of remedy by dismissal
        Right to appeal should not be lost by an overly          [12]    Appeal and Error
        technical application of the law.                                   Finality as to All Parties
                                                                         Appeal and Error
        6 Cases that cite this headnote                                     Determination of part of controversy
                                                                         Order stating that plaintiffs took nothing as
 [9]    Appeal and Error                                                 to “one of the defendants” was not a final,
           Final Judgments or Decrees                                    appealable judgment; language did not suggest
        In cases in which only one final and appealable                  that all of plaintiffs' claims were denied, and
        judgment can be rendered, when there has not                     defendant named in order was not the only
        been a conventional trial on the merits, an order                defendant remaining in the case.
        or judgment is not final for purposes of appeal
                                                                         100 Cases that cite this headnote
        unless it actually disposes of every pending claim
        and party or unless it clearly and unequivocally
        states that it finally disposes of all claims and all
        parties.
                                                                Attorneys and Law Firms
        652 Cases that cite this headnote
                                                                 *192 Howard R. King, Hill Angel & King, Houston, for
                                                                Petitioner in No. 99-0406.
 [10]   Appeal and Error
           Finality as to All Parties                           James E. Simmons, Simmons & Lawrence, John H.
        Appeal and Error                                        Thomisee, Jr., Henry S. Platts, Chalker Bair, Houston, for
           Determination of part of controversy                 Respondent in No. 99-0406.
        An order does not dispose of all claims and             James F. Tyson, Houston, Jerry D. Conner, Conner & Dreyer,
        all parties, for purposes of appealability, merely      Houston, for Petitioner in No. 99-0461.
        because it is entitled “final,” or because the
        word “final” appears elsewhere in the order, or         Ben A. Baring, Paul J. McConnell, III, DeLange Hudspeth
        even because it awards costs, nor does an order         McConnell & Tibbetts, Houston for Respondent in No,
        completely dispose of a case merely because it          99-0461.
        states that it is appealable; rather, there must be
        some other clear indication that the trial court        Opinion
        intended the order to completely dispose of the
                                                                Justice HECHT delivered the opinion of the Court, in which
        entire case.
                                                                Chief Justice PHILLIPS, Justice OWEN, Justice ABBOTT,
        240 Cases that cite this headnote                       and Justice O'NEILL joined.

                                                                In these two consolidated cases we revisit the persistent
 [11]   Appeal and Error                                        problem of determining when a judgment rendered without a
           Finality as to All Parties                           conventional trial on the merits is final for purposes of appeal.
        Appeal and Error                                        We consider only cases in which one final and appealable
           Determination of part of controversy                 judgment can be rendered and not cases, like some probate
                                                                and receivership proceedings, in which multiple judgments
                                                                final for purposes of appeal can be rendered on certain


               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                            2
Lehmann v. Har-Con Corp., 39 S.W.3d 191 (2001)
44 Tex. Sup. Ct. J. 364

discrete issues. 1 And we consider a judgment's finality only         Douglas and Virginia Lehmann sued the University of St.
for purposes of appeal and not for other purposes, such as            Thomas and Har–Con Corp. in the district court in Harris
                                                                      County to recover damages for injuries Douglas suffered in a
issue and claim preclusion. 2 In Mafrige v. Ross, 3 we held
                                                                      construction accident. The University cross-claimed against
that a summary judgment is final if it contains language
                                                                      Har–Con for indemnity. The Lehmanns settled with Har–Con
purporting to dispose of all claims and parties. We gave as
                                                                      and executed a release, agreeing in part to indemnify Har–Con
one example of such language what we have called a “Mother
                                                                      against certain claims which had been or could be asserted
Hubbard” clause 4 —a recitation that all relief not expressly         by or through them. Virginia then filed an amended petition
granted is denied. 5 Since then, the routine inclusion of this        on behalf of her minor son against both defendants, claiming
general statement in otherwise plainly interlocutory orders           damages for loss of parental consortium because of his
and its ambiguity in many contexts have rendered it inapt for         father's injuries. In response, Har–Con filed a counterclaim
determining finality when there has not been a conventional           against Virginia and a third-party petition against Douglas,
trial. We no longer believe that a Mother Hubbard clause in an        seeking indemnity from them under the terms of their prior
order or in a judgment issued without a full trial can be taken       release.
to indicate finality. We therefore hold that in cases in which
only one final and appealable judgment can be rendered,               The Lehmanns and Har–Con all moved for summary
a judgment issued without a conventional trial is final for           judgment on Har–Con's indemnity claims. The district court
purposes of appeal if and only if either it actually disposes of      denied the Lehmanns' motion and granted Har–Con's motion.
all claims and parties then before the court, regardless of its       The court's order granting Har Con's motion stated in full:
language, or it states with unmistakable clarity that it is a final
judgment *193 as to all claims and all parties. In the two
cases before us, the court of appeals concluded that judgments
                                                                                                [caption]
that do not meet this test were final and dismissed the appeals
as having been untimely perfected. 6 We reverse and remand
for consideration of the merits of the appeals.                                                 ORDER

                                                                        On this 12 day of March, 1998 came on to be
1       See Crowson v. Wakeham, 897 S.W.2d 779, 783                     considered the Motion for Summary Judgment of HAR–
        (Tex.1995) (involving probate proceedings); Huston              CON CORPORATION. After considering the motion,
        v. Federal Deposit Ins. Corp., 800 S.W.2d 845, 847              the response, the summary judgment evidence and the
        (Tex.1990) (involving receivership proceedings).
                                                                        argument of counsel, the Court is of the opinion that the
2       See Street v. Honorable Second Court of Appeals, 756            motion should be in all things granted. It is therefore,
        S.W.2d 299, 301 (Tex.1988).
                                                                           ORDERED, ADJUDGED AND DECREED that
3       866 S.W.2d 590 (Tex.1993).                                         the Motion for Summary Judgment by HAR–CON
4                                                                          CORPORATION be and it is hereby GRANTED.
        Teer v. Duddlesten, 664 S.W.2d 702, 704 (Tex.1984).
5                                                                          All relief not expressly granted herein is denied.
        Mafrige, 866 S.W.2d at 590 n. 1.
6       Lehmann v. Har–Con Corp., 1998 WL 429853                           Signed this the 12 day of March, 1998
        (Tex.App.—Houston [14th Dist.] 1998), 988 S.W.2d 415
                                                                                s/__________
        (1999) (op. on reh'g); Harris v. Harbour Title Co., 1999
        WL 211859 (Tex.App.—Houston [14th Dist.] 1999).
                                                                                JUDGE PRESIDING

                                                                           [s/ Attorneys for Har–Con Corporation]
                                I
                                                                        The order did not reference Virginia's claims on behalf
                                                                        of her son against Har–Con, although it would appear
                 Lehmann v. Har–Con Corp.
                                                                        that Har Con's summary judgment on its indemnity claim
                                                                        would effectively bar recovery for Virginia's son. The order
                                                                        also did not reference Virginia's son's claims against the


                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                              3
Lehmann v. Har-Con Corp., 39 S.W.3d 191 (2001)
44 Tex. Sup. Ct. J. 364

   University, which would not appear to be affected by Har–      Melvin and Helena Harris sued five defendants—Greenfield
   Con's summary judgment. The order contained a “Mother          Financial Corp. and Larry J. Greenfield (“the Greenfield
   Hubbard” clause stating that “[a]ll relief not expressly       defendants”), Tim Rice and Rice Development, Inc. (“the
   granted herein is denied.”                                     Rice defendants”), and Harbour Title Co.—in the district
The district clerk advised the Lehmanns by postcard that an       court in Harris County on breach-of-contract and tort claims
interlocutory summary judgment order had issued. The record       arising from a conveyance of real property. The court granted
does not reflect whether the parties received a copy of the       an interlocutory default judgment against Tim Rice on
actual order after it was signed. The Lehmanns tell us that       liability only, leaving for later a determination of the damages
the practice of the district clerk in Harris County is not to     to be assessed against him. The Harrises nonsuited their
send copies of orders to the parties but to give parties notice   claims against the Greenfield defendants. The fifth defendant,
by postcard when orders are signed. The notice does not           Harbour Title Co., moved for summary judgment, which the
completely describe the content of the order.                     court granted with the following order:

The Lehmanns appear to have believed that the summary
judgment order was interlocutory because they moved to
                                                                                            [caption]
sever it and Har–Con's claims into a separate action,
ostensibly to make the summary judgment final. The court
granted the motion to sever on the twenty-fifth day after the             Order Granting Harbour Title Company's
summary judgment order was signed. Twenty-eight days after
the severance *194 order was signed, the Lehmanns noticed
                                                                                Motion for Summary Judgment
their appeal from the summary judgment order.
                                                                    On August 28, 1998, came on to be heard the Motion for
If the summary judgment was not final until the severance           Summary Judgment of one of the defendants, Harbour Title
order was signed, then the Lehmanns' appeal was timely. But         Company, and the Court having considered the Motion,
the court of appeals held that the summary judgment order           together with any response, and the supplemental briefing
was final when it issued because of the Mother Hubbard              filed by the parties to date is of the opinion that said Motion
clause and that the order was not modified by the severance         is with merit and should be granted. It is therefore
so as to restart the time for perfecting appeal. 7 Because the
                                                                       ORDERED that defendant Harbour Title Company's
Lehmanns did not perfect appeal within thirty days of the
                                                                       Motion for Summary Judgment is in all things granted;
signing of the order as prescribed by the rules of appellate
                                                                       it is further
procedure, 8 the court dismissed the appeal for want of
jurisdiction. In holding that the summary judgment order was           ORDERED that the Plaintiffs, Melvin G. Harris and
final, the court followed our decision in Mafrige, although            Helena M. Harris take nothing as to any of their claims
the court expressed concerns that the inclusion of a Mother            against Harbour Title Company.
Hubbard clause in an otherwise plainly interlocutory order
should not make the order final.                                       All relief requested and not herein granted is denied.

                                                                       SIGNED this 15 day of October 1998.
7      988 S.W.2d 415 (op. on reh'g).
8                                                                           s/__________
       See TEX.R.APP. P. 26.1 (appellate time limits).
We granted the Lehmanns' petition for review and                            JUDGE PRESIDING
consolidated it for argument and decision with Harris v.
                                                                       APPROVED AND ENTRY REQUESTED:
Harbour Title Co. 9
                                                                       [s/ Attorneys for Harbour Title Company]
9      43 TEX. SUP.CT. J. 94, 96 (Nov. 12, 1999).
                                                                    Although the order did not reference the Harrises'
                                                                    pending claims against the Rice defendants, it nevertheless
                Harris v. Harbour Title Co.                         contained a Mother Hubbard clause stating that “[a]ll relief
                                                                    requested and not herein granted is denied.”


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Lehmann v. Har-Con Corp., 39 S.W.3d 191 (2001)
44 Tex. Sup. Ct. J. 364

The Harrises assert that they received notice of the order         does not require that a final judgment be in any particular
by a postcard that described the order as an interlocutory         form, whether a judicial decree is a final judgment must be
summary judgment, but the postcard is not in our record. The       determined from its language and the record in the case.
record does not reflect whether the parties obtained a copy        Since timely perfecting appeal (as well as filing certain post-
of the order after it was signed. It appears that the district     judgment motions and requests) hangs on a party's making
clerk followed her usual procedure of notifying the parties by     this determination correctly, certainty is crucial.
 *195 postcard in lieu of providing copies of the order.
                                                                   11      See CHARLES ALAN WRIGHT, ARTHUR R.
The district court apparently did not consider the summary                 MILLER, & EDWARD H. COOPER, FEDERAL
judgment order to be final; forty-six days after it was signed,            PRACTICE & PROCEDURE §§ 3906–3907 (1992).
the court generated a form order setting the case for trial
                                                                   12      See, e.g., North East Indep. Sch. Dist. v. Aldridge, 400
the next year. The Harrises, too, appear to have believed the
                                                                           S.W.2d 893, 895 (Tex.1966); Gulf C. & S. F. Ry. v. Fort
summary judgment to be interlocutory; two weeks after the
                                                                           Worth & N. O. Ry., 68 Tex. 98, 2 S.W. 199, 200 (1886),
order issued setting the case for trial, the Harrises obtained
                                                                           op. on reh'g, 68 Tex. 98, 3 S.W. 564 (1887); see TEX.
what was captioned a “Final Default Judgment” against the
                                                                           CONST. art. V, § 3–b (direct appeals to the Supreme
Rice defendants. Twenty-five days later the Harrises noticed               Court); TEX. CIV. PRAC. & REM.CODE §§ 15.003(c)
their appeal from Harbour Title's summary judgment.                        (interlocutory joinder and intervention appeals), 51.012
                                                                           (court of appeals jurisdiction), 51.014 (interlocutory
If Harbour Title's summary judgment did not dispose of the                 appeals); TEX. GOV'T CODE §§ 22.001(c) (direct
Harrises' claims against the Rice defendants, and the default              appeals), 22.225(d) (interlocutory appeal to the Supreme
judgment against those defendants was the final order in the               Court).
case, then the Harrises' appeal was timely. But following          13      See Jack B. Anglin Co., v. Tipps, 842 S.W.2d 266, 272
Mafrige, as it had done in Lehmann, the court of appeals
                                                                           (Tex.1992); Linn v. Arambould, 55 Tex. 611, 617–18
concluded that the summary judgment order was final and
                                                                           (1881) (surveying several tests for determining when a
therefore dismissed the appeal as not having been timely                   judgment is final). See generally 49 C.J.S. Judgments §
perfected. We granted the Harrises' petition for review and                11 (1947); 46 AM.JUR.2D Judgments § 200–206 (1994).
consolidated it with Lehmann for argument and decision. 10         14      Crowson v. Wakeham, 897 S.W.2d 779, 783 (Tex.1995).

10     43 TEX. SUP.CT. J. 94, 96 (Nov. 12, 1999).
                                                                   15      Huston v. Federal Deposit Ins. Corp., 800 S.W.2d 845,
                                                                           847 (Tex.1990).
                                                                   16      See Street v. Second Court of Appeals, 756 S.W.2d 299,
                              II
                                                                           301 (Tex.1988).
                                                                  From the beginning, however, certainty in determining
                              A
                                                                  whether a judgment is final has proved elusive. What has
 [1]    [2] Though its origins are obscure and its rationale vexed courts in this State and elsewhere is this: must a final
                                                                  judgment dispose of all parties and claims specifically, or
has varied over time, 11 the general rule, with a few mostly
                                                                  may it do so by general language or even by inference? If a
statutory exceptions, is that an appeal may be taken only
                                                                  specific disposition of each party and *196 claim is strictly
from a final judgment. 12 A judgment is final for purposes        required, a judgment apparently intended by the parties and
of appeal if it disposes of all pending parties and claims in     the trial court to be final and appealable may not be. An appeal
                                                              13
the record, except as necessary to carry out the decree.          from such a judgment must be dismissed or at least abated,
(An order that does not dispose of all pending parties and        resulting in delay and a waste of the courts' and the parties'
claims may also be final for purposes of appeal in some           resources. More importantly, if a judgment intended to be
instances, such as orders that resolve certain discrete issues in final did not meet the strict requirements, then the case would
               14                    15
some probate and receiverships cases, but we exclude              remain open, allowing the possibility of further proceedings
those cases from consideration here. Nor do we consider           and appeal years later. On the other hand, if a judgment
when a judgment may be final for purposes other than appeal,      may dispose of all parties and claims by general language or
                                                                  inference, a party or trial court may think that a judgment is
such as claim and issue preclusion. 16 ) Because the law


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Lehmann v. Har-Con Corp., 39 S.W.3d 191 (2001)
44 Tex. Sup. Ct. J. 364

interlocutory, only to be told later by the appellate court after       which were obviously intended to be final were being
the time for appeal has passed that the judgment was final. A           held interlocutory because of careless draftsmanship. The
party who is uncertain whether a judgment is final must err             rule had to be changed to accommodate oversight or
on the side of appealing or risk losing the right to appeal.            carelessness. 22
                                                                      22      Aldridge, 400 S.W.2d at 895.
In 1881, after struggling with these problems for many
years, 17 we attempted to resolve them in the case of Linn            In 1896 we altered course. In Rackley v. Fowlkes, 23 the
                                                                      plaintiff had, in a prior suit, sued for title to real property and
v. Arambould. 18 There we stated that a final judgment
                                                                      for rent for the four years the property was in the defendant's
after trial must dispose of the issues “intrinsically, and not
                                                                      possession, but at trial he offered no evidence of the amount
inferentially.” 19 That is, specificity was strictly required.        of rent due until after the evidence was closed, and because
The results of this rule were predictable. Appellate courts           the offer was late the court refused to hear it. The court in
frequently declared shabbily drafted judgments interlocutory          that suit rendered judgment awarding title to the plaintiff
even though the trial courts and the parties had obviously            without mentioning his claim for rent. When the plaintiff filed
intended for them to be final. 20 Confused parties were               a second suit for the rent, the defendant asserted res judicata
spending time and money attempting to appeal from possibly            in defense. The trial court rendered judgment for the plaintiff,
final judgments, only to have the appellate courts dismiss            concluding that the rent claim had not been adjudicated in
the appeals for want of jurisdiction. 21 As this Court later          the prior suit, and the court of civil appeals affirmed. We
reflected on Arambould 's intrinsic-disposition requirement           reversed the judgments of the lower courts, not because the
for finality:                                                         rent claim should have been adjudicated *197 in the first
                                                                      suit, but because it was adjudicated:
17       See Hanks v. Thompson, 5 Tex. 6, 8 (1849) (defining
         a final judgment as awarding the judicial consequences
                                                                      23      89 Tex. 613, 36 S.W. 77, 78 (1896).
         which the law attaches to the facts and determining
         the subject matter of the controversy between the              The proposition seems to be sound in principle and
         parties); accord West v. Bagby, 12 Tex. 34 (1854).             well supported by authority that where the pleadings and
         See also Fitzgerald v. Fitzgerald, 21 Tex. 415 (1858);         judgment in evidence show that the pleadings upon which
         Hancock v. Metz, 7 Tex. 177 (1851) (both holding that          the trial was had put in issue plaintiff's right to recover
         a judgment for the defendant for costs did not constitute
                                                                        upon two causes of action, and the judgment awards him
         a final judgment); Warren v. Shuman, 5 Tex. 441, 450
                                                                        a recovery upon one, but is silent as to the other, such
         (Tex.1849) (finding that a judgment that awards costs
                                                                        judgment is prima facie an adjudication that he was not
         without disposing of the subject matter of the controversy
         is not a final judgment). See generally 31 JEREMY              entitled to recover upon such other cause. This liberal
         C. WICKER, TEXAS PRACTICE, CIVIL TRIAL &                       construction of the judgment against the party who sought
         APPELLATE PROCEDURE § 506, at 289–311 (1985)                   to recover therein is supported by the presumption that
         (chronicling, in depth, the challenges of distinguishing       the court performed the duty devolved upon it upon the
         between final and interlocutory judgments in various           submission of the cause by disposing of every issue
         contexts beginning in the mid–19th century).                   presented by the pleadings so as to render its judgment
18                                                                      final and conclusive of the litigation, and by the further fact
         55 Tex. 611 (1881).
                                                                        that the policy of the law favors the speedy settlement of
19       Id. at 619.                                                    litigation and opposes the harassing of the defendant with
20                                                                      two suits for the same cause. 24
         See Aldridge, 400 S.W.2d at 895.
                                                                      24      Id. at 78 (citations omitted).
21       See, e.g., East & West Tex. Lumber Co. v. Williams, 71
                                                                      Three years later we used the rule stated for purposes of res
         Tex. 444, 9 S.W. 436 (1888); Hill v. Templeton, 25 S.W.
         652 (Tex.Civ.App.1894); Mills v. Paul, 4 Tex.Civ.App.        judicata in Rackley to determine whether a judgment was final
         503, 23 S.W. 395 (1893).                                     for purposes of appeal. In Davies v. Thomson, 25 the plaintiffs
                                                                      sued for money and an interest in real property as their share
     By its application most judgments easily became black or         of a joint venture. The trial court rendered judgment on a jury
     white—final or interlocutory; but all too often judgments        verdict awarding the plaintiffs money without mentioning


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Lehmann v. Har-Con Corp., 39 S.W.3d 191 (2001)
44 Tex. Sup. Ct. J. 364

the claim for an interest in real property. We held that the        31      Id. at 1163. See also Burton Lingo Co. v. First Baptist
judgment disposed of both claims was therefore final and                    Church, 222 S.W. 203, 204 (Tex. Comm'n App.1920,
appealable. 26                                                              holding approved) (citing Trammell for support of its
                                                                            presumption that the judgment disposed of a claim).
25     92 Tex. 391, 49 S.W. 215 (1899).                              *198 Two cases decided after Trammell suggest that the
                                                                    entire record should be considered in determining whether
26     Id. at 217.                                                  a post-trial judgment is final. In Hargrove v. Insurance
Neither Rackley nor Davies mentioned Arambould or                   Investment Corp., we held that a judgment for the plaintiff
attempted to reconcile their results with the rule in that          was final when “considered as a whole in the light of the entire
case, thereby generating confusion in the appellate courts          record”. 32 Similarly, in Ferguson v. Ferguson, we held that
over how to determine finality in cases involving cross-            a judgment awarding the plaintiff recovery on some of her
claims and counterclaims. Some courts treated judgments that        claims while silent as to others was final, stating that “[i]n
merely implicitly disposed of all claims as final, while other      arriving at whether or not a judgment is final, the pleadings
courts required that final judgments expressly adjudicate
                                                                    and evidence must also be taken into consideration”. 33
              27
each claim.        In 1913, the Court resolved the conflict in      Neither case should be read to deviate from the presumptive
Trammell v. Rosen, 28 rejecting the rule stated in Arambould.       rule of Trammell. We did not hold in either case that the
The plaintiff in Trammell sued on a promissory note secured         record could be used to show that a post-trial judgment final
by property that the defendant and his wife claimed was             on its face was really not final. In two other cases during the
their homestead. The couple counterclaimed to establish their       same time period we did not mention the record in applying
homestead claim and for damages for wrongful sequestration.         Trammell. 34
The trial court instructed a verdict for the plaintiff on his
claim and against the defendants on their counterclaim.             32      142 Tex. 111, 176 S.W.2d 744, 746 (1944).
The judgment recited the verdict and awarded damages
                                                                    33
to the plaintiff but did not mention the counterclaim. 29                   161 Tex. 184, 338 S.W.2d 945, 947 (1960).
Citing Rackley, the Court concluded that the judgment was           34      Gamble v. Banneyer, 137 Tex. 7, 151 S.W.2d 586
final, reasoning that by granting the plaintiff's claim the                 (1941); Vance v. Wilson, 382 S.W.2d 107 (Tex.1964)
trial court implicitly but necessarily denied the defendants'               (res judicata).
counterclaim. 30 Still, the Court strongly encouraged courts        In 1966, we reaffirmed Rackley, Davies, and Trammell in
to expressly address each claim and party in final judgments
                                                                    North East Independent School District v. Aldridge. 35 The
to avoid further confusion:
                                                                    school district sued Aldridge for breach of contract, and he
                                                                    asserted in his defense that he had contracted only as an agent
27     See Trammell v. Rosen, 106 Tex. 132, 157 S.W.                for his principal. He also brought a third-party action against
       1161, 1162 (1913) (listing the various appellate courts
                                                                    his principal, alleging that the principal was responsible for
       subscribing to each school of construction).
                                                                    any damages to which the school district might be entitled.
28     Id.                                                          The trial court granted a partial summary judgment holding
                                                                    Aldridge personally liable to the district and directed that the
29     Id. at 1161.                                                 case proceed to trial to determine the amount of damages
30     Id. at 1161–1163.                                            to be awarded. The parties then stipulated to the amount of
                                                                    damages, and the trial court rendered judgment for the district
  We feel constrained to hold that the judgment of the trial        against Aldridge based on the stipulation. The judgment
  court, although irregular and imperfect in form, is sufficient    did not mention Aldridge's third-party action against his
  to support the appeal. However, we feel impelled to say,          principal. The court of civil appeals dismissed Aldridge's
  also, that we think that, as a matter of practice, and to avoid   appeal, holding that the trial court's judgment was not final. 36
  confusion, every final judgment should plainly, explicitly,       We held that the judgment against Aldridge disposed of the
  and specifically dispose of each and every party to the           third-party action and was final for purposes of appeal. After
  cause, and of each and every issue therein presented by the       reviewing the courts' historical difficulties in making finality
  pleadings. 31                                                     determinations, we stated the following rule



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Lehmann v. Har-Con Corp., 39 S.W.3d 191 (2001)
44 Tex. Sup. Ct. J. 364

                                                                     on the merits. After the jury returned a verdict, the trial court
35     400 S.W.2d 893 (Tex.1966).                                    rendered judgment both that the plaintiff's claim be dismissed

36                                                                   and that the plaintiff take nothing. 41 The only basis the trial
       North East Indep. Sch. Dist. v. Aldridge, 392 S.W.2d
                                                                     court had for dismissal was the defendant's plea in abatement,
       607 (Tex.Civ.App.—San Antonio 1965), rev'd and
                                                                     while the only basis for rendering a take-nothing judgment
       remanded, 400 S.W.2d 893 (Tex.1966).
                                                                     was plaintiff's failure of proof at trial. The judgment did
                                                                     not mention the defendant's counterclaim. The court of civil
  for determining, in most instances, whether judgments in
                                                                     appeals rejected the defendant's argument that the judgment
  which parties and issues made by the pleadings are not
                                                                     was interlocutory and reversed and rendered judgment for the
  disposed of in express language are, nevertheless, final
  for appeal purposes. When a judgment, not intrinsically            plaintiff. 42 This Court reversed and dismissed the appeal.
  interlocutory in character, is rendered and entered in a case      Citing Trammell, the Court acknowledged that while a final
  regularly set for conventional trial on the merits, no order       judgment need not expressly dispose of each issue so long
  for a separate trial of issues having been entered ..., it will    as other provisions of the judgment necessarily imply that
  be presumed for appeal purposes that the Court intended            the unmentioned issues have been disposed of, a dismissal of
  to, and did, dispose of all parties legally before it and of all   the plaintiff's suit did not necessarily imply a disposal of the

  issues made by the pleadings between such parties. 37              defendant's cross-action . 43 The Court explained:
37     400 S.W.2d at 897–898.
                                                                     40      136 Tex. 296, 150 S.W.2d 377 (1941).
We added: “Of course, the problem [of determining whether
judgments are final] can be eliminated entirely by a careful         41      McCray Refrigerator Sales Corp. v. Davis, 140 S.W.2d
drafting of judgments to conform to the pleadings or by                      477, 478 (Tex.Civ.App.—Fort Worth 1940), rev'd, 136
inclusion in judgments of a simple statement that all relief                 Tex. 296, 150 S.W.2d 377 (1941).

not expressly granted is denied.” 38 Inclusion of a catch-all        42      Id.
statement—which we later denominated a “Mother Hubbard”
                                                                     43      150 S.W.2d at 378.
clause 39 —would make clear that a post-trial judgment on the
merits, presumed to have disposed of all claims, did indeed
                                                                       [I]f the court had intended to merely sustain the
do so.
                                                                       plea in abatement and dismiss plaintiff's suit, and had
                                                                       intended to retain the defendant's cross-action for further
38     Id. at 898.                                                     consideration, it would have entered the very judgment that
39     Teer v. Duddlesten, 664 S.W.2d 702, 704 (Tex.1984).             was entered in this case. The mere failure of the judgment
                                                                       to refer to defendant's cross-action was not sufficient in
                                                                       itself to raise an inference that it was thereby intended to
                            *199 B                                     dispose of the cross-action. 44
                                                                     44      Id.
The presumption that a judgment rendered after a
conventional trial on the merits is final and appealable has         Although the judgment did not “merely” sustain the plea in
proved fairly workable for nearly a century, but we have             abatement but also decreed that the plaintiff take nothing, the
never thought that it could be applied in other circumstances,       inclusion of the dismissal in the judgment as the first basis
as we first explained nearly sixty years ago. In Davis v.            for decision was enough to make Trammell 's presumptive
McCray Refrigerator Sales Corp., 40 the plaintiff sued for the       finality rule inapplicable.
unpaid balance of the purchase price of a refrigerator, and
the defendant counterclaimed for cancellation of the debt and        Davis may have departed too far from Trammell. The trial
for damages for payments already made and lost merchandise           court's decree following a jury trial on the merits that the
due to improper refrigeration. The defendant also filed a plea       plaintiff take nothing without mention of the defendant's
in abatement on the grounds that the plaintiff was a foreign         counterclaim should perhaps have been presumed to deny
corporation not licensed to do business in Texas and therefore       all relief, despite the alternative ruling that the plaintiff's
not entitled to sue in state court. The trial court deferred         claim should be dismissed. But regardless of Davis 's unusual
ruling on the defendant's plea until after the case was tried        circumstances, the case makes the point, which we expressly


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Lehmann v. Har-Con Corp., 39 S.W.3d 191 (2001)
44 Tex. Sup. Ct. J. 364

acknowledged in Aldridge, that “[i]t will not be presumed that         is not enough, of course, that the order or judgment merely
a judgment dismissing a plaintiff's suit on nonsuit, plea to the       use the word “final”. The intent to finally dispose of the case
jurisdiction, plea in abatement, for want of prosecution, etc.,        must be unequivocally expressed in the words of the order
also disposed of the issues in an independent cross-action.” 45        itself. But if that intent is clear from the order, then the order is
                                                                       final and appealable, even though the record does not provide
45                                                                     an adequate basis for rendition of judgment. So, for example,
        Aldridge, 400 S.W.2d at 897.
                                                                       if a defendant moves for summary judgment on only one of
We have since held that “etc.” includes default judgments              four claims asserted by the plaintiff, but the trial court renders
and summary judgments. 46 The reason for not applying a                judgment that the plaintiff take nothing on all claims asserted,
presumption in any of these circumstances *200 is that the             the judgment is final—erroneous, but final. 49 A judgment
ordinary expectation that supports the presumption that a              that grants more relief than a party is entitled to is subject to
judgment rendered after a conventional trial on the merits
                                                                       reversal, but it is not, for that reason alone, interlocutory. 50
will comprehend all claims simply does not exist when some
form of judgment is rendered without such a trial. On the
                                                                       49      Young v. Hodde, 682 S.W.2d 236 (Tex.1984) (per
contrary, it is quite possible, perhaps even probable these
                                                                               curiam); Chessher v. Southwestern Bell Tel. Co., 658
days in cases involving multiple parties and claims, that any
                                                                               S.W.2d 563, 564 (Tex.1983) (per curiam).
judgment rendered prior to a full-blown trial is intended to
dispose of only part of the case. Accordingly, the finality of         50      Id.
the judgment must be determined without the benefit of any
                                                                       Texas appellate courts, this Court included, have had
presumption.
                                                                       difficulty determining when a judgment is final on its face
                                                                       —by its own express terms, in other words—even though it
46      See, e.g., Houston Health Clubs, Inc. v. First Court of        should not have been because no sufficient basis for rendering
        Appeals, 722 S.W.2d 692 (Tex.1986), and the cases cited
                                                                  a final judgment was presented. In Schlipf v. Exxon Corp., 51
        therein.
                                                                  the plaintiffs sued for gas royalties and prejudgment interest,
 [3]      [4]    [5] A judgment that finally disposes of all and moved for summary judgment only on the royalties issue.
remaining parties and claims, based on the record in the case,    Neither the defendant nor an intervenor moved for summary
is final, regardless of its language. 47 A judgment that actually judgment against the plaintiffs. The trial court granted the
disposes of every remaining issue in a case is not interlocutory  plaintiffs' motion, awarding the royalties claimed, but denied
merely because it recites that it is partial or refers to only    prejudgment interest. The judgment recited:
some of the parties or claims. Thus, if a court has dismissed
all of the claims in a case but one, an order determining the     51       644 S.W.2d 453 (Tex.1982) (per curiam).
last claim is final. 48 This is settled law in Texas, and while
there have been proposals to change it by rule, proposals that           the relief herein granted Plaintiffs, ... is in satisfaction of
are currently pending consideration by this Court's Advisory             all of their claims and causes of action ... and all claims
Committee, we are not inclined to depart from it here. The               and/or causes of action herein asserted by all parties herein
language of an order or judgment cannot make it interlocutory            and not herein granted are hereby in all things denied and
when, in fact, on the record, it is a final disposition of the case.     concluded.... 52
                                                                       52      Id. at 454.
47      Farmer v. Ben E. Keith Co., 907 S.W.2d 495, 496
        (Tex.1995) (per curiam); H.B. Zachry Co. v. Thibodeaux,         *201 We held that this language conclusively disposed of all
        364 S.W.2d 192, 193 (Tex.1963) (per curiam); McEwen            parties and issues, as it clearly did, although in reaching this
        v. Harrison, 162 Tex. 125, 345 S.W.2d 706, 707 (1961).         conclusion, we reiterated our observation in Aldridge that the
                                                                       finality of a judgment would be made clear “by inclusion ...
48      Farmer, 907 S.W.2d at 496; H.B. Zachry Co., 364                of a simple statement that all relief not expressly granted
        S.W.2d at 193; McEwen, 345 S.W.2d at 707.
                                                                       is denied.” 53 This observation, appropriate in Aldridge in
 [6] But the language of an order or judgment can make it              reference to judgments after a conventional trial on the merits,
final, even though it should have been interlocutory, if that          was misleading in Schlipf, because the only “relief” properly
language expressly disposes of all claims and all parties. It          under consideration when the order issued was that raised



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Lehmann v. Har-Con Corp., 39 S.W.3d 191 (2001)
44 Tex. Sup. Ct. J. 364

by the motion for summary judgment 54 —the plaintiffs'             We attempted to clarify matters in Mafrige v. Ross. 59 There,
entitlement to royalties. After a full trial on the merits, the    two plaintiffs sued some twelve defendants for malicious
statement in a judgment that all relief not requested is denied    prosecution, slander, libel, conspiracy, and negligence. 60
signifies finality; there is no expectation that the court tried   No party other than the plaintiffs asserted any claims. The
only part of the case, absent an order for severance or separate   defendants, some individually and some in groups, filed a
trials. But after a motion for partial summary judgment, the       total of eight summary judgment motions, some directed
same statement in a judgment is ambiguous. It may refer
                                                                   against one of the plaintiffs and some against both. 61 Only
only to the motion on which the trial court is ruling, not to
                                                                   one motion addressed both of the plaintiffs and all of the
all claims of all parties, and not even to other claims of the
movant.                                                            claims asserted; 62 even together, the other seven motions did
                                                                   not address both plaintiffs and all claims. 63 The trial court
53     Id.                                                         granted all eight motions with eight separate orders, one for

54                                                                 each motion. 64 Each order stated that the *202 plaintiff or
       See New York Underwriters Ins. Co. v. Sanchez, 799
                                                                   plaintiffs, depending on whether the motion had been directed
       S.W.2d 677, 678 (Tex.1990) (per curiam); Young v.
                                                                   at one or both, were to take nothing against the movant or
       Hodde, 682 S.W.2d 236 (Tex.1984) (per curiam);
       Chessher v. Southwestern Bell Tel. Co., 658 S.W.2d 563,     movants. 65 Thus, taken together, the eight orders provided
       564 (Tex.1983) (per curiam).                                that both of the plaintiffs were to take nothing against all of
                                                                   the defendants. On the plaintiffs' appeal, however, the court
Two years later, in Teer v. Duddlesten, we emphasized
                                                                   of appeals held that there was not a final judgment because
that the Aldridge language—all relief not expressly granted
                                                                   most of the defendants had not moved for summary judgment
is denied—which we termed for the first time a “Mother
                                                                   on all claims by both plaintiffs and thus were not entitled
Hubbard” clause, has no place in partial summary judgments
                                                                   to a final judgment, and the “take nothing” language of the
because, by definition, those proceedings do not address all
                                                                   orders did not make them final. 66 The court also held that if
of the facts and issues in a case. 55 A Mother Hubbard clause,
                                                                   the orders had contained Mother Hubbard clauses they would
we said, could not convert a partial summary judgment into
                                                                   have been final under this Court's precedents, although the
a final order. 56 Following Teer, most courts of appeals held      court of appeals did not agree that that would have been the
that a Mother Hubbard clause could not make final a judgment
                                                                   proper result. 67
rendered without a full trial, 57 although other courts reached
the contrary conclusion. 58                                        59      866 S.W.2d 590 (Tex.1993).

