NUMBER 13-02-688-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
___________________________________________________________________
JERRY L. BARTH, Appellant,
v.
ROYAL INSURANCE COMPANY AND
ROYAL & SUNALLIANCE COMPANY, Appellees.
___________________________________________________________________
On appeal from the 275th District Court
of Hidalgo County, Texas.
__________________________________________________________________
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Rodriguez and Castillo
Memorandum Opinion by Justice Rodriguez
This is a suit to recover homeowners insurance benefits for damage to a home. Appellant, Jerry L. Barth, the homeowner, appeals from a summary judgment granted in favor of appellees, Royal Insurance Company and Royal & SunAlliance Company (collectively Royal). By four issues, Barth contends: (1) the judgment is not final; and (2) the trial court erred by entering summary judgment against him because his claims are not barred by release, by limitations, or by accord and satisfaction. We affirm.
I. Background
As this is a memorandum opinion and because all issues of law presented by this case are well settled and the parties are familiar with the facts, we will not recite the law or the facts here except as necessary to advise the parties of the Court's decision and the basic reasons for it. See Tex. R. App. P. 47.4.II. Analysis
A. Finality of Judgment
By his first issue, Barth complains that the trial court's summary judgment is not final, and, therefore, we do not have jurisdiction over this appeal. See Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001). A court of appeal reviews the finality of a summary judgment under a de novo standard of review. Garcia v. Comm'rs Court, 101 S.W.3d 778, 783-84 (Tex. App.–Corpus Christi 2003, no pet.).
Barth complains that the judgment is not final because the trial court's order does not contain a Mother Hubbard clause or other words of finality. He also contends that additional facts included in his fourth and/or fifth amended petitions were not addressed in Royal's first amended motion for summary judgment.
However, the judgment unequivocally states:
Accordingly, it is also ORDERED, ADJUDGED, AND DECREED that Plaintiff Jerry Barth ("Plaintiff") had no valid causes of action against Royal.
IT IS FURTHER ORDERED that Plaintiff's suit against Royal is hereby dismissed with prejudice and severed into a separate cause number.
See Lehmann, 39 S.W.3d at 192-93 ("[A] judgment issued without a conventional trial is final for purposes of appeal if and only if either it actually disposes of all claims and parties then before the court, regardless of its language, or it states with unmistakable clarity that it is a final judgment as to all claims and all parties."). Moreover, with leave of court, Royal filed a supplemental response that addressed any new allegations contained in Barth's fourth amended petition. Furthermore, although Barth's fifth amended petition, filed after Royal supplemented its motion and before the final judgment was entered in this case, expanded the factual allegations, it did not add new causes of action. Royal had specifically asserted affirmative defenses of release, limitations, and accord and satisfaction as summary judgment grounds for all of Barth's claims. Therefore, the defenses raised in Royal's amended motion for summary judgment and its supplement encompassed Barth's fifth amended petition because the petition did not raise any new causes of action. See Larson v. Family Violence & Sexual Assault Prevention Ctr., 64 S.W.3d 506, 510 n.2 (Tex. App.–Corpus Christi 2001, pet. denied).
Accordingly, we conclude the trial court's order provided a final appealable judgment to this Court as it conclusively dismissed all of Barth's claims against which Royal had asserted its affirmative defenses. Barth's first issue is overruled.
B. Affirmative Defenses
By his second issue, Barth contends the trial court erroneously granted summary judgment based on Royal's affirmative defenses of release, limitations, and accord and satisfaction.
1. Release
A release is an agreement or contract in which one party agrees that a legal right or obligation owed by the other party is surrendered. Dresser Indus., Inc. v. Page Petroleum, Inc., 853 S.W.2d 505, 508 (Tex. 1993). A release extinguishes a claim or cause of action and is an absolute bar to any right of action on the released matter. Id. To release a claim effectively, the releasing instrument must "mention" the claim to be released