55                                                                 60      Id. at 590.
       Teer v. Duddlesten, 664 S.W.2d 702, 704 (Tex.1984).
56                                                                 61      Id.
       Id.
57                                                                 62      Ross v. Arkwright Mut. Ins. Co., 834 S.W.2d 385, 388–
       E.g., Bethurum v. Holland, 771 S.W.2d 719 (Tex.App.
       —Amarillo 1989, no writ); Sakser v. Fitze, 708 S.W.2d               389 (Tex.App.—Houston [14th Dist.] 1992), rev'd sub
       40, 42 (Tex.App.—Dallas 1986, no writ) (declaring that              nom. Mafrige v. Ross, 866 S.W.2d 590 (Tex.1993).
       a Mother Hubbard clause in an order does not convert        63      Id.
       an intrinsically interlocutory partial summary judgment
       into a final judgment).                                     64      866 S.W.2d at 590–591.
58     E.g., Georgetown Assoc., Ltd. v. Home Fed. Sav. &           65      Id.
       Loan Ass'n, 795 S.W.2d 252, 253 (Tex.App.—Houston
                                                                   66      Ross, 834 S.W.2d at 394.
       [14th Dist.] 1990, writ dism'd w.o.j.); Hodde v. Young,
       672 S.W.2d 45, 47 (Tex.App.—Houston [14th Dist.] )          67      Id. at 393–395.
       (holding that a judgment was final and appealable
       because it contained a Mother Hubbard clause), writ         We reversed, holding that the “take nothing” language in
       ref'd, n.r.e., 682 S.W.2d 236 (Tex.1984) (per curiam)       the eight summary judgment orders disposed of all claims
       (noting that the erroneous rendition of a final judgment    asserted by both plaintiffs against each of the defendants and
       is not fundamental error).                                  thus constituted a final judgment. We then explained:



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Lehmann v. Har-Con Corp., 39 S.W.3d 191 (2001)
44 Tex. Sup. Ct. J. 364

                                                                  72     Id.
             If a summary judgment order appears
             to be final, as evidenced by the                     73     Id.
             inclusion of language purporting to
             dispose of all claims or parties, the                But in Bandera Electric Cooperative, Inc. v. Gilchrist, 74 we
             judgment should be treated as final for              held that a Mother Hubbard clause in a summary judgment
             purposes of appeal. If the judgment                  made it final. There the plaintiff moved for summary
             grants more relief than requested, it                judgment on its claims without mentioning the defendant's
             should be reversed and remanded, but                 counterclaims. 75 The defendant did not move for summary
             not dismissed. We think this rule to                 judgment. The trial court *203 granted the plaintiff's
             be practical in application and effect;              motion by order that included a Mother Hubbard clause.
             litigants should be able to recognize                We concluded that the order was final, albeit erroneous. 76
             a judgment which on its face purports                We attempted to explain that our ruling was consistent with
             to be final, and courts should be able               Martinez because the conflict in the orders involved in that
             to treat such a judgment as final for                case showed that they were not final even though “a Mother
             purposes of appeal. 68                               Hubbard clause ... would have created a final and appealable
                                                                  judgment”. 77 Besides its obvious inadequacy in explaining
68     Mafrige, 866 S.W.2d at 592; accord Springer v. Spruiell,   the result in Martinez, this explanation suggested that a
       866 S.W.2d 592 (Tex.1993) (per curiam).                    Mother Hubbard clause would by itself make any summary
                                                                  judgment final, contrary to our holding in Teer.
As examples of “language purporting to dispose of all claims
or parties,” we gave not only the “take nothing” language
                                                                  74     946 S.W.2d 336 (Tex.1997) (per curiam).
of the orders before us, and the statement that summary
judgment is granted as to all claims asserted, but also the       75     Id. at 337.
standard Mother Hubbard clause-that all relief not expressly
                                                                  76     Id.
granted is denied. 69 In so doing we revived the ambiguity
created in Schlipf that Teer had tried to end.                    77     Id. at 337 n. 2.
                                                                  Determining the significance of omitting a Mother Hubbard
69     Id. at 590 n. 1.                                           clause in an order has been no easier. In Park Place Hosp.
The ambiguity has persisted in our decisions. In Martinez v.      v. Estate of Milo, we suggested that the absence of a Mother
Humble Sand & Gravel, Inc., 70 we held that the inclusion of      Hubbard clause indicated that a summary judgment was
a Mother Hubbard clause in an order did not necessarily make      intended to be interlocutory. 78 There, the trial court granted
it final. There, some but not all of the defendants moved for     summary judgment for three of five remaining defendants and
summary judgment, and the trial court granted the motions,        later severed the judgment from the case. We concluded that
dismissing the plaintiff's cause of action against “those         the judgment did not become final for purposes of appeal
Defendants”, but also ordering that summary judgment was          until it was severed, in part based on the omission of a
proper “as to all remaining Defendants”, thereby suggesting       Mother Hubbard clause. But in two other cases we held
that the court intended to render a final summary judgment. 71    that the omission of a Mother Hubbard clause did not make
However, the trial court subsequently severed the summary         a summary judgment interlocutory that otherwise appeared
judgment by order inviting other defendants to move on the        final. In Continental Airlines, Inc. v. Kiefer, 79 the defendant
same grounds. 72 Although this order contained a Mother           moved for summary judgment “on all claims brought by”
Hubbard clause, we held that judgment had not been rendered       the plaintiffs. After the motion was filed, but before it was
                                                                  heard and decided, the plaintiffs amended their pleadings
for the non-moving defendants. 73
                                                                  to add additional claims. The defendant did not amend its
                                                                  motion to address these later claims. The trial court granted
70     875 S.W.2d 311 (Tex.1994) (per curiam).                    what it entitled a “final summary judgment”, dismissing
71                                                                the plaintiffs' cause of action—“cause”, singular—although
       Id. at 313.




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Lehmann v. Har-Con Corp., 39 S.W.3d 191 (2001)
44 Tex. Sup. Ct. J. 364

multiple causes of action had been asserted. We held that the          otherwise. If there has been a full trial on the merits either to
judgment was final, explaining as follows:                             the bench or before a jury, the language indicates the court's
                                                                       intention to finally dispose of the entire matter, assuming that
78     909 S.W.2d 508, 510 (Tex.1995).                                 a separate or bifurcated trial is not ordered. But in an order on
                                                                       an interlocutory motion, such as a motion for partial summary
79     920 S.W.2d 274, 276 (Tex.1996).                                 judgment, the language is ambiguous. It may mean only that
                                                                       the relief requested in the motion—not all the relief requested
  Finality “must be resolved by a determination of the                 by anyone in the case—and not granted by the order is denied.
  intention of the court as gathered from the language of the          The clause may also have no intended meaning at all, having
  decree and the record as a whole, aided on occasion by the           been inserted for no other reason than that it appears in a form
  conduct of the parties.” 5 RAY W. MCDONALD, TEXAS                    book or resides on a word processor. For whatever reason,
  CIVIL PRACTICE § 27:4[a], at 7 (John S. Covell, ed.,                 the standard Mother Hubbard clause is used in interlocutory
  1992 ed.); see Ferguson v. Ferguson, 161 Tex. 184, 338               orders so frequently that it cannot be taken as any indication
  S.W.2d 945, 947 (1960). In the circumstances described               of finality.
  here, we think the district court intended to render a final,
  appealable judgment.... Neither the parties nor the court of         As we have already explained, an order can be a final
                                                                  80   judgment for appeal purposes even though it does not purport
  appeals have suggested that the judgment was not final.
80                                                                     to be if it actually disposes of all claims still pending in the
      Id. at 277.
                                                                       case. Thus, an order that grants a motion for partial summary
The judgment did not include a Mother Hubbard clause, but              judgment is final if in fact it disposes of the only remaining
we did not find its omission significant. We reached a similar         issue and party in the case, even if the order does not say that it
conclusion in Inglish v. Union State Bank. 81                          is final, indeed, even if it says it is not final. (Again, we do not
                                                                       consider here the various kinds of cases in which there may be
81     945 S.W.2d 810 (Tex.1997) (per curiam).                         more than one final judgment for purposes of appeal.) Also,
                                                                       an order can be final and appealable when it should not be. For
In sum, our opinions have not been entirely consistent on
                                                                       example, an order granting a motion for summary judgment
whether the inclusion or omission of a Mother Hubbard clause
                                                                       that addressed all of the plaintiff's claims when it was filed but
does or does not indicate that a summary judgment is final
                                                                       did not address claims timely added by amendment after the
for purposes of appeal. This ambivalence has resulted in
                                                                       motion was filed may state unequivocally that final judgment
considerable confusion in the courts of appeals. 82                    is rendered that the plaintiff take nothing by his suit. Granting
                                                                       more relief than the movant is entitled to makes the order
82     See, e.g., Elaine A. Carlson & Karlene S.                       reversible, but not interlocutory. 83
       Dunn, Navigating Procedural Minefields: Nuances in
       Determining Finality of Judgments, Plenary Power, and
                                                                       83      See Young v. Hodde, 682 S.W.2d 236, 237 (Tex.1984)
       Appealability, 41 SO. TEX. L.REV.. 953, 969–1001
       (2000); William J. Cornelius & David F. Johnson, Tricks,                (per curiam); Chessher v. Southwestern Bell Tel. Co.,
       Traps, and Snares in Appealing a Summary Judgment in                    658 S.W.2d 563, 564 (Tex.1983) (per curiam); Schlipf v.
       Texas, 50 Baylor L.Rev. 813, 825–835 (1998).                            Exxon Corp., 644 S.W.2d 453 (Tex.1983) (per curiam).
                                                                       While the present problems in determining whether an order
                                                                       is a final judgment should be lessened significantly by
                              III                                      denying the standard Mother Hubbard clause of any indicia
                                                                       of finality in any order not issued after a conventional
                               A                                       trial, the difficulty in determining what does make an order
                                                                       final and appealable remains. One solution would be stricter
 [7] Much confusion can be dispelled by holding, as we now             requirements for the form of a final judgment. Rule 58 of
do, that the inclusion of a Mother Hubbard clause—by which             the Federal Rules of Civil Procedure takes this approach by
we mean the statement, “all relief not granted is denied”,             requiring that to be final a judgment must “be set forth on a
or essentially those words— *204 does not indicate that a              separate document” and be entered by the clerk on the civil
judgment rendered without a conventional trial is final for            docket. The separate-document requirement was added to the
purposes of appeal. We overrule Mafrige to the extent it states        rule in 1963 to remove uncertainty over whether a trial judge's


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Lehmann v. Har-Con Corp., 39 S.W.3d 191 (2001)
44 Tex. Sup. Ct. J. 364

opinion or order constituted a final judgment. 84 Rule 58, with     89      Id.
its dual requirements, “ ‘enhances certainty by insisting on        There may be other solutions to these dilemmas which could
formality.’ ” 85 The United States Supreme Court has insisted       be implemented by changes in our own rules, and this Court's
on strict compliance with the rule, quoting Professor Moore's       Advisory Committee is presently studying the issues. But we
observation that the rule                                           do not write rules by opinion. 90 We must decide what Texas
                                                                    law requires for finality given the present rules.
84      Bankers Trust Co. v. Mallis, 435 U.S. 381, 384–385, 98
        S.Ct. 1117, 55 L.Ed.2d 357 (1978).                          90      State Dept. of Highways & Pub. Transp. v. Payne, 838
85      CHARLES ALAN WRIGHT, ARTHUR R. MILLER,                              S.W.2d 235, 241 (Tex.1992); Alvarado v. Farah Mfg.
        & MARY KAY KANE, FEDERAL PRACTICE &                                 Co., 830 S.W.2d 911, 915 (Tex.1992).
        PROCEDURE § 2781 (2d ed.1995) (quoting Benjamin              [8] [9] [10] In the past we have tried to ensure that the
        Kaplan, Amendments of the Federal Rules of Civil            right to appeal is not lost by an overly technical application
        Procedure, 1961–1963, 77 HARV. L.REV. 801, 831
                                                                    of the law. 91 Fundamentally, this principle should guide
        (1964)).
                                                                    in determining whether an order is final. Simplicity and
                                                                    certainty in appellate procedure are nowhere more important
  “ ‘would be subject to criticism for its formalism were it
                                                                    than in determining the time for perfecting appeal. From the
  not for the fact that something like this was needed to make
                                                                    cases we have reviewed here, we conclude that when there
  certain when a judgment becomes effective, which has a
                                                                    has not been a conventional trial on the merits, an order
  most important bearing, inter alia, on the time for appeal
                                                                    or judgment is not final for purposes of appeal unless it
  and the making of post-judgment motions that go to the
                                                                    actually disposes of every pending claim and party or unless
  finality of the judgment *205 for purposes of appeal.’ ” 86       it clearly and unequivocally states that it finally disposes of
86      United States v. Indrelunas, 411 U.S. 216, 220–221, 93      all claims and all parties. An order that adjudicates only the
        S.Ct. 1562, 36 L.Ed.2d 202 (1973).                          plaintiff's claims against the defendant does not adjudicate
                                                                    a counterclaim, cross-claim, or third party claim, nor does
The one recognized exception is a party's failure to object. 87
                                                                    an order adjudicating claims like the latter dispose of the
                                                                    plaintiff's claims. An order that disposes of claims by only one
87      Bankers Trust, 435 U.S. at 387–388, 98 S.Ct. 1117.          of multiple plaintiffs or against one of multiple defendants
The price of certainty, however, as federal rulemakers              does not adjudicate claims by or against other parties. An
have come to realize, is that in many cases the failure to          order does not dispose of all claims and all parties merely
comply with Rule 58 means that no final judgment was                because it is entitled “final”, or because the word “final”
ever rendered, and the time for appeal remains open. 88 A           appears elsewhere in the order, or even because it awards
proposed amendment to Rule 58 would provide that if final           costs. Nor does an order completely dispose of a case merely
judgment is not rendered on a separate document, it is deemed       because it states that it is appealable, since even interlocutory
rendered on the sixtieth day after the clerk's entry on the civil   orders may sometimes be appealable. Rather, there must be
                                                                    some other clear indication that the trial court intended the
docket. 89 While this proposal helps ensure that every case
                                                                    order to completely dispose of the entire case. Language that
will be closed, it also makes it more likely that a party will
                                                                    the plaintiff take nothing by his claims in the case, or that the
not be aware that the time for appeal is running—the problem
                                                                    case is dismissed, shows finality if there are no other claims
the 1963 amendment to Rule 58 was meant to cure—because
                                                                    by other parties; but language that “plaintiff take nothing by
he does not know of the clerk's entry on the civil docket.
                                                                    his claims against X” when there is more than one defendant
                                                                    or other parties in the case does not indicate finality.
88      COMMITTEE ON RULES OF PRACTICE &
        PROCEDURE OF THE JUDICIAL CONFERENCE                        91      Verburgt v. Dorner, 959 S.W.2d 615, 616–617
        OF THE UNITED STATES, PRELIMINARY DRAFT
                                                                            (Tex.1997).
        OF PROPOSED AMENDMENTS TO THE FEDERAL
        RULES OF APPELLATE, BANKRUPTCY, CIVIL,                      To determine whether an order disposes of all pending claims
        AND CRIMINAL PROCEDURE 100–114 (Aug.2000).                  and parties, it may of course be necessary for the appellate
                                                                    court *206 to look to the record in the case. Thus, in the



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Lehmann v. Har-Con Corp., 39 S.W.3d 191 (2001)
44 Tex. Sup. Ct. J. 364

example just given, if the record reveals that there is only one      in the case. Thus, we conclude that a final and appealable
plaintiff and only one defendant, X, the order is final, but if the   judgment was not rendered in either case.
record reveals the existence of parties or claims not mentioned
in the order, the order is not final. On the other hand, an order     We are concerned that in neither case were the non-movants
that expressly disposes of the entire case is not interlocutory       provided a copy of the court's signed order but were merely
merely because the record fails to show an adequate motion            sent notice by postcard that an order had been signed. The
or other legal basis for the disposition. The record may help         Rules of Civil Procedure do not require clerks to send all
illumine whether an order is made final by its own language,          parties copies of all orders, only final orders. 93 Nevertheless,
so that an order that all parties appear to have treated as final     the practice of courts in some counties is to require that a
may be final despite some vagueness in the order itself, while        party seeking an order provide copies and addressed, postage-
an order that some party should not reasonably have regarded          paid envelopes for all other parties. The Court's Advisory
as final may not be final despite language that might indicate        Committee should consider whether the rules should require
otherwise.                                                            that all parties be given copies of all orders signed in a case.

One may argue after Aldridge and Mafrige that it is perilous          93      See TEX.R. CIV. P. 306a(3).
to suggest any particular language that will make a judgment
final and appealable because that language can then be
inserted in orders intended to be interlocutory. But to leave                                        IV
in doubt the degree of clarity required for finality creates
its own problems. The Mother Hubbard clause proved to                 We must respond briefly to the concurring opinion. It would
give no indication of finality not just because it found its          hold that no “type of conclusory finality language can ever
way into every kind of order, but because it was inherently           be read to grant more relief than requested by the parties.” 94
ambiguous, as we have explained. A statement like, “This              This goes too far. The legitimate problem with Mother
judgment finally disposes of all parties and all claims and is        Hubbard clauses, which we failed to appreciate in Mafrige,
appealable”, would leave no doubt about the court's intention.        is that they are ambiguous: one cannot be sure whether the
An order must be read in light of the importance of preserving        denial of all relief other than what has been expressly *207
a party's right to appeal. If the appellate court is uncertain        granted is limited to relief requested in a motion or extends to
about the intent of the order, it can abate the appeal to permit      all relief requested in the litigation. But it is a long way from
clarification by the trial court. 92 But if the language of           the now well-established fact that Mother Hubbard clauses
the order is clear and unequivocal, it must be given effect           can understandably be misread to the concurring opinion's
despite any other indications that one or more parties did not        conclusion that clear language should be given no meaning.
intend for the judgment to be final. An express adjudication          We require certainty for finality, but we cannot say that
of all parties and claims in a case is not interlocutory              certainty is impossible.
merely because the record does not afford a legal basis for
the adjudication. In those circumstances, the order must be           94      Post at 217.
appealed and reversed.
                                                                  The concurring opinion claims as authority for its position
                                                                  pre-Mafrige law, but before Mafrige, this Court repeatedly
92       TEX.R.APP. P. 27.2.                                      held that general language in a summary judgment finally
                                                                  disposed of the litigation even though no party had requested
                                                                  final relief. In Schlipf v. Exxon Corp. we held that an order
                                 B
                                                                  granting the plaintiffs' motion for summary judgment on
 [11] [12] Nothing in the order in Lehmann indicates that it one of its claims and generally denying all other relief was
is a final judgment, and it did not dispose of all pending claims final, even though no defendant had moved for summary
and parties. The order in Harris states that plaintiffs take      judgment or requested the denial of any relief. 95 Similarly,
nothing as to “one of the defendants”, but that language does     in Chessher v. Southwestern Bell Telephone Co. we held that
not suggest that all of the plaintiffs' claims were denied. As    a summary judgment generally disposing of all four claims
the order recites and as the record demonstrates, the defendant   asserted by the plaintiff was final, even though the defendant
named in the order was not the only defendant remaining           moved for summary judgment on only one of the claims. 96



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Lehmann v. Har-Con Corp., 39 S.W.3d 191 (2001)
44 Tex. Sup. Ct. J. 364

Again in Young v. Hodde, we agreed that a Mother Hubbard                          which the trial court denied summary
clause in an order granting summary judgment for the plaintiff                    judgment.
disposed of a defendant's counterclaim, even though the
plaintiff's motion had addressed only his own claims and             Any order that failed to meet these requirements would be
                                                                     interlocutory, according to JUSTICE BAKER, “regardless of
not the counterclaim. 97 It has simply never been the law
                                                                     how clearly it states that it is a final judgment disposing of
in Texas that a summary judgment generally disposing of
all claims and parties is nevertheless interlocutory merely          all parties and issues.” 98 The very real risk of such a rule is
because rendition of a final judgment was improper. In               that thousands of judgments intended to be final would remain
essence, the concurring opinion's position is that a trial court     interlocutory because they did not comply with all of these
has no jurisdiction to grant more relief than is requested, and      requirements. *208 This is precisely what has happened
that if it does so, its action is absolutely void. We do not agree   in the federal system, as we have already explained, even
that a court's power to act, as distinct from the proper exercise    though the federal rules impose far fewer requirements on
of that power, is defined by a party's request for relief.           final judgments than the concurring opinion would.


95                                                                   98     Post at 219 (emphasis in original).
        644 S.W.2d 453 (Tex.1982) (per curiam).
96      658 S.W.2d 563 (Tex.1983) (per curiam). Although
        our opinion did not quote the trial court's order, an                                   *****
        examination of the record in the case reveals that
        the order recited that the court had considered the          For the reasons we have explained, the judgments of the
        defendant's motion for summary judgment, the plaintiff's     court of appeals in these cases are reversed, and the cases are
        responses, and the defendant's reply, and had notified the   remanded to that court for further proceedings.
        parties that “it had determined to grant the defendant's
        motion for summary judgment.” The decretal portion
        of the order stated “that plaintiff, Paul G. Chessher,
        take nothing of and from defendant, Southwestern Bell        Justice BAKER filed a concurring opinion in which Justice
        Telephone Company. Costs of court are hereby taxed           ENOCH joined, except for Part IV and the discussion of
        against plaintiff, Paul G. Chessher.”                        Inglish and Bandera, and in which Justice HANKINSON
                                                                     joined, except Part IV.
97      Young v. Hodde, 682 S.W.2d 236, 236–237 (Tex.1984)           The Court granted these petitions in Lehmann and Harris to
        (per curiam), writ ref'd n.r.e., 672 S.W.2d 45 (Tex.App.
                                                                     solve the Mafrige problems. The Court fails to do so. Thus,
        —Houston [14th Dist.] ).
                                                                     while I concur in the result the Court reaches, I cannot agree
The concurring opinion acknowledges that its position may            with the reasoning it uses to reach that result.
result in more appeals being taken from orders that look final
but are really interlocutory, but it argues that appellate courts    In March 1993, we granted writ in Mafrige v. Ross to
can easily deal with such problems by abating appeals to             resolve the inherent problems in determining finality of
allow trial courts to clarify their orders. What the concurring      summary judgments for purposes of appeal. 866 S.W.2d 590
opinion ignores is that trial courts and parties will assume         (Tex.1993). There we recognized that determining finality
that orders with general dispositive language mean what they         had “been a recurring and nagging problem throughout the
say, only to learn months or years after an appeal should            judicial history of this state.” Mafrige, 866 S.W.2d at 590.
have been taken that no final judgment was ever rendered.            Thus, in a major departure from our prior jurisprudence, we
JUSTICE BAKER would insist that every order granting                 created a new rule providing: “If a summary judgment order
summary judgment                                                     appears to be final, as evidenced by the inclusion of language
                                                                     purporting to dispose of all claims or parties, the judgment
             specifically identify: (1) the claims
                                                                     should be treated as final for purposes of appeal.” Mafrige,
             each party brought; (2) the grounds
                                                                     866 S.W.2d at 592.
             upon which each party seeks summary
             judgment; (3) each ground upon
                                                                     Despite the certainty we intended this bright-line rule to
             which the trial court granted summary
                                                                     provide, the last seven years have proved that the Mafrige
             judgment; and (4) each ground upon
                                                                     rule has created more problems than it solved—confusing the



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Lehmann v. Har-Con Corp., 39 S.W.3d 191 (2001)
44 Tex. Sup. Ct. J. 364

lower courts, operating as a trap for unwary litigants, and       judgment motion, and the summary judgment order. Harris
consistently bringing about arguably unjust and oftentimes        County v. Nash, 22 S.W.3d 46, 49–50 (Tex.App.—Houston
absurd results. So, in November 1999, we granted the              [14th Dist.] 2000, pet. filed); Kaigler v. General Elec. Ins.
petitions in these cases to resolve the Mafrige problems.         Mortgage Corp., 961 S.W.2d 273, 275 (Tex.App.—Houston
Inexplicably, the Court begins its opinion by chronicling the     [1st Dist.] 1997, no pet.). A summary judgment was deemed
evolution of the rules and presumptions governing finality        final and appealable only if it expressly disposed of all parties
of orders following a conventional trial on the merits from       and issues or if it was severed from the remainder of the suit.
the middle of the last century to the present. 1 Then, with       Pan Am. Petroleum Corp. v. Texas Pac. Coal & Oil Co.,
very little discussion of the problems Mafrige and its progeny    159 Tex. 550, 324 S.W.2d 200, 200 (1959) (“[A] summary
created in determining summary judgment finality, the Court       judgment which does not dispose of all parties and issues in
concludes that the solution is to maintain the principle of the   the pending suit is interlocutory and not appealable unless
Mafrige legal fiction—with only slight modification.              a severance of that phase of the case is ordered by the trial
                                                                  court.”).
1      These rules and presumptions are irrelevant to the
                                                                  With Mafrige, this Court attempted to simplify this process
       issues before the Court today. As we have repeatedly
                                                                  by holding that the “magic language” of a Mother
       admonished—in Mafrige, in Aldridge, and even in
       the Court's opinion today—the rules governing finality     Hubbard or similar finality clause conclusively transforms
       after a conventional trial are wholly inappropriate        an interlocutory summary judgment into a final, appealable
       for determining finality of summary judgments. See         order. Mafrige, 866 S.W.2d at 592. We have twice revisited
       Mafrige, 866 S.W.2d at 592; North East Indep. Sch.         Mafrige to clarify its scope. See Inglish v. Union State Bank,
       Dist. v. Aldridge, 400 S.W.2d 893, 897–98 (Tex.1966);      945 S.W.2d 810, 811 (Tex.1997) (holding that the Mafrige
       Lehmann, 39 S.W.3d 191.                                    rule applies even when neither party appeals the erroneous
However, rather than solve, the Court merely perpetuates          summary judgment); Bandera Elec. Coop., Inc. v. Gilchrist,
the problems Mafrige created. The cases grappling to apply        946 S.W.2d 336, 337 (Tex.1997) (explaining that when the
Mafrige illustrate that there is but one real solution. We        Mafrige rule renders a partial summary judgment final for
should return to the principle we announced in Teer v.            purposes of appeal, the appellate court should reverse and
Duddlesten—that a Mother Hubbard clause simply “has no            remand only the erroneously disposed claims). Unfortunately,
place in a partial summary judgment,” and that a summary          Mafrige did little towards alleviating the lower courts'
judgment order is not an appealable, final judgment unless it     confusion—and Inglish and Bandera only compounded it.
actually disposes of all parties and issues. 664 S.W.2d 702,      The Court's opinion suffers the same problem. Namely, its
703–04 (Tex.1984).                                                slightly-modified Mafrige rule falls far short of remedying
                                                                  the myriad of problems the Mafrige fiction and its progeny
The Court states: “[W]e do not write rules by opinion.” 39        created.
S.W.3d at 205. The Court is right; we should not establish
rules by judicial fiat. We should not have done so in
Mafrige and we should not have perpetuated the Mafrige                            A. FINALITY LANGUAGE
problems with Inglish and Bandera. Any new summary
judgment finality rule should be achieved by this Court's         One source of confusion under Mafrige has been uncertainty
formally promulgating a new procedure rule. The Court             about what language triggers its finality rule. In Mafrige,
should recognize this, overrule Mafrige and its progeny,          we held that a partial summary judgment is treated as
and await a recommendation by *209 our rules advisory             final for appeal purposes when the order contains a Mother
committee. Because the Court refuses to take this path, I         Hubbard clause stating that “all relief not expressly granted
concur in the judgment only.                                      is denied” or other language “purporting to dispose of all
                                                                  claims or parties.” 866 S.W.2d at 590 & n. 1, 592. We
                                                                  further clarified that “other” finality language includes “a
                                                                  statement that the summary judgment is granted as to all
           I. MAFRIGE AND ITS PROGENY
                                                                  claims asserted by the plaintiff, or a statement that the plaintiff
Before Mafrige, courts determined summary judgment                takes nothing against defendant.” Mafrige, 866 S.W.2d at 590
finality by reviewing the live pleadings, the summary             n. 1.; see also Inglish, 945 S.W.2d at 811 (holding statement



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Lehmann v. Har-Con Corp., 39 S.W.3d 191 (2001)
44 Tex. Sup. Ct. J. 364

that “[d]efendant is entitled to summary judgment in this           to invoke the fiction that an otherwise interlocutory order is
case,” and that plaintiff should “take nothing on account           treated as final for purposes of appeal. Instead, to invoke the
of his lawsuit” rendered partial summary judgment final             Mafrige fiction, an interlocutory order must now “clearly and
for purposes of appeal); Springer v. Spruiell, 866 S.W.2d           unequivocally state [ ] that it finally disposes of all claims
592, 593 (Tex.1993) (holding that summary judgment order            and all parties.” 39 S.W.3d at 205. The Court further explains
reciting plaintiffs “have and recover nothing” purported to         that the statements “plaintiff take nothing by his claims in the
dispose of all parties and issues).                                 case” and “[t]his judgment finally disposes of all parties and
                                                                    all claims and is appealable” clearly and unequivocally state
Despite these examples, some lower courts have refused              that an order is final. 39 S.W.3d at 205. In essence, the Court's
to hold orders containing this exact language final for             rule does no more than replace one set of magic language
purposes of appeal. E.g., Carey v. Dimidjian, 982 S.W.2d            with another—while ignoring the reality that courts will likely
556, 558 (Tex.App.—Eastland 1998, no pet.) (holding that            face the same challenges deciding what language “clearly and
order containing Mother Hubbard clause was not final and            unequivocally states” that an order is final, 39 S.W.3d at 205,
appealable where the motion was labeled “Partial Summary            as they did deciding what other language clearly “purport[s]
Judgment” and the parties treated the order as interlocutory);      to dispose of all claims or parties” under Mafrige. 866 S.W.2d
Hinojosa v. Hinojosa, 866 S.W.2d 67, 69–70 (Tex.App.—               at 592.
El Paso 1993, no writ) (holding that order containing Mother
Hubbard clause did not render judgment final because it did
not dispose of counterclaim). Other courts have struggled
                                                                                      B. OMITTED PARTIES
with what “other” language purports to render a judgment
final—often reaching opposite conclusions about identical           Applying Mafrige to omitted parties, like those in both
clauses. Compare *210 Postive Feed, Inc. v. Guthmann,               Lehmann and Harris, has also troubled the lower courts.
4 S.W.3d 879, 881 (Tex.App.—Houston [1st Dist.] 1999,               Specifically, they have struggled with deciding when finality
no pet.) (holding that order granting defendant's summary           language operates to render a summary judgment final against
judgment “in all things” purported to be final), with St. Paul      omitted parties. This issue often surfaces when both the
Ins. Co. v. Mefford, No. 05–96–01581–CV, 1998 WL 821537             summary judgment motion and the resulting order omit any
(Tex.App.—Dallas Nov. 30, 1998, no pet.) (not designated
                                                                    specific reference to one or more parties. 3 In this situation,
                                            2
for publication), 1998 WL 821537, at *2 (holding that order         several courts have held that Mafrige applies, reasoning that
granting defendant's summary judgment “in all things” did           issues and parties are co-extensive and thus if “an order
not purport to be final).                                           disposes of all issues in a case, then it necessarily disposes of
                                                                    all parties to a case, and vice versa.” Kaigler, 961 S.W.2d at
2      The unpublished opinions cited in Part I are cited only as   276; see also Lehmann v. Har–Con Corp., 988 S.W.2d 415,
       examples, not as precedent. See TEX.R.APP. P. 47.7.          416–17 (Tex.App.—Houston [14th Dist.] 1999, pet. granted);
While the Court recognizes that the “routine inclusion of [a        Harper v. Newton, 910 S.W.2d 9, 12 n. 1 (Tex.App.—Waco),
Mother Hubbard clause] in otherwise plainly interlocutory           rev'd sub nom. on other grounds, Dallas County v. Harper,
orders and its ambiguity in many contexts have rendered it          913 S.W.2d 207 (Tex.1995).
inapt for determining finality,” 39 S.W.3d at 192, it ignores
the obvious problems courts have faced interpreting other           3       This issue also arises when a trial court expressly
language “purporting to dispose of all claims or parties.”                  mentions and disposes of a party even though that party
Mafrige, 866 S.W.2d at 592. In fact, despite the Court's                    was not mentioned in the motion for summary judgment.
extensive analysis and discussion, its holding represents but               Here, the lower courts have been more willing to apply
                                                                            Mafrige and hold that the order purports to dispose of
a minor departure from Mafrige.
                                                                            all parties and issues. See, e.g., Mikulich v. Perez, 915
                                                                            S.W.2d 88, 91–92 (Tex.App.—San Antonio 1996, no
Its modified rule has two parts. The first represents no change
                                                                            writ).
in Texas law. It simply reiterates that a summary judgment
order that actually disposes of all parties and issues is final     In contrast, other courts have interpreted Mafrige more
for purposes of appeal. 39 S.W.3d at 192. The second part           narrowly, reasoning that an “order that explicitly grants a
provides that a Mother Hubbard clause is no longer enough           summary judgment in favor of less than all the defendants
                                                                    does not clearly evidence an intent to dispose of all


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Lehmann v. Har-Con Corp., 39 S.W.3d 191 (2001)
44 Tex. Sup. Ct. J. 364

claims against all defendants, especially those against whom
 *211 summary judgment was not sought, regardless of the             The reality is simply that omitted parties oftentimes do not
inclusion of a Mother Hubbard clause.” Lowe v. Teator, 1             believe that a summary judgment order that they have not
S.W.3d 819, 823–24 (Tex.App.—Dallas 1999, pet. filed); see           seen, that does not mention them, and that results from
also Midkiff v. Hancock E. Tex. Sanitation, Inc., 996 S.W.2d         a hearing in which they did not participate will operate
414, 416 (Tex.App.—Beaumont 1999, no pet.); Vanderwiele              to dispose of them or their claims. But, under the Court's
v. Llano Trucks, Inc., 885 S.W.2d 843, 845 (Tex.App.—                standard, if these parties do not perfect a timely appeal from
Austin 1994, no writ).                                               the erroneous judgment, their right to appeal is forever lost.
                                                                     This result elevates form over substance and hinders parties'
Here the Court summarily dismisses this omitted parties              rights to have the merits of their claims considered. See, e.g.,
problem:                                                             Rodriguez v. NBC Bank, 5 S.W.3d 756, 763 n. 4 (Tex.App.—
                                                                     San Antonio 1999, no pet.) (recognizing this Court's “express
            Nothing in the order in Lehmann                          goal of reaching the merits of a cause of action, instead of
            indicates that it is a final judgment,                   dismissing actions on procedural technicalities”).
            and it did not dispose of all pending
            claims and parties. The order in Harris
            states that plaintiff take nothing as
            to “one of the defendants”, but that                                  C. OMITTED CROSS–CLAIMS
            language does not suggest that all                                       AND COUNTERCLAIMS
            of the plaintiffs' claims were denied.
                                                                     The courts of appeals have also treated omitted cross-claims
            As the order recites and as the
                                                                     and counterclaims inconsistently—despite our holding in
            record demonstrates, the defendant
                                                                     Bandera. In Bandera, the trial court signed an order with a
            named in the order was not the only
                                                                     Mother Hubbard clause that did not mention the defendant's
            defendant remaining in the case. Thus,
                                                                     counterclaims. 946 S.W.2d at 337. This Court explained that
            we conclude that a final appealable
                                                                     “[b]ecause the order contained a Mother Hubbard clause
            judgment was not rendered in either
                                                                     denying all other relief, it also purported to dispose of [the
            case.
                                                                     defendant's] counterclaims.” Bandera, 946 S.W.2d at 337.
39 S.W.3d at 206. Despite the presence of a Mother Hubbard           But several courts have refused to apply Mafrige in this
clause, the trial court and parties in Lehmann continued             situation, maintaining that a summary judgment that does
treating the order as interlocutory-even in the face of              not mention counterclaims or cross-claims cannot purport to
this Court's admonishment that a Mother Hubbard clause               be final-regardless of whether it contains finality language.
                                                                     E.g., Sommers v. Concepcion, 20 S.W.3d 27, 33 (Tex.App.
indicates finality. 4 988 S.W.2d at 416. The Court now holds
                                                                     —Houston [14th Dist.] 2000, pet. denied); Hervey v. Flores,
that the order did not purport to be final based solely on
                                                                     975 S.W.2d 21, 25 (Tex.App.—El Paso 1998, pet. denied);
its new rule discounting the dispositive effect of Mother
                                                                     cf. Coleman Cattle Co., Inc. v. Carpentier, 10 S.W.3d
Hubbard clauses.
                                                                     430, 433 n. 2 (Tex.App.—Beaumont 2000, no pet.). Other
                                                                     courts have followed Bandera 's mandate, holding that
4      In fact, the district clerk sent all the parties (including   finality language—such as “plaintiff takes nothing” *212
       those omitted from the summary judgment order) a              —renders a judgment final for appeal purposes, despite
       postcard indicating that an “Order for Interlocutory
                                                                     omission of any reference to defendant's counterclaims. In re
       Summary Judgment” had been signed. Lehmann, 988
                                                                     Monroe, No. 05–99–01758–CV, 2000 WL 378519 (Tex.App.
       S.W.2d at 416.
                                                                     —Dallas Mar.31, 2000, orig. proceeding) (not designated for
However, the Court's resolution merely sidesteps the real            publication), 2000 WL 378519, at *1–2; see also Kaigler, 961
problem. What happens in the next case when, on facts                S.W.2d at 275–76.
identical to Lehmann, a trial court signs an interlocutory
summary judgment with the Court's new magic language                 The Court's rule does not provide a satisfactory remedy for
rather than a Mother Hubbard clause? We are right back               this situation either. The Court states:
where we started. Substituting one magic phrase for another
leads nowhere.



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Lehmann v. Har-Con Corp., 39 S.W.3d 191 (2001)
44 Tex. Sup. Ct. J. 364

                                                                   very issues are repeatedly raised in the courts of appeals, and
             An order that adjudicates only the                    the Court's modified rule simply does not resolve them.
             plaintiff's claims against the defendant
             does not adjudicate a counterclaim,
             cross-claim, or third party claim, nor
             does an order adjudicating claims like                     D. TRIAL COURTS' AND PARTIES' INTENT
             the latter dispose of the plaintiff's
                                                                   Differing philosophies about the effect the trial courts' and
             claims. An order that disposes of
                                                                   parties' intent should have on how Mafrige applies has created
             claims by only one of multiple
                                                                   the most confusion and inconsistency. The courts of appeals
             plaintiffs or against one of multiple
                                                                   have taken three approaches. Some courts apply a bright-line
             defendants does not adjudicate claims
                                                                   test, holding that a Mother Hubbard clause or other finality
             by or against other parties. An order
                                                                   language always renders an order final for appeal purposes,
             does not dispose of all claims and all
                                                                   regardless of any evidence of contrary intent. E.g., Preston
             parties merely because it is entitled
                                                                   v. American Eagle Ins. Co., 948 S.W.2d 18, 20–21 & n.
             “final,” or because the word “final”
                                                                   1 (Tex.App.—Dallas 1997, no writ) (holding that summary
             appears elsewhere in the order, or
                                                                   judgment purported to be final despite fact it was entitled
             even because it awards costs. Nor
                                                                   “partial summary judgment”); cf. In re Cobos, 994 S.W.2d
             does an order completely dispose of
                                                                   313, 315 (Tex.App.—Corpus Christi 1999, orig. proceeding)
             a case merely because it states that it
                                                                   (“As Mafrige and Inglish make clear, the intent of the trial
             is appealable, since even interlocutory
                                                                   court is not the controlling consideration in determining
             orders may sometimes be appealable.
                                                                   whether a judgment is final.”). Other courts modify this
             Rather, there must be some other clear
                                                                   approach, looking only within the four corners of the order
             indication that the trial court intended
                                                                   and giving effect to any evidence of contrary intent found
             the order to completely dispose of the
                                                                   there. E.g., Rodriguez, 5 S.W.3d at 763–64 (Tex.App.—San
             entire case.
                                                                   Antonio 1999, no pet.) (“Looking within the four corners
39 S.W.3d at 205.                                                  of the summary judgment order, the plain language of the
                                                                    *213 Mother Hubbard clause did not, and could not, purport
Under its modified finality rule, the lower courts'                to grant or deny any more relief than the relief which [the
disagreement in this area will continue because too many           defendant] sought.”); Midkiff, 996 S.W.2d at 416 (looking
questions are left unanswered. For example, should a “final”       to order “as a whole” to conclude that summary judgment
summary judgment order stating that defendant is granted           order containing Mother Hubbard clause did not purport to
summary judgment “in all things” dispose of a cross-claim          be final).
by another defendant as well as the claim by the plaintiff
that brought the original claim? In this situation, there is no    Finally, despite our holding in Inglish that the trial court's
doubt that the order is unambiguous. However, it is likewise       intent is irrelevant in this context, other courts still refuse to
clear, but not from the order, that the third party's claim        apply Mafrige if there is evidence of contrary intent anywhere
against the defendant was never considered. Should an order        in the record. This usually occurs when the parties and court
granting summary judgment for a plaintiff that recites it is       treat an order as interlocutory by continuing with the litigation
a final and appealable order be final for counterclaims not        rather than appealing the erroneous order. E.g., Lowe, 1
mentioned in the motion or order? The order unequivocally          S.W.3d at 823–24 (holding that summary judgment could not
states that it is a final, appealable order. Nonetheless there     be final where the record reflected that there were parties who
is a counterclaim that has not been considered. The Court          did not participate in the summary judgment proceeding);
states that a summary judgment granted for a plaintiff “does       Carey, 982 S.W.2d at 558 (relying, in part, on court's and
not adjudicate a counterclaim” and then goes on to say that        parties' treatment of order containing Mother Hubbard clause
to make the order final there must be “some other clear            as interlocutory to conclude judgment was not final).
indication that the trial court intended the order to completely
dispose of the entire case.” 39 S.W.3d at 205. In the example      The Court's solution to this problem is as confusing as
above, does the additional statement that “this is a final,        the rule it seeks to supplant. It appears to reject the
appealable order” provide this “other clear indication”? These     bright-line approach Mafrige espouses and instead adopt a



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Lehmann v. Har-Con Corp., 39 S.W.3d 191 (2001)
44 Tex. Sup. Ct. J. 364

rule combining the second and third approaches. First, the         Recreational Ass'n v. McAbee, No. 05–98–00252–CV, 1998
Court notes that an order is final for appeal purposes if it       WL 459819 (Tex.App.—Dallas Aug.10, 1998, no pet.) (not
“unequivocally states that it finally disposes of all parties      designated for publication), 1998 WL 459819, at *1.
and all claims and is appealable.” 39 S.W.3d at 205. It
also explains that “[i]f the language of the order is clear        In Aldridge, this Court held that a presumption of finality
and unequivocal, it must be given effect despite any other         exists when an order is signed following a traditional trial
indications that one or more parties did not intend for            on the *214 merits. Aldridge, 400 S.W.2d at 897–98. But
the judgment to be final.” 39 S.W.3d at 206. From these            we specifically noted that such a finality presumption would
statements, the Court's new rule walks and talks a lot like        not be appropriate in other contexts. Aldridge, 400 S.W.2d at
a bright-line Mafrige rule, with magic language establishing       897. Then in Mafrige we carved out an exception to what we
finality.                                                          had said in Aldridge by holding that an irrebuttable finality
                                                                   presumption applies to summary judgments containing a
However, the Court also states that “[t]o determine whether        Mother Hubbard or similar finality clause. Mafrige, 866
an order disposes of all pending claims and parties, it may        S.W.2d at 592. Here again, just as we had limited Aldridge
of course be necessary for the appellate court to look to the      to conventional trials on the merits, we expressly limited
record in the case.” 39 S.W.3d at 205. This sounds more like       Mafrige to summary judgments. Mafrige, 866 S.W.2d at
a pre-Mafrige rule, where a court must look to the record          591 (“[T]he issue is whether ... a summary judgment,
and the order to determine if an order actually disposes of all    which purports to be final by the inclusion of Mother
pending parties and issues.                                        Hubbard language or its equivalent, should be treated as final
                                                                   for purposes of appeal.”). Unfortunately, several courts of
Because of the lower courts' confusion and disagreement            appeals have erroneously applied Mafrige in other contexts,
about the role of intent in determining finality, I am convinced   causing confusion over how to determine finality of various
that the Court has not provided a workable rule that clearly       other types of orders.
defines that role as it applies to determining summary
judgment finality.                                                 Mafrige and its progeny are limited to summary judgments
                                                                   —with good reason. No good can come of interjecting
                                                                   additional uncertainty into (1) conventional trials on the
                                                                   merits, to which the majority acknowledges the Aldridge
          E. APPLYING MAFRIGE TO NON–
                                                                   presumption has “proved a fairly workable” rule, 39 S.W.3d
          SUMMARY JUDGMENT ORDERS
                                                                   at 200, or (2) numerous other types of orders, when even
Finally, the question of whether Mafrige applies outside the       the majority acknowledges that “the ordinary expectation”
summary judgment context has confused the lower courts.            supporting a finality presumption “simply does not exist when
Courts of appeals have applied Mafrige to a plea to the            some form of judgment is rendered without such a trial”
jurisdiction, Webb v. HCM Mgmt. Corp., No. 07–96–0369–             because “it is quite possible, perhaps even probable these
CV, 1998 WL 16033 (Tex.App.—Amarillo Jan. 12, 1998,                days ... that any judgment rendered prior to a full-blown trial
pet. denied) (not designated for publication) 1998 WL 16033,       is intended to dispose of only part of the case.” 39 S.W.3d at
at *1; an agreed judgment, In re Cobos, 994 S.W.2d at 315–         200.
16; a directed verdict, e.g., Polley v. Odom, 957 S.W.2d
932, 943 (Tex.App.—Waco 1997, judgm't vacated); and a              However, the Court's opinion here implicates finality of all
severance order, Harris County Flood Control Dist. v. Adam,        judgments. This expansion into issues not before the Court
988 S.W.2d 423, 427 (Tex.App.—Houston [1st Dist.] 1999,            today can only cause mischief in areas already plagued by
pet. filed). In contrast, at least one court has declined to       confusion. If the Court persists in adhering to Mafrige's
apply Mafrige to a dismissal for want of jurisdiction. In          principles, it should at least limit its holding, as we did in
re Tejas, Nos. 01–98–00688–CV, 01–98–00689–CV, 01–                 Mafrige, to summary judgments.
98–00690–CV, 1998 WL 394562 (Tex.App.—Houston [1st
Dist.] July 13, 1998, orig. proceeding) (not designated for
publication), 1998 WL 394562, at *1 n. 1. And another has                      II. POLICY CONSIDERATIONS
expressly refused to extend Mafrige to any order that is
not a summary judgment. Biltmore Swim & Racquet Club



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                           20
Lehmann v. Har-Con Corp., 39 S.W.3d 191 (2001)
44 Tex. Sup. Ct. J. 364

Not surprisingly, the post-Mafrige era has given rise to               3 (complaining that the questions Mafrige raises “are just as
considerable analysis by courts and commentators of both               elusive” as the questions it sought to resolve).
the competing policies Mafrige implicates and suggestions
for reform. A few have applauded the bright-line rule.                 Strong policies support our practice of adhering to settled
See Kaigler, 961 S.W.2d at 275–76 (recognizing that                    rules of law “unless there exists the strongest reasons for
the rule provides harsh results, but emphasizing that                  chang[e].” Benavides v. Garcia, 290 S.W. 739, 740–41 (Tex.
uniform enforcement “encourage[s] attentiveness to correct             Comm'n App.1927, judgm't adopted). But we have also
judgments”); Boyce, Mafrige v. Ross and the Pitfalls of                recognized the “doctrine of stare decisis does not stand as
Presumptions, APPELLATE ADVOCATE, Nov. 1997, at 7                      an insurmountable bar to overruling precedent.” Gutierrez v.
(opining that Mafrige “resolved the confusion created by prior         Collins, 583 S.W.2d 312, 317 (Tex.1979). “Generally, we
contradictory language and flatly inconsistent holdings”).             adhere to our precedents for reasons of efficiency, fairness,
                                                                       and legitimacy.” Weiner v. Wasson, 900 S.W.2d 316, 320
However, praises have been few and far between. Criticism              (Tex.1995). However, when adherence to a judicially-created
has been the rule and the comments call for this Court to              rule of law no longer furthers these interests, and “the general
reconsider our decision:                                               interest will suffer less by such departure, than from a strict
                                                                       adherence,” we should not hesitate to depart from a prior
             What began as a benign growth                             holding. Benavides, 290 S.W. at 740. The lower courts'
             allowing review of unripe claims                          application of Mafrige over the last seven years illustrates
             on appeal, in Mafrige, became a                           undeniably that this is just such a case.
             malignant cancer cutting off causes
             of action before trial, in Inglish. If                    We intended Mafrige, Inglish, and Bandera to provide
             it were up to me, I would lock                            certainty to litigants. Instead, they have bred chaos. Most
             Mother Hubbard in the cupboard and                        disturbing is that the casebooks are now replete with
             return to the rule before Aldridge that                   examples of dismissed cases where the parties and courts
             a judgment is final and appealable                        clearly intended an order containing finality language to
             only if it expressly disposes of all
                                                                       be interlocutory. 5 E.g., Inglish, 945 S.W.2d at 811; In re
             parties and all claims in the case. That
                                                                       Cobos, 994 S.W.2d at 315–16; Pena v. Valley Sandia, Ltd.,
             appellants can even cite authority for
                                                                       964 S.W.2d 297, 298–99 (Tex.App.—Corpus Christi 1998,
             the absurd result they seek, illustrates
                                                                       no pet.); Kaigler, 961 S.W.2d at 275–76. Even the Court
             how wrong a turn the law has taken in
                                                                       acknowledges:
             this area—and how strong the need to
             right it.
                                                                       5       Oftentimes in these cases litigation continues to move
Harris County Flood Control Dist., 988 S.W.2d at 427–28                        forward. Any error in including magic finality language
(Taft, J., concurring in denial of rehearing en banc); see                     in a summary judgment is not discovered until it is too
also, e.g., Lehmann, 988 S.W.2d at 418 (“Mafrige is not                        late; the appellate timetable has expired and the trial court
as clear to litigants as the supreme court believes it is.... In               has lost plenary power to act. The litigants have forever
short, Mafrige has created several problems: 1) it is catching                 lost their right to complain of the judgment.
the parties by surprise ...; 2) it exalts form over substance;
and 3) in more than a few situations, it ignores common                    [T]he ordinary expectation that supports the presumption
sense.”); Carlson & Dunn, Navigating *215 Procedural                       that a judgment rendered after a conventional trial on the
Minefields: Nuances in Determining Finality of Judgments,                  merits will comprehend all claims simply does not exist
Plenary Power, and Appealability, 41 S. TEX. L.REV. 953,                   when some form of judgment is rendered without such a
971 (2000) (“[D]espite the appeal of the certainty provided by             trial. On the contrary, it is quite possible, perhaps even
this bright-line rule, the reality is that still, after seven years,       probable these days in cases involving multiple parties
it continues to operate as a trap for unwary litigants, bringing           and claims, that any judgment rendered prior to a full-
about arguably unjust and oftentimes draconian results.”);                 blown trial is intended to dispose of only part of the
Swanda, Summary Judgment, Mother Hubbard Clauses, and                      case. Accordingly, the finality of the judgment must be
Mafrige v. Ross, APPELLATE ADVOCATE, May 1997, at                          determined without the benefit of any presumption.




                 © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                      21
Lehmann v. Har-Con Corp., 39 S.W.3d 191 (2001)
44 Tex. Sup. Ct. J. 364

   39 S.W.3d at 200. Because of this reality, it is difficult to     relief than requested, the court of appeals should address
   understand why the Court persists in adhering to Mafrige's        the merits of the appeal, remanding only the part of the
   principles.                                                       judgment that exceeds the relief requested in the summary
The author of the Court's opinion recently opined: “Appellate        judgment motion. 946 S.W.2d at 337. Undeniably, these rules
procedure should not be tricky. It should be simple, it should       were designed to simplify summary judgment finality. But, in
be certain, it should make sense, and it should facilitate           application, these cases only demonstrate that we should have
consideration of the parties' argument on the merits....”            adhered to our own admonishments that this Court simply
Lane Bank Equip. Co. v. Smith Southern Equip., Inc.,                 should not make rules by opinion. E.g., Alvarado v. Farah
10 S.W.3d 308, 314 (Tex.2000) (Hecht, J., concurring).               Mfg. Co., 830 S.W.2d 911, 915 (Tex.1992) (explaining that
This Court has repeatedly refused to adopt positions which           we should not revise rules by opinion); see also Verburgt
elevate form over substance. See, e.g., Phillips v. Beaber,          v. Dorner, 959 S.W.2d 615, 619 (Tex.1997) (Baker, J.,
995 S.W.2d 655, 658 (Tex.1999); Nueces Canyon Consol.                dissenting) (noting that this Court's jurisprudence forbids rule
Indep. Sch. Dist. v. Central Educ. Agency, 917 S.W.2d                amendments by judicial fiat).
773, 775–76 (Tex.1996). The Court here even recognizes
that “[s]implicity and certainty in appellate procedure are          Thus, we should overrule Mafrige, Inglish, and Bandera—to
nowhere more important than in determining the time for              the extent they created new rules by judicial fiat—and instead
perfecting appeal.” 39 S.W.3d at 205. Unfortunately though,          tackle the problems of summary judgment finality through
the Court declines to embrace this opportunity *216 to               our rulemaking process. Accordingly, we should return to
effectuate meaningful change and provide certainty for courts        our prior position that a Mother Hubbard clause (or other
and litigants. Instead the Court leaves them as it found them,       magic language) has no place in any summary judgment
grappling with determining whether summary judgment                  order—final or partial—and that a trial court may not sua
orders are fictitiously made final.                                  sponte grant more relief than the parties request simply by
                                                                     adding conclusory finality language to a summary judgment
                                                                     order. Further, a summary judgment should be entitled to no
                                                                     presumption at all about whether it is final.
                    III. THE SOLUTION

The Court notes: “[W]e do not write rules by opinion. We             Returning to the law as it was pre-Mafrige requires
must decide what Texas law requires for finality, given the          determining the state of the law before Mafrige. Mafrige
present rules .” 39 S.W.3d at 205. Yet, the Mafrige finality         actually held two things: (1) that “ ‘Mother Hubbard’
rule this Court created represented such a major departure           language or its equivalent in an order granting summary
from prior Texas law. In fact, but for the judicially-created        judgment makes an otherwise partial summary judgment final
Mafrige rule, no one would dispute that “what Texas law              for appeal purposes;” and (2) that if a summary judgment
requires for finality” of summary judgments is an order              “grants more relief than requested, it should be reversed and
actually disposing of all parties and issues.                        remanded, but not dismissed.” 866 S.W.2d at 590, 592.


Rather than simply amend the Mafrige finality rule and               Before Mafrige, this first holding was not the law. In Teer v.
perpetuate the problems the unworkable system Mafrige and            Duddlesten we held that:
its progeny created, the Court should focus on shaping a real
                                                                       There is no presumption in partial summary judgments
solution—one providing the desired certainty and protecting
                                                                       that the judgment was intended to make an adjudication
parties' right to appellate review. This requires wiping
                                                                       about all parties and issues. The Mother Hubbard clause
the slate clean. Mafrige created enough problems with its
                                                                       that “all relief not expressly granted is denied” has no place
fictional finality and its holding that trial courts can use magic
                                                                       in a partial summary judgment hearing. The concepts of a
language to create final summary judgments by granting
                                                                       partial summary judgment on the one hand, and a judgment
relief not requested. 866 S.W.2d at 591–92. In Inglish we
                                                                        *217 that is presumed to determine all issues and facts on
compounded the problem by confirming that Mafrige applies
                                                                       the other, are inconsistent.
even when the parties continue litigating rather than appealing
a partial summary judgment made final under Mafrige. 945             664 S.W.2d at 704. In Mafrige we recognized this earlier
S.W.2d at 811. We completed the trilogy in Bandera, holding          statement in Teer, but rejected it and held that finality
that when a party appeals a summary judgment granting more



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                              22
Lehmann v. Har-Con Corp., 39 S.W.3d 191 (2001)
44 Tex. Sup. Ct. J. 364

language could render a partial summary judgment final for        without any sua sponte severance of some issues while others
purposes of appeal. 290 S.W.2d at 592.                            are remanded.

Mafrige's second holding—that a summary judgment                  Wiping the slate clean by overruling the rules created in
granting more relief than requested should be reversed            Mafrige, Inglish, and Bandera while we study the best method
and remanded, but not dismissed—does not appear to be             of tackling summary judgment finality through our formal
an entirely new rule. In both Teer and Chessher, another          rule-promulgation process is the better solution for several
pre-Mafrige case, we reversed and remanded (rather than           reasons. First, this approach strikes a more reasonable balance
dismissed) summary judgment orders after determining that         between the competing policies of promoting certainty and
they were interlocutory because they granted more relief          preserving parties' rights to appellate review. And, under this
than requested. See Teer, 664 S.W.2d at 705; Chessher v.          approach, the trial court and the parties drafting summary
Southwestern Bell Tel. Co., 658 S.W.2d 563, 564 (Tex.1983).       judgment orders would have the burden, and the incentive, to
But see Ross v. Arkwright Mut. Ins. Co., 834 S.W.2d 385,          ensure that the pleadings, summary judgment motions, and
393 (Tex.App.—Houston [14th Dist.] 1992) (opining that            the summary judgment orders match. If a premature appeal is
these cases are “in direct contravention of TEX.R. CIV.           taken, the court of appeals need only compare the pleadings,
P. 166a(c)” and discussing disagreement in the courts over        motions, and order. If the order does not dispose of parties or
whether summary judgment orders granting more relief than         issues raised in the pleadings, then it is interlocutory and the
requested were interlocutory or appealable, but erroneous,        court must dismiss the appeal. 7 If the order explicitly *218
judgments), rev'd sub. nom. Mafrige, 866 S.W.2d at 590.           disposes of issues and parties not raised in the motion, it is
Thus, while the courts were not entirely in agreement, it         erroneous and the court must reverse the entire order.
appears we had already established the rule that a summary
judgment order granting more relief than requested is not         7      Of course, this procedure would not apply if the order
interlocutory—it is simply erroneous. For this reason, I agree
                                                                         fell within the category of cases for which there can be
with the Court that if an order actually does dispose of each
                                                                         more than one final judgment, or the category of orders
claim and every party, it is an appealable judgment, even if             for which a court of appeals has been granted statutory
it grants more relief than requested. This is consistent with            authority to review interlocutory orders.
the long-standing rule that if an order actually disposes of
                                                                  Most importantly, this approach alters the consequences of
all parties and issues, it is final for appeal purposes. E.g.,
                                                                  poorly-drafted orders. Specifically, the consequence flowing
Houston Health Clubs, Inc. v. First Court of Appeals, 722
                                                                  from a poorly drafted order becomes the risk of a premature
S.W.2d 692, 693 (Tex.1986). However, consistent with my
                                                                  appeal rather than an untimely one. This eliminates the
view that we should overrule Mafrige and its progeny and
                                                                  greatest risk Mafrige created—that an interlocutory order,
recognize no presumption for or against finality, I do not
                                                                  contrary to the trial court's and (at least one party's) intent,
believe any type of conclusory finality language can ever be
                                                                  will be fictitiously made final, starting the appellate and
read to grant more relief than requested by the parties. 6        plenary power timetables even while the litigation continues.
                                                                  No one would argue that conducting a trial after the trial
6      It would not be enough for a court to generally state      court's plenary power has expired is not a waste of judicial
       “plaintiff takes nothing,” “defendant is granted summary   resources. Moreover, because overruling Bandera eliminates
       judgment in all things,” or “this is a final appealable    the benefits of a premature appeal, taking such an appeal
       judgment.” Conclusory finality clauses (i.e. “magic        would not be a cost-efficient mistake for litigants to make,
       language”) do not indicate that a trial court actually     increasing the incentive to ensure orders are more clearly
       granted relief not requested for or against parties or
                                                                  drafted. If a premature appeal is nonetheless taken, it would
       issues are not mentioned in the order.
                                                                  not create an onerous burden for the appellate court. The
We should determine summary judgment finality by                  opposing party need only file a brief pointing out that
comparing the live pleadings and the summary judgment             the pleadings, motion, and order do not match, leading to
order. A summary judgment order should only be final if it        automatic remand or dismissal.
matches the contents of the pleadings. And, as was the law
before Bandera, a court of appeals should summarily reverse       No one disputes that rules governing summary judgment
any summary judgment granting more relief than requested,         finality could be helpful to the bench and bar and facilitate
                                                                  judicial efficiency. But history, as well as our own precedent,


               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                             23
Lehmann v. Har-Con Corp., 39 S.W.3d 191 (2001)
44 Tex. Sup. Ct. J. 364

has shown that judicial opinions are not the place to achieve      Under this approach, a summary judgment is not final unless
this. Any attempt to adhere to the Mafrige principle or retain     the order specifically identifies each claim for relief, the
parts of it while rejecting others can only lead to more           grounds upon which each party seeks summary judgment, and
problems. Instead, this Court should overrule Mafrige and its      the court's disposition *219 of each claim and party. The
progeny and start anew. As the Court even notes, our rules         appellate court's jurisdiction is determined only by looking at
advisory committee is currently studying summary judgment          whether the trial court rendered an order expressly disposing
finality. 39 S.W.3d at 216. Retaining parts of Mafrige, Inglish,   of all remaining parties and issues. If the trial court errs by
Bandera as modified by the Court's less-than-clear opinion         omitting certain claims or parties from the order, as happened
today—only to follow with promulgation of a concurrent             in Lehmann and Harris, it is not a final order for purposes
finality rule—will only lead to more confusion.                    of appeal. Under this approach a party never loses its right to
                                                                   appeal based upon the finality of a summary judgment order
I agree that the cases here should be reversed. But, because       that is silent about the party or its claims or that sua sponte
the Court refuses to fix the problems its judicial rulemaking      grants relief no party requested without mentioning the parties
in Mafrige caused and allow our rulemaking process to work,        or claims—regardless of how clearly it states that it is a final
I cannot join the Court's opinion.                                 judgment disposing of all parties and issues.

                                                                   Most significantly, in practice this would lead to better
                                                                   drafting and fewer erroneous appeals. Specifically, if required
                IV. RECOMMENDATION
                                                                   to expressly list each ground upon which summary judgment
I recognize that the Supreme Court of Texas Advisory               is requested, trial courts are not likely to add grounds to their
Committee on Rules of Civil Procedure has been studying            order that the summary judgment motion did not raise.
the problem of summary judgment finality. It has proposed
an amendment to Rule 166a of the Texas Rules of Civil              Second, I would suggest the committee consider a rule
Procedure:                                                         requiring that the prevailing party, who is charged with
                                                                   drafting the court's order, serve copies on all other parties at
             (j) Statement of Grounds. An order                    least ten days before the trial court is to sign and enter the
                granting summary judgment must                     order. Consistent with this suggestion, I agree with the Court's
                state the ground or grounds on                     suggestion that the clerk send copies of all the actual signed
                which the motion was granted. No                   orders—rather than just a postcard indicating that the court
                judgment may be affirmed on other                  has signed an order.
                grounds stated in the motion unless
                they are asserted by appellee in                   The majority's author criticizes my first recommendation,
                the appellate court as alternative                 asserting that there is a “very real risk” that requiring judges
                grounds for affirmance.                            to be explicit in their summary judgment orders would result
                                                                   in “thousands of judgments intended to be final ... remain[ing]
I do not believe this proposed amendment goes far enough.          interlocutory.” 39 S.W.3d at 196. He contends that “[t]his
                                                                   is precisely what has happened in the federal system even
First I would suggest to the committee that they consider          though the federal rules impose far fewer requirements on
requiring each summary judgment order specifically identify:       final judgments than the dissent would.” 39 S.W.3d at 208.
(1) the claims each party brings; (2) the grounds upon which       Federal Rule 58, to which he refers, requires that all final
each party seeks summary judgment; (3) each ground upon            judgments “be set forth on a separate document” and be
which the trial court granted summary judgment; and (4) each       entered by the clerk on the docket. FED.R.CIV.P. 58.
ground upon which the trial court denied summary judgment.
                                                                   This criticism only serves to amplify the real dangers
This solution is intuitive. In the vast majority of cases,         of straying outside the summary judgment context in
this formality, rather than including magic language, would        these cases. How finality of different types of judgments
provide notice to parties about what has actually happened. In     is determined must be governed by the nature of the
practice, this procedure alleviates many problems Mafrige's        judgment. Houston Health Clubs, Inc., 722 S.W.2d at 693
finality rule has caused.                                          (“In determining whether a judgment is final, different



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                            24
Lehmann v. Har-Con Corp., 39 S.W.3d 191 (2001)
44 Tex. Sup. Ct. J. 364

                                                                      cause such *220 major havoc in the court system. Further,
presumptions apply depending on whether the judgment
                                                                      I believe the additional formality in this context is worth the
follows a conventional trial on the merits or results from
                                                                      certainty and protections such a rule provides.
default or a motion for summary judgment.”). Cognizant of
this, my recommendation, unlike Federal Rule 58, is limited
to summary judgment finality.
                                                                                           V. CONCLUSION
The live pleadings define the issues in a case. The issues
tried do not always mirror these pleadings. See Vance v.              In Texas, the test for determining summary judgment finality
Wilson, 382 S.W.2d 107, 108 (Tex.1964). Nonetheless, we               has always been whether the judgment disposes of all parties
have repeatedly recognized that a presumption should exist            and all issues raised in the pleadings. In Mafrige we created
that all issues presented by the pleadings are disposed of in         a legal fiction to simplify the process of determining finality.
a conventional trial on the merits. See Aldridge, 400 S.W.2d          But Mafrige created more problems than it solved. It is
at 897–98; Vance, 382 S.W.2d at 108. This presumption                 beyond me why the Court insists on struggling through pages
can be rebutted by a contrary showing in the record. See              and pages of history about presumptions, magic language,
Richey v. Bolerjack, 589 S.W.2d 957, 959 (Tex.1979). But              and Mother Hubbard clauses instead of squarely considering
absent such a rebuttal, this presumption prevents judgments           the problems Mafrige caused and providing a solution. Its
from languishing after trial based solely on variations in the        willingness to cling to this legal fiction, while refusing to
pleadings and judgment. This presumption has saved us from            recognize that our rulemaking in Mafrige and its progeny was
the types of problems the federal system has experienced.             not the correct solution, will only create more problems.

However, we sensibly limited this presumption to judgments            I concur in the judgment in these cases. But, because the Court
“not intrinsically interlocutory in character.” Aldridge, 400         declines to overrule Mafrige, Inglish, and Bandera, and await
S.W.2d at 897. We have also explained that summary                    our promulgation of a rule governing summary judgment
judgments are intrinsically interlocutory and thus they should        finality, I do not concur in its reasoning.
not be presumed final. Houston Health Clubs, Inc., 722
S.W.2d at 693. Thus, there is nothing illogical about requiring
                                                                      All Citations
that finality language be explicit. And I respectfully disagree
that my recommendation, limited to summary judgments, will            39 S.W.3d 191, 44 Tex. Sup. Ct. J. 364

End of Document                                                   © 2015 Thomson Reuters. No claim to original U.S. Government Works.




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                25
M.R. Champion, Inc. v. Mizell, 904 S.W.2d 617 (1995)
38 Tex. Sup. Ct. J. 331


                                                                 [2]   Partnership
                     	
	                                        Continuance of Partnership for Purposes of
                 	                               Winding Up
   		 !"#$%"$	&'()*&%                           After partnership terminates, duty to partner
       "&&&+,*)+                          is limited to matters relating to winding up
                                                                       of partnership's affairs; specifically, person
       		)*&%-,%!**&
                                                                       has no duty to offer his former partners
                       .	
                                                                       or partnership a business opportunity which
           -&&*"/+00%&&	
                                                                       arises after partnership has terminated. Vernon's
                                                                       Ann.Texas Civ.St. arts. 6132b–4.04, 6132b–
           $	-1	 2 ,)%3	
                                                                       4.05.
        2 )*&4#.5	%3	
                                                                       9 Cases that cite this headnote
Partner sued defendant partner for terminating partnership.
The District Court, Number 12, Leon County, William L.
McAdams, entered judgment for defendant, and plaintiff           [3]   Partnership
appealed. The Waco Court of Appeals, Thomas, C.J., 902                     Instructions
S.W.2d 1,reversed, finding that jury finding that defendant            Partnership
breached duty to plaintiff included finding that partnership               Judgment
continued in existence until alleged breach of duty occurred.
                                                                       Defendant partner was entitled to judgment,
Defendant applied for writ of error to Supreme Court. The
                                                                       even though jury found that defendant
Supreme Court held that jury's finding that plaintiff breached
                                                                       breached fiduciary duty, as jury's determination
partnership agreement when he was barred from entering
                                                                       that plaintiff partner breached fiduciary duty
customer property for theft of equipment controlled legal
                                                                       controlled issue of whether such duty existed,
determination as to when partnership terminated, regardless
                                                                       but jury's finding that defendant partner later
of finding that defendant breached fiduciary duty.
                                                                       also breached duty did not control issue of
                                                                       whether duty continued to exist, where trial court
Application for writ of error granted, judgment of court of
                                                                       instructed jury that defendant owed plaintiff
appeals reversed, judgment rendered for defendant.
                                                                       and partnership a fiduciary duty, but definition
                                                                       did not describe how duty was affected by
                                                                       termination of the partnership, jury did not
 West Headnotes (3)                                                    determine when defendant's breach occurred,
                                                                       and jury found that plaintiff breached partnership
                                                                       agreement and conducted self in such a way that
 [1]    Partnership                                                    it was not reasonably practicable to carry on
            As to fiduciary relation of partners                       partnership business, and based on this finding,
        Partnership                                                    trial court found partnership terminated at this
            Continuance of Partnership for Purposes of                 time, before breach of fiduciary duty alleged by
        Winding Up                                                     plaintiff, but jury was not asked to determine
        Partners owe each other and their partnership                  whether defendant still had duty to plaintiff at the
        a duty in the nature of a fiduciary duty in the                time that he seized business opportunity, and was
        conduct and winding up of partnership business,                not informed that legal effect of plaintiff's breach
        and are liable for breach of that duty. Vernon's               was to terminate partnership.
        Ann.Texas Civ.St. arts. 6132b–4.04, 6132b–
                                                                       8 Cases that cite this headnote
        4.05.

        10 Cases that cite this headnote




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                            1
M.R. Champion, Inc. v. Mizell, 904 S.W.2d 617 (1995)
38 Tex. Sup. Ct. J. 331

                                                                   former partners or partnership a business opportunity which
Attorneys and Law Firms                                            arises after the partnership has terminated. Id. 11 S.W. at
                                                                   340. The dispute centers on when the partnership terminated.
 *617 Leslie C. Taylor, Houston, Amy C. Thomas, Mexia,
                                                                   Defendants contend that the partnership terminated in January
and W. James Kronzer, Jr., Houston, for petitioners.
                                                                   1987 as a result of Mizell's misconduct toward Northwestern,
Harry Herzog and Mark D. Wilson, Houston, for respondent.          and that Champion had no duty to refer new business
                                                                   opportunities, like the three-year contract, to the partnership.
Opinion                                                            Mizell asserted that the partnership was not dissolved until
                                                                   Champion withdrew in January 1988, and that Champion
PER CURIAM.                                                        continued to be bound by his fiduciary duty when he obtained
                                                                   the three-year contract for MRCI.
Petitioners' motion for rehearing is granted, our prior opinion
is withdrawn, and the following is now the opinion of the
                                                                   1      This case was tried under, and is governed by, the Texas
Court.
                                                                          Uniform Partnership Act as it existed prior to adoption of
This case involves a dispute between two former partners.                 the Texas Revised Partnership Act in 1994. Although the
The dispositive issue is whether the trial court correctly                statutory provisions were completely revised in 1994, the
                                                                          principles as they apply to this case have not changed.
construed the jury verdict in rendering judgment. The court
                                                                          Accordingly, we refer to the Revised Act.
of appeals held it did not. 902 S.W.2d 1. We disagree.
                                                                   The trial court instructed the jury that Champion owed Mizell
Dennis Mizell and M.R. Champion, as partners, contracted           and the partnership a fiduciary duty which the trial court
to provide services to Northwestern Resources Company for          defined. The definition did not describe how the duty was
a year *618 beginning in January 1986. At the end of               affected by termination of the partnership. The jury found
that year, Champion negotiated a second one-year contract          that Champion breached his fiduciary duty to Mizell and the
with Northwestern under the name of M.R. Champion, Inc.            partnership, but it was not asked to find when the breach
(“MRCI”), assuring Mizell that they would still perform            occurred. The jury also found that after Mizell was barred
the contract as partners. In January 1987, Northwestern            from Northwestern's premises in January 1987, he breached
barred Mizell from its premises for taking some of its             the partnership agreement and conducted himself in such
property. Champion continued to work for Northwestern              a way that it was not reasonably practicable to carry on
throughout the year using equipment leased from Mizell. In         partnership business. Based upon this latter finding, the
December 1987, Champion negotiated a three-year contract           trial court found that the partnership terminated in January
with Northwestern covering 1988–1990, again in the name of         1987, before the breach of fiduciary duty asserted by Mizell.
MRCI. A month later Champion told Mizell the partnership           See TEX.REV.CIV.STAT.ANN. art. 6132b–6.01 (Vernon
was over.                                                          Supp.1995). Mizell does not challenge this finding.

 [1]    [2] Mizell sued Champion and MRCI. Before the              On motions of all parties for judgment on the verdict, the trial
case could be tried, Champion died and the independent             court rendered judgment for defendants. The court of appeals
executrix of his estate was added as a defendant. Although         reversed and rendered judgment for Mizell. It reasoned that
Mizell asserted a number of claims, he went to trial on            since no party complained of a lack of evidence to support
only one: breach of fiduciary duty in not obtaining the            any of the jury's findings, judgment must be based on
three-year contract with Northwestern for the partnership.         those findings if possible. In the court of appeals' view, the
The law applicable to this claim is not disputed. Partners         jury's finding that Champion breached his fiduciary duty to
owe each other and their partnership a duty in the nature          Mizell necessarily included the finding that the partnership
of a fiduciary duty in the conduct and winding up of               continued in existence until December 1987, when the only
partnership business, and are liable for a breach of that duty.    damages claimed by Mizell occurred. The court of appeals
TEX.REV.CIV.STAT.ANN. art. 6132b–4.04, –4.05 (Vernon               concluded that the breach finding left the trial court no
                                                                   alternative but to render judgment for Mizell. 902 S.W.2d 1.
Supp.1995). 1 After the partnership terminates, however, the
duty is limited to matters relating to the winding up of the
                                                                   [3] We disagree with the court of appeals' analysis. Whether
partnership's affairs. Rice v. Angell, 73 Tex. 350, 11 S.W. 338,
                                                                   Champion still had a duty to Mizell in December 1987 was
340 (1889). Specifically, a person has no duty to offer his


                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                    2
M.R. Champion, Inc. v. Mizell, 904 S.W.2d 617 (1995)
38 Tex. Sup. Ct. J. 331

not a factual determination which the jury could, or was asked
                                                                        We conclude that the trial court correctly rendered judgment
to, make. It was a legal determination, based on the jury's
                                                                        for defendants. Accordingly, a majority of the court grants
finding concerning Mizell's conduct in January 1987, and the
                                                                        Champion's application for writ of error and, without
trial court's finding that the partnership *619 terminated.
                                                                        hearing oral argument, reverses the judgment of the court
The jury was not instructed that the legal effect of Mizell's
                                                                        of appeals and renders judgment that Mizell take nothing.
conduct was to terminate the partnership, and it may have
                                                                        TEX.R.APP.P. 170.
believed otherwise. But that belief, if it existed, cannot change
the legal effect of the jury's finding. The jury's finding that
Champion breached his fiduciary duty does not control the
                                                                        All Citations
legal determination of whether such duty existed; the finding
concerning Mizell's conduct does.                                       904 S.W.2d 617, 38 Tex. Sup. Ct. J. 331

End of Document                                                     © 2015 Thomson Reuters. No claim to original U.S. Government Works.




                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                  3
Cluck v. Mecom, 401 S.W.3d 110 (2011)                                          pet. denied

                                                                      defendant of his fiduciary duty to the plaintiff;
                                                                      and (3) an injury to the plaintiff or a benefit to
                     	
	
                                                                      the defendant as a result of the breach.
                
                   !	"	                               3 Cases that cite this headnote
       #$%&#'
	()*+++
     ($,!-.()*                  [2]   Judgment
                        /	                                                Trust cases
     '
	(,0('	($                       Genuine issue of material fact as to whether
 ,!-.()*+/).1	++	                  trustee breached fiduciary duty, including
                                                                      through self-dealing, precluded no-evidence
       1	2324526	 7          ()89	               summary judgment in favor of trustee in
                                                                      beneficiaries' action against trustee. Vernon's
Synopsis                                                              Ann.Texas Rules Civ.Proc., Rule 166a(c, i).
Background: Beneficiaries, the grandchildren of settlor,
brought action against trustee, who was settlor's son and             1 Cases that cite this headnote
beneficiaries' father, alleging breach of fiduciary duty,
conversion, and civil theft. The 113th District Court,
                                                                [3]   Fraud
Harris County, Patricia Ann Hancock, J., granted summary
                                                                          Duty to disclose facts
judgment to trustee. Beneficiaries appealed.
                                                                      A fiduciary has an affirmative duty to make a
                                                                      full and accurate confession of all his fiduciary
                                                                      activities, transactions, profits, and mistakes.
Holdings: The Court of Appeals, Charles W. Seymore, J.,
held that:                                                            Cases that cite this headnote

[1] genuine issue of material fact as to whether trustee
                                                                [4]   Fraud
breached fiduciary duty, including through self-dealing,
                                                                          Presumptions and burden of proof
precluded no-evidence summary judgment in favor of trustee;
                                                                      When a plaintiff alleges self-dealing by the
[2] trustee did not wrongfully exercise dominion or control           fiduciary as part of a breach of fiduciary duty
over trust assets, as would support beneficiaries' conversion         claim, a presumption of unfairness automatically
claim; and                                                            arises, which the fiduciary bears the burden to
                                                                      rebut.
[3] genuine issue of material fact as to date on which
                                                                      4 Cases that cite this headnote
beneficiaries discovered their injuries precluded traditional
summary judgment based on limitations.
                                                                [5]   Conversion and Civil Theft
                                                                          In general; nature and elements
Affirmed in part, reversed in part, and remanded.
                                                                      The elements of a conversion claim are: (1) the
                                                                      plaintiff owned, possessed, or had the right to
                                                                      immediate possession of personal property; (2)
 West Headnotes (14)                                                  the defendant wrongfully exercised dominion or
                                                                      control over such property; and (3) the plaintiff
                                                                      suffered injury.
 [1]    Fraud
            Fiduciary or confidential relations                       2 Cases that cite this headnote
        The elements of a claim for breach of fiduciary
        duty are: (1) a fiduciary relationship between the      [6]   Trusts
        plaintiff and the defendant; (2) a breach by the


               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                         1
Cluck v. Mecom, 401 S.W.3d 110 (2011)


             Waste, conversion, or embezzlement by
       trustee                                               [10]   Judgment
                                                                        Particular defenses
       Trustee did not wrongfully exercise dominion
       or control over trust assets, as would                       A defendant seeking summary judgment based
       support beneficiaries' conversion claim, even if             on limitations must: (1) conclusively prove when
       beneficiaries did not receive anything from trust,           the cause of action accrued and (2) negate the
       where trustee was named as successor trustee of              discovery rule, if it applies and has been pleaded
       trust by his mother, the settlor, and he had acted           or otherwise raised, by proving, as a matter of
       as trustee since settlor's death.                            law, there is no genuine issue of fact about when
                                                                    the plaintiff discovered, or in the exercise of
       Cases that cite this headnote                                reasonable diligence should have discovered, the
                                                                    nature of her injury.
[7]    Judgment                                                     Cases that cite this headnote
           Bar of statute of limitations
       Genuine issue of material fact as to date on
                                                             [11]   Judgment
       which beneficiaries discovered their injuries
                                                                        Particular defenses
       precluded traditional summary judgment based
       on limitations, in beneficiaries' action against             If a summary judgment movant establishes that
       trustee alleging breach of fiduciary duty.                   limitations bars the action, the nonmovant must
       Vernon's Ann.Texas Rules Civ.Proc., Rule                     then adduce summary-judgment proof raising a
       166a(c).                                                     fact issue to avoid the statute of limitations.

       Cases that cite this headnote                                Cases that cite this headnote


[8]    Limitation of Actions                                 [12]   Limitation of Actions
           Causes of action in general                                   Fraud of person acting in official or
                                                                    fiduciary capacity
       Limitation of Actions
           In general; what constitutes discovery                   Although a person to whom a fiduciary duty is
                                                                    owed is relieved of the responsibility of diligent
       Limitation of Actions
                                                                    inquiry into the fiduciary's conduct, for purposes
           Nature of harm or damage, in general
                                                                    of limitations period, so long as that relationship
       As a general rule, a cause of action accrues when            exists, when the fact of misconduct becomes
       a wrongful act causes some legal injury, even                apparent, it can no longer be ignored, regardless
       if the fact of injury is not discovered until later          of the nature of the relationship.
       and even if all resulting damages have not yet
       occurred.                                                    Cases that cite this headnote

       Cases that cite this headnote
                                                             [13]   Limitation of Actions
                                                                        Questions for Jury
[9]    Limitation of Actions
                                                                    Ascertaining the date that a claimant knew, or
           In general; what constitutes discovery
                                                                    should have known, of an injury generally entails
       The “discovery rule,” when applicable, defers                a fact question.
       accrual of a cause of action until the plaintiff
       knew, or, exercising reasonable diligence,                   Cases that cite this headnote
       should have known, of the facts giving rise to the
       cause of action.
                                                             [14]   Limitation of Actions
       Cases that cite this headnote                                    Questions for Jury




              © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                         2
Cluck v. Mecom, 401 S.W.3d 110 (2011)


         If reasonable minds could not differ about the          was Mecom's mother and appellants' grandmother. In 1983,
         conclusion to be drawn from facts in the record as      Mrs. Mecom established “The Mary Elizabeth Mecom
         to when a claimant knew, or should have known,          Irrevocable Trust No. II.” In the trust instrument, she
         of an injury, commencement of the limitations           conveyed certain assets to the trust including a money-market
         period may be determined as a matter of law.            fund, securities, bonds, partnership interests, promissory
                                                                 notes, accounts receivable, “[a]ll household goods and
         Cases that cite this headnote                           personal effects owned” by Mrs. Mecom, and real estate.
                                                                 Mrs. Mecom served as original trustee and named Mecom
                                                                 as successor trustee. Mecom has served as trustee since Mrs.
                                                                 Mecom's death on May 4, 1996. Under its terms, upon Mrs.
Attorneys and Law Firms                                          Mecom's death, the trust terminated and appellants became
                                                                 successor beneficiaries because no power of appointment was
*112 James R. Lovell, Dumas, John H. Lovell, Amarillo,           exercised in Mrs. Mecom's will.
Courtney D. Miller, Amarillo, for Appellants.
                                                                 2       We will refer to these three children collectively as
John Andrew Ramirez, Houston, Curt M. Langley, Houston,
Jody Gene Sheets, Dallas, Allison Gabbert, Houston, for                  “appellants” except when necessary to refer to an
Appellee.                                                                appellant separately. Because their sibling, Kathleen
                                                                         Mecom Fogarty, has not joined this appeal, we omit her
Panel consists of Justices SEYMORE, BOYCE, and                           from the background discussion.
CHRISTOPHER.                                                     On August 13, 2008, Katsy filed the underlying suit
                                                                 against Mecom and also joined John and Mary Elizabeth
                                                                 as involuntary plaintiffs. In their live pleading, appellants
                         OPINION                                 allege that Mecom has not made any distributions to them
                                                                 as required under the trust, has failed to fully disclose
CHARLES W. SEYMORE, Justice.                                     transactions involving trusts assets, and converted, stole,
                                                                 and squandered assets. Appellants further allege that Mecom
Appellants, Katsy Cluck (“Katsy”), John W. Mecom, III
                                                                 committed such misconduct via the following actions: (1) as
(“John”), and Mary Elizabeth Mecom Hahnfeld (“Mary
                                                                 executor of, and sole heir under, Mrs. Mecom's will, Mecom
Elizabeth”), appeal a summary judgment in favor of appellee,
                                                                 did not classify certain assets as property of the estate when
John W. Mecom, Jr., as Trustee of the Mary Elizabeth Mecom
                                                                 filing probate documents and estate-tax returns, but after the
Irrevocable Trust No. II (“Mecom”), in appellants' suit for
                                                                 probate matter was closed, he claimed ownership of these
breach of fiduciary duty, conversion, and civil theft. In four
                                                                 assets as property of the estate rather than the trust; (2) Mecom
issues, appellants contend the trial court erred by rendering
                                                                 forgave his own debts to the trust without any consideration
a no-evidence summary judgment relative to the merits of
                                                                 to the trust or the beneficiaries; and (3) Mecom commingled
their claims and a traditional summary judgment based on the
                                                                 trust assets with his own property or sold assets and retained
statute of limitations. We affirm the summary judgment on
                                                                 the proceeds. Appellants plead claims for breach of fiduciary
appellants' conversion and civil-theft claims but reverse and
                                                                 duty, conversion, and liability under the Texas Theft Liability
remand the summary judgment on their claim for breach of
                                                                 Act. Appellants request damages, a declaratory judgment
fiduciary duty. 1                                                “determining [their] rights and interests,” an order compelling
                                                                 an accounting, attorney's fees, removal of Mecom as trustee,
1      Another plaintiff below, Kathleen Mecom Fogarty, does     and appointment of a successor trustee or a receiver.
       not appeal the judgment. Thus, we do not address the
       portion of the judgment disposing of her claims.          Mecom filed an amended motion for summary judgment
                                                                 including (1) a no-evidence ground challenging elements of
                                                                 appellants' claims, and (2) a traditional ground contending all
                    I. BACKGROUND
                                                                 claims are barred by the applicable statutes of limitations. 3
Appellants are three of Mecom's four children. 2 Mary            In their response, appellants presented evidence purporting
Elizabeth Mecom (“Mrs. *113 Mecom”), now deceased,               to defeat the no-evidence ground, and, consistent with their
                                                                 pleading, appellants raised the discovery rule and doctrine of


                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                               3
Cluck v. Mecom, 401 S.W.3d 110 (2011)


fraudulent concealment relative to the limitations ground. On    to the plaintiff, and (3) an injury to the plaintiff or a benefit
September 15, 2009, the trial court signed an order granting     to the defendant as a result of the breach. Priddy v. Rawson,
summary judgment on both the no-evidence and traditional         282 S.W.3d 588, 599 (Tex.App.-Houston [14th Dist.] 2009,
grounds. Subsequently, the trial court denied appellants'        pet. denied) (citing Lundy v. Masson, 260 S.W.3d 482, 501
motion for reconsideration.                                      (Tex.App.-Houston [14th Dist.] 2008, pet. denied); Jones v.
                                                                 Blume, 196 S.W.3d 440, 447 (Tex.App.-Dallas 2006, pet.
3      Mecom previously filed a traditional motion followed by   denied); Punts v. Wilson, 137 S.W.3d 889, 891 (Tex.App.-
       a separate no-evidence motion. After further discovery,   Texarkana 2004, no pet.)). In his motion, Mecom asserted
       Mecom filed his amended motion, which is the motion       that appellants have no evidence of the second and third
       granted by the trial court.                               elements. 4

                                                                 4       In his amended motion for summary judgment, Mecom
     II. NO–EVIDENCE SUMMARY JUDGMENT
                                                                         cited the third element as “an injury to the plaintiff and
In appellants' first three issues, they challenge no-evidence            benefit to the defendant ...” (emphasis added)—in the
summary judgment on all their claims.                                    conjunctive; but the element is actually “an injury to the
                                                                         plaintiff or benefit to the defendant ...” (emphasis added)
                                                                         —in the disjunctive. See Priddy, 282 S.W.3d at 599.
A. Standard of Review                                             [3]    [4] A fiduciary “has an affirmative duty to make a
After adequate time for discovery, a party may move for          full and accurate confession of all his fiduciary activities,
summary judgment on the ground there is no evidence of one       transactions, profits, and mistakes.” Jackson Law Office, P.C.
or more essential elements of a claim on which an adverse        v. Chappell, 37 S.W.3d 15, 22 (Tex.App.-Tyler 2000, pet.
party would have the *114 burden of proof at trial. Tex.R.       denied) (citing Montgomery v. Kennedy, 669 S.W.2d 309,
Civ. P. 166a(i); W. Invs., Inc. v. Urena, 162 S.W.3d 547,        312–14 (Tex.1984); Kinzbach Tool Co., Inc. v. Corbett–
550 (Tex.2005). The movant must state the elements on            Wallace Corp., 138 Tex. 565, 160 S.W.2d 509, 513–14
which there is no evidence. Tex.R. Civ. P. 166a(i). Unless the   (1942)). Additionally, when a plaintiff alleges self-dealing
respondents produce summary-judgment evidence raising a          by the fiduciary as part of a breach-of-fiduciary-duty claim,
genuine issue of material fact on the challenged element, the    a presumption of unfairness automatically arises, which the
trial court must grant the motion. Id.; Urena, 162 S.W.3d at     fiduciary bears the burden to rebut. See Houston v. Ludwick,
550. To defeat a no-evidence motion for summary judgment,        No. 14–09–00600–CV, 2010 WL 4132215, at *7 (Tex.App.-
the non-movants need not marshal their evidence, but must        Houston [14th Dist.] Oct. 21, 2010, pet. denied) (mem. op.);
identify in their response evidence raising a genuine issue of   Chappell, 37 S.W.3d at 22 (citing Stephens County Museum,
fact on the challenged elements. See comment to Tex.R. Civ.      Inc. v. Swenson, 517 S.W.2d 257, 261 (Tex.1974); Int'l
P. 166a(i); Johnson v. Brewer & Pritchard, P.C., 73 S.W.3d       Bankers Life Ins. Co. v. Holloway, 368 S.W.2d 567, 576
193, 207 (Tex.2002); Pico v. Capriccio Italian Rest., 209        (Tex.1963)). Mecom admitted in his deposition that he owed
S.W.3d 902, 912 (Tex.App.-Houston [14th Dist.] 2006, no          a fiduciary duty to manage the assets for appellants' benefits
pet.); San Saba Energy, L.P. v. Crawford, 171 S.W.3d 323,        and a duty to disclose his personal transactions with the trust.
330 (Tex.App.-Houston [14th Dist.] 2005, no pet.).
                                                               We question whether a no-evidence summary judgment could
We review a summary judgment de novo. Provident Life &         be appropriate under the circumstances of this case because
Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex.2003).    Mecom bears the burden to fully disclose his activities as
We take as true all evidence favorable to the nonmovants and   fiduciary and prove the fairness of his personal transactions
indulge every reasonable inference and resolve any doubts in   with the trust. See *115 Houston, 2010 WL 4132215, at
their favor. Id.                                               *7; Chappell, 37 S.W.3d at 22. Nevertheless, to the extent
                                                               that a no-evidence summary judgment could be appropriate,
                                                               appellants presented sufficient evidence to defeat this ground
B. Breach of Fiduciary Duty
                                                               by offering Mecom's testimony demonstrating his inability
 [1] [2] The elements of a claim for breach of fiduciary duty
                                                               thus far to fully explain his activities as trustee, including
are (1) a fiduciary relationship between the plaintiff and the
                                                               his personal transactions involving trust assets. For example,
defendant, (2) a breach by the defendant of his fiduciary duty
                                                               in his deposition, Mecom gave the following responses


               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                     4
Cluck v. Mecom, 401 S.W.3d 110 (2011)


to inquiries regarding various entries on an accounting he          summary judgment if “moving party is entitled to judgment
produced relative to the trust:                                     as a matter of law on the issues expressly set out in the
                                                                    motion or in an answer or any other response”); Stiles
  • “I'm not sure” when asked what trust assets had to be sold      v. Resolution Trust Corp., 867 S.W.2d 24, 26 (Tex.1993)
     to pay estate and inheritance taxes of Mrs. Mecom.             (recognizing that Rule 166a(c) unequivocally restricts the
                                                                    trial court's ruling to issues raised in the motion, response, and
  • “I can't remember” when asked about assets he sold and
                                                                    any subsequent replies). Second, the evidence indicated that
     for which he retained the proceeds.
                                                                    certain unexplained transactions involved Mecom personally,
  • “I don't recall” when asked if he ever repaid $35,324 he        such as forgiveness of his own substantial debt to the
     owed the trust in 1996–97.                                     trust. Finally, some evidence indicated Mecom and at least
                                                                    his accountant have taken various seemingly inconsistent
  • “I don't recall” when asked how the trust accumulated           positions regarding the trust assets, including the following:
     $81,314.57 in general and administrative expenses in           (1) Mecom claimed Mrs. Mecom's household goods and
     1997.                                                          personal effects were conveyed to him under her will, yet his
                                                                    testimony indicated he did not list these items in probate court
  • “I don't recall” when asked about a transaction he had          filings or estate-tax returns, prepared by his accountant *116
     with the trust in 1999 totaling $96,161.26.
                                                                    and signed by Mecom; (2) at one point, Mecom's accountant
                                                                    told appellants the trust was never funded because assets
  • “I don't know” when asked how Mrs. Mecom's debts
                                                                    were not properly conveyed thereto, but Mecom's testimony
     increased by $41,624 in 1999 when she had been
                                                                    indicating transactions regarding trust assets were conducted
     deceased for three years.
                                                                    after creation of the trust raises a reasonable inference such
  • “I don't know” when asked about charging general office         assets may have indeed existed; and (3) Mecom claimed most
     and administrative expenses of half-a-million dollars per      trust assets were dissipated to pay Mrs. Mecom's liabilities,
     year.                                                          which fails to explain why debts to the trust may have been
                                                                    forgiven.
  • “I don't know” when asked how his account payable to
     the trust was reduced by $536,691.                             In sum, appellants presented evidence sufficient to raise a
                                                                    genuine issue of material fact on whether Mecom breached
In his appellate brief, Mecom asserts appellants failed to cite     his fiduciary duty. Moreover, with respect to the third element
the whole of his testimony demonstrating he deferred to his         of appellants' claim, evidence of breach constitutes evidence
retained professionals, including his accountant, John West,        that they have suffered an injury because transactions which
as more equipped to explain the transactions. Mecom further         Mecom has failed thus far to explain involve disposition of
suggests appellants did not complain to the trial court that they   assets for which appellants were the intended beneficiaries.
lacked an opportunity to obtain further information from these      Accordingly, the trial court erred by granting no-evidence
professionals before submission of the motion for summary           summary judgment on the claim for breach of fiduciary duty.
judgment. Therefore, Mecom suggests appellants have not             We sustain appellants' second issue.
met their burden to defeat no-evidence summary judgment
because they failed to present evidence that persons more
familiar with the transactions were unable to explain them.         C. Conversion
                                                                     [5]    [6] In his motion for summary judgment, Mecom
However, on this record, we conclude for several reasons that       asserted that appellants have no evidence of the following
Mecom may not, at least for summary-judgment purposes,              elements of a conversion claim: (1) the plaintiff owned,
merely defer to other professionals to justify his inability        possessed, or had the right to immediate possession of
thus far to prove fairness of the transactions. First, once         personal property; (2) the defendant wrongfully exercised
appellants cited evidence in their response showing Mecom's         dominion or control over such property; and (3) the plaintiff
inability to explain the transactions, the record contains no       suffered injury. See United Mobile Networks, L.P. v. Deaton,
reply from Mecom informing the trial court he deferred to           939 S.W.2d 146, 147 (Tex.1997) (per curiam); Burns v.
other professionals to provide such explanations. See Tex.R.        Rochon, 190 S.W.3d 263, 268 (Tex.App.-Houston [1st Dist.]
Civ. P. 166a(c) (providing trial court must grant motion for        2006, no pet.).



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                5
Cluck v. Mecom, 401 S.W.3d 110 (2011)


We agree that appellants did not raise a genuine issue of           2009). In his motion for summary judgment, Mecom asserted
material fact on the second above-cited element—whether             that appellants have no evidence of any elements of civil theft.
Mecom wrongfully exercised dominion or control over
appellants' property. The extent of appellants' summary-            We agree that appellants did not raise a genuine issue of
judgment response relative to this element was the following        material fact on whether Mecom unlawfully appropriated
paragraph:                                                          appellants' property with intent to deprive them of the
                                                                    property. Appellants' summary-judgment response regarding
  [Mecom] admits he was named as the successor trustee of           this element was identical in pertinent respects to their above-
  the Trust by his mother, the Settlor, and he admits that he       quoted response relative to the conversion claim, except they
  has been acting as the trustee of the Trust since she passed      contend the recited facts show “there is definitely a fact
  away on May 4, 1996. Schedule A to the Trust outlines the         issue as to whether or not [Mecom], as Trustee, unlawfully
  assets which were conveyed to the Trust.                          appropriated, secured, or stole the Trust assets.”
     ... Settlor has conveyed, transferred and assigned, and
                                                                    Again, we conclude these facts alone are insufficient to raise
     does by these presents convey, transfer and assign
                                                                    a reasonable inference Mecom unlawfully appropriated trust
     unto the Trustee the assets and properties described in
                                                                    assets, much less that he committed any such conduct with
     Schedule A attached hereto and made a part hereof, ...
                                                                    intent to deprive appellants of the property. Accordingly, the
  Even though Schedule A listed four pages of assets                trial court properly granted no-evidence summary judgment
  which were transferred to the Trust, [Mecom] testified            on appellants' civil-theft claim. We overrule appellants' first
  that he is not aware of any assets left in the Trust.             and third issues.
  [Mecom] also admitted that although his mother set up the
  Trust for the benefit of [Mecom's] children, they did not
  receive anything from it. Since four pages of assets were              III. TRADITIONAL SUMMARY JUDGMENT
  transferred to the Trust (of which [Mecom] admits he is the
  Trustee), and [Mecom] has testified that the beneficiaries         [7] Because the trial court erred by granting no-evidence
  have not received anything from the Trust, and he is not          summary judgment on appellants' claim for breach of
  aware of any assets left in the trust, there is at least a fact   fiduciary duty, we must consider their fourth issue,
  issue as to whether or not [Mecom] wrongfully exercised           challenging traditional summary judgment on the statute-
  dominion or control over the Trust assets.                        of-limitations ground. See Knott, 128 S.W.3d at 216
                                                                    (recognizing that, when trial court does not specify in its order
(citations to evidentiary exhibit numbers omitted).                 grounds relied on in granting summary judgment, appellate
                                                                    court must affirm if any ground presented to the trial court
We conclude these facts alone are insufficient to raise             and preserved for appellate review is meritorious).
a reasonable inference that Mecom wrongfully exercised
dominion or control over trust assets. Accordingly, the
trial court properly granted no-evidence *117 summary               A. Standard of Review and Applicable Law
judgment on appellants' conversion claim. We overrule their         A party moving for traditional summary judgment must
second issue.                                                       establish there is no genuine issue of material fact and he is
                                                                    entitled to judgment as a matter of law. See Tex.R. Civ. P.
                                                                    166a(c); Knott, 128 S.W.3d at 215–16. A defendant moving
D. Civil Theft                                                      for summary judgment must conclusively negate at least
The Texas Theft Liability Act permits a civil cause of action       one element of the plaintiff's theory of recovery or plead
for damages against a party who commits theft via any of the        and conclusively establish each element of an affirmative
numerous methods defined under the Texas Penal Code. See            defense. Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197
Tex. Civ. Prac. & Rem.Code Ann. §§ 134.001–.005 (West               (Tex.1995). If the defendant establishes its right to summary
2005). Under the theory applicable to the present case, the         judgment, the burden shifts to the plaintiff to raise a genuine
plaintiff must prove the defendant unlawfully appropriated          issue of material fact. Id.
the plaintiff's property with intent to deprive the plaintiff of
the property and the plaintiff sustained damages. See id. §§
134.002, .003; Tex. Pen.Code Ann. § 31.03(a) (West Supp.


                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                              6
Cluck v. Mecom, 401 S.W.3d 110 (2011)


 [8] [9] The accrual date of appellants' claim is the pivotal     Court has held that a fiduciary's misconduct is inherently
dispute with respect to the limitations issue in this case. As    undiscoverable. S.V., 933 S.W.2d at 8; Computer Assocs.
a general rule, a cause of action accrues when a wrongful         Int'l, Inc. v. Altai, Inc., 918 S.W.2d 453, 456 (Tex.1996). The
act causes some legal injury, even if the fact of injury is not   reason for this principle is that a person to whom a fiduciary
discovered until later and even if all resulting damages have     duty is owed is either unable to inquire into the fiduciary's
not yet occurred. S.V. v. R.V., 933 S.W.2d 1, 4 (Tex.1996).       actions or unaware of the need to do so. S.V., 933 S.W.2d
The discovery rule, when applicable, defers accrual of a cause    at 8. Although a person to whom a fiduciary duty is owed
of action until the plaintiff knew, or, exercising reasonable     is relieved of the responsibility of diligent inquiry into the
diligence, should have known, of the facts giving rise *118       fiduciary's conduct so long as that relationship exists, when
to the cause of action. HECI Exploration Co. v. Neel, 982         the fact of misconduct becomes apparent, it can no longer be
S.W.2d 881, 886 (Tex.1998).                                       ignored, regardless of the nature of the relationship. Id.; see
                                                                  Computer Assocs., 918 S.W.2d at 456.
 [10] [11] A defendant seeking summary judgment based
on limitations must (1) conclusively prove when the cause          [13] [14] Ascertaining the date that a claimant knew, or
of action accrued and (2) negate the discovery rule, if it        should have known, of an injury generally entails a fact
applies and has been pleaded or otherwise raised, by proving,     question. See Childs v. Haussecker, 974 S.W.2d 31, 37–39
as a matter of law, there is no genuine issue of fact about       (Tex.1998). However, if reasonable minds could not differ
when the plaintiff discovered, or in the exercise of reasonable   about the conclusion to be drawn from facts in the record,
diligence should have discovered, the nature of her injury.       commencement of the limitations period may be determined
KPMG Peat Marwick v. Harrison County Hous. Fin. Corp.,            as a matter of law. See id. We conclude Mecom failed to prove
988 S.W.2d 746, 748 (Tex.1999). If the movant establishes         as a matter of law that appellants knew, or should have known,
that limitations bars the action, the nonmovant must then         of their alleged injury as of December 16, 1998. 5
adduce summary-judgment proof raising a fact issue to avoid
the statute of limitations. Id.                                   5      Because Mecom failed to negate application of the
                                                                         discovery rule, we need not consider appellants'
                                                                         fraudulent-concealment defense to the limitations
B. Analysis
                                                                         ground.
The four-year statute of limitations applies to a claim for
breach of fiduciary duty. See Tex. Civ. Prac. & Rem.Code          Other than recitals of the general law applicable to limitations
Ann. § 16.004(a)(5) (West 2002). In his motion for summary        and the discovery rule, the following is the extent of
judgment, Mecom contended appellants' claim accrued when          Mecom's argument in his motion for summary judgment
Mrs. Mecom died on May 4, 1996, or alternatively, if the           *119 regarding the accrual date if the discovery rule is
discovery rule is applicable, no later than December 16, 1998;    applicable:
thus, appellants' suit, filed August 13, 2008, is barred by
                                                                               Assuming, arguendo, that [appellants']
limitations.
                                                                               claims against [Mecom] did not accrue
                                                                               when the Trust terminated upon Mrs.
Mecom cited Guardian Trust Co. v. Studdert, 36 S.W.2d 578,
                                                                               Mecom's death on May 4, 1996
583 (Tex.Civ.App.-Beaumont 1931), aff'd, 55 S.W.2d 550
                                                                               (which [Mecom] expressly denies),
(Tex. Comm'n App.1932, holding approved) and Nordyke
                                                                               the evidence proves that accrual
v. Nordyke, No. 07–96–406–CV, 1998 WL 4508, at *3
                                                                               occurred no later than December
(Tex.App.-Amarillo 1998, pet. denied) to support his position
                                                                               16, 1998. On that date, [appellants]
that claims against a trustee accrue on the date the trust is
                                                                               forwarded [Mecom] a letter advising
terminated. However, these cases are not controlling in the
                                                                               of concerns with regard to the Trust
present situation because appellants have raised the discovery
                                                                               and their interest in same. See Exhibit
rule.
                                                                               H. Prior to sending such missive,
                                                                               [appellants] met with [Mecom's]
 [12] In his motion, despite contending the limitations period
                                                                               accountant, West, to discuss the Trust,
commenced upon Mrs. Mecom's death, Mecom also seemed
                                                                               and were informed that they would not
to acknowledge that the discovery rule may be applicable to a
                                                                               be receiving anything from the Trust.
claim for breach of fiduciary duty. Indeed, the Texas Supreme


               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                             7
Cluck v. Mecom, 401 S.W.3d 110 (2011)


                                                                      be no distribution we should also know this so we can plan
The referenced meeting occurred in 1998 between appellants,           accordingly. This question was prompted by your remark
Bill Becknell (Mecom's attorney), and John West (Mecom's              at the last family meeting that you wanted to “pass this (the
accountant). In their depositions taken after this suit was           estate) on to us”.
filed, appellants each testified West informed them during
the meeting that, in essence, the trust had not been funded           Regardless of how this is resolved we all feel it would be
properly because the assets were not individually itemized in         healthy to have a discussion with you just so that we can
the trust instrument. Then, appellants wrote and all signed the       understand the situation.
referenced December 16, 1998 letter, the body of which is
                                                                      Thanks for your understanding Daddy,
pertinent in its entirety:

  Dear Daddy:                                                        *120 We disagree with Mecom's contention that the
                                                                    information conveyed at the meeting or the substance of the
  As you know, at your suggestion, we recently had a                letter conclusively demonstrate any alleged misconduct on
  meeting with Bill Becknell and John West in order to obtain       Mecom's part was apparent by December 16, 1998. John did
  information regarding any interest we may have in the             testify that, at the time of the meeting, he believed assets
  Mary Elizabeth Mecom Trust or in Grandmother's estate.            existed that were not “in the trust's possession” and he did
  Billy and John suggested that we write this letter to state our   not trust West and was skeptical of his statements. Katsy
  objectives and try to get answers to some of our concerns.        also testified that, at the time of the meeting, she considered
                                                                    West's explanation inconsistent with information provided to
  Our objective is to simply be proactive in resolving all the      appellants shortly after Mrs. Mecom's death; i.e., they were
  issues concerning Grandmother's estate in the friendliest         beneficiaries of the trust. However, this testimony does not
  and beneficial way to all those involved. We also feel that       establish appellants knew, as a result of the meeting, that
  by writing this letter and letting everybody be on the same       Mecom had committed any wrongdoing. To the contrary,
  page we can continue to build and foster our family bond.         construing John's testimony in context, he actually suggested
                                                                    that West was motivated for his own gain to claim there were
  In our last family meeting, it was our understanding
                                                                    no assets in the trust. John opined that West used words such
  that you would keep us updated on the status of Mary
                                                                    as “technically” and “properly” to describe the alleged non-
  Elizabeth Mecom Trust and the Estate. Since that meeting
                                                                    funding of the trust because he “was trying to figure out how
  we basically have not been told anything about what was
                                                                    to take assets of the trust ... and use them to his benefit.”
  going on with the Trust and the Estate, such as the status
                                                                    John explained that West, as Mecom's financial advisor, had
  of the payment of liabilities and taxes, and the sale of
                                                                    a “carried interest” in their joint business ventures and “for
  assets. Although we met with Billy and John, they did
                                                                    that reason it was in his best interest to keep as many of the
  not provide enough information to answer most of our
                                                                    assets as possible on his side of the table so he had more to
  questions. Therefore, we would like to schedule another
                                                                    play with.” Although John's explanation of his suspicions was
  meeting in the near future in order to obtain the answers to
                                                                    not exactly clear, neither he nor Katsy seemed to specifically
  two basic questions:
                                                                    testify they knew, as a result of the meeting, that West misled
  1. What, if any interest do you feel we have in the Mary          them because Mecom individually, or in collaboration with
     Elizabeth Mecom Trust and/or Grandmother's estate;             West, had mishandled or misappropriated trust assets.
     and
                                                                    Although appellants expressed in the subsequent letter to
  2. When do you believe these matters will be resolved?            Mecom that they had not received complete information, the
                                                                    letter does not reflect they were aware of any omission rising
  Daddy, we realize this is your decision, and we are not
                                                                    to the level of a breach of fiduciary duty. To the contrary,
  trying to upset you with these questions. However, we are
                                                                    a reasonable inference is that appellants believed disclosure
  all adults now with our own financial responsibilities and
                                                                    would be forthcoming considering they were requesting
  it is very difficult to plan for the future when we have these
                                                                    more information. Although the tone of the letter indicates
  unresolved issues hanging over our heads. Specifically,
                                                                    appellants were delicately inquiring because Mecom is their
  we need to know when we should plan to receive any
                                                                    father, appellants did not accuse him of any misconduct or
  distribution from the Trust and/or the Estate. If there will
                                                                    base their suggestion they might receive no distribution on the


               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                              8
Cluck v. Mecom, 401 S.W.3d 110 (2011)


                                                                        In their testimony collectively, appellants did indicate they
fact that he may have wrongfully retained or squandered trust
                                                                        were made to feel greedy for asking about the trust, they
assets. The tenor of the entire letter reflects merely an inquiry
                                                                        felt intimidated and uncomfortable “pushing” matters, the
about the status of trust assets.
                                                                        situation was “sensitive” considering the trustee is their
                                                                        father, and they tried to obtain answers in a “roundabout”
Moreover, John testified that Becknell had been the long-
                                                                        manner because Mecom had delegated his duties to answer
time Mecom family attorney and personally represented John
                                                                        questions about the trust to Becknell or West. However, this
in unrelated matters, John trusted and relied on Becknell,
                                                                        reluctance to further inquire does not conclusively establish
and when Becknell advised appellants to write the letter,
                                                                        appellants knew Mecom had committed any misconduct.
John knew Becknell also represented Mecom. The fact that
                                                                        Viewed in the light most favorable to appellants, this evidence
appellants used Mecom's attorney to assist them in requesting
                                                                        also supports an inference that they had a reasonable basis for
information from Mecom supports a reasonable inference
                                                                        failing to more firmly pursue distribution of the assets and
appellants did not yet view the relationship with Mecom as
                                                                        waiting for Mecom to resolve the trust issues.
adversarial concerning the trust; rather, they wished to enlist
Mecom's cooperation to resolve the trust issues.
                                                                        In sum, we recognize that the ten years between the letter
                                                                        and the date appellants filed suit is a comparatively lengthy
In the “Statement of Facts” portion of his motion for summary
                                                                        period. Nevertheless, as we have mentioned, Mecom bore
judgment, Mecom suggested that appellants received no
                                                                        the burden to negate application of the discovery rule. See
response to the letter yet failed to take affirmative action
                                                                        KPMG Peat Marwick, 988 S.W.2d at 748. Further, appellants
to obtain distribution of trust assets until they filed suit
                                                                        were relieved of the responsibility of diligent inquiry into
approximately ten years later. We recognize that appellants'
                                                                        Mecom's conduct unless “the fact of misconduct” became
testimony was quite vague and non-committal regarding their
                                                                        “apparent.” See S.V., 933 S.W.2d at 8. In his motion,
attempts to learn more information about the trust after
                                                                        Mecom cited no evidence conclusively demonstrating any
sending the letter; they answered many deposition questions
                                                                        misconduct was apparent to appellants during this period.
by expressing a lack of memory regarding a particular topic,
                                                                        Instead, the evidence raises an inference that appellants were
especially dates on which they inquired about the trust.
                                                                        still relying on Mecom as fiduciary to explain disposition of
                                                                        the trust assets. Consequently, on the present record, Mecom
Nonetheless, John testified that, during this ten-year period,
                                                                        has not proved appellants' claim is barred by limitations. The
he had casual conversations *121 with Mecom, in which
                                                                        evidence presents, at most, a fact issue for the jury regarding
John generally referenced the need to resolve the trust,
                                                                        the date on which appellants discovered their injuries.
but John did not make any accusations during these
conversations. When asked what actions he took to ensure the
                                                                        Accordingly, the trial court erred by granting traditional
assets were distributed to the beneficiaries, John responded
                                                                        summary judgment based on the statute of limitations relative
that he was a beneficiary, not a trustee, and “what am I
                                                                        to appellants' claim for breach of fiduciary duty. We sustain
supposed to do? ... I don't know.” Mary Elizabeth could not
                                                                        their fourth issue.
recall specific conversations about the trust, but testified that
anytime appellants asked Becknell, he reassured them, “he's
working on it,” although it is unclear whether “he” in this
quote meant Becknell or Mecom. Katsy generally testified                                     IV. CONCLUSION
that, after writing the letter, she asked additional questions
and appellants were generally led to believe “these questions           We affirm the summary judgment on appellants' conversion
will be answered.” Katsy also indicated that she trusted her            and civil-theft claims but reverse the summary judgment on
father to take care of her and, as of the date of her deposition,       their claim for breach of fiduciary duty and remand for further
still believed he would do so. This testimony collectively              proceedings.
raises an inference that appellants reasonably depended on
Mecom, not only as trustee but also as their father, to provide
                                                                        All Citations
further information and believed it would be forthcoming.
                                                                        401 S.W.3d 110

End of Document                                                     © 2015 Thomson Reuters. No claim to original U.S. Government Works.



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                  9
Jose Fuentes Co., Inc. v. Alfaro, 418 S.W.3d 280 (2013)                                   pet. denied


                                                                 O'Neill, J., filed a dissenting opinion in which Lang and
                    	
	
                                                                 Lang–Miers, JJ., joined.
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                                                                  West Headnotes (7)
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    %,-		"	(,.)/,0%,-		",
       0.)1	2	",0.)               [1]    Courts
                                                                             Construction and application of rules in
    %,-	",%,-	()*"
3
                                                                         general
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      +-451	2	",),%,-	                        In reviewing a motion for no-evidence summary
                                                                         judgment, the Court of Appeals adheres closely
    ()*")53+,%,-		",
                                                                         to the text of applicable rule of procedure and the
      ),6,1	2	()*/),%,-	,
                                                                         comment to that rule informing its construction.
       $,-0",").)5%,-	,
                                                                         Vernon's Ann.Texas Rules Civ.Proc., Rule
                           .	                                            166a(i).
            7)1"+ 7)'),*
            %,-	,'),8	                            Cases that cite this headnote

       $	9:::8	 ;          $.	<	
                                                                  [2]    Judgment
Synopsis                                                                     Motion or Other Application
Background: Owners of restaurant chain filed tort claims                 A no-evidence motion that only generally
against former employee, his business partner, and restaurant            challenges the sufficiency of the nonmovant's
that they started. Defendants filed motion for no-evidence               case and fails to state the specific elements that
summary judgment. Following a hearing, the 162nd Judicial                the movant contends lack supporting evidence
District Court, Dallas County, Lorraine A. Raggio, J., granted           is fundamentally defective and cannot support
motion. Chain owners appealed.                                           summary judgment as a matter of law. Vernon's
                                                                         Ann.Texas Rules Civ.Proc., Rule 166a(i).

                                                                         6 Cases that cite this headnote
Holdings: The Court of Appeals, Evans, J., held that:

[1] no-evidence summary judgment motion that challenged           [3]    Judgment
“one or more” of the listed elements of each claim, without                  Motion or Other Application
identifying the specific element or elements being challenged,           A no-evidence motion for summary judgment
was legally insufficient;                                                may be directed at specific factual theories or
                                                                         allegations within a claim or defense only if the
[2] there is no “fair notice” exception to requirement                   challenge to the factual allegation is connected
that a no-evidence motion for summary judgment identify                  to a no-evidence challenge to a specified element
which specific element or elements of the claim are being                of a claim or defense. Vernon's Ann.Texas Rules
challenged; and                                                          Civ.Proc., Rule 166a(i).

[3] legal insufficiency of a no-evidence motion for summary              Cases that cite this headnote
judgment that does not specify the element or elements being
challenged may be raised for the first time on appeal.            [4]    Judgment
                                                                             Motion or Other Application
                                                                         No-evidence summary judgment motion that
Reversed and remanded.
                                                                         challenged “one or more” of the listed elements


               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                             1
Jose Fuentes Co., Inc. v. Alfaro, 418 S.W.3d 280 (2013)


        of each of plaintiffs' tort claims, without
        identifying the specific element or elements
        being challenged, was legally insufficient;          Attorneys and Law Firms
        motion did not indicate, as defendants
                                                             *282 Jeffrey R. Boggess, Law Office of Jeffrey R. Boggess,
        contended, that they were challenging each
                                                             Addison, for Appellants.
        and every element of plaintiffs' claims, and it
        failed to specify even a single element that was     Bryan L. Sample, Law Offices of Bryan L. Sample, Dallas,
        being challenged. Vernon's Ann.Texas Rules           Robert W. Buchholz, The Law Office of Robert W. Buchholz,
        Civ.Proc., Rule 166a(i).                             P.C., Dallas, for Appellees.

        5 Cases that cite this headnote                      Before the Court En Banc.


 [5]    Judgment
            Nature of summary judgment                                                OPINION
        The purpose of a motion for no-evidence
                                                             Opinion by Justice EVANS.
        summary judgment is to assess the proof
        on an element of a claim or defense the              The Court decides this appeal en banc to resolve the important
        movant believes in good faith is unsupported by      issues raised regarding no-evidence summary judgment
        evidence, after there has been adequate time for     practice. Appellants complain that a no-evidence motion
        discovery, to determine if there is a genuine need   for summary judgment that challenges “one or more” of
        for trial. Vernon's Ann.Texas Rules Civ.Proc.,       the listed elements of each of appellants' claims—without
        Rule 166a(i).                                        identifying the specific element or elements being challenged
                                                             —is legally insufficient. We conclude such a motion fails
        Cases that cite this headnote
                                                             to meet the standard of specificity mandated by rule 166a(i)
                                                             of the Texas Rules of Civil Procedure because it fails to
 [6]    Judgment                                             identify what element or elements are being challenged. We
            Motion or Other Application                      further conclude there is no “fair notice” exception to the
        There is no “fair notice” exception, to              rule that would force a non-movant to present evidence in
        be discerned through a plaintiff's thorough          support of an element that is not specifically identified as
        response, to requirement that a no-evidence          a challenged element. Finally, because appellees' motion is
        motion for summary judgment identify which           clearly insufficient, we conclude it may be challenged for the
        specific element or elements of the claim are        first time on appeal. We reverse the trial court's judgment and
        being challenged. Vernon's Ann.Texas Rules           remand the cause for further proceedings.
        Civ.Proc., Rule 166a(i).

        2 Cases that cite this headnote
                                                                            FACTUAL BACKGROUND

 [7]    Appeal and Error                                     Gloria Rubio and Jose Fuentes are the founders and
           Judgment                                          current owners of a restaurant chain known as “Gloria's.”
                                                             Gloria's menu focuses on Salvadoran, Mexican, and Tex–
        Legal insufficiency of a no-evidence motion
                                                             Mex cuisine. According to appellants, they spent significant
        for summary judgment that does not specify
                                                             time and money researching recipes, food preparation, and
        the element or elements being challenged may
                                                             restaurant decoration, which they claim resulted in customer
        be raised for the first time on appeal without
                                                             loyalty, recognition, and financial success. Appellants assert
        an objection in trial court. Vernon's Ann.Texas
                                                             that their research produced trade secrets known only to
        Rules Civ.Proc., Rule 166a(i).
                                                             Rubio, Fuentes, and Gloria's employees, and that they had
        6 Cases that cite this headnote                      contractual relationships with both their employees and their
                                                             suppliers.



              © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                        2
Jose Fuentes Co., Inc. v. Alfaro, 418 S.W.3d 280 (2013)


Mario Alfaro worked as a manager at Gloria's for twenty             evidence. TEX.R. CIV. P. 166a(i). The comment to the rule
years. Alfaro then left Gloria's to start a new restaurant,         states that the motion “must be specific in challenging the
Mario Sabino's, with his business partner, Sabino Valle.            evidentiary support for an element of a claim or defense,” and
Mario Sabino's served food similar to that found on Gloria's        the rule “does not authorize conclusory motions or general
menu. Appellants claim that appellees used confidential             no-evidence challenges to an opponent's case.” Id. 1997 cmt.
information, misappropriated trade secrets including recipes,       A no-evidence motion that only generally challenges the
and tortiously interfered with Gloria's contractual relations       sufficiency of the non-movant's case and fails to state the
by recruiting Gloria's employees to unlawfully compete with         specific elements that the movant contends lack supporting
Gloria's.                                                           evidence is fundamentally defective and cannot support
                                                                    summary judgment as a matter of law. See Roehrs v. FSI
 *283 Appellants sued for tortious interference with business       Holdings, Inc., 246 S.W.3d 796, 805 (Tex.App.-Dallas 2008,
relations, misappropriation of trade secrets, and conversion.       pet. denied). A no-evidence motion for summary judgment
Appellants' fourth amended petition set forth thirty-two            may be directed at specific factual theories or allegations
paragraphs of factual allegations and then, as to each cause        within a claim or defense only if the challenge to the
of action, incorporated all thirty-two paragraphs by reference      factual allegation is connected to a no-evidence challenge
and pleaded the elements of each claim. In response, appellees      to a specified element of a claim or defense. Garcia v.
filed a motion for no-evidence summary judgment asserting           State Farm Lloyds, 287 S.W.3d 809, 819 (Tex.App.-Corpus
that appellants had no evidence to support “one or more” of         Christi 2009, pet. denied) (“[A] motion for no-evidence
the elements of each of their asserted claims. The motion           summary judgment that only generally attacks a factual
referred to the page numbers of appellants' petition on which       theory, without specifying the elements of the claims being
each claim was asserted, listed the essential elements of the       attacked, is insufficient to support a no-evidence summary
claim, and concluded by stating that appellants “have no            judgment.”); Pakideh v. Pope, No. 13–08–00560–CV, 2010
evidence on one or more elements of this cause of action.”          WL 3820899, at *4–5 (Tex.App.-Corpus Christi Sept. 30,
The motion contained no argument or other discussion of any         2010, no pet.) (mem. op.) (no-evidence challenge to fourteen
specific element of appellants' claims. Appellants responded        factual allegations not connected to a no-evidence challenge
by endeavoring to bring forward some evidence in support of         to an element of a claim was defective); see also Callaghan
their factual allegations and multiple theories of recovery as to   Ranch, Ltd. v. Killam, 53 S.W.3d 1, 3–4 (Tex.App.-San
each element of all three of their causes of action. The parties    Antonio 2000, pet. denied).
then briefed the adequacy of appellants' proffered evidence
to support each of appellants' causes of action. Following a         [4] In this case, appellees' motion for no-evidence summary
hearing, the trial court granted appellees' motion on all claims.   judgment identified each of appellants' claims, gave the page
Through severance of some claims and parties and non-suits           *284 number in the petition where the claim could be found,
of others, the summary judgment became final. This appeal           and listed the essential elements of each claim. The motion
ensued.                                                             asserted, both before and after listing the elements of each
                                                                    claim, that appellants had no evidence to support “one or
                                                                    more” of the elements of the claim. The motion contains
                                                                    no further discussion regarding any of the claims or their
                         ANALYSIS
                                                                    elements. In their first issue on appeal, appellants contend the
                                                                    motion was legally insufficient to support summary judgment
 I. REQUIRED SPECIFICITY FOR NO–EVIDENCE                            because the motion failed to “state the elements as to which
      MOTION FOR SUMMARY JUDGMENT                                   there is no evidence” as required by the rule.

 [1]    [2]    [3] In reviewing a motion for no-evidence
                                                           Appellees respond that the language of the motion was
summary judgment, this Court adheres closely to the text
                                                           sufficient to inform appellants that they were moving for
of rule 166a(i) and the comment to that rule informing its
                                                           summary judgment on the ground that there was no evidence
construction. See Bever Props., L.L.C. v. Jerry Huffman
                                                           to support “each and every” element of appellants' claims. In
Custom Builder, L.L.C., 355 S.W.3d 878, 888 (Tex.App.-
                                                           making this argument, appellees equate the phrase “one or
Dallas 2011, no pet.). The rule requires the movant in a
                                                           more” with the phrase “each and every.” The two phrases,
no-evidence summary judgment motion to specifically state
                                                           however, are fundamentally different. The phrase “each and
which elements of the non-movant's claims lack supporting


                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                             3
Jose Fuentes Co., Inc. v. Alfaro, 418 S.W.3d 280 (2013)


every” clearly has the single meaning of “all.” In contrast, the   not challenge any specific facts alleged by appellants, but
phrase “one or more” means “at least one” but also potentially     only cites *285 the page number of the petition where all
“several” or “all.” It is in exactly this sense that the phrase    thirty-two factual paragraphs are incorporated by reference
is used in rule 166a(i) when it permits a movant to seek           into each asserted cause of action. Such a general allusion to
a no-evidence summary judgment on the ground that there            the facts cannot provide the basis for a specific no-evidence
is no evidence of “one or more” essential elements of a            challenge to specific factual allegations or theories.
claim. Nelson v. Regions Mortg., Inc., 170 S.W.3d 858, 861
(Tex.App.-Dallas 2005, no pet.) (rule 166a(i) does not limit        [5] The purpose of a motion for no-evidence summary
number of elements that may be challenged in no-evidence           judgment is to assess the proof on an element of a claim or
motion). But the rule requires that each element challenged        defense the movant believes in good faith is unsupported by
must be specifically identified as such, so the non-movant         evidence, after there has been adequate time for discovery,
is not left to guess which elements the movant challenges.         to determine if there is a genuine need for trial. See Reynosa
When a movant uses a word or phrase that does not clearly          v. Huff, 21 S.W.3d 510, 512 (Tex.App.-San Antonio 2000,
identify which element or elements the motion challenges,          no pet.); see also TEX. CIV. PRAC. & REM.CODE ANN.
it is the obligation of the movant to provide a rational           § 10.001 (West 2002) (signing motion certifies movant's
basis in the motion for the non-movant to eliminate other          belief that contention made is warranted by existing law
possible alternative meanings of the unclear identification of     and evidence). To force a non-movant to produce proof
the challenged element or elements; otherwise, the motion is       on all elements of its claim when the movant has simply
legally insufficient. By only challenging “one or more” listed     challenged “one or more” elements would require the non-
elements, this no-evidence motion failed to specify even a         movant to unnecessarily produce its evidence on an element
single element that was challenged.                                or elements the movant may have no reasonable basis to
                                                                   challenge. Indeed, appellants point out in their reply brief that
Appellees argue that the combination of identifying “the           they did exactly this: they filed approximately one hundred
claims plead by the Plaintiffs, the elements of each cause         pages of responsive material out of an abundance of caution—
of action, and that they have no evidence on one or more           concerned that the trial court might pass over the deficiencies
elements of the cause of action” renders the motion “simple,       of this motion and reach the merits. This result renders the
clear and unambiguous.” The fact that appellees' motion            rule's specificity requirement meaningless, allows movants
references the page number in appellants' petition where the       to sidestep the requirement that a no-evidence challenge be
elements of each claim are alleged and thirty-two paragraphs       based on a good faith belief to challenge a specific element
of factual allegations are incorporated by reference, together     or elements, and expands no-evidence summary judgment
with a listing of the elements in the no-evidence motion itself,   practice far beyond its intended scope. The rule's specificity
does nothing to inform appellants about which elements of          requirement is critical to preventing unnecessary production
each claim the motion challenges. This combination even in         of evidence out of uncertainty regarding which of several
close proximity, without more, does nothing to clarify the         possible meanings a court may interpret a no-evidence motion
scope of the motion.                                               to include in its scope.

Appellees argue in detail about the sufficiency of appellants'     Texas courts that have addressed no-evidence motions using
responsive evidence to support each factual theory of              the same or similar wording have found the motions legally
recovery within each of appellants' claims. In so doing,           insufficient to support summary judgment on elements that
appellees contend the no-evidence motion is legally sufficient     were not specifically identified. In Keathley v. Baker, No.
to challenge not only each element of each claim but also each     12–07–00477–CV, 2009 WL 1871706, at *4 (Tex.App.-Tyler
factual theory of recovery within each claim. Although we          June 30, 2009, no pet.) (mem. op.), the court concluded that a
agree that a motion for no-evidence summary judgment may           motion challenging “one or more” elements of the plaintiff's
challenge distinct factual allegations and theories of recovery    breach of contract and DTPA claims was conclusory because
—see rule 166a(e)—such a challenge must be specific and            it failed to challenge specific elements and could not support
connected to a particular element of a cause of action or          summary judgment on those claims. In Fernea v. Merrill
defense to meet the requirements of the rule. See TEX.R.           Lynch Pierce Fenner & Smith, Inc., No. 03–09–00566–CV,
CIV. P. 166a(i); Garcia, 287 S.W.3d at 819; Pakideh, 2010          ––– S.W.3d ––––, ––––, 2011 WL 2769838, at *3 (Tex.App.-
WL 3820899, at *4–5. In this case, appellees' motion does          Austin July 12, 2011) appeal abated, No. 03–09–00566–CV,



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Jose Fuentes Co., Inc. v. Alfaro, 418 S.W.3d 280 (2013)


2011 WL 4424291 (Tex.App.-Austin Sept. 23, 2011, no pet.),        pleading requirements of Rules 45(b) and 47(a).” Id. But the
a movant's challenge was stated as, “there is no evidence         supreme court clearly required the no-evidence motion to
of one or more essential elements of the Plaintiff's causes       specifically identify the challenged elements to satisfy the
of action against Merrill Lynch.” The court decided “such a       requirements of rule 166a(i). Accordingly, Timpte Industries
statement does not, by itself, meet the requirements of a no-     does not substitute a general fair notice standard for the
evidence motion for summary judgment.” Id. In Callaghan           specificity requirement of rule 166a(i), and neither do we.
Ranch, the movant listed the elements of the plaintiff's claim
for implied dedication and contended there was “at least one      Rule 166a(i) unconditionally requires a movant to specify the
element” the plaintiff could not satisfy. Callaghan Ranch, 53     elements as to which there is no evidence. See TEX.R. CIV.
S.W.3d at 4. The movant went on, however, to specifically         P. 166a(i). We apply the rule strictly so as not to deprive
discuss the element of acceptance. Id. The court addressed        litigants of their right to a full hearing on the merits of any
the element specifically discussed by the movant, but the         real issue of fact. See Compton v. Calabria, 811 S.W.2d
language “at least one element,” even in conjunction with a       945, 949 (Tex.App.-Dallas 1991, no writ). The rule provides
listing of the elements, was insufficient to raise a challenge    no latitude to allow movants to avoid the requirement of
to any other element. Id. We conclude the decisions in these      specificity by claiming the non-movant had “fair notice” of
cases align with our analysis here and are supported by a plain   what the motion was intended to challenge. See Mott, 249
reading of rule 166a(i) and its comment.                          S.W.3d at 98. Rather, the rule specifies the manner in which
                                                                  the movant provides the “adequate information” discussed in
                                                                  Timpte Industries: that is, by specifying which elements of
                                                                  the non-movant's claim or defense lack supporting evidence.
                  *286 II. FAIR NOTICE
                                                                  See TEX.R. CIV. P. 166a(i).
 [6] Appellees contend that, at a minimum, their motion
provided appellants with fair notice of the elements being        Traditional summary judgments cannot be upheld upon
challenged, thereby satisfying the requirements of rule           grounds not raised in the motion for summary judgment. City
166a(i). They argue that we should discern fair notice based      of Midland v. O'Bryant, 18 S.W.3d 209, 218 (Tex.2000);
on appellants' thorough response to the motion and the            Chessher v. Sw. Bell Tel. Co., 658 S.W.2d 563, 564
detailed briefing on the issues in the trial court. We decline    (Tex.1983). This prohibition applies to no-evidence summary
to recognize a fair notice exception to the rule. See Bever,      judgments as well. See Fraud–Tech, Inc. v. Choicepoint,
355 S.W.3d at 888 (citing Mott, 249 S.W.3d at 98, favorably       Inc., 102 S.W.3d 366, 387 (Tex.App.-Fort Worth 2003,
for proposition that fair notice exception does not extend to     pet. denied); Callaghan Ranch, 53 S.W.3d at 4; Specialty
elements requirement of no-evidence motion for summary            Retailers, Inc. v. Fuqua, 29 S.W.3d 140, 147–48 (Tex.App.-
judgment).                                                        Houston [14th Dist.] 2000, pet. denied); see also TEX.R. CIV.
                                                                  P. 166a cmt. (no-evidence motion for summary judgment
Appellees support their fair notice argument by citing Timpte     “must be specific in challenging the evidentiary support
Industries, Inc. v. Gish, 286 S.W.3d 306, 311 (Tex.2009).         for an element of a claim or defense”). The comment is
In Timpte Industries, the plaintiff contended that a no-          clear that the rule “does not authorize conclusory motions
evidence motion only challenged one element, but not a            or general no-evidence challenges to an opponent's case.”
second element, of the plaintiff's product liability claim. Id.   TEX.R. CIV. P. 166a(i) 1997 cmt. Appellants' argument that
at 310. The supreme court observed that immediately after         a fair notice standard should be substituted for the *287
listing the elements of the claim, the no-evidence motion         specificity requirement of rule 166a(i) runs contrary to both
expressly challenged two elements of the plaintiffs claim         the rule and controlling authorities.
and repeated the challenge to the same two elements at the
conclusion of the motion. Id. at 311. The court determined        Furthermore, given the complete absence of specificity in
this met the specificity requirements of rule 166a(i). Id. In     the motion at issue, we cannot conclude appellants had any
its reasoning, the court stated the purpose of the rule was       notice as to which elements of their claims appellees were
“ ‘to provide the opposing party with adequate information        challenging. The fact that appellants, out of an abundance
for opposing the motion.’ ” Id. (quoting Westchester Fire         of caution, chose to address all of the elements of each of
Ins. Co. v. Alvarez, 576 S.W.2d 771, 772 (Tex.1978)). Then        their factual theories of each of their claims in response to the
the court “analogized this purpose to that of the ‘fair notice’



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Jose Fuentes Co., Inc. v. Alfaro, 418 S.W.3d 280 (2013)


motion does not transform appellees' conclusory motion into a             S.W.3d 209, 213 (Tex.App.-Houston [14th Dist.] 2001,
legally sufficient no-evidence motion for summary judgment.               pet. denied); Callaghan Ranch, 53 S.W.3d at 3.
                                                                   But an exception or objection in the trial court is not
                                                                   required when a traditional motion fails to present any ground
                        III. WAIVER                                for summary judgment on a claim or defense. McConnell,
                                                                   858 S.W.2d at 342 (“summary judgments must stand or
 [7]   Finally, appellees argue that appellants failed to          fall on their own merits, and the non-movant's failure to
challenge the sufficiency or clarity of the motion in the trial    except or respond cannot supply by default the grounds
court. 1 Appellees would have us apply traditional summary         for summary judgment or the summary judgment proof
judgment standards to no-evidence motions when they argue          necessary to establish the movant's right”). We are not
that appellants “did not move for a continuance of the hearing     permitted to “read between the lines” or infer from the
[and] did not file any special exceptions to the Motion....” See   pleadings any grounds for granting summary judgment other
McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337,          than *288 those grounds expressly set forth before the
342 (Tex.1993) ( “An exception is required should a non-           trial court. See Nall v. Plunkett, 404 S.W.3d 552, 555
movant wish to complain on appeal that the grounds [in a           (Tex.2013). A motion for no-evidence summary judgment
traditional motion for summary judgment] relied on by the          that does not specify the element or elements that are being
movant were unclear or ambiguous.”). We disagree.                  challenged does not provide any ground upon which the
                                                                   trial court can grant summary judgment. Given the brevity
1                                                                  of no-evidence summary judgment motions, which are often
       We note that in the trial court, appellants mentioned in
                                                                   lacking significant argument in support of the relief sought,
       their response to appellees' no-evidence motion that the
                                                                   there is nothing to provide guidance as to the basis or the
       elements challenged were not specified and, therefore,
       the motion was insufficient.                                scope of the motion except the identification of the challenged
                                                                   elements. Thus, while a nonspecific and conclusory motion
This Court has held that the legal sufficiency of a no-evidence
                                                                   for no-evidence summary judgment is inherently ambiguous,
motion for summary judgment may be challenged for the first
                                                                   it is also insufficient as a matter of law and does not require
time on appeal in the same manner as a challenge to the legal
                                                                   an objection. See Callaghan, 53 S.W.3d at 3.
sufficiency of a traditional motion for summary judgment.
See Cimarron Hydrocarbons Corp. v. Carpenter, 143 S.W.3d
560, 562–63 (Tex.App.-Dallas 2004, pet. denied); Preston
Nat'l Bank v. Stuttgart Auto Ctr. Inc., 05–09–00020–CV,                                   CONCLUSION
2010 WL 3310727, at *2 (Tex.App.-Dallas Aug. 24, 2010, no
                                                                   Based on the foregoing, we conclude appellees' motion for
pet.) (mem. op.); Monroe v. Dallas Cnty., 05–07–01630–CV,
                                                                   no-evidence summary judgment is insufficient as a matter
2009 WL 2569449, at *4 (Tex.App.-Dallas Aug. 21, 2009, no
                                                                   of law. We resolve appellants' first issue in their favor. It is
pet.) (mem. op.); Crocker v. Paulyne's Nursing Home, Inc.,
                                                                   unnecessary for us to address the remaining issues presented
95 S.W.3d 416, 419 (Tex.App.-Dallas 2002, no pet.); Gross
                                                                   by the parties. See TEX.R.APP. P. 47.1.
v. Methodist Hosps. of Dallas, 05–00–02124–CV, 2002 WL
1380399, at *3 (Tex.App.-Dallas, June 27, 2002, no pet.)
                                                                   We reverse the trial court's judgment and remand the cause
(op. on reh'g) (not designated for publication). 2 Traditional     for further proceedings.
motions for summary judgment are based on argument for the
relief sought supported by evidence supplied with the motion.
This corpus of material provides information from which the
non-movant can determine the scope of the motion. With all         O'NEILL, J., dissenting.
the contents of a traditional motion for summary judgment,
it is appropriate to require an exception or objection in the      Dissenting Opinion By Justice O'NEILL, dissenting.
trial court if a non-movant claims the traditional motion is       Because I would conclude Mario Sabino's no-evidence
ambiguous as to what grounds form its basis.                       motion for summary judgment gave fair notice of the
                                                                   elements being challenged, and that Gloria's waived any
2      Accord In re Estate of Swanson, 130 S.W.3d 144, 147         complaint seeking further specificity, I respectfully dissent.
       (Tex.App.-El Paso 2003, no pet.); Cuyler v. Minns, 60



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Jose Fuentes Co., Inc. v. Alfaro, 418 S.W.3d 280 (2013)


Gloria's sued Mario Sabino's for misappropriation of trade         of the element being challenged. I would further conclude the
secrets, tortious interference with contractual relations, and     motion in this case did so.
conversion arising out of Mario Sabino's operation of a
restaurant in competition with Gloria's. Gloria's also sought      In Timpte Industries, the plaintiff nonmovant complained
a permanent injunction based upon Mario Sabino's alleged           that the defendant's no-evidence motion for summary
misappropriation of trade secrets.                                 judgment was insufficient to meet rule 166a(i)'s specificity
                                                                   requirements with respect to an element of his products
Mario Sabino's filed a no-evidence motion for summary              liability cause of action. The Texas Supreme Court explained
judgment on Gloria's claims. In its motion, Mario Sabino's         that the underlying purpose of the specificity requirement is
followed the same formula challenging each of appellant's          “to provide the opposing party with adequate information
three claims (tortious interference, misappropriation of trade     for opposing the motion, and to define the issues for the
secrets, and conversion). In each challenge, Mario Sabino's        purpose of summary judgment.” Id. at 311 (citing Westchester
stated: “There is no competent summary judgment evidence           Fire Ins. Co. v. Alvarez, 576 S.W.2d 771, 772 (Tex.1978)
of one or more of the following elements of [name of tort]         (traditional summary judgment case)); see also Henning v.
on which Plaintiffs have the burden of proof at trial.” In         OneWest Bank, FSB, 405 S.W.3d 950, 963 (Tex.App.-Dallas
each challenge, Mario Sabino's then listed all elements of         2013, no pet.). The supreme court specifically analogized
the particular claim being challenged. Finally, Mario Sabino's     this purpose to that of “fair notice” pleading requirements.
concluded each challenge contending that it was entitled to        Timpte, 286 S.W.3d at 311; Henning, 405 S.W.3d at 963. The
summary judgment because Gloria's had no evidence of “one          court then, in construing the no-evidence motion, determined
or more” elements of the specified cause of action.                whether the motion provided “fair notice” as to what element
                                                                   or elements were being challenged. Timpte, 286 S.W.3d at
Gloria's did not specially except to the motion. Instead,          311. In doing so, the supreme court expressly considered
Gloria's, interpreting the motion as challenging each of the       whether the record as a whole revealed any confusion as
enumerated elements of each cause of action, responded             to the elements challenged and specifically considered the
to the motion in full, purporting to raise a fact issue on         nonmovant's response to the no-evidence motion. Id.; see also
each enumerated element. Gloria's did, however, complain           Henning, 405 S.W.3d at 962 (“fair notice” where, among
in its conclusion that the motion was “vague” and failed to        other things, the record revealed no confusion as to the
mention the “exact elements” it was challenging. The trial         movant's assertions of no evidence).
court granted Mario Sabino's motion in its entirety.
                                                                   I would conclude the motion in this case as a whole, read
According to Gloria's, the trial court erred in granting the no-   in context and in conjunction with Gloria's reply, gave
evidence motion for summary judgment because the motion            Gloria's fair notice that the motion was challenging each and
failed to identify any element that lacked evidentiary support.    every element that was listed in the motion. I would further
The majority agrees concluding the motion did nothing “to          conclude that Gloria's claim that it chose to address all the
inform” Gloria's about which elements of each claim were           elements of each of its causes of action because it was afraid
being challenged. The majority thus concludes the motion           to “guess” as to “which” elements were being challenged is
was legally insufficient as a matter of law and *289 can,          disingenuous. The motion can reasonably be read in only one
therefore, be challenged for the first time on appeal.             of two ways—as challenging all of the listed elements—or
                                                                   as challenging no specific element. 1 While “one or more”
I agree with the majority that a no-evidence motion for            elements does not necessarily include all elements, it certainly
summary judgment must “state the elements” upon which the          can. It is apparent from Gloria's response to the motion that
movant believes there is no evidence. Tex.R. Civ. P. 166a(i).      it construed the motion as challenging all of the enumerated
I also agree the motion must be specific in challenging the        elements.
evidentiary support for an element of a claim or defense.
Timpte Indus., Inc. v. Gish, 286 S.W.3d 306, 310 (Tex.2009)        1      Stated otherwise, it would not have been reasonable for
(citing comment to rule 166a(i)). However, I would conclude
                                                                          Gloria's to interpret the motion as requiring it to pick
that in determining whether a no-evidence motion for
                                                                          one element of a cause of action and respond to only
summary judgment satisfied the rule's requirements, we                    that element. The motion either required Gloria's to do
determine whether the motion gave the nonmovant fair notice



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Jose Fuentes Co., Inc. v. Alfaro, 418 S.W.3d 280 (2013)



        nothing, to object to the motion, or to respond to each         nothing inherently improper about “forcing” a plaintiff to
        element.                                                        come forward with more than a scintilla of evidence to raise
                                                                        a fact issue on each element of the claims for which it has
I would further conclude that while the motion for summary
                                                                        filed suit. See Nelson v. Regions Mort., Inc., 170 S.W.3d
judgment may have suffered from an ambiguity, Gloria's was
                                                                        858, 861 (Tex.App.-Dallas 2005, no pet.) (a no-evidence
required to object in the trial court and preserve this complaint
                                                                        summary judgment motion may challenge any or all of the
for review. 2 See *290 Crocker v. Paulyne's Nursing Home,               elements of the plaintiff's claims). Further, if Gloria's wanted
Inc., 95 S.W.3d 416, 420 (Tex.App.-Dallas 2002, no pet.) (if            more specific allegations upon which to base a motion for
an element challenged in a no-evidence motion for summary               sanctions, or if it believed responding to the motion with some
judgment is unclear or ambiguous, the nonmovant must                    evidence of each element of its causes of action was unduly
object) (citing McConnell v. Southside Indep. Sch. Dist.,               burdensome, it could have objected to the motion in the trial
858 S.W.2d 337, 342–43 (Tex.1993)); see also Dishner v.                 court.
Huitt–Zollars, Inc., 162 S.W.3d 370, 376 (Tex.App.-Dallas
2005, no pet.); Dorsett v. Hispanic Hous. & Educ. Corp.,                Finally, the majority's conclusion leads to what I perceive
389 S.W.3d 609, 612 (Tex.App.-Houston [14th Dist.] 2012,                to be a more problematic result. Specifically, the
no pet.) (presuming nonmovant understood which elements                 majority's conclusion effectively allows a summary judgment
of claim were being challenged when nonmovant did not                   nonmovant to lay behind the log—attempt to raise a fact issue
specially except).                                                      on the precise elements they later claim were not raised—and
                                                                        if they fail to do so in the trial court—then obtain a wholesale
2       To the extent the statement in Gloria's conclusion to           and summary reversal on appeal. This result is particularly
        its summary judgment response can be interpreted as             problematic where, as here, Mario Sabino's could have easily
        an objection, Gloria's nevertheless waived error by             cured the error in the trial court had Gloria's properly objected
        failing to obtain a ruling on the objection. See Franco         and obtained a ruling.
        v. Slavonic Mut. Fire Ins. Ass'n, 154 S.W.3d 777,
        784 (Tex.App.-Houston [14th Dist.] 2004, no pet.)               I would conclude Mario Sabino's no-evidence motion for
        (traditional summary judgment); see also McConnell v.
                                                                        summary judgment was legally sufficient because it gave
        Southside Indep. Sch. Dist., 858 S.W.2d 337, 344 n. 6
                                                                        Gloria's fair notice that Mario Sabino's was challenging each
        (when nonmovant files proper exception to traditional
                                                                        of the elements listed in the motion. Further, to the extent the
        motion for summary judgment, and such exception is
        overruled, the nonmovant may have a valid complaint on
                                                                        motion was vague or ambiguous, I would conclude Gloria's
        appeal).                                                        waived error by failing to object. Therefore, I respectfully
                                                                        dissent.
I would further conclude the majority places too much
weight on the possibility that the motion in this case might
somehow immunize the movant from the requirement that
a no-evidence motion be based on goodfaith. There is no                 Joined by Justices LANG and LANG–MIERS.
suggestion Mario Sabino's did not have a proper basis to
                                                                        All Citations
challenge each and every element of Gloria's claims, and the
summary judgment record suggests otherwise. And there is                418 S.W.3d 280

End of Document                                                     © 2015 Thomson Reuters. No claim to original U.S. Government Works.




                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                   8
Garcia v. State Farm Lloyds, 287 S.W.3d 809 (2009)
                                                                                     pet. denied


                                                                  [2]   Appeal and Error
                    	
	                                           Determination of Questions of Jurisdiction
                                              in General
                 !"#$	
                                                                        Appellate courts are obligated to review sua
         %&"""'%("                            sponte issues affecting jurisdiction.
                         )	
                                                                        2 Cases that cite this headnote
           !*%+,,-./	

       0	1  1 2	 3            	         [3]   Appeal and Error
                                                                           Finality as to All Parties
Synopsis
                                                                        Appeal and Error
Background: Insureds under homeowners' insurance policy
                                                                           Determination of Controversy
brought action against insurer, alleging that insurer failed to
pay for mold and water damage to insureds' home. The 275th              An appellate court examines the entire record
District Court, Hidalgo County, Juan R. Partida, J., entered            to determine whether an order disposes of all
summary judgment in favor of insurer, and insureds appealed.            pending claims and parties, so as to be final and
                                                                        appealable.

                                                                        1 Cases that cite this headnote
Holdings: The Court of Appeals, Benavides, J., held that:
                                                                  [4]   Appeal and Error
[1] genuine issue of material fact precluded summary
                                                                           Finality as to All Parties
judgment on claims relating to insurers' failure to pay for
water damage, but                                                       A judgment is final for purposes of appeal when:
                                                                        (1) the judgment expressly disposes of some,
[2] insureds failed to present any summary judgment evidence            but not all defendants, (2) the only remaining
that insurer had committed any breaches, wrongdoing, or                 defendants have not been served or answered,
misrepresentations, other than failing to fully pay for water           and (3) nothing in the record indicates that the
damage.                                                                 plaintiff ever expected to obtain service on the
                                                                        unserved defendants.

Affirmed in part, reversed in part, and remanded.                       3 Cases that cite this headnote


Yanez, J., filed a concurring opinion.                            [5]   New Trial
                                                                            Compliance with Requirements
                                                                        Affidavits of plaintiff's attorney and attorney's
 West Headnotes (13)                                                    secretary were sufficient to show that plaintiff's
                                                                        motion for new trial had been mailed prior
                                                                        to deadline, and thus motion was timely filed
 [1]    Appeal and Error                                                under mailbox rule, even though motion had
           Finality as to All Parties                                   been received by trial court clerk after deadline.
        Order granting summary judgment was final and                   Vernon's Ann.Texas Rules Civ.Proc., Rules 5,
        appealable, even though order failed to dispose                 329b.
        of one named party, since plaintiff had never
        served party and had never expected to serve                    Cases that cite this headnote
        party.
                                                                  [6]   New Trial
        2 Cases that cite this headnote
                                                                            Compliance with Requirements




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                           1
Garcia v. State Farm Lloyds, 287 S.W.3d 809 (2009)


       Plaintiff's motion for new trial, mailed prior               Vernon's Ann.Texas Rules Civ.Proc., Rule
       to filing deadline, was required, pursuant to                166a(i).
       mailbox rule requiring motion to be received
       “not more than ten days tardily,” to be received             2 Cases that cite this headnote
       by trial court clerk within ten days of deadline,
       rather than within ten days of mailing. Vernon's      [10]   Judgment
       Ann.Texas Rules Civ.Proc., Rule 5.                               Motion or Other Application

       Cases that cite this headnote                                A motion for no-evidence summary judgment
                                                                    that only generally attacks a factual theory,
                                                                    without specifying the elements of the claims
 [7]   Appeal and Error                                             being attacked, is insufficient to support
          Judgment                                                  a no-evidence summary judgment. Vernon's
       Insureds could raise for first time on appeal the            Ann.Texas Rules Civ.Proc., Rule 166a(i).
       issue of whether insurer's no-evidence summary
       judgment motion failed to properly challenge                 4 Cases that cite this headnote
       elements of insureds' claims, so as to require
       that insurers motion to be treated as a traditional   [11]   Judgment
       summary judgment motion. Vernon's Ann.Texas                      Motion or Other Application
       Rules Civ.Proc., Rule 166a(i).
                                                                    Insurer's no-evidence summary judgment motion
       5 Cases that cite this headnote                              sufficiently addressed insureds' claims for
                                                                    mental anguish, treble damages for knowing
                                                                    violations of the insurance code, and exemplary
 [8]   Appeal and Error                                             damages based on malicious conduct, and thus
          Judgment                                                  did not have to be treated as a traditional
       The lack of specificity of a motion for no-                  summary judgment motion; motion clearly
       evidence summary judgment may be raised as                   stated that insureds had provided no evidence
       an issue for the first time on appeal. Vernon's              on required elements of claims that insureds
       Ann.Texas Rules Civ.Proc., Rule 166a(i).                     had suffered mental anguish, that insurer had
                                                                    knowingly violated insurance code, or that
       2 Cases that cite this headnote                              insurer had engaged in malicious conduct.
                                                                    Vernon's Ann.Texas Rules Civ.Proc., Rule
 [9]   Judgment                                                     166a(i); V.T.C.A., Bus. & C. § 17.50(a);
           Motion or Other Application                              V.T.C.A., Insurance Code § 541.152; V.T.C.A.,
                                                                    Civil Practice & Remedies Code § 41.003(a)(2);
       Insurer's no-evidence summary judgment motion
                                                                    Rules App.Proc., Rule 38.1(i).
       failed to sufficiently address elements of
       insureds' breach-of-contract claims, by alleging             1 Cases that cite this headnote
       that there was no evidence that insurer owed
       insureds more than insurer had already paid,
       that there was no evidence that insureds had          [12]   Judgment
       any complaint with the way insurer handled                       Insurance Cases
       their claims other than that insurer did not pay             Genuine issue of material fact as to the amount
       enough, and that there was no evidence of any                actually and necessarily spent by insureds to
       misrepresentations by insurer, and thus motion               repair water damage to their home precluded
       had to be treated as a traditional summary                   summary judgment in favor of insurer on
       judgment motion; motion merely attacked                      insureds' claims that insurer failed to pay
       insureds' factual theories without specifying                amounts for which insurer was liable pursuant
       which elements the theory allegedly supported.               to homeowners' insurance policy, that insurer
                                                                    breached its duty of good faith and fair dealing,



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Garcia v. State Farm Lloyds, 287 S.W.3d 809 (2009)


        and that insurer violated the Insurance Code and          State Farm's summary judgment evidence, sustaining State
        the Deceptive Trade Practices Act. V.T.C.A.,              Farm's objections to their summary judgment evidence, and
        Bus. & C. § 17.50; V.T.C.A., Insurance Code §             in granting final summary judgment in State Farm's favor.
        541.151.                                                  *812 We affirm, in part, and reverse and remand, in part. 1

        Cases that cite this headnote
                                                                  1      As this is a memorandum opinion, and the parties are
                                                                         familiar with the facts, we will only recite those facts
 [13]   Insurance                                                        necessary to explain the Court's decision and the basic
            Duty to Settle or Pay                                        reasons for it. See TEX. R. APP. P. 47.4.
        Insurance
            Fraud or Misrepresentation
                                                                                       I. JURISDICTION
        Insureds under homeowners policy failed to
        show that insurer had committed any breaches,              [1]     As a preliminary matter, we address several
        wrongdoing, or misrepresentations, other than             jurisdictional issues. First, on August 6, 2007, the clerk of this
        failing to fully pay for water damage to insureds'        Court sent the Garcias' counsel a “defect letter,” noting that
        home, and thus insurer could not be liable                the trial court's March 27, 2007 summary judgment did not
        on insureds' extra-contractual claims for mental          appear to be a final appealable order because it did not dispose
        anguish, treble damages for knowing violations            of all parties; specifically, the judgment did not address
        of the insurance code, exemplary damages based            causes of action against Andy's Refrigeration, a defendant
        on malicious conduct, or misrepresentation.
                                                                  below. 2 The Garcias and State Farm responded that all
        V.T.C.A., Bus. & C. § 17.50(a); V.T.C.A.,
                                                                  parties considered the trial court's order to be a final order
        Insurance Code § 541.151; V.T.C.A., Civil
                                                                  because Andy's Refrigeration was never served. Although
        Practice & Remedies Code § 41.003(a)(2).
                                                                  the Garcias attempted to serve Andy's Refrigeration in 2004,
        Cases that cite this headnote                             service was not effected. It is undisputed that there were no
                                                                  further attempts at service.

                                                                  2      We note that in their original petition, appellants sued
Attorneys and Law Firms                                                  several defendants individually, including Julie Merkt,
                                                                         Thomas C. Van Dyke, Jr., Doug Cook, and Andy's
 *811 Matthew R. Pearson, Gravely & Pearson, LLP, San                    Refrigeration. The docket sheet reflects that Merkt, Van
Antonio, Joseph Prestia, Prestia & Ornelas, Edinburg, for                Dyke, Jr., and Cook were served with citation, but does
appellants.                                                              not reflect that they answered. However, the record
                                                                         contains appellants' First Amended Petition, in which
Warren R. Taylor, Kristie Johnson, Taylor & Taylor,                      only State Farm Lloyds and Andy's Refrigeration are
Houston, Victor A. Vicinaiz, Roerig, Oliveira & Fisher,                  named as defendants. “When a party's name is omitted
McAllen, for appellee.                                                   from an amended pleading, he is as effectively dismissed
                                                                         as where a formal order of dismissal is entered.”
Before Chief Justice VALDEZ and Justices YA#NEZ and                      Randolph v. Jackson Walker, L.L.P., 29 S.W.3d 271, 274
BENAVIDES.                                                               (Tex.App.-Houston [14th Dist.] 2000, pet. denied); see
                                                                         TEX. R. CIV. P. 65 .
                                                                   [2] [3] Appellate courts are obligated to review sua sponte
                         OPINION                                  issues affecting jurisdiction. M.O. Dental Lab v. Rape, 139
                                                                  S.W.3d 671, 673 (Tex.2004). We examine the entire record to
Opinion by Justice BENAVIDES.                                     determine whether an order disposes of all pending claims and
                                                                  parties. Lehmann v. Har–Con Corp., 39 S.W.3d 191, 205–06
Appellants, Ramon and Anita Garcia, appeal from two orders        (Tex.2001).
granting summary judgment in favor of appellee, State
Farm Lloyds (“State Farm”). By four issues, the Garcias            [4] In support of their argument, the parties cite the principle
contend the trial court erred in overruling their objections to   that a judgment may be final, even though it does not dispose


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Garcia v. State Farm Lloyds, 287 S.W.3d 809 (2009)


of all parties named in the petition, if the remaining party       The question before us is whether the Garcias perfected their
was never served with citation and did not file an answer, and     appeal in reliance upon the “mailbox rule.” Rule 5 provides,
nothing in the record indicates that the plaintiff ever expected   in pertinent part that
to obtain service upon the remaining party. See Youngstown
Sheet & Tube Co. v. Penn, 363 S.W.2d 230, 232 (Tex.1962)                        if any document is sent to the
(describing when failure to obtain service on defendant may                     proper clerk by first-class United
be treated as a nonsuit for purposes of determining finality of                 States mail in an envelope or wrapper
judgment); M.O. Dental Lab., 139 S.W.3d at 674–75 (holding                      properly addressed and stamped and
that decision in Penn survives Lehmann ). We agree. Here,                       is deposited in the mail on or before
although Andy's Refrigeration was never served, there is                        the last day for filing same, the same,
nothing in the record to suggest that the Garcias ever expected                 if received by the clerk not more than
to do so. “[A] judgment is final for purposes of appeal when                    ten days tardily, shall be filed by the
(1) the judgment expressly disposes of some, but not all                        clerk and be deemed filed in time. A
defendants, (2) the only remaining defendants have not been                     legible postmark affixed by the United
served or answered, and (3) nothing in the record indicates                     States Postal Service shall be prima
that the plaintiff ever expected to obtain service on the                       facie evidence of the date of mailing.
unserved defendants.” Sondock v. Harris County Appraisal
                                                                   TEX. R. CIV. P. 5. Texas courts have held that, “[i]n the
Dist., 231 S.W.3d 65, 67 n. 1 (Tex.App.-Houston [14th Dist.]
                                                                   absence of a proper postmark or certificate of mailing, an
2007, no pet.) (citing Penn, 363 S.W.2d at 232; M.O. Dental
                                                                   attorney's uncontroverted affidavit may be evidence of the
Lab., 139 S.W.3d at 674–75). We conclude that the summary
                                                                   date of mailing.” Lofton v. Allstate Ins. Co., 895 S.W.2d 693,
judgment is final for purposes of appeal. See id.
                                                                   693–94 (Tex.1995).

 [5] Second, State Farm has filed a motion to dismiss
                                                                   In support of their argument that they timely filed their
this appeal for want of jurisdiction. State Farm argues that
                                                                   motion for new trial, the Garcias produced a copy of the
because the Garcias' motion for new trial was filed more than
                                                                   envelope, correctly addressed to the district clerk's office, and
thirty days after summary *813 judgment was granted, the
                                                                   stamped “United States Postage,” dated April 20, 2007. The
motion was untimely and therefore, the notice of appeal was
                                                                   Garcias acknowledge that the United States Postage stamp
untimely. The Garcias contend that their motion for new trial
                                                                   was affixed by a computerized rented postage machine at
was timely filed under the “mailbox rule.” See TEX. R. CIV.
                                                                   their counsel's office. State Farm argues that the stamp on the
P. 5. State Farm contends that it was not.
                                                                   envelope is not a United States Postal Service postmark and
                                                                   does not establish actual mailing on April 20, 2007. Thus,
The trial court's order granting summary judgment was signed
                                                                   according to State Farm, the April 20, 2007 postmark does
on March 27, 2007; therefore, a motion for new trial was
                                                                   not constitute prima facie evidence of mailing. See TEX. R.
due on or before April 26, 2007. See TEX. R. CIV. P. 329b.
                                                                   CIV. P. 5.
In their response to State Farm's motion, the Garcias assert
that they mailed their motion for new trial on April 20, 2007,
                                                                   We need not decide whether the April 20, 2007 postmark
six days before the deadline. They contend the motion for
                                                                   constitutes prima facie evidence of mailing because the
new trial was placed in an envelope correctly addressed to
                                                                   Garcias also produced two affidavits. The first affidavit, from
the clerk, stamped first-class United States postage on April
                                                                   Shannon Loyd, states that she completed the motion for new
20, 2007 by a computerized pre-paid postage machine, and
                                                                   trial on April 20, 2007, used her office's United States Postal
mailed through the United States Postal Service on that date.
                                                                   Service machine to post mark the envelope, and mailed it
The motion for new trial was received and file-stamped by the
                                                                   on that date. A second affidavit, from Angelica Coronado,
Hidalgo County District Clerk's office on May 4, 2007. The
                                                                   Ms. Loyd's secretary, states that she and Ms. Loyd used the
Garcias filed a notice of appeal on June 11, 2007. See TEX.
                                                                   office postal machine to postmark the envelope containing
R. APP. P. 26.1(a) (providing notice of appeal must be filed
                                                                   the motion for new trial on April 20, 2007 and mailed it on
within thirty days after judgment is signed, or within ninety
                                                                   that date. State Farm offered no evidence controverting either
days if any party files a motion for new trial).
                                                                   affidavit. We conclude the two affidavits constitute prima
                                                                   facie evidence that the motion for new trial was placed in
                                                                   the United States mail, postage *814 pre-paid, on April 20,


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Garcia v. State Farm Lloyds, 287 S.W.3d 809 (2009)


2007. See Lofton, 895 S.W.2d at 693–94; Alvarez v. Thomas,         from the mailbox rule. Id. at 268 (“We construe the words
172 S.W.3d 298, 302–03 (Tex.App.-Texarkana 2005, no pet.)          ‘the same’ in the rules to mean an original or any copy of the
(noting certificate of service and attorney's affidavit are both   motion sufficient for filing.”).
prima facie evidence of date of mailing).
                                                                   Similarly, in Schneiber, the Fort Worth Court of Appeals held
 [6] State Farm also contends that even if the Garcias             that the mailbox rule was properly invoked if the clerk timely
establish that they mailed the motion for new trial on April 20,   received a copy of the relevant pleading, even if it was not the
2007, “the mailbox rule's requirements were not met as the         one mailed. Schneiber, 148 S.W.3d at 585. In Schneiber, the
motion was not received by the Court until May 4, 2007, more       plaintiff mailed an appeal bond on August 22, 2002 and faxed
than ten days after mailing.” According to State Farm, unlike      a copy on August 27, 2002, which was within the prescribed
Texas Rule of Appellate Procedure 9.2(b), which provides           time period. Id. at 584. Although the clerk did not receive
that a document is timely if received within “ten days after       the appeal bond that was placed in the mail, the faxed copy
the filing deadline,” see TEX. R. APP. P. 9.2(b), Texas Rule       was received. Id. at 584–85. Relying on Stokes, the Schneiber
of Civil Procedure 5 provides that a document is timely filed      court held that the appellant invoked the mailbox rule by
if it is received by the clerk “not more than ten days tardily.”   mailing the appeal bond on August 22 and ensuring the clerk
See TEX. R. CIV. P. 5.                                             received a faxed copy on August 27. Id. at 586.

State Farm cites Guevara v. Nolot in support of its position       We conclude that none of the cases cited directly address
that the mailbox rule's requirements were not met because          the question before us: whether the language in Rule 5 “not
the motion for new trial was not received within ten days of       more *815 than ten days tardily” refers to ten days from
mailing. See Guevara v. Nolot, No. 05–05–1238–CV, 2006             the date of mailing or ten days from the deadline for filing.
WL 1391287, at *2 (Tex.App.-Dallas May 23, 2006, no pet.)          The supreme court has stated that as a general rule, appellate
(mem. op.). In Guevara, the Dallas Court of Appeals found an       courts should not dismiss an appeal for a procedural defect
appeal bond was timely filed under Rule 5 when the evidence        whenever an arguable interpretation of the appellate rules
showed it was mailed and received by the justice court clerk       would preserve the appeal. Verburgt v. Dorner, 959 S.W.2d
prior to the due date. Id. at *2. In doing so, the court noted     615, 616 (Tex.1997); see Warwick Towers Council v. Park
that “the record contains evidence showing the appeal bond         Warwick, L.P., 244 S.W.3d 838, 839 (Tex.2008); Schneiber,
was delivered within ten days of the date of mailing and was       148 S.W.3d at 585 (citing Verburgt, 959 S.W.2d at 616–17).
received and signed for by [the clerk].” Id. at *2 (emphasis
added). We note, however, that the Guevara court was not           We have already determined that the Garcias established that
addressing whether Rule 5 requires receipt of a document           they mailed their motion for new trial on April 20, 2007. The
within ten days from mailing or within ten days of the filing      record contains evidence that it was received by the clerk's
deadline; rather, the court was simply rejecting an argument       office by May 4, 2007—within ten days of the April 26, 2007
that a court clerk's testimony that she did not recall receiving   deadline. Applying a reasonable interpretation that preserves
the appeal bond constituted evidence that it was not received.     the Garcias' appeal, see Verburgt, 959 S.W.2d at 616, we hold
Id. Thus, the court's comment regarding delivery of the appeal     that the “not more than ten days tardily” requirement in Rule
bond “within ten days of mailing” was dicta.                       5 refers to ten days past the filing deadline referenced in the
                                                                   rule (“on or before the last day for filing same”). See TEX.
The Garcias cite Stokes v. Aberdeen Ins. Co., 917 S.W.2d           R. CIV. P. 5. We therefore hold that the Garcias' motion for
267, 268 (Tex.1996) and Williams v. Schneiber, 148 S.W.3d          new trial was timely filed. Accordingly, the deadline for filing
581, 585–86 (Tex.App.-Fort Worth 2004, no pet.), noting that       the notice of appeal was extended, and this appeal is properly
in finding documents timely filed under the mailbox rule,          before this Court. See TEX. R. APP. P. 26.1(a). We overrule
neither court relied on receipt within ten days of mailing. In     State Farm's motion to dismiss for lack of jurisdiction. We
Stokes, the supreme court found a motion for new trial was         now turn to the merits of this appeal.
timely filed where it was sent by Federal Express to the court
clerk (received the following day) and mailed the same day to
the district judge. Stokes, 917 S.W.2d at 267. The court held
                                                                                       II. BACKGROUND
it was not necessary for the clerk to receive the same piece of
paper that the party mailed via United States mail to benefit



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Garcia v. State Farm Lloyds, 287 S.W.3d 809 (2009)


State Farm issued a homeowners insurance policy, the
standard HO–B policy, to the Garcias for their home in               The second motion was a “conditional” motion—State Farm
McAllen, Texas. The Garcias filed claims under their policy          argued that the trial court need only address the second motion
for water and mold damage on June 22, 2002. After                    if the first were denied. This second motion challenged the
inspections were performed, on December 10, 2002, State              Garcias' alleged damages for mental anguish, treble damages
Farm paid the Garcias $26,779.42. The letter accompanying            under the Insurance Code, and exemplary damages. 4
the payment indicated that the payment was for “water
damage.”                                                             4      The two motions raised numerous issues, in many
                                                                            instances without being entirely clear. The vague and
The Garcias filed suit against State Farm on October 4, 2004,
                                                                            piecemeal nature of State Farm's motions for summary
alleging breach of contract, breach of the duty of good faith               judgment have resulted in an opinion that is, to a degree,
and fair dealing, violations of the Texas Insurance Code, and               necessarily disjointed.
violations of the Texas Deceptive Trade Practices Act. See
                                                                     The Garcias responded and objected to State Farm's summary
TEX. BUS. & COMM. CODE ANN. § 17.50 (Vernon Supp.
                                                                     judgment evidence. The Garcias submitted a report from
2008); TEX. INS. CODE ANN. § 541.151 (Vernon Pamphlet
                                                                     their expert, Frank Zamora, that estimated costs for repair
2008). 3 The Garcias alleged claims against State Farm based         as $55,716.35. The Garcias also claimed they had to borrow
on its failure to pay for mold damage and to fully pay for the       $20,000, in addition to the amount already paid by State Farm,
water damage to their home.                                          to continue repairs, but they had run out of money before the
                                                                     repairs were completed. State Farm, in turn, objected to the
3      The Garcias initially pleaded violations of former Texas      Garcias' summary judgment evidence.
       Revised Civil Statutes article 21.21, which was repealed
       and codified without substantive change. See Act of May       The trial court sustained State Farm's objections, overruled
       10, 2001, 77th Leg., R.S., ch. 290, § 1, 2001 TEX. GEN.       the Garcias' objections, and granted both motions for
       LAWS 548, 548–51, repealed and recodified by Act of           summary judgment without specifying the basis of its rulings.
       May 22, 2003, 78th Leg., R.S., ch. 1674 §§ 2, 26, 2003
                                                                     This appeal ensued.
       TEX. GEN. LAWS 3611, 2659–61 (current versions at
       TEX. INS. CODE ANN. §§ 541.051, 541.056 (Vernon
       Pamphlet 2008)). The parties' briefs refer to the insurance
       code, and so will we.                                               III. SUMMARY JUDGMENT STANDARDS
State Farm filed two motions for summary judgment. The
                                                                     The trial court granted both of State Farm's motions for
first motion purported to raise no-evidence and traditional
                                                                     summary judgment without stating the grounds for its rulings.
grounds with respect to State Farm's liability. See TEX. R.
                                                                     Under these circumstances, we must affirm the judgment if
CIV. P. 166a(c), (i). State Farm argued that there was no
                                                                     any of the grounds alleged in the motions were meritorious.
coverage for mold claims under the Texas Supreme Court's
                                                                     W. Invs., Inc. v. Urena, 162 S.W.3d 547, 550 (Tex.2005). The
decision in Fiess v. State Farm Lloyds, 202 S.W.3d 744, 753
                                                                     standard of review we apply is determined by whether the
(Tex.2006). Furthermore, State Farm argued that there was no
                                                                     motion was brought on no-evidence or traditional grounds.
evidence that the amount it had already paid was insufficient
                                                                     See TEX. R. CIV. P. 166a(c), (i); see also Ortega v. City Nat'l
to make the repairs for water damage to the Garcias' home. It
                                                                     Bank, 97 S.W.3d 765, 771 (Tex.App.-Corpus Christi 2003,
also challenged the Garcias' extra-contractual claims, arguing
                                                                     no pet.) (op. on reh'g).
that because there was no coverage for the Garcias' claim for
mold damage, there could be no liability for extra-contractual
                                                                     A no-evidence summary judgment is equivalent to a pretrial
claims. Furthermore, it argued there was no evidence of
                                                                     directed verdict, and we apply the same legal sufficiency
any misrepresentation by State Farm, attaching deposition
                                                                     standard on review. Mack Trucks, Inc. v. Tamez, 206 S.W.3d
testimony *816 from the Garcias to support this argument,
                                                                     572, 582 (Tex.2006); Ortega, 97 S.W.3d at 772. Once an
and that there was no evidence that the Garcias had any
                                                                     appropriate motion for no-evidence summary judgment is
complaint with how State Farm handled their claims, except
                                                                     filed, the burden of producing evidence is entirely on the non-
that State Farm did not pay enough. Finally, the motion
                                                                     movant; the movant has no burden to attach any evidence to
argued that the Garcias were not entitled to recover additional
                                                                     the motion. TEX. R. CIV. P. 166a(i). We may not consider
living expenses.
                                                                     any evidence presented by the movant unless it creates a fact


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Garcia v. State Farm Lloyds, 287 S.W.3d 809 (2009)


question. Binur v. Jacobo, 135 S.W.3d 646, 651 (Tex.2004);         Creek Basin, 589 S.W.2d at 678. A matter is conclusively
Newkumet v. Allen, 230 S.W.3d 518, 521 (Tex.App.-Eastland          established if reasonable people could not differ as to the
2007, no pet.).                                                    conclusion to be drawn from the evidence. City of Keller,
                                                                   168 S.W.3d at 816. Only when the movant has produced
To defeat a no-evidence motion for summary judgment, the           sufficient evidence to establish its right to summary judgment
non-movant must merely produce a scintilla of probative            does the burden shift to the plaintiff to come forward with
evidence to raise a genuine issue of material fact. Ortega,        competent controverting evidence raising a genuine issue of
97 S.W.3d at 772. “Less than a scintilla of evidence exists        material fact with regard to the element challenged by the
when the evidence is ‘so weak as to do no more than create         defendant. Rhone–Poulenc, Inc. v. Steel, 997 S.W.2d 217, 223
a mere surmise or suspicion of a fact.’ ” Id. (quoting Kindred     (Tex.1999); see Centeq Realty, Inc. v. Siegler, 899 S.W.2d
v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex.1983)). More             195, 197 (Tex.1995).
than a scintilla exists when the evidence “rises to a level
that would enable reasonable and fair-minded people to differ      When a party moves for summary judgment under both Rules
in their conclusions.” Id. (citing Transp. Ins. Co. v. Moriel,     166a(c) and 166a(i) of the Texas Rules of Civil Procedure, we
879 S.W.2d 10, 25 (Tex.1994)). In determining whether the          will first review the trial court's judgment under the standards
non-movant has met its burden, we review the evidence in           of Rule 166a(i). Ford Motor Co. v. Ridgway, 135 S.W.3d 598,
the light most favorable to the non-movant, crediting such         600 (Tex.2004). If the appellant fails to produce more than a
evidence if reasonable *817 jurors could, and disregarding         scintilla of evidence under that burden, then there is no need to
contrary evidence unless reasonable jurors could not. Tamez,       analyze whether appellee's summary judgment proof satisfies
206 S.W.3d at 582; City of Keller v. Wilson, 168 S.W.3d 802,       the less stringent Rule 166a(c) burden. Id.
827 (Tex.2005).

We review the trial court's granting of a traditional motion for
                                                                       IV. STATE FARM'S NO–EVIDENCE MOTION
summary judgment de novo. See Provident Life & Accident
Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex.2003); Branton v.       [7] By their fourth issue, the Garcias argue that the trial
Wood, 100 S.W.3d 645, 646 (Tex.App.-Corpus Christi 2003,           court erroneously granted State Farm's no-evidence motions
no pet.). When reviewing a traditional summary judgment,           for summary judgment. Before we address the merits of State
we must determine whether the movant met its burden to             Farm's no-evidence motions, however, we must first address
establish that no genuine issue of material fact exists and        the Garcias' argument that the no-evidence motions did not
that the movant is entitled to judgment as a matter of law.        properly challenge elements of their claims.
TEX. R. CIV. P. 166a(c); Sw. Elec. Power Co. v. Grant,
73 S.W.3d 211, 215 (Tex.2002); City of Houston v. Clear            Texas Rule of Civil Procedure 166a(i) requires that a no-
Creek Basin Auth., 589 S.W.2d 671, 678 (Tex.1979). The             evidence motion for summary judgment “state the elements as
movant bears the burden of proof in a traditional motion           to which there is no evidence.” See TEX. R. CIV. P. 166a(i).
for summary judgment, and all doubts about the existence           The Garcias argue that because State Farm's motion did not
of a genuine issue of material fact are resolved against the       satisfy this requirement, the entire motion must be treated as a
movant. See Sw. Elec. Power Co., 73 S.W.3d at 215. We              traditional motion for summary judgment, which would place
take as true all evidence favorable to the nonmovant, and we       the summary judgment burden of proof on State Farm rather
indulge every reasonable inference and resolve any doubts in       than on the Garcias. See *818 Michael v. Dyke, 41 S.W.3d
the nonmovant's favor. Valence Operating Co. v. Dorsett, 164       746, 751–52 (Tex.App.-Corpus Christi 2001, pet. denied).
S.W.3d 656, 661 (Tex.2005).
                                                                   The Garcias did not object in the trial court to the sufficiency
We will affirm a traditional summary judgment only if the          of the no-evidence motion. The courts of appeals are split
record establishes that the movant has conclusively proved         on whether the sufficiency of a motion under Rule 166a(i)
its defense as a matter of law or if the movant has negated        may be raised for the first time on appeal. Compare Holloway
at least one essential element of the plaintiff's cause of         v. Tex. Elec. Utility Constr., Ltd., 282 S.W.3d 207, 212–
action. IHS Cedars Treatment Ctr. of DeSoto, Tex., Inc.            14 n. 2 (Tex.App.-Tyler 2009, no pet. h.) (holding issue
v. Mason, 143 S.W.3d 794, 798 (Tex.2004); Am. Tobacco              may be raised for the first time on appeal); Helm Cos.
Co. v. Grinnell, 951 S.W.2d 420, 425 (Tex.1997); Clear             v. Shady Creek Housing Partners, Ltd., No. 01–05–00743,



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Garcia v. State Farm Lloyds, 287 S.W.3d 809 (2009)


2007 WL 2130186, at *6 n. 7 (Tex.App.-Houston [1st                   [9] We agree with the Garcias with respect to State Farm's
Dist.] July 26, 2007, pet. denied) (mem. op.) (same); Bean          first motion. State Farm's first motion for summary judgment
v. Reynolds Realty Group, Inc., 192 S.W.3d 856, 859                 stated that it was being brought under both subsections (c)
(Tex.App.-Texarkana 2006, no pet.) (same); In re Estate of          and (i) of Texas Rule of Civil Procedure 166a. However, State
Swanson, 130 S.W.3d 144, 147 (Tex.App.-El Paso 2003,                Farm's only arguments on no-evidence grounds were that: (1)
no pet.) (overruling prior decision in Walton v. Phillips           there was no evidence that it owed the Garcias more than it
Petroleum Co., 65 S.W.3d 262, 268 (Tex.App.-El Paso                 already paid; (2) there was no evidence that the Garcias had
2001, pet. denied) and holding that issue may be raised             any complaint with the way State Farm handled their claims,
for the first time on appeal); and Cimarron Hydrocarbons            other than that State Farm *819 did not pay enough; and
Corp. v. Carpenter, 143 S.W.3d 560, (Tex.App.-Dallas                (3) there was no evidence of any misrepresentations by State
2004, pet. denied) (holding issue may be raised for first           Farm.
time on appeal); and Cuyler v. Minns, 60 S.W.3d 209,
212–14 (Tex.App.-Houston [14th Dist.] 2001, pet. denied)            On appeal, State Farm claims that these arguments were
(same); and Callaghan Ranch Ltd. v. Killam, 53 S.W.3d 1,            sufficient to attack the Garcias' breach of contract claims and
3 (Tex.App.-San Antonio 2000, pet. denied) (same); with             all of their “extra-contractual” claims. State Farm points out
Barnes v. Sulak, No. 03–01–00159–CV, 2002 WL 1804912,               that the Garcias have not challenged the trial court's rulings
at *9 n. 4 (Tex.App.-Austin Aug. 08, 2002, no pet.) (not            with respect to the mold claims, which the supreme court has
designated for publication) (holding objection must be raised       held are not covered losses under the policy. See Fiess, 202
in the trial court); Williams v. Bank One, Tex., N.A., 15           S.W.3d at 753. With respect to the water damage claims, State
S.W.3d 110, 117 (Tex.App.-Waco 1999, no pet.) (same);               Farm argues that there is no evidence to show that it owed the
and Roth v. FFP Operating Partners, L.P., 994 S.W.2d 190,           Garcias more than the $26,779.42 it already paid, and this is
194–95 (Tex.App.-Amarillo 1999, pet. denied) (same). We             sufficient to defeat all the Garcias' claims.
have never been required to decide this issue, although we
have mentioned it in prior decisions. See, e.g., Los Cucos           [10] However, a motion for no-evidence summary judgment
Mexican Café, Inc. v. Sanchez, 2007 WL 1288820, at *5 n. 5          that only generally attacks a factual theory, without
(Tex.App.-Corpus Christi May 3, 2007, no pet.) (mem. op.);          specifying the elements of the claims being attacked, is
Galvan v. Tex. Low Cost Ins. Agency, No. 13–00–593–CV,              insufficient to support a no-evidence summary judgment.
2002 WL 34249760, at *3 n. 2 (Tex.App.-Corpus Christi May           See Killam, 53 S.W.3d at 3–4. Rule 166a(i) is clear in its
16, 2002, no pet.) (not designated for publication).                requirement that the motion “must” state specifically the
                                                                    elements of the claim challenged, and the comment to the
 [8] Today, we join the majority of Texas courts, which             rule further provides that the “motion must be specific in
have held that the lack of specificity of a motion for no-          challenging the evidentiary support for an element of a
evidence summary judgment may be raised for the first time          claim or defense; paragraph (i) does not authorize conclusory
on appeal. The supreme court has held that a nonmovant need         motions or general no-evidence challenges to an opponent's
not object to the legal sufficiency of a traditional summary        case.” TEX. R. CIV. P. 166a cmt. Here, State Farm's no-
judgment and may raise that argument for the first time on          evidence motion did not state specifically which elements
appeal. See McConnell v. Southside Indep. Sch. Dist., 858           of the claims were being challenged, but rather, attacked
S.W.2d 337, 342 (Tex.1993) (“Even if the non-movant fails to        one of the Garcias' factual theories without specifying which
except or respond, if the grounds for summary judgment are          elements the theory allegedly supported. Accordingly, we
not expressly presented in the motion for summary judgment          will treat these arguments as traditional summary judgment
itself, the motion is legally insufficient as a matter of law.”).   grounds. See Michael, 41 S.W.3d at 751–52. 5
We see no reason why the rule should be different when the
motion challenged is filed under Rule 166a(i) on no-evidence        5      Other courts of appeals have held that the appropriate
grounds. See Cimarron Hydrocarbons Corp., 143 S.W.3d at
                                                                           inquiry is whether the no-evidence motion provides
563. Accordingly, we will review the Garcias' argument that
                                                                           “fair notice” of the elements for which there was no
the no-evidence motion failed to state the specific elements               evidence. See Roth v. FFP Operating Partners, L.P., 994
of their claims that State Farm sought to challenge.                       S.W.2d 190, 194 (Tex.App.-Amarillo 1999, pet. denied);
                                                                           Cf. In re Estate of Hall, No. 05–98–01929–CV, 2001
                                                                           WL 753795, at *3 (Tex.App.-Dallas July 05, 2001, no



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Garcia v. State Farm Lloyds, 287 S.W.3d 809 (2009)


      pet.) (not designated for publication) (holding that a                  could make an educated guess as to the elements
      motion that failed to state the elements of the claims                  being challenged, we decline to do so because: (1)
      challenged did not provide “fair notice”). Recently, in                 the rule is clear as to its requirements and uses the
      dicta, this Court implied as much. See Villarreal v.                    mandatory term “must,” (2) it is relatively easy to state
      Del Mar College, No. 13–07–00119–CV, 2009 WL                            the elements of a claim for which there is no evidence,
      781750, at *3 & n. 21, *5 n. 45 (Tex.App.-Corpus                        and (3) a proper motion shifts the burden to the non-
      Christi Mar. 26, 2009, no pet. h.) (mem. op.) (citing                   movant to come forward with evidence. Applying a
      Waite v. Woodard, Hall & Primm, P.C., 137 S.W.3d                        “fair notice” standard would place too great a burden
      277, 281 (Tex.App.-Houston [1st Dist.] 2004, no pet.)                   on the non-movant and would be clearly contrary to
      (holding that by failing to reference Rule 166a(c) or                   the express language of Rule 166a(i). See Holloway
      to cite any evidence to establish claim as a matter                     v. Tex. Elec. Utility Constr., Ltd., No. 12–07–00427–
      of law, the plaintiff's motion failed to provide fair                   CV, 2009 WL 765304, at *5 (Tex.App.-Tyler Mar. 25,
      notice that motion was brought on traditional grounds)).                2009, no pet. h.); Fieldtech Avionics & Instruments,
      However, in Michael v. Dyke, this Court rejected a                      Inc. v. Component Control.Com, Inc., 262 S.W.3d
      “fair notice” standard when construing a no-evidence                    813, 824 n. 4 (Tex.App.-Fort Worth 2008, no pet.);
      motion for summary judgment. 41 S.W.3d 746, 750–                        Mott v. Red's Safe & Lock Servs., Inc., 249 S.W.3d
      51 n. 3 (Tex.App.-Corpus Christi 2001, no pet.); see                    90, 98 (Tex.App.-Houston [1st Dist.] 2007, no pet.);
      also Hansler v. Nueces County, No. 13–99–583–CV,                        Michael, 41 S.W.3d at 751 n. 3; Callaghan Ranch
      2001 WL 997350, at *3 (Tex.App.-Corpus Christi                          Ltd. v. Killam, 53 S.W.3d 1, 3 (Tex.App.-San Antonio
      May 3, 2001, no pet.) (contrasting, in dicta, the “fair                 2000, pet. denied).
      notice” standard under Rule 166a(c) with subsection (i)'s
                                                                     *820 [11] The second, conditional motion for summary
      specificity requirement). We reaffirm that holding today,
                                                                    judgment, however, is a different story. First, State Farm's
      and we again hold that the “fair notice” standard does not
                                                                    second motion clearly stated that there was no evidence that
      apply to Rule 166a(i)'s requirement that the motion state
      specifically the elements for which there is no evidence.
                                                                    the Garcias suffered mental anguish. It stated that “mental
      To the extent that Villarreal suggests otherwise, we note     anguish damages are limited to situations where the handling
      that the issue was not raised by the appellant, and our       of a claim created anguish significant enough to seriously
      statements were dicta. See Villarreal, 2009 WL 781750,        disrupt the insured's life.” State Farm also argued that there
      at *5 n. 45.                                                  was no evidence that its conduct caused the Garcias any
         Generally, “Texas follows a ‘fair notice’ standard         such mental anguish. 6 See TEX. BUS. & COMM. CODE
         for pleading, which looks to whether the opposing
                                                                    ANN. § 17.50(a) (Vernon Supp. 2008) (allowing mental
         party can ascertain from the pleading the nature and
                                                                    anguish damages for violations of DTPA and for violations
         basic issues of the controversy and what testimony
                                                                    of chapter 541 of the Texas Insurance Code); see also Berry
         will be relevant.” Horizon/CMS Healthcare Corp.
                                                                    v. Covarrubias, No. 14–03–01137–CV, 2004 WL 1631117,
         v. Auld, 34 S.W.3d 887, 896 (Tex.2000). In other
         words, even though the pleading is not precise, if         at *8 (Tex.App.-Houston [14th Dist.] 2004, no pet.) (mem.
         the responding party understood the allegations or         op.) (“Berry presented no evidence of mental anguish. Thus,
         the court, on review, can decipher the allegations,        putting aside any admission on Berry's behalf, the trial court's
         the pleading provided “fair notice.” See id.; see, e.g.,   ruling was correct on no-evidence grounds.”).
         1994 Land Fund II v. Ramur, Inc., No. 05–98–00074–
         CV, 2001 WL 92696, at *6 (Tex.App.-Dallas Feb.             6      State Farm also presented evidence to support its
         05, 2001, no pet.) (not designated for publication)
                                                                           no-evidence arguments. However, we cannot consider
         (reviewing factual assertions in no-evidence motion
                                                                           evidence submitted in support of a no-evidence motion
         for summary judgment and assigning assertions to
                                                                           for summary judgment, except to the extent that evidence
         elements of non-movant's claims by applying “fair
                                                                           raises a fact issue in the Garcias' favor. Binur v. Jacobo,
         notice” standard).
                                                                           135 S.W.3d 646, 651 (Tex.2004).
         However, Rule 166a(i) and the comments thereto
         make clear that, with respect to the elements of the       Next, State Farm's second motion argued that the Garcias
         non-movant's claims being challenged, the movant           would only be entitled to statutory treble damages under the
         must do more than provide “fair notice”—the movant         Texas Insurance Code if there were evidence that State Farm
         “must” state the specific elements for which there is      “knowingly” violated a statutory provision. See TEX. INS.
         no evidence. TEX. R. CIV. P. 166a(i) & cmt. Even           CODE ANN. § 541.152 (Vernon Pamphlet 2008). State Farm
         though by applying a “fair notice” standard, this Court    argued that there was no evidence that it had acted knowingly;



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Garcia v. State Farm Lloyds, 287 S.W.3d 809 (2009)


thus, the Garcias are not entitled to treble damages under         elements of their claims, and that they proffered sufficient
the insurance code. Finally, State Farm argued that there was      evidence to defeat the traditional motion. As part of these
no evidence of malice, which State Farm argues would be            arguments, the Garcias also argue that the traditional motion
required to support a claim for punitive damages. See TEX.         did not negate any elements of their claims to the extent that
CIV. PRAC. & REM. CODE ANN. § 41.003(a)(2) (Vernon                 these were based on State Farm's failure to pay for all their
2008).                                                             water damage, as opposed to mold damage.

Although the Garcias' appellate brief points to the evidence       First, the Garcias argue that the traditional motion was limited
they submitted in response to the second motion for summary        to their mold claims, which State Farm argued were precluded
judgment, they do not cite a single case or explain how            by the Texas Supreme Court's decision in Fiess and which the
this evidence supports their claims for mental anguish, treble     Garcias do not challenge on appeal. 202 S.W.3d at 753. The
damages under the insurance code, or punitive damages. See         Garcias argue that because State Farm's traditional motion for
TEX. R. APP. P. 38.1(i). Accordingly, nothing is presented         summary judgment was based solely on the Fiess decision,
for our review.                                                    the traditional motion has no effect on their claims for water
                                                                   damage to the home.
In sum, we sustain the Garcias' fourth issue with respect to the
no-evidence arguments in State Farm's first motion. However,       It is true that the motion for summary judgment argued that
 *821 we affirm the trial court's judgment that the Garcias        the Garcias' breach of contract claim was barred because
are not entitled to recover mental anguish, treble damages         mold damage is not covered by the policy, relying on Fiess.
for knowing violations of the insurance code, 7 or exemplary       The Garcias, however, have argued that State Farm's no-
damages for their extra-contractual claims based on malicious      evidence arguments should be treated as traditional grounds
conduct. See TEX. R. APP. P. 38.1(i); Anderson v. Long, 118        for summary judgment. Accordingly, we will proceed in the
                                                                   manner suggested by the Garcias. See Michael, 41 S.W.3d at
S.W.3d 806, 811 (Tex.App.-Fort Worth 2003, no pet.). 8
                                                                   751–52.

7      We note that the DTPA allows treble damages if               [12] On appeal, State Farm argues that the Garcias' evidence
       the consumer proves that the conduct was committed          fails to raise a fact issue because it does not demonstrate
       “intentionally.” See TEX. BUS. & COMM. CODE
                                                                   the amount that the Garcias actually spent on repairs, and
       ANN. § 17.50(b)(1) (Vernon 2002). The Garcias,
                                                                   more importantly, does not demonstrate that the Garcias
       however, did not plead they were entitled to treble
                                                                   spent more than the $26,779.42 already paid by State Farm.
       damages for State Farm's intentional conduct, but
       rather, limited their pleading to knowing violations. The   However, because we must treat State Farm's argument as
       Garcias, likewise, did not argue to the trial court that    raising a traditional ground, State Farm bore the initial burden
       State Farm's conduct was intentional. See TEX. R. CIV.      to demonstrate that no genuine issue of material fact exists
       P. 166a(c) (“Issues not expressly presented to the trial    with respect to the Garcias' breach of contract claim. Mason,
       court by written motion, answer or other response shall     143 S.W.3d at 798; Grinnell, 951 S.W.2d at 425; Clear Creek
       not be considered on appeal as grounds for reversal.”).     Basin, 589 S.W.2d at 678. State Farm has not done so.
8      The Garcias' second issue argues that the trial court
                                                                   State Farm attached the insurance policy to its motion for
       erroneously sustained State Farm's objections to their
                                                                   summary judgment. It provides:
       summary judgment evidence. However, we need not
       address the Garcias' second issue in order to affirm the
                                                                      *822 We will pay only the actual cash value of the
       summary judgment for failure to adequately brief how
                                                                     damaged building structure(s) until repair or replacement is
       that evidence, if properly considered, supported their
                                                                     completed.... Upon completion of repairs or replacement,
       claims. See TEX. R. APP. P. 47.1.
                                                                     we will pay the additional amount claimed under
                                                                     replacement cost coverage, but our payment will not
    V. STATE FARM'S TRADITIONAL MOTION                               exceed the smallest of the following:

By their third and fourth issues, the Garcias argue that State       (1) the limit of liability under the policy applicable to the
Farm failed to meet its burden to show that there are no                damaged or destroyed building structure(s);
genuine issues of material fact with respect to one or more


                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                            10
Garcia v. State Farm Lloyds, 287 S.W.3d 809 (2009)


                                                                     claims. This portion of the motion for summary judgment
  (2) the cost to repair or replace that part of the building        specifically argued that “[t]he Fiess ruling and terms of the
     structure(s) damaged, with material of like kind and            policy excluding coverage for mold and [additional living
     quality and for the same use and occupancy on the same          expenses] establish that State Farm's liability was never
     premises; or                                                    reasonably clear.” State Farm did not assert that its liability
                                                                     never became reasonably clear because it paid all it owed
  (3) the amount actually and necessarily spent on repair or
                                                                     for water damage. Accordingly, the trial court's summary
     replace the damaged building structure(s).
                                                                     judgment was in error to the extent that it was granted on the
(Emphasis added). State Farm argues that its liability is            Garcias' bad faith claims relating to the failure to pay for water
limited to the amount the Garcias “actually and necessarily”         damage.
spent to repair their home, and there is no evidence that the
Garcias spent more than it already paid to repair the water          State Farm likewise argued that when bad faith, insurance
damage. State Farm, however, incorrectly assumes that its            code, and DTPA *823 claims “are premised on the same
liability is limited to the amount the Garcias actually spent.       set of facts, the statutory claims depend on the existence of
                                                                     a valid bad faith claim.” State Farm reasoned that because
The contractual provision urged by State Farm as a limit             Fiess compels the conclusion that State Farm was not liable
of its liability only applies “[u]pon completion of repairs          for a covered claim, the Garcias' extra-contractual claims
or replacement.” State Farm did not present any evidence             necessarily fail along with their breach of contract claims.
demonstrating that the repairs have been completed. In fact,         Again, we agree with the Garcias that this argument was
State Farm's evidence included Ramon Garcia's deposition             limited to the Garcias' mold claims. Accordingly, the trial
testimony, wherein he stated that the Garcias had not yet            court's summary judgment was in error to the extent that it
replaced the floors in their house because they ran out              was granted on the Garcias' insurance code and DTPA claims
of money. See Binur, 135 S.W.3d at 651 (providing that               relating to the failure to pay for water damage.
evidence attached to a no-evidence motion may be considered
if it creates a fact issue). He testified that there was carpet       [13] Third, State Farm presented testimony from the Garcias
that still needed to be replaced. Viewing the evidence in            that they did not “know of any complaints” they had with
the light most favorable to the Garcias, this evidence shows         respect to State Farm's handling of their claims “other than
that the repairs for the water damage to their home were not         that ... [they] haven't been paid enough.” This argument
completed. Because the evidence shows that the Garcias had           was not limited to the Garcias' mold claims, and we find
not completed the repairs to their home, it is impossible to         that the Garcias have not preserved their arguments against
determine the “amount actually and necessarily spent.” Thus,         this ground for the summary judgment. As we noted above,
State Farm's motion for summary judgment was based on                although the Garcias' appellate brief points to the evidence
a flawed premise. Accordingly, we reverse the trial court's          they submitted in response to the motion for summary
summary judgment on the Garcias' breach of contract claim            judgment, they do not cite a single case or explain how this
based on State Farm's failure to pay for water damage.               evidence supports their extra-contractual claims, to the extent
                                                                     those are based on something other than State Farm's failure
Second, State Farm argued that the Garcias' “extra-                  to pay for water damage. Additionally, the Garcias' brief does
contractual” claims failed because there was no coverage.            not explain their testimony that they did not know of any
State Farm argued that to establish a breach of the duty of          other complaints with State Farm's handling of the claims.
good faith and fair dealing, the Garcias had to prove that           See TEX. R. APP. P. 38.1(i). Accordingly, we affirm the
State Farm knew or should have known its liability was               summary judgment on the Garcias' extra-contractual claims,
reasonably clear and that despite clear liability, it failed to      to the extent those are based on something other than State
attempt to effectuate a prompt, fair, and equitable settlement       Farm's failure to pay for all the water damage, as that is the
of the claim. See Universe Life Ins. Co. v. Giles, 950 S.W.2d        extent of State Farm's argument to the trial court.
48, 56 (Tex.1997). State Farm argued that there can be no bad
faith for failure to pay a claim that is not actually covered. See   Furthermore, State Farm also argued that there was
Republic Ins. Co. v. Stoker, 903 S.W.2d 338, 341 (Tex.1995).         no evidence of any extra-contractual claims based on
We agree with the Garcias that State Farm's motion for               misrepresentations by State Farm, citing testimony from
summary judgment limited this argument to the Garcias' mold          Anita Garcia to that effect and testimony from Ramon



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Garcia v. State Farm Lloyds, 287 S.W.3d 809 (2009)


Garcia that he did not talk to anyone from State Farm.               summary judgment on the Garcias' insurance code and DTPA
The Garcias alleged several causes of action based on                claims, to the extent those are based on “something other than
misrepresentations by State Farm. TEX. BUS. & COMM.                  State Farm's failure to pay for water damage” or are based
CODE ANN. § 17.50(a)(1), (4); id. § 17.46(b)(5), (7), (12),          on misrepresentations by State Farm. However, we reverse
(24) (Vernon 2008); TEX. INS. CODE ANN. § 541.151                    the trial court's judgment on the Garcias' claims for breach of
(Vernon Pamphlet 2008); id. § 541.051(1) (Vernon Pamphlet            contract and breach of the duty of good faith and fair dealing
2008); id. § 541.060(a)(1) (Vernon Pamphlet 2008); id. §             relating to water damage.
541.061 (Vernon Pamphlet 2008). On appeal, the Garcias
do not explain their testimony, cite any cases, or point             To further summarize, on remand, the claims still available
to any misrepresentations by State Farm. Accordingly, we             to the Garcias are (1) breach of contract and breach of the
affirm the summary judgment on the Garcias' statutory                duty of good faith and fair dealing, and (2) violations of
misrepresentation claims. TEX. R. APP. P. 38.1(i).                   the insurance code and DTPA, to the extent those are based
                                                                     on State Farm's failure to pay for all the water damage to
Fourth, State Farm argued that because “coverage is not              the Garcias' home. The damages available for these claims
afforded pursuant to the terms and conditions of the policy,”        will not include: (1) mental anguish damages; (2) treble
the Garcias' insurance code claims fail as a matter of law.          damages under the Insurance Code for conduct committed
With respect to the mold claims, State Farm is correct, and          “knowingly,” (3) exemplary damages based on malicious
the Garcias have not challenged that ruling on appeal. To            conduct, and (4) additional living expenses under the policy.
the extent these general statements could be construed as
challenging State Farm's liability for the water damage, we
have already rejected State Farm's argument that they have no
                                                                     Concurring opinion by Justice LINDA REYNA YA#NEZ.
further liability under the policy. Thus, to the extent the trial
court granted summary judgment on the Garcias' insurance
code claims based on this reasoning, we reverse the summary          LINDA REYNA YA#NEZ, Justice, concurring.
judgment on the insurance code claims.                               I agree that State Farm's no-evidence motion for summary
                                                                     judgment is legally insufficient because it fails to state
Finally, State Farm argued that the Garcias did not incur any        specifically which elements of the Garcias' claims are being
“additional living expenses,” an element of their damages,           challenged. 1 I further agree that the motion is therefore
because the house was inhabitable during the repairs, and
                                                                     treated as a traditional motion for summary judgment. 2
the Garcias' daughter, Melinda Guerra, and her family were
                                                                     However, in reviewing the motion as a traditional motion,
living in the residence during the entire time. State Farm
                                                                     I would hold that it is legally insufficient as a matter of
presented testimony from Ramon *824 Garcia to support
                                                                     law because the grounds for summary judgment are not
this argument. The Garcias have not addressed this argument
                                                                     expressly presented in the motion. Accordingly, I concur in
on appeal. See Tex. R. App. P. 38.1(i). Therefore, we affirm
                                                                     the judgment, but for different reasons.
the trial court's judgment to the extent it holds that the Garcias
are not entitled to additional living expenses as an element of
                                                                     1      See TEX. R. CIV. P. 166a(i); Callaghan Ranch, Ltd. v.
their damages.
                                                                            Killam, 53 S.W.3d 1, 3 (Tex.App.-San Antonio 2000,
                                                                            pet. denied).
                                                                     2      See Hamlett v. Holcomb, 69 S.W.3d 816, 819 (Tex.App.-
                     VI. CONCLUSION
                                                                            Corpus Christi 2002, no pet.).
We affirm, in part, and reverse and remand, in part. Because
the Garcias do not dispute that mold is not a covered loss
                                                                                 Sufficiency of State Farm's Motion
under their homeowners policy, we affirm the summary
judgment dismissing the Garcias' mold claims. We also affirm         In its motion, State Farm argued only one non-mold-related
the trial court's summary judgment on the Garcias' claims            “ground,” as follows:
for (1) mental anguish damages; (2) treble damages; (3)
exemplary damages; and (4) damages for additional living                         Additionally, there is no evidence
expenses under the policy. We likewise affirm the trial court's                  that the amount paid by State Farm



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Garcia v. State Farm Lloyds, 287 S.W.3d 809 (2009)



             was insufficient to repair the water
             damage. The Garcias have repaired                         3       McConnell v. Southside ISD, 858 S.W.2d 337, 341–42
             their home, yet there is no evidence                              (Tex.1993) (emphasis added).
             the cost of repairs exceeded the                          To recover under a breach of contract cause of action, the
             $26,779.42 State Farm paid.                               Garcias were required to show: (1) the existence of a valid
                                                                       contract, (2) that they performed or tendered performance,
The majority addresses the argument that State Farm makes              (3) that State Farm breached the contract, and (4) that they
in its appellate brief—that based on a specific provision in           sustained damages as a result of State Farm's breach. 4
the policy, State Farm's liability is limited to the amounts the
Garcias “actually and necessarily spent” to repair the damage          4       Renteria v. Trevino, 79 S.W.3d 240, 242 (Tex.App.-
to their home. The majority finds the provision *825 State
                                                                               Houston [14th Dist.] 2002, no pet.).
Farm relies on to be inapplicable, and thus concludes that the
motion was “based on a flawed premise.”                                To be entitled to summary judgment, State Farm was required
                                                                       to show that it was entitled to judgment as a matter of law and
In McConnell v. Southside ISD, the supreme court held:                 that no genuine issue of material fact exists. 5 State Farm was
                                                                       required to disprove, as a matter of law, one of the essential
  Consistent with the precise language of Rule 166a(c),
                                                                       elements of each of the Garcias' causes of action. 6
  we hold that a motion for summary judgment must itself
  expressly present the grounds upon which it is made.
                                                                       5       See Provident Life & Accident Ins. Co. v. Knott, 128
  A motion must stand or fall on the grounds expressly
  presented in the motion. In determining whether grounds                      S.W.3d 211, 215–16 (Tex.2003).

  are expressly presented, reliance may not be placed on               6       Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 471
  briefs or summary judgment evidence.                                         (Tex.1991).

  ....                                                                 Here, the majority implicitly construes State Farm's motion
                                                                       as challenging either the “breach” element or “damages”
  These rules also permit the trial court to consider a brief in       element of the Garcias' claim. I conclude that State Farm has
  support of a motion for summary judgment as guidance in              failed to expressly present the grounds upon which the motion
  making its determination whether the summary judgment                is made in the motion itself. 7 Accordingly, I would hold that
  evidence demonstrates that the moving party is “entitled
                                                                       the motion is legally insufficient as a matter of law. 8
  to judgment,” see TEX. R. CIV. P. 166a(c), but not
  in determining whether summary judgment grounds and
                                                                       7       See McConnell, 858 S.W.2d at 341.
  issues are expressly presented.
                                                                       8       See id. at 342.
  ....

  Even if the non-movant fails to except or respond, if the            All Citations
  grounds for summary judgment are not expressly presented
  in the motion for summary judgment itself, the motion is             287 S.W.3d 809

  legally insufficient as a matter of law. 3

End of Document                                                    © 2015 Thomson Reuters. No claim to original U.S. Government Works.




                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                               13
Harvey v. Casebeer, 531 S.W.2d 206 (1975)                                                        no writ
18 UCC Rep.Serv. 987

                                                                       though trustee has acted in good faith. Vernon's
                                                                       Ann.Civ.St. art. 7425b–12.
                    	
	
                                       7 Cases that cite this headnote
                           	

             !"#	$!%&'(                       [3]   Trusts
                          	                                               Persons Entitled to Enforce Trust
              )(*	&+&&!	                               No one except cestui que trust has standing to
                                                                       enforce trust provisions. Vernon's Ann.Civ.St.
              ,	-.-	 / )"	01.	 /                            art. 7425b–12.
              !#(2)()"	1.	
                                                                       Cases that cite this headnote
Holder of promissory note brought action to recover payment
from maker. The 114th Judicial District Court, Smith County,
Galloway Calhoun, J., instructed verdict for maker, and          [4]   Trusts
holder appealed. The Court of Civil Appeals, Dunagan, C.J.,                Persons Entitled to Enforce Trust
held that maker lacked standing to raise issue that holder             Maker of note made to secure loans from trust
had received note from trust in breach of his fiduciary duty           was, in his capacity as obligor of such trust,
as trustee; that although holder's breach of fiduciary duty            at most person who incidentally benefited by
deprived him of holder in due course status, maker, who was            performance of trust, and did not have standing
not cestui que trust, was not entitled to raise such breach as         to enforce trust.
defense to his liability on note; and that whether maker was
                                                                       Cases that cite this headnote
liable on note was question for trier of fact.

Reversed and remanded.                                           [5]   Trusts
                                                                           Purchase of Property in General
                                                                       Rule that trustee cannot purchase at his own sale
 West Headnotes (11)                                                   really means that such sale is subject to attack by
                                                                       cestui, and if cestui desires to let sale stand then
                                                                       title of purchasing trustee is unexceptionable.
 [1]    Appeal and Error                                               Vernon's Ann.Civ.St. art. 7425b–12.
            Effect of Evidence and Inferences
        Therefrom on Direction of Verdict                              1 Cases that cite this headnote
        In reviewing instructed verdict, Court of Civil
        Appeals will view all evidence in light most             [6]   Bills and Notes
        favorable to appellant and give him benefit of                       Mode or Form of Transfer
        all legitimate inferences which are to be drawn                Note which was made by maker to secure
        therefrom in his favor.                                        loan from trust res was negotiated for full
                                                                       consideration by trustee to himself in violation
        Cases that cite this headnote
                                                                       of his fiduciary duty not to self-deal in trust
                                                                       property, and thus such trustee was deprived
 [2]    Trusts                                                         from classification as “Holder in Due Course.”
            Purchase of Property in General                            V.T.C.A., Bus. & C. §§ 3.302(a)(3), 3.304(b);
        Trustee shall not buy or sell, directly or                     Vernon's Ann.Civ.St. art. 7425b–12.
        indirectly, any property belonging to trust estate,
        from or to himself, and such self-dealing                      1 Cases that cite this headnote
        transactions may be attacked by beneficiary even
        though he has suffered no damages and even               [7]   Bills and Notes



               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                            1
Harvey v. Casebeer, 531 S.W.2d 206 (1975)
18 UCC Rep.Serv. 987

            Persons as to or Against Whom Defenses                           Questions for Jury
        Are Available                                                  Where maker of note lacked standing to raise
        Where note made payable to trust was negotiated                defense that holder of note had violated breach
        for full consideration by trustee to himself, in               of his fiduciary duty as trustee in purchasing note
        violation of his fiduciary duty not to self-deal               from trust, whether maker was liable to holder
        and maker of note was not cestui of such trust,                was question for trier of fact. V.T.C.A., Bus. &
        maker could not raise cestui's defense of breach               C. § 3.306(4).
        of fiduciary duty as defense to his liability to
        pay trustee on note, even though trustee was                   Cases that cite this headnote
        mere “holder” of note. V.T.C.A., Bus. & C.
        §§ 1.201(20), 3.302(a)(3), 3.304(b), 3.306(4),
        3.603(a); Vernon's Ann.Civ.St. art. 7425b–12.
                                                               Attorneys and Law Firms
        Cases that cite this headnote
                                                                *207 Jesse M. DeWare, IV, Lawrence & Lawrence, Tyler,
                                                               for appellant.
 [8]    Equity
             He Who Comes Into Equity Must Come                Charles H. Clark, Tyler, for appellee.
        with Clean Hands
        Suits brought on promissory notes, rather than         Opinion
        for specific performance, need not invoke equity
                                                               DUNAGAN, Chief Justice.
        jurisdiction of court, and thus doctrine of unclean
        hands is not applicable to such suits.                 Appellant instituted this suit on four promissory notes payable
                                                               to his daughter's trust and executed by appellee. This appeal
        1 Cases that cite this headnote
                                                               is taken from an instructed verdict in favor of appellee. We
                                                               reverse and remand.
 [9]    Equity                                                  [1] In reviewing an instructed verdict, we view all of the
             He Who Comes Into Equity Must Come                evidence in the light most favorable to appellant and give him
        with Clean Hands                                       the benefit of all legitimate inferences which are to be drawn
        Where promissory note holder's action against          therefrom in his favor. Frazier v. Hanlon Gasoline Co., 29
        maker was for enforcement and did not raise            S.W.2d 461, 471 (Tex.Civ.App.—Eastland 1930, writ ref'd).
        issue of specific performance, equity jurisdiction
        of court was not invoked, and thus maker could
                                                               Appellee executed these notes to the Frances Lynn Harvey
        not raise defense of “unclean hands.”
                                                               Trust to secure loans totalling $7,596.61 made in late 1970
        1 Cases that cite this headnote                        and early 1971. Appellant, as sole trustee, later transferred
                                                               these notes to himself individually for full consideration.
                                                               The amount alleged to be in default is disputed. However,
 [10]   Bills and Notes                                        appellee's motion for instructed verdict was granted solely
              Persons as to or Against Whom Defenses           on the ground that the transfer of the notes violated the
        Are Available                                          Texas Trust Act and therefore precluded appellant's suit as an
        Maker is required to pay note if maker's payment       individual.
        will discharge his liability thereon, even if holder    [2] A trustee shall not buy or sell, directly or indirectly,
        of note acquires note from trust in breach of his      any property belonging to the trust estate, from or to
        fiduciary duty as trustee. V.T.C.A., Bus & C. §        itself. Tex.Rev.Civ.Stat.Ann. art. 7425b—12. Self-dealing
        3.603(a).                                              transactions may be attacked by the beneficiary even though
                                                               he has suffered no damages and even though the trustee has
        Cases that cite this headnote                          acted in good faith. Slay v. Burnett Trust, 143 Tex. 621, 187
                                                               S.W.2d 377, 389 (1945).
 [11]   Bills and Notes


               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                           2
Harvey v. Casebeer, 531 S.W.2d 206 (1975)
18 UCC Rep.Serv. 987

                                                                                 thereon unless the third person himself defends the action
 *208 [3] [4] [5] Appellant's breach of his fiduciary duty
                                                                                 for such party.’
is complained of by a person other than the beneficiary. No
one except a cestui que trust can enforce the trust. Restatement
                                                                   Appellee relies on Steves v. United Services Automobile
(Second) of Trusts, Section 200. Appellee, an obligor of
                                                                   Association, 459 S.W.2d 930 (Tex.Civ.App.—Beaumont
this trust, is at most a person incidentally benefitted by the
                                                                   1970, writ ref'd n.r.e.). There, a trustee, who purchased real
performance of the trust and cannot enforce it. Restatement
                                                                   estate from the trust estate, sought specific performance
(Second) of Trusts, Section 200, comment D. The rule that
                                                                   of a profitable contract of sale of that property. Although
‘a trustee cannot purchase at his own sale’ really means that
                                                                   the court discussed Article 7425b—12, specific performance
such a sale is subject to attack by the cestui. If the cestui
                                                                   was denied under the equitable doctrine of unclean hands
desires to let the sale stand, the title of the purchasing trustee
                                                                   and the potential liability of the defendant purchaser to the
is unexceptionable. Bogert, Trusts and Trustees, Section 543
                                                                   beneficiaries if specific performance were granted. Steves v.
at 483—484 (2d ed.).
                                                                   United Services Automobile Association, supra, at 934. We
                                                                   find the instant suit distinguishable on both grounds.
 [6]    [7] This action was brought under the Commercial
                                                                    [8] [9] [10] A suit brought on promissory notes, rather
Paper chapter of the Texas Business and Commerce Code.
                                                                   than for specific performance, need not invoke the equity
However, the Texas Trust Act could be raised as a defense
                                                                   jurisdiction of the court and the doctrine of unclean hands
if raised by a proper party. Appellant's possession of the
                                                                   is not applicable. See Birk v. Jackson, 75 S.W.2d 918, 920
promissory notes which were indorsed to him entitles him to
                                                                   (Tex.Civ.App.—Eastland 1934, writ dism'd). Also, appellee's
the status of Holder. Tex.Bus. & Comm. Code Ann., Section
                                                                   payment of the debt, even though made with knowledge of the
1.201(20). He is not a Holder in Due Course if he purchased
                                                                   Holder's wrongful acquisition of the notes, would discharge
the notes with knowledge that a fiduciary negotiated the
                                                                   appellee's liability thereon. Tex.Bus. & Comm. Code Ann.,
instruments in breach of duty. Tex.Bus. & Comm. Code Ann.,
                                                                   Section 3.603(a).
Sections 3.302(a) (3) and 3.304(b). Although a mere Holder
takes an instrument subject to certain defenses, the party
                                                                    [11] We hold that appellee could not rely on Subdivision 12
liable on the instrument cannot raise the claim of a third
                                                                   of the Texas Trust Act and the instruction of a verdict in his
person as a defense to his liability. Tex.Bus. & Comm. Code
                                                                   favor on that ground was improper. The judgment of the trial
Ann., Section 3.306(4). 1 Thus, appellee cannot defend on the      court is reversed and the cause remanded for a new trial.
basis of appellant's alleged violation of his fiduciary duty to
the beneficiary.
                                                                   All Citations
1       ‘(4) * * * The claim of any third person to the instrument
                                                                   531 S.W.2d 206, 18 UCC Rep.Serv. 987
       is not otherwise available as a defense to any party liable


End of Document                                                      © 2015 Thomson Reuters. No claim to original U.S. Government Works.




                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                           3
In re Estate of Coleman, 360 S.W.3d 606 (2011)                                          no pet.

                                                                          An order granting summary judgment is
                                                                          generally not considered to be a final order unless
                     	
	
                                                                          it disposes of the entire case, but in probate cases,
                 
                                                                          an order may be considered final even if it does
                          	
                                                                          not dispose of the entire probate proceeding.
                 !"                                   V.A.T.S. Probate Code, § 4A(c).
                 #	 $%&'(	
                                                                          2 Cases that cite this headnote
       &	)*+*,-*.	 /             &0	,+,++	
                                                                    [2]   Wills
Synopsis
                                                                               Decisions of probate courts, judges, or other
Background: Executor, who was testator's son, filed
                                                                          officers reviewable
application for probate of will, and after trial court entered
                                                                          Probate court order granting summary judgment
order admitting will to probate, purported wife of testator
                                                                          to executor on claims of testator's purported
opposed probate of will through motion for new trial. The
                                                                          wife opposing probate was not final order and
Probate Court No. 1, El Paso County, Yvonne Rodriguez,
                                                                          therefore did not trigger time period for appeal
J., granted summary judgment to executor and subsequently
                                                                          by wife, in case in which executor applied for
entered second order admitting will to probate. Purported
                                                                          probate of will, which probate court granted,
wife appealed.
                                                                          but then set aside in response to wife's new
                                                                          trial motion; order left unresolved executor's
                                                                          requests to admit will to probate, issue letters
Holdings: The Court of Appeals, Christopher Antcliff, J.,                 testamentary, and be appointed as executor.
held that:                                                                V.A.T.S. Probate Code, § 4A(c).

[1] probate court order granting summary judgment to                      1 Cases that cite this headnote
executor on claims of purported wife of testator opposing
probate of will was not final order and therefore did not trigger   [3]   Wills
time period for appeal by purported wife;                                      Decisions of probate courts, judges, or other
                                                                          officers reviewable
[2] probate court order admitting will to probate was final
                                                                          Probate court order admitting will to probate
order that ended a phase of probate proceedings, and therefore
                                                                          was final order that ended a phase of probate
order was appealable; and
                                                                          proceedings, and therefore order was appealable,
                                                                          in case in which executor applied for probate
[3] summary judgment affidavit of purported wife of
                                                                          of will, which probate court granted, purported
testator was insufficient to raise fact issue as to alleged
                                                                          wife of testator then moved for new trial and
undue influence, fraud, or fraudulent inducement on part of
                                                                          filed petition in opposition to probate of will,
executor.
                                                                          and probate court granted summary judgment to
                                                                          executor and entered order at issue, admitting
Affirmed in part, reversed in part, and remanded.                         will to probate; order recited that statutory
                                                                          requirements were satisfied and that court heard
                                                                          testimony and reviewed will, order stated that
                                                                          will named executor to serve as independent
 West Headnotes (13)                                                      executor without bond, order stated that executor
                                                                          was qualified to act as executor and to receive
 [1]     Appeal and Error                                                 letters testamentary, and order concluded by
            Determination of part of controversy                          stating that letters testamentary would issue to
                                                                          executor. V.A.T.S. Probate Code, §§ 4A(c),
         Courts
                                                                          88(a–c), 89.
             Review and vacation of proceedings



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                               1
In re Estate of Coleman, 360 S.W.3d 606 (2011)


                                                                     the will was not properly executed and that the
       2 Cases that cite this headnote                               testator did not have testamentary capacity.

                                                                     2 Cases that cite this headnote
 [4]   Judgment
           Motion or Other Application
       Judgment                                               [8]    Judgment
           Presumptions and burden of proof                              Evidence and Affidavits in Particular Cases
       It is error for a trial court to grant a no-evidence          Wills
       summary judgment on a claim for which the                          Presumptions and Burden of Proof
       moving party bears the burden of proof. Vernon's              Wills
       Ann.Texas Rules Civ.Proc., Rule 166a(i).                           Execution, existence, and genuineness
                                                                     Testator's son, as proponent of will, bore burden
       Cases that cite this headnote
                                                                     of establishing that will was properly executed
                                                                     and that testator had testamentary capacity
 [5]   Wills                                                         and, therefore, was not entitled to no-evidence
            Presumptions and Burden of Proof                         summary judgment on these issues, even if
       Wills                                                         will was self-proving and had been admitted
            Execution, existence, and genuineness                    to probate before trial court granted purported
                                                                     wife's new trial motion; son never introduced
       Before a will is admitted to probate, the
                                                                     the will into evidence as summary judgment
       proponent of the will bears the burden of
                                                                     proof, and the new trial order expressly set aside
       establishing that it was properly executed and
                                                                     the entire previous order admitting the will to
       that the testator had testamentary capacity.
                                                                     probate.
       2 Cases that cite this headnote
                                                                     1 Cases that cite this headnote

 [6]   Wills
                                                              [9]    New Trial
            Presumptions and Burden of Proof
                                                                         Construction and operation
       Wills
                                                                     When the trial court grants a motion for new trial,
            Execution, existence, and genuineness
                                                                     the court essentially wipes the slate clean and
       The proponent of a will may make out a
                                                                     starts over.
       prima facie case on issues of proper execution
       and testamentary capacity by introducing a                    Cases that cite this headnote
       self-proving will into evidence; at that point,
       the burden of producing evidence negating
                                                              [10]   Wills
       testamentary capacity shifts to the opponent
                                                                          Personal, confidential, or fiduciary relations
       of the will, although the burden of persuasion
                                                                     in general
       always remains with the proponent.
                                                                     If a will opponent's challenges to a will are
       1 Cases that cite this headnote                               based on a confidential relationship between the
                                                                     testator and the will proponent, the opponent
                                                                     has the burden of establishing a confidential
 [7]   Wills
                                                                     relationship.
            Presumptions and Burden of Proof
       Wills                                                         Cases that cite this headnote
            Execution, existence, and genuineness
       After a will is admitted to probate, a will            [11]   Wills
       contestant has the burden of establishing that




              © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                          2
In re Estate of Coleman, 360 S.W.3d 606 (2011)


             Personal, confidential, or fiduciary relations
        in general
        If no confidential relationship is established by     Attorneys and Law Firms
        a party opposing a will based on a confidential
        relationship between testator and will proponent,     *608 William R. Copeland, El Paso, TX, for Appellant.
        the opponent has the burden to show undue
        influence, fraud, or fraudulent inducement.           Doris Sipes, El Paso, TX, for Appellee.

        Cases that cite this headnote                         Before McCLURE, C.J., ANTCLIFF, J., and CHEW, C.J.
                                                              (Senior) (Sitting by Assignment).

 [12]   Wills
             Assignment of errors or statement of
                                                                                       OPINION
        grounds or reasons of appeal
        Purported wife of testator waived on appeal any       CHRISTOPHER ANTCLIFF, Justice.
        argument that probate court erred in granting
        summary judgment in favor of executor as to           This is a dispute between Regina Mace Coleman and John
        wife's claims of undue influence, fraud, and          Edmund Coleman concerning the estate of Edmund B.
        fraudulent inducement, where wife's appellate         Coleman. The trial court granted John's application to admit
        brief merely stated that probate court grant          a will to probate. Regina appeals from this order. We affirm
        of summary judgment was error because                 in part and reverse and remand in part.
        wife's summary judgment affidavit “provided
        proof of the matters raised in her pleadings,”
        wife's appellate brief only mentioned lack of           FACTUAL AND PROCEDURAL BACKGROUND
        testamentary capacity, and executor's appellate
        brief pointed out that wife's brief failed to         In December 2008, John filed an application for probate of a
        challenge trial court's order sustaining executor's   will and for issuance of letters testamentary. The application
        objections to wife's summary judgment affidavit.      alleged that John is Edmund's son, that John was named
                                                              as executor of Edmund's estate in a self-proving will dated
        Cases that cite this headnote                         November 20, 2008, and that Edmund died on December
                                                              18, 2008, at the age of 82. The application further alleged
 [13]   Judgment                                              that Edmund was divorced from Rebecca Ramirez Coleman
            Evidence and Affidavits in Particular Cases       on May 27, 2008, and that he “may have been married” to
                                                              Regina at the time of his death in December of that same
        Summary judgment affidavit of purported wife
                                                              year. The probate court issued an order admitting the will to
        of testator was insufficient to raise fact issue as
                                                              probate, appointing John independent executor, and directing
        to alleged undue influence, fraud, or fraudulent
                                                              that letters testamentary issue to John.
        inducement on part of testator's son regarding
        testator's execution of will; affidavit merely
                                                              Regina filed a motion for new trial, asserting that she was
        stated that testator “was in a weakened mental
                                                              undergoing medical treatment in Massachusetts when the will
        and physical condition and was susceptible to
                                                              was admitted to probate. The trial court granted the motion
        exertion of undue influence,” that son “made
                                                              for new trial in March 2009. Regina also filed a petition in
        deliberately false statements” about wife to
                                                              opposition to probate of the will. She contended that the will
        testator, and that wife had seen testator with “big
                                                              should not have been admitted to probate because it was not
        thick glasses” approximately one month before
                                                              executed in accordance with the formalities required for a
        will was executed and that testator was not able
                                                              self-proving will, Edmund did not have testamentary capacity
        to read, answer his cell phone, or sign his name
                                                              to execute the will, and the will was the result of undue
        without help.
                                                              influence, fraud, and fraudulent inducement.
        Cases that cite this headnote



               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                       3
In re Estate of Coleman, 360 S.W.3d 606 (2011)


In January 2010, John filed a motion for a no-evidence                          considered a part, but one or more
summary judgment on Regina's claims. Regina filed a                             pleadings also part of that proceeding
response, along with her own affidavit as summary judgment                      raise issues or parties not disposed of,
evidence. John made fifty objections to the affidavit. The trial                then the probate order is interlocutory.
court overruled eleven of the objections and sustained the
remainder. On April 22, 2010, the court granted John's motion      Id. at 783. In adopting this test, the court noted that it has
for summary judgment.                                              a policy of avoiding “constructions that defeat bona fide
                                                                   attempts to appeal.” Id.
On July 28, 2010, the trial court issued another order
admitting the will to probate. Regina filed a timely motion for    There is no statute declaring the summary judgment at issue
new trial, asserting that she was not notified of the hearing      here to be final and appealable. Accordingly, the order will be
that resulted in this order. The trial court denied this motion    considered final only if it disposed of a particular phase of the
for new trial, and Regina filed a notice of appeal on October      proceedings. On the other hand, “if there is a proceeding of
14, 2010.                                                          which the order ... may logically be considered a part, but one
                                                                   or more pleadings also part of that proceeding raise issues or
                                                                   parties not disposed of,” the order is not final. Crowson, 897
                                                                   S.W.2d at 783.
                      JURISDICTION
                                                                   The Probate Code sets forth the procedure for probating and
Before addressing the issues raised by Regina, we pause to
                                                                   contesting a will. A person who wishes to probate a will and
consider whether we have jurisdiction over this appeal. In his
                                                                   obtain letters testamentary must prove to the satisfaction of
brief, John argues that the order granting summary judgment
                                                                   the court that the testator has been dead for less than four
was a final order and that Regina failed to “preserve her right
                                                                   years, the court has jurisdiction and venue over the estate,
to appeal” because she did not file a notice of appeal or any
                                                                   citation has been served and returned in the proper manner,
motion to extend the appellate deadlines within thirty days
                                                                   the will was not revoked, and the applicant is named as
after that order was signed. Although not expressly couched
                                                                   executor in the will and is not disqualified from obtaining
as such, we construe this argument as a challenge to our
                                                                   letters testamentary. TEX.PROB.CODE ANN. § 88(a)–(c)
jurisdiction, which we have an obligation to resolve *609
                                                                   (West 2003). The probate court must grant an application
before proceeding to the merits of the appeal. See In re Estate
                                                                   to probate a will and issue letters testamentary if, after a
of Morales, 345 S.W.3d 781, 783 (Tex.App.-El Paso 2011,
                                                                   hearing, the court is satisfied that the will should be admitted
no pet.).
                                                                   to probate. Id. at § 89. “After a will has been admitted to
                                                                   probate, any interested person may institute suit in the proper
 [1] “A final order issued by a probate court is appealable
                                                                   court to contest the validity thereof....” Id. at § 93.
to the court of appeals.” TEX.PROB.CODE ANN. § 4A(c)
(West Supp. 2011). Outside the probate context, an order
                                                                    [2] Here, John filed an “Application for Probate of Will
granting summary judgment is not considered to be a final
                                                                   and Issuance of Letters Testamentary,” which the trial court
order unless it disposes of the entire case. See Lehmann v.
                                                                   granted. Rather than filing a contest to the will, Regina filed
Har–Con Corp., 39 S.W.3d 191, 192–93 (Tex.2001). But in
                                                                   a motion for new trial and a “Petition in Opposition to the
probate cases, an order may be considered final even if it does
                                                                   Probate of Will and Issuance of Letters Testamentary.” When
not dispose of the entire probate proceeding. See Crowson v.
                                                                   the court granted the motion for new trial, it expressly set
Wakeham, 897 S.W.2d 779, 781–82 (Tex.1995). In Crowson,
                                                                   aside the previous order admitting the will to probate. John
the Supreme Court adopted the following test to determine
                                                                   then filed a motion for summary judgment on all of the claims
whether a probate order is final:
                                                                   raised in Regina's petition in opposition. The court granted
             If there is an express statute ...                    the motion as to each claim.
             declaring the phase of the probate
             proceedings to be final and appealable,               We believe that the summary judgment may logically be
             that statute controls. Otherwise, if                  considered part of the proceedings to admit the will to probate
             there is a proceeding of which the                    and authorize letters testamentary. By granting summary
             order in question may logically be                    judgment on all of Regina's claims, the court apparently
                                                                   eliminated all of the substantive challenges to the will and


                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                              4
In re Estate of Coleman, 360 S.W.3d 606 (2011)


ended Regina's role in the *610 case. But the summary               judgment against Regina on the issue of whether there was
judgment was not a final order because it left unresolved           a confidential relationship between John and Edmund. In her
John's requests to admit the will to probate, issue letters         first issue, Regina asserts that the trial court erred in granting
testamentary, and appoint him as executor. See In re Estate         the no-evidence summary judgment because John had the
of Rabke, No. 04–07–00757–CV, 2009 WL 196328, at *1,                burden of proof.
*7 (Tex.App.-San Antonio Jan. 28, 2009, pet. denied) (mem.
op.) (holding that no-evidence summary judgment regarding            [4] The no-evidence summary judgment rule allows a party
appellant's contest to application for probate of will was          to move for summary judgment on the ground that there is
interlocutory). But cf. Rosin v. Berco & Leja Rosin Trust, No.      no evidence of one or more essential elements of a claim on
04–08–00601–CV, 2009 WL 1956386, at *1–*2 (Tex.App.-                which the adverse party would have the burden of proof at
San Antonio July 8, 2009, pet. denied) (mem. op.) (holding          trial. See TEX.R.CIV.P. 166a(i). It is error for a trial court to
that order dismissing will contestants' claims with prejudice,      grant a no-evidence summary judgment on a claim for which
after will had already been admitted to probate, was a final        the moving party bears the burden of proof. See Battin v.
order).                                                             Samaniego, 23 S.W.3d 183, 185–86 (Tex.App.-El Paso 2000,
                                                                    pet. denied).
 [3] Months after the summary judgment was entered,
the court entered the second order admitting the will to             [5]    [6]    [7] Before a will is admitted to probate, the
probate. The order recites that the statutory requirements were     proponent of the will bears the burden of establishing that it
satisfied and that the court heard testimony and reviewed           was properly executed and that the testator had testamentary
the will. The order also states that the will named John as         capacity. See Schindler v. Schindler, 119 S.W.3d 923, 931
independent executor, to serve without bond, and that John is       (Tex.App.-Dallas 2003, pet. denied); *611 Guthrie v. Suiter,
qualified to act as executor and to receive letters testamentary.   934 S.W.2d 820, 829 (Tex.App.-Houston [1st Dist.] 1996,
The order concludes by stating that John took the required          no writ). The proponent may make out a prima facie case on
oath, that letters testamentary shall issue to John, “who is        these issues by introducing a self-proving will into evidence.
appointed as Independent Executor of Decedent's Will and            At that point, the burden of producing evidence negating
Estate; and no other action shall be had in this Court than the     testamentary capacity shifts to the opponent of the will,
return of an Inventory, Appraisement and List of Claims as          although the burden of persuasion always remains with
required by law.” This is a final order that ended a phase of       the proponent. Schindler, 119 S.W.3d at 931; Bracewell
the probate proceedings. See In re Hudson, 325 S.W.3d 811,          v. Bracewell, 20 S.W.3d 14, 26 (Tex.App.-Houston [14th
811 (Tex.App.-Dallas 2010, orig. proceeding) (holding that          Dist.] 2000, no pet.); Guthrie, 934 S.W.2d at 829; Reynolds
an order was appealable where it admitted a will to probate,        v. Park, 485 S.W.2d 807, 815–16 (Tex.Civ.App.-Amarillo
appointed an independent executrix, and stated that no other        1972, writ ref'd n.r.e.). After a will is admitted to probate,
action would occur in the probate court other than the return       a will contestant has the burden of establishing that the will
of an inventory, appraisement, and list of claims).                 was not properly executed and that the testator did not have
                                                                    testamentary capacity. In re Estate of Warren, No. 12–09–
Regina's notice of appeal was timely when measured from the         00256–CV, 2010 WL 2638067, at *2 (Tex.App.-Tyler June
second order admitting the will to probate. See TEX.R.APP.P.        30, 2010, pet. denied) (mem. op.); In re Estate of Graham, 69
26.1(a)(1). Accordingly, we have jurisdiction over this             S.W.3d 598, 605 (Tex.App.-Corpus Christi 2001, no pet.).
appeal.
                                                                     [8] [9] Under this authority, John had the initial burden
                                                                    of establishing that the will was properly executed and
                                                                    that Edmund had testamentary capacity. He argues that the
                 SUMMARY JUDGMENT
                                                                    burden shifted to Regina because the will is self-proving. The
The trial court granted John's motion for a no-evidence             problem with this argument is that John did not introduce the
summary judgment against Regina on the issues of whether            will into evidence as summary judgment proof. Instead, he
the will was executed with the requisite statutory formalities,     filed a no-evidence motion. John relies on the fact that the
whether Edmund lacked testamentary capacity, and whether            will had been admitted to probate before the court granted
the will was the product of undue influence, fraud, or              Regina's motion for new trial. However, “when the trial court
fraudulent inducement. The court also granted summary               grants a motion for new trial, the court essentially wipes the



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                5
In re Estate of Coleman, 360 S.W.3d 606 (2011)


slate clean and starts over.” Wilkins v. Methodist Health Care     the affidavit. See Little v. Needham, 236 S.W.3d 328, 331
Sys., 160 S.W.3d 559, 563 (Tex.2005). John also points out         (Tex.App.-Houston [1st Dist.] 2007, no pet.). In the interest
that the probate court had the authority to grant a new trial as   of justice, we will briefly address whether the remaining
to only part of the case or to withdraw the order granting the     portions of the affidavit raise a fact issue as to undue
new trial. However, the order granting the new trial expressly     influence, fraud, and fraudulent inducement.
“sets aside” the entire previous order admitting the will to
probate, and there is nothing in the record to show that the     [13] There are only two remaining portions of the affidavit
court withdrew the new trial order.                             that are arguably relevant to these claims. First, the affidavit
                                                                incorporates the allegations in Regina's response to the
We conclude that the court erred by granting the no-evidence    summary judgment motion. The response contains numerous
summary judgment on the issues of whether the will was          factual conclusions that correspond with the elements of
executed with the requisite statutory formalities and whether   the claims. For example, the response states that Edmund
Edmund lacked testamentary capacity. But the fact that the      “was in a weakened mental and physical condition, and
summary judgment was improper as to these issues does not       was susceptible to the exertion of undue influence” and
mean that the entire summary judgment must be vacated.          that John “made deliberately false statements” about Regina
See, e.g., Tex. Builders Ins. Co. v. Molder, 311 S.W.3d 513,    to Edmund. These conclusions are not competent summary
523 (Tex.App.-El Paso 2009, no pet.) (reversing summary         judgment proof. See Univ. of Tex. Sys. v. Ainsa, Skipworth,
judgment in part).                                              Zavaleta and Butterworth, 823 S.W.2d 692, 695 (Tex.App.-
                                                                El Paso 1992, no writ); Harley–Davidson Motor Co., Inc. v.
 [10]     [11] If a will opponent's challenges to a will are Young, 720 S.W.2d 211, 213 (Tex.App.-Houston [14th Dist.]
based on a confidential relationship between the testator       1986, no writ).
and the will proponent, the opponent has the burden of
establishing a confidential relationship. See Anaya v. Estrada, Second, the affidavit states that approximately one month
447 S.W.2d 245, 247 (Tex.Civ.App.-El Paso 1969, no writ).       before the will was executed, Regina saw Edmund with “big
If no confidential relationship is established, the opponent    thick glasses,” although he had not previously worn glasses.
has the burden to show undue influence, fraud, or fraudulent    At that time, he was not able to read, to answer his cell phone,
inducement. See Urbanczyk v. Urbanczyk, 278 S.W.3d 829,         or to sign his name without help in holding the pen. Although
833 & n. 4 (Tex.App.-Amarillo 2009, no pet.); Buckner           this suggests that Edmund may have been susceptible to
v. Buckner, 815 S.W.2d 877, 880 (Tex.App.-Tyler 1991,           influence, it does not raise a fact issue on all of the elements
no writ). Since Regina had the burden of proof, the court       of Regina's claims. See Garcia v. Vera, 342 S.W.3d 721, 725
could grant a no-evidence summary judgment on these claims      (Tex.App.-El Paso 2011, no pet.) (elements of fraud); Turner
if Regina failed to present evidence raising a fact issue.      v. Hendon, 269 S.W.3d 243, 252–53 (Tex.App.-El Paso 2008,
Therefore, we only sustain Regina's first issue in part.        pet. denied) (elements of undue influence).

 [12] In her second issue, Regina argues that the trial court      We overrule Regina's second issue.
erred by granting summary judgment because her affidavit
“provided proof of the matters raised in her pleadings.”
Although this issue is worded broadly enough to encompass
                                                                                            NEW TRIAL
arguments regarding all of Regina's claims, her briefing only
mentions lack of testamentary capacity. It thus appears that       In her third and fourth issues, Regina argues that the trial court
 *612 she has waived any error in the summary judgment             erred in denying her second motion for new trial because she
as to undue influence, fraud, and fraudulent inducement. See       received no notice of the final hearing that resulted in the
Rangel v. Progressive County Mut. Ins. Co., 333 S.W.3d 265,        second order admitting the will to probate. It is unnecessary to
269–70 (Tex.App.-El Paso 2010, pet. denied).                       address these issues. Having sustained Regina's first issue in
                                                                   part, we must reverse the order admitting the will to probate
Although John does not assert that Regina waived any error         regardless of whether Regina was entitled to notice of the
as to these claims, he does point out that Regina's brief fails    hearing.
to challenge the trial court's order sustaining his objections
to her affidavit. Accordingly, we cannot consider most of



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                               6
In re Estate of Coleman, 360 S.W.3d 606 (2011)


                                                                    lacked testamentary capacity. In all other respects, the order
                     CONCLUSION
                                                                    granting summary judgment is affirmed.
The probate court's July 28, 2010 order admitting the will
to probate is reversed. The cause is remanded for further
proceedings on Regina's claims that the will was not executed
                                                                    All Citations
with the requisite statutory formalities and that Edmund
                                                                    360 S.W.3d 606

End of Document                                                 © 2015 Thomson Reuters. No claim to original U.S. Government Works.




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                               7
Mathis v. Restoration Builders, Inc., 231 S.W.3d 47 (2007)                         no pet.

                                                                           Extent of Review Dependent on Nature of
                                                                       Decision Appealed from
                     	
	
                                             Appeal and Error
                   !"	#	                                    Effect of Evidence and Inferences
                                                                       Therefrom on Direction of Verdict
           $%&'(	                               Appeal and Error
                      )	                                                  Judgment
       *+,*',-./'0!+*'-		                           Judgment
                                                                           Nature of Summary Judgment
        -	12312244516	 7          &822	
                                                                       A no-evidence summary judgment is essentially
Synopsis                                                               a pretrial directed verdict, and the Court of
Background: Visiting bidder to construction site brought               Appeals applies the same legal sufficiency
action against construction company, claiming negligence               standard in reviewing a no-evidence summary
and negligence per se, after sustaining injuries from falling          judgment as it applies in reviewing a directed
through a hole in an elevated slab at the site. Construction           verdict, such that it reviews the entire record
company moved for no-evidence summary judgment on the                  in the light most favorable to the nonmovant,
basis that there was no evidence of causation. The 215th               indulging every reasonable inference and
District Court, Harris County, Levi James Benton, J., granted          resolving any doubts against the motion.
the motion. Visiting bidder appealed.
                                                                       13 Cases that cite this headnote


Holdings: The Court of Appeals, Wanda McKee Fowler, J.,          [2]   Judgment
held that:                                                                 Tort Cases in General
                                                                       Genuine issues of material fact existed as to
[1] triable issues existed as to whether construction company          whether construction company workers failed to
workers failed to cover the hole and whether such failure was          cover a hole in an elevated slab at construction
a substantial factor in causing visiting bidder's foreseeable          site, and, if so, whether such failure was a
harm;                                                                  substantial factor in causing visiting bidder's
                                                                       foreseeable harm upon falling though such hole,
[2] portion of deposition in which president of construction           precluding summary judgment on the causation
company explained an inconsistency in his summary                      elements of visiting bidder's negligence and
judgment affidavit was not in the summary judgment record              negligence per se claims.
so as to enable its consideration on appeal; and
                                                                       Cases that cite this headnote
[3] visiting bidder did not implicate the doctrine of res ipsa
loquitur.                                                        [3]   Negligence
                                                                           Necessity of Causation
                                                                       Negligence
Reversed and remanded.
                                                                           Foreseeability
Richard Edelman, J., filed statement in dissent.                       The elements of causation, in a negligence case,
                                                                       are cause in fact and foreseeability.

                                                                       Cases that cite this headnote
 West Headnotes (14)
                                                                 [4]   Negligence
 [1]     Appeal and Error                                                  “But-For” Causation; Act Without Which
                                                                       Event Would Not Have Occurred



               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                        1
Mathis v. Restoration Builders, Inc., 231 S.W.3d 47 (2007)


        Negligence                                                   was not what was stated in the affidavit. Vernon's
            Substantial Factor                                       Ann.Texas Rules Civ.Proc., Rule 166a(c).
        “Cause in fact,” as an element of causation in
                                                                     23 Cases that cite this headnote
        a negligence case, is established when the act
        or omission was a substantial factor in bringing
        about the injuries, and without it, the harm would    [8]    Judgment
        not have occurred.                                               Operation and Effect of Affidavit
                                                                     Even if deposition in which president
        Cases that cite this headnote
                                                                     of construction company explained an
                                                                     inconsistency in his summary judgment affidavit
 [5]    Negligence                                                   had been before the trial as proper evidence
            Remoteness and Attenuation; Mere                         supporting construction company's no-evidence
        Condition or Occasion                                        summary judgment motion in visiting bidder's
        “Cause in fact,” as an element of causation in               negligence case, the deposition did not allow
        a negligence case, is not established when the               for entry of summary judgment, as it required
        defendant's negligence does no more than furnish             evidence to be weighed in order to resolve a
        a condition which makes the injuries possible;               conflict.
        any act of negligence that does no more than put
                                                                     4 Cases that cite this headnote
        a person in a particular place at a particular time
        is too remote to constitute legal cause.
                                                              [9]    Negligence
        Cases that cite this headnote                                    Particular Cases
                                                                     Visiting bidder did not implicate the doctrine
 [6]    Negligence                                                   of res ipsa loquitur in negligence case against
            Foreseeability                                           construction company, which case arose from
        Foreseeability, as a prong of the causation                  visiting bidder's fall through hole in elevated slab
        element in a negligence case, means that the                 at construction site, even though the company
        actor, as a person of ordinary intelligence, should          had used the hole and had fenced the site, where
        have anticipated the dangers that his negligent              the company was not in control of the hole at the
        act created for others.                                      time of visiting bidder's fall, and had not been in
                                                                     control of it for a period of almost two years prior
        1 Cases that cite this headnote                              to visiting bidder's fall.

                                                                     Cases that cite this headnote
 [7]    Appeal and Error
           Matters Not Included or Shown in General
                                                              [10]   Negligence
        Deposition in which president of construction
                                                                         Res Ipsa Loquitur
        company explained an inconsistency in his
        summary judgment affidavit was not in the                    Res ipsa loquitur is a doctrine used in negligence
        summary judgment record so as to enable                      cases when the circumstances surrounding
        appellate court to consider it on review of no-              an accident constitute sufficient circumstantial
        evidence summary judgment entered in favor                   evidence of the defendant's negligence to support
        of construction company in visiting bidder's                 such a finding.
        negligence case; the deposition was only before
                                                                     Cases that cite this headnote
        the trial court on the construction company's
        motion for traditional summary judgment, not
        the motion for no-evidence summary judgment,          [11]   Negligence
        and the deposition contained information that                    Nature and Character of Accident or Injury
                                                                     Negligence


               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                          2
Mathis v. Restoration Builders, Inc., 231 S.W.3d 47 (2007)


             Control or Management of Instrumentality
        Res ipsa loquitur consists of two factors: (1) the
                                                               Attorneys and Law Firms
        character of the accident is such that it would
        not ordinarily occur absent negligence, and (2)        *49 Robert Joseph Killeen, Jr., Jay Alan McKendree,
        the instrumentality causing the injury is shown        Houston, for appellant.
        to have been under the management and control
        of the defendant.                                      Chris C. Pappas, Robert Alan York, Houston, for appellee.

        Cases that cite this headnote                          Panel consists of Justices FOWLER, EDELMAN, and
                                                               FROST.

 [12]   Negligence
            Nature and Character of Accident or Injury
                                                                                 MAJORITY OPINION
        Negligence
            Control or Management of Instrumentality           WANDA McKEE FOWLER, Justice.
        The first factor of res ipsa loquitur, the character
        of the incident, is necessary to support an            Appellant, George Mathis, Jr. (Mathis), appeals from a
        inference of negligence, while the second,             summary judgment in favor of appellee, Restoration Builders,
        control of instrumentality, is necessary to            Inc. (Restoration). Restoration moved for summary judgment
        support the inference that the negligence was          on both traditional and no-evidence grounds. The trial
        committed by the defendant.                            court expressly granted summary judgment on the ground
                                                               that Mathis produced no evidence of causation. Mathis
        Cases that cite this headnote                          appeals, claiming that he raised a genuine issue of material
                                                               fact by presenting conflicting testimony from Restoration's
                                                               president, Robert Granberry. Mathis also contends that the
 [13]   Negligence
                                                               court erred in granting the no-evidence summary judgment
            Control or Management of Instrumentality
                                                               because he was entitled to an inference of liability under the
        To implicate res ipsa loquitur, the                    doctrine of res ipsa loquitur. Because we find Mathis raised
        instrumentality causing the injury need not have       a genuine issue of material fact in his response to the no-
        been in the constant control of the defendant;         evidence *50 summary judgment motion, we reverse and
        rather, it is enough that the defendant was in         remand for further proceedings.
        control at the time that the negligence inferable
        from the character of the accident probably
        occurred, so that the reasonable probabilities
        point to the defendant and support a reasonable                   Factual and Procedural Background
        inference that he was the negligent party.
                                                               On October 30, 2001, Mathis visited a building owned by
        Cases that cite this headnote                          Petersen to review the property so he could propose a bid
                                                               on wrought iron work. Mathis fell through a hole in the
                                                               building's elevated slab. The hole had been covered by a piece
 [14]   Negligence                                             of cardboard. He landed on the concrete flooring below, and
            Control or Management of Instrumentality           sustained injuries to his head, neck, and torso. Mathis brought
        Res ipsa loquitur is not available when                suit against Petersen and Restoration, claiming negligence
        multiple defendants exercised control over the         and negligence per se.
        instrumentality causing the injury, and any one
        of them, wholly independent of the others, might       Restoration moved for summary judgment, claiming there
        have been responsible for the injury.                  was no evidence of causation as to the negligence claim, and
                                                               no evidence of any element of negligence per se. Restoration
        1 Cases that cite this headnote
                                                               also moved for traditional summary judgment on the basis
                                                               of the affirmative defenses of intervening and new and
                                                               independent causes. The trial court expressly granted the


               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                         3
Mathis v. Restoration Builders, Inc., 231 S.W.3d 47 (2007)


summary judgment based on its finding that no evidence             than a scintilla of evidence exists when the evidence “rises to
of causation existed, thus disposing of both the negligence        a level that would enable reasonable and fair-minded people
and negligence per se causes of action on Restoration's no-        to differ in their conclusions.” Id. (quoting Merrell Dow
evidence summary judgment action. The trial court denied           Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex.1997)).
the traditional motion for summary judgment based on
intervening and new and independent causes. 1 The court            We turn now to the evidence Mathis presented. As we noted
severed all claims between Mathis and Restoration from the         earlier, our inquiry is restricted to whether Mathis raised a
original suit, and this appeal followed.                           fact issue as to causation, because the trial court granted the
                                                                   no-evidence motion as to causation, which is relevant to both
1                                                                  negligence and negligence per se.
       Accordingly, we will not review Restoration's traditional
       motion for summary judgment.
                                                                   B. Mathis's Evidence Raises an Issue as to Causation
                                                                   The evidence Mathis attached to his response accomplished
                           Analysis
                                                                   two things: First, it showed that Granberry, the President of
I. Conflicting Testimony Raised a Fact Issue                       Restoration, knew about the hole and took steps to ensure the
Mathis's reply to Restoration's motion for summary judgment        safety of his people by covering it when workers were not
purported to raise a fact issue as to causation. The pertinent     using the hole to extract refuse. Second, the evidence created
evidence amounts to conflicting statements by Restoration's        a fact issue as to whether Restoration covered the hole when
president, Robert Granberry, that Restoration both did and did     it left the premises. It created a fact issue because it contained
not cover the hole at issue in this case. The statement that the   conflicting statements by Granberry that Restoration both
hole was covered came from a deposition of Granberry, and          did and did not cover the hole at issue in this case. Both
the statement that the hole was not covered by Restoration         statements, one made during a deposition, the other in an
came from an affidavit in support of a prior motion for            affidavit, were very precise and direct in nature, specifically
summary judgment.                                                  referred to the hole that caused Mathis's injuries, and were
                                                                   completely contradictory.

A. Standard of Review
 [1] A no-evidence summary judgment is essentially a               1. Cause in Fact
pretrial directed verdict, and we apply the same legal              [2] [3] [4] [5] Restoration first contends that whether
sufficiency standard in reviewing a no-evidence summary            the hole was covered or not raises no genuine issue of
judgment as we apply in reviewing a directed verdict.              material fact as to causation of Mathis's injuries. The elements
King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750–51                of causation are cause in fact and foreseeability. Western
(Tex.2003). We review the entire record in the light most          Invs., Inc. v. Urena, 162 S.W.3d 547, 551 (Tex.2005).
favorable to the nonmovant, indulging every reasonable             Cause in fact is established when the act or omission was a
inference and resolving any doubts against the motion. City of     substantial factor in bringing about the injuries, and without
Keller v. Wilson, 168 S.W.3d 802, 824 (Tex.2005). However,         it, the harm would not have occurred. IHS Cedars Treatment
per City of Keller, although we “must consider all the             Ctr. of DeSoto, Tex., Inc. v. Mason, 143 S.W.3d 794,
summary judgment evidence on file, in some cases, that             799 (Tex.2003). Cause in fact is not established when the
review will effectively be restricted to the evidence contrary     defendant's negligence does no more than furnish a condition
to the motion.” Id. at 825. Thus, in this case, our review is      which makes the injuries possible. Id. Any act of negligence
limited to the evidence favoring Mathis that was attached          that does no more than put a person in a particular place at a
to the Response to the Motions for Summary Judgment,               particular time is too remote to constitute legal cause. Roberts
even though the body of Restoration's Motion for Summary           v. Healey, 991 S.W.2d 873, 878–79 (Tex.App.-Houston [14th
Judgment, which was both a traditional and no-evidence             Dist.] 1999, pet. denied). In explaining cause in fact, the
motion, contained testimony on which Restoration relied. Id.;      supreme court has said:
TEX. R. CIV. P. 166a(i). A no-evidence summary judgment
                                                                                In order to be a legal cause of another's
is improperly granted if the respondent brings forth more than
                                                                                harm, it is not enough that the harm
a scintilla of probative evidence to raise a genuine issue of
                                                                                would not have occurred had the
material fact. King Ranch, 118 S.W.3d at 751. More *51


                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                               4
Mathis v. Restoration Builders, Inc., 231 S.W.3d 47 (2007)


             actor not been negligent. * * * [T]his                  [6] The second prong of causation—foreseeability—also
             is necessary, but it is not of itself                  is met. Foreseeability means that the actor, as a person of
             sufficient. The negligence must also                   ordinary intelligence, should have anticipated the dangers
             be a substantial factor in bringing                    that his negligent act created for others. Travis v. City of
             about the plaintiff's harm. The word                   Mesquite, 830 S.W.2d 94, 98 (Tex.1992). Mathis easily meets
             “substantial” is used to denote the fact               the foreseeability requirement, because the type of harm that
             that the defendant's conduct has such                  a person of ordinary intelligence would anticipate from the
             an effect in producing the harm as to                  negligent act is the type of harm that occurred. A hole in
             lead reasonable men to regard it as a                  the floor, which opens into a basement area, poses a risk
             cause, using that word in the popular                  that a person might fall through the hole and suffer injury
             sense, in which there always lurks                     as a result. If a hole was left uncovered on a work site, it
             the idea of responsibility, rather than                is quite foreseeable that someone would attempt to cover
             in the so-called “philosophic sense,”                  the hole and might choose an ineffective material. This is
             which includes every one of the great                  precisely what happened in this case. Thus, the harm was
             number of events without which any                     entirely foreseeable.
             happening would not have occurred.
             Each of these events is a cause in
             the so-called “philosophic sense,” yet                 3. Restoration's Argument that the Statements Are Not
             the effect of many of them is so                       Inconsistent Fails
             insignificant that no ordinary mind                     [7] Restoration next argues that there is no inconsistency
             would think of them as causes.                         in the testimony of Restoration's president. On the face of
                                                                    the statements, they are clearly contradictory. In his affidavit,
Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 472 (Tex.1991)         Granberry states “Restoration Builders did not dig or cover
(quoting Restatement (Second) of Torts § 431, cmt. a (1965)).       any holes on the property at issue, including, but without
                                                                    limitation to the hole at issue which has been described as
Thus, regarding the cause in fact prong of causation, the           ‘a hole next to a wall about twenty to thirty feet (20#–
salient inquiry is whether the summary judgment evidence,           30!) from a sidewalk which is covered by cardboard.’ ” In
viewed in the light most favorable to Mathis, could enable          his deposition testimony, he stated that “As far as the hole
a juror to reasonably believe that Restoration did not merely       itself, ... I personally used powder actuated nails to [i]mbed
create the conditions *52 making the injuries possible,             the [steel] plate ... over the hole.”
but was negligent in such a way that it ought to bear
some responsibility for causing the harm. Here, Restoration's       Restoration attempts to explain away this inconsistency
negligence, if any, is not so attenuated that it is only a cause    by referring us to further deposition testimony by which
in the philosophical sense. Rather, if Restoration left the hole    Granberry explains that in the affidavit he was trying to
uncovered—as its President, Robert Granberry, stated under          say that Restoration never covered the hole with cardboard.
oath—that act, though an indirect proximate cause, could            However, we cannot consider this testimony because it was
cause someone to cover the hole with a defective material           not before the trial court, and, more importantly that is not
such as cardboard, which someone did in this case, directly         what the affidavit said. See TEX. R. CIV. P. 166a(c). The
causing Mathis's injuries. In this way, the failure to cover the    trial court had before it only Mathis's evidence in response
hole could have been a substantial factor in bringing about         to the no-evidence motion. See id. The trial court could not
Mathis's harm. See Dew v. Crown Derrick Erectors, Inc., 208         consider any of the evidence attached to the traditional motion
S.W.3d 448, 453 (Tex.2006) (plurality opinion) (holding that        for summary judgment. See Binur v. Jacobo, 135 S.W.3d
because removal of a rope barrier around an open hole in the        646, 651 (Tex.2004). Therefore, the portion of Granberry's
floor of an oil platform was a foreseeable intervening force,       deposition in which he explained the affidavit was not in the
platform erector was not entitled to an instruction on new          summary judgment record.
and independent cause). Thus, Mathis's summary judgment
evidence is sufficient to raise a fact issue as to cause in fact.    [8] Even if the evidence had been before the trial court, we
                                                                    would reach the same result because the deposition testimony
                                                                    explaining away the affidavit would require us to weigh
2. Foreseeability                                                   the evidence presented *53 to resolve a conflict in the


                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                              5
Mathis v. Restoration Builders, Inc., 231 S.W.3d 47 (2007)


                                                                     remove debris from the basement of the building, and that
testimony. In this case we cannot do that. See City of Keller,
                                                                     Restoration fenced the site. However, none of this evidence
168 S.W.3d at 825. Based on the foregoing, we hold that the
                                                                     shows that Restoration was in control of the injury-causing
trial court erred in granting a no-evidence summary judgment
                                                                     instrumentality at the time of Mathis's fall. Mathis, therefore,
on the element of causation. The conflicting testimony
                                                                     failed to implicate the res ipsa loquitur doctrine.
presented by Mathis, when viewed in the light most favorable
to him, was sufficient to create a genuine issue of material
                                                               Even if Mathis had implicated res ipsa by showing that
fact.
                                                               Restoration had been in control of the instrumentality at some
                                                               point, the evidence in Mathis's response to the summary
II. Res Ipsa Loquitur                                          judgment motion shows that Restoration left the property
 [9]     [10]    [11]     [12]     [13]    [14] For the sake inofDecember of 1999. The injury here did not occur until
judicial economy, we will consider Mathis's res ipsa loquitur  October of 2001. A period of almost two years passed when
argument, even though we have already concluded that           Restoration was clearly not in control of the premises. Any
the case should be remanded. See Cincinnati Life Ins. Co.      negligence might be attributable to whomever was in control
v. Cates, 927 S.W.2d 623, 625 (Tex.1996). Res ipsa is          during that period of almost two years. Therefore, res ipsa
a doctrine used when the circumstances surrounding an          cannot apply here. See Marathon Oil Co., 632 S.W.2d at 573–
accident constitute sufficient circumstantial evidence of the  74; Esco Oil & Gas, Inc., 962 S.W.2d at 195.
defendant's negligence to support such a finding. Marathon
Oil Co. v. Sterner, 632 S.W.2d 571, 573 (Tex.1982). Res
ipsa consists of two factors: 1) the character of the accident
                                                                                         Conclusion
is such that it would not ordinarily occur absent negligence;
2) the instrumentality causing the injury is shown to have     Having found that Mathis raised a genuine issue of material
been under the management and control of the defendant.        fact as to the element of causation, we hold that summary
Id. The first factor is necessary to support an inference      judgment was inappropriate on the negligence and negligence
of negligence, while the second is necessary to support        per se causes of action and remand for further proceedings on
the inference that the negligence was committed by the         those claims.
defendant. Mobil Chem. Co. v. Bell, 517 S.W.2d 245, 251
(Tex.1974). The instrumentality need not have been in the
constant control of the defendant. Id. It is enough that “the
                                                               EDELMAN, J. Dissenting.
defendant was in control at the time that the negligence
inferable from the first factor probably occurred, so that the
reasonable probabilities point to the defendant and support     *54 RICHARD EDELMAN, Justice, dissenting.
a reasonable inference that he was the negligent party.” Id.   I do not agree with the majority opinion that Restoration's
Res ipsa is not available when multiple defendants exercised   failure to cover the hole could be a proximate cause of
control over the instrumentality and any one of them, wholly   someone else covering it with a defective material. Therefore,
independent of the others, might have been responsible for the I would not reverse the summary judgment on that basis.
injury. See Marathon Oil Co., 632 S.W.2d at 573–74; Esco
Oil & Gas, Inc. v. Sooner Pipe & Supply Corp., 962 S.W.2d
193, 195 (Tex.App.-Houston [1st Dist.] 1998, pet. denied).     All Citations

                                                                     231 S.W.3d 47
The second element has not been satisfied. The summary
judgment evidence shows that Restoration used the hole to

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               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                6
Rose v. Kober Financial Corp., 874 S.W.2d 358 (1994)                                   no writ


                                                                [2]   Pleading
                    	
	                                        Condition of Cause and Time for
                                            Amendment
                   !"#$	%	
                                                                      Pleading
            &"$$'()                                       Condition of Cause and Time for
                      *	                                              Amendment
   +(,)'-.//.0('&('.(/	                             Summary judgment proceeding is “trial”
                                                                      within meaning of rule that allows pleading
       /	,!1213!14	 5           $!!22	             amendments within seven days of trial unless
                                                                      there has been showing of surprise to opposing
Investor filed action under Deceptive Trade Practices-                party. Vernon's Ann.Texas Rules Civ.Proc., Rule
Consumer Protection Act (DTPA) in connection with his                 63.
purchase of stock, and he then filed a supplemental petition
alleging breach of contract, breach of fiduciary duty,                5 Cases that cite this headnote
misrepresentation, and negligence. The County Civil Court
at Law No. 2, Harris County, Tom Sullivan, J., granted a
                                                                [3]   Pleading
defense motion for summary judgment on all issues. Investor
                                                                          Condition of Cause and Time for
appealed. The Court of Appeals, Draughn, J., held that: (1)
                                                                      Amendment
the supplemental petition filed 27 days before the summary
judgment hearing was timely and properly before the trial             Supplemental petition filed 27 days before
court, even though the petition had been filed only five days         summary judgment hearing was timely and
before the originally scheduled hearing; (2) an all-inclusive         properly before trial court, even though
final summary judgment could not be granted where the                 supplemental petition had been filed only
defense motion addressed only the cause of action under               five days before originally scheduled hearing.
DTPA without addressing the additional causes of action in            Vernon's Ann.Texas Rules Civ.Proc., Rule 63.
the supplemental petition; and (3) the defense motion could
                                                                      1 Cases that cite this headnote
not negate the damages element of any cause of action that
was not expressly set out in the motion.
                                                                [4]   Pleading
Reversed and remanded.                                                     Objections to Amendments and Rulings
                                                                      Relating Thereto
                                                                      Absent sufficient showing of surprise by
                                                                      opposing party, failure to obtain leave of court
 West Headnotes (9)
                                                                      when filing late pleading may be cured by trial
                                                                      court's action in considering amended pleading.
 [1]    Pleading                                                      Vernon's Ann.Texas Rules Civ.Proc., Rule 63.
            Condition of Cause and Time for
        Amendment                                                     4 Cases that cite this headnote

        Pleading
            Condition of Cause and Time for                     [5]   Appeal and Error
        Amendment                                                        Judgment
        Pleading amendments sought within seven days                  Absent any indication that supplemental petition
        of trial are to be granted unless there has been              had not been considered by trial court in ruling on
        showing of surprise to opposing party. Vernon's               motion for summary judgment, Court of Appeals
        Ann.Texas Rules Civ.Proc., Rule 63.                           would presume that leave to file supplemental
                                                                      petition had been granted. Vernon's Ann.Texas
        1 Cases that cite this headnote                               Rules Civ.Proc., Rule 63.




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                          1
Rose v. Kober Financial Corp., 874 S.W.2d 358 (1994)




       2 Cases that cite this headnote                               4 Cases that cite this headnote


 [6]   Judgment
           Presumptions and Burden of Proof
                                                             Attorneys and Law Firms
       Summary judgment disposing of plaintiff's entire
       case requires defendant to show that no fact issue    *359 Jeffrey W. Gillespie, Houston, for appellant.
       existed as to at least one essential element of
       each cause of action. Vernon's Ann.Texas Rules        James L. Cornell, Tammy C. Manning, Houston, for appellee.
       Civ.Proc., Rule 166a(c).
                                                             Before MURPHY, SEARS and DRAUGHN, JJ.
       3 Cases that cite this headnote


 [7]   Judgment                                                                       OPINION
           Partial Summary Judgment
                                                             DRAUGHN, Justice.
       All-inclusive final summary judgment could not
       be granted where defense motion addressed             This is an appeal from the granting of summary judgment in
       only cause of action under Deceptive Trade            favor of appellee, Kober Financial Corporation. Appellant,
       Practices-Consumer Protection Act (DTPA)              Philip Rose, initially filed suit against appellee to recover
       without addressing additional causes of action in     damages solely under the Texas Deceptive Trade Practices–
       supplemental petition that had been filed before      Consumer Protection Act. (“DTPA”). In five points of error,
       summary judgment hearing. V.T.C.A., Bus. &            appellant contends that the trial court erred in granting
       C. § 17.41 et seq.; Vernon's Ann.Texas Rules          summary judgment because: (1) there are genuine issues of
       Civ.Proc., Rule 166a(c).                              material fact concerning one or more elements of his causes of
                                                             action; (2) appellee was granted more relief than requested by
       7 Cases that cite this headnote                       its motion for summary judgment; and (3) there are genuine
                                                             issues of material fact concerning each element of appellee's
 [8]   Judgment                                              affirmative defenses. We reverse and remand.
           Motion or Other Application
                                                             The record reveals that appellant filed his original petition
       Defense motion for summary judgment could not
                                                             on October 5, 1990, asserting that appellee and he had
       be granted on those causes of action in plaintiff's
                                                             entered into an oral and written agreement that appellee
       supplemental petition that had not been expressly
                                                             would sell him stock in Fox Ridge Capital, Inc., at four
       set out in motion, despite defendant's claim that
                                                             cents ($.04) a share. The original petition also alleged that
       it had negated damages element of each cause
                                                             appellee violated the *360 DTPA by engaging in deceptive
       of action. Vernon's Ann.Texas Rules Civ.Proc.,
                                                             practices and unconscionable action in connection with the
       Rule 166a(c).
                                                             agreement. Appellee filed its original answer in the form of a
       3 Cases that cite this headnote                       general denial and raised the affirmative defenses of waiver,
                                                             ratification and estoppel. On April 29, 1991, appellant filed
                                                             his first amended petition, which added Gary Mooney as a
 [9]   Appeal and Error                                      plaintiff. On May 17, 1991, appellee filed its first amended
          Judgment or Order                                  answer, which contained special exceptions, a general denial,
       Summary judgment that purported to be final           a specific denial, and raised the affirmative defenses of
       judgment on all causes of action required             waiver, ratification, estoppel and failure to mitigate. On
       reversal and remand, rather than dismissal of         January 28, 1992, appellee filed its motion for severance of
       appeal, where motion for summary judgment             Mooney's claims, which the trial court granted on February 6,
       addressed only one cause of action, while order       1992. Mooney is not a party to this appeal.
       purported to dispose of all claims.




              © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                       2
Rose v. Kober Financial Corp., 874 S.W.2d 358 (1994)


Appellee filed its Motion for Summary Judgment or                   Since Dickenson had not received appellant's check, he told
Alternatively, Motion for Partial Summary Judgment on June          Mooney and then appellant that he would buy the stock
2, 1992, and set it for hearing on July 2, 1992. On June 26,        for himself if the check was not received the following
1992, appellant filed his response to the motion and his first      day. Appellant reminded Dickenson that federal regulations
supplemental petition, which alleged for the first time causes      allow him seven days to send the check and told him to
of action for breach of contract, breach of fiduciary duty,         go ahead and buy the stock for himself. Several days later,
misrepresentation, and negligence. Appellee did not amend           a man, who identified himself as Harvey, told appellant
its motion for summary judgment to address these additional         that they were going to sell his stock that was previously
causes of action. Appellant filed a supplemental response and       purchased in October 1988 to pay for the $5,600 worth of
his supporting affidavit on July 20, 1992. On July 22, 1992,        Fox Ridge Capital, Inc., stock that was ordered. Appellant
appellee filed its objections to appellant's affidavit.             informed Harvey that he could purchase the Fox Ridge
                                                                    Capital, Inc., stock for himself, but he better not touch the
The summary judgment hearing was reset to July 23, 1992,            stock already purchased by appellant. On May 29, 1989,
at appellant's request. The hearing was held on July 23, 1992,      appellant transferred his account to another brokerage firm,
and the summary judgment was signed on July 24, 1992. The           where he purchased the Fox Ridge Capital, Inc., stock at
trial court granted summary judgment in favor of appellee on        fourteen cents ($.14) a share.
“all claims set forth” by appellant.
                                                                    Appellant's second point of error is dispositive of this appeal,
We must view the facts in the light most favorable to               and we, therefore, consider it first. In his second point of error,
appellant. On April 24, 1989, Rick Dickenson, a broker for           *361 appellant asserts that the trial court erred in entering
appellee, called appellant several times and left messages on       summary judgment by granting appellee more relief than
his answering machine. Appellant called Dickenson back and          requested in its motion for summary judgment. Appellant
spoke with him several times between 11:00 p.m. and 3:00            argues that appellee's motion for summary judgment was
a.m. During this period, appellant spoke with his brother,          filed prior to appellant's first supplemental petition and did
David Rose, and several friends about Fox Ridge Capital,            not address the additional causes of action based on breach
Inc., stock. Dickenson told appellant that “his ship had come       of contract, breach of fiduciary duty, misrepresentation, and
in,” that “he could not go wrong,” and that the “stock was          negligence.
going to run.” Appellant asked Dickenson how much the
stock would be the following day. Dickenson responded that          Appellee argues that it had no duty to amend its motion for
he did not know the price, but told appellant to put a check in     summary judgment because appellant's supplemental petition
the overnight express mail if he wanted the stock. Appellant's      was filed untimely and should not have been considered
friend, Mooney, sent Dickenson $2,000. Appellant verbally           by the trial court. The record reveals that the supplemental
ordered $5,600 worth of Fox Ridge Capital, Inc., stock, but         petition was filed on June 26, 1992, only five days prior to the
did not send a check by overnight express mail.                     hearing originally set for July 2, 1992, without leave of court.
                                                                    The trial court's judgment recites that it heard the motion on
Appellant called Dickenson the next morning and asked him           July 24, 1992, rather than July 2, 1992.
the opening price of the stock. Dickenson responded that he
did not know because they had not started trading. Then,             [1]    [2] We must now determine if the supplemental
appellant called Investor Services located in Houston, Texas,       petition was timely filed and before the trial court at the
and asked them about the price of the stock. Investor Services      July 24, 1992, hearing. Rule 63 of the Texas Rules of Civil
told appellant that they could get the stock at four cents ($.04)   Procedure provides that:
a share. Appellant decided to stay with appellee because
Mooney had sent his money in, and appellant had already                          Parties may amend their pleadings ...
ordered the stock. Appellant continued to call Dickenson to                      provided, that any amendment offered
find out the stock price, but Dickenson still stated that he did                 for filing within seven days of the date
not know. When Dickenson called appellant two days later                         of trial ... shall be filed only after leave
for a confirmation, the stock had gone up to fifteen and three-                  of the judge is obtained, which leave
fourths cents ($.1575) a share.                                                  shall be granted by the judge unless
                                                                                 there is a showing that such filing will



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                 3
Rose v. Kober Financial Corp., 874 S.W.2d 358 (1994)


             operate as a surprise to the opposite                   [6] A summary judgment for the defendant, disposing
             party.                                                 of the entire case, is proper only if, as a matter of law,
                                                                    the plaintiff could not succeed upon any theories pleaded.
TEX.R.CIV.P. 63. Pleading amendments sought within seven            Delgado v. Burns, 656 S.W.2d 428, 429 (Tex.1983). Appellee
days of the time of trial are to be granted unless there            was required to show conclusively that no fact issue existed
has been a showing of surprise to the opposing party.               as to at least one essential element of each of appellant's
Rogers v. Gonzales, 654 S.W.2d 509, 515 (Tex.App.—                  causes of action. Clark v. First Nat'l Bank of Highlands, 794
Corpus Christi 1983, writ ref'd n.r.e.). A summary judgment         S.W.2d 953, 956 (Tex.App.—Houston [1st Dist.] 1990, no
proceeding is a trial within the meaning of Rule 63. Jones v.       writ); *362 Christensen v. Sherwood Ins. Serv., 758 S.W.2d
Houston Materials Co., 477 S.W.2d 694, 695 (Tex.Civ.App.            801, 803 (Tex.App.—Texarkana 1988, writ denied); Mary
—Houston [14th Dist.] 1972, no writ); see also Leche v.             Kay Cosmetics, Inc. v. North River Ins., 739 S.W.2d 608, 609
Stautz, 386 S.W.2d 872, 873 (Tex.Civ.App.—Austin 1965,              (Tex.App.—Dallas 1987, no writ).
writ ref'd n.r.e.).
                                                                     [7] In the present case, appellant's first supplemental
 [3] In the present case, appellant's first supplemental petition   petition added causes of action for breach of contract,
was filed twenty-seven days before the summary judgment             breach of fiduciary duty, misrepresentation, and negligence.
hearing held on July 24, 1992. Thus, the supplemental petition      Appellee's motion for summary judgment specifically stated
was timely filed and properly before the trial court at the         that “Plaintiff has sued Defendant solely for violation of the
hearing.                                                            Texas Deceptive Trade Practices–Consumer Protection Act.”
                                                                    Appellee did not amend its motion for summary judgment
 [4] Even assuming that the supplemental petition had been          to address appellant's four additional causes of action. A
untimely filed, a liberal interpretation has been given to Rule     summary judgment may not be granted, as a matter of law,
63. In the absence of a sufficient showing of surprise by           on a cause of action not addressed in the summary judgment
the opposing party, the failure to obtain leave of court when       proceeding. Chessher v. Southwestern Bell Tel. Co., 658
filing a late pleading may be cured by the trial court's action     S.W.2d 563, 564 (Tex.1983); Johnson v. Rollen, 818 S.W.2d
in considering the amended pleading. See, e.g., Lloyds of           180, 183 (Tex.App.—Houston [1st Dist.] 1991, no writ);
London v. Walker, 716 S.W.2d 99, 103 (Tex.App.—Dallas               Clark, 794 S.W.2d at 955. Thus, the trial court erred in
1986, writ ref'd n.r.e.); West v. Touchstone, 620 S.W.2d            attempting to enter an all inclusive final summary judgment.
687, 689 n. 2 (Tex.Civ.App.—Dallas 1981, writ ref'd n.r.e.);
Swinney v. Winters, 532 S.W.2d 396, 400 (Tex.Civ.App.—               [8] Appellee argues, however, that it is not relevant whether
San Antonio 1975, writ ref'd n.r.e.); Lucas v. Hayter, 376          these additional causes of action were addressed in his motion
S.W.2d 790, 791 (Tex.Civ.App.—San Antonio 1964, writ                because it negated the damage element of all of appellant's
dism'd).                                                            causes of action. We disagree. Appellee did not negate the
                                                                    damage element of the additional causes of action because
 [5] In this case, the record does not reveal whether leave         they were not expressly set out in its motion for summary
of court was requested or granted. In addition, the record          judgment. See TEX.R.CIV.P. 166a(c).
gives no indication that the trial court refused leave to file
nor does it contain a motion to strike appellant's supplemental      [9] In order to be a final, appealable summary judgment,
petition, which is a part of the record that was before the trial   the order granting the motion must dispose of all parties
court. The trial court's judgment states that all pleadings on      and all issues before the trial court. Mafrige v. Ross, 866
file were considered by the court. Where the record provides        S.W.2d 590, 591 (Tex.1993). However, where the summary
no basis to conclude that the supplemental petition was not         judgment purports to grant more relief than requested, we
considered by the trial court, and appellee has not shown           must reverse and remand, rather than dismiss. Mafrige, 866
surprise or prejudice, leave of court to file the amended           S.W.2d at 592. That is precisely the posture of this case.
petition is presumed. Goswami v. Metropolitan Sav. and              The court in granting the summary judgment motion, which
Loan, 751 S.W.2d 487, 490 (Tex.1988). We, therefore, would          was based only on DTPA grounds, purported to dispose
presume that the trial court granted leave of court to file the     of “all claims set forth” by appellant. Since the summary
supplemental petition in this case.                                 judgment purported to be final, rather than partial, we must, in




                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                             4
Rose v. Kober Financial Corp., 874 S.W.2d 358 (1994)



accordance with Mafrige, treat it so. Accordingly, we sustain
appellant's second point of error.
                                                                     All Citations

Thus, without regard to its merits, or lack thereof, as to the       874 S.W.2d 358
DTPA claim, we reverse the summary judgment and remand
the cause to the trial court.

End of Document                                                  © 2015 Thomson Reuters. No claim to original U.S. Government Works.




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                5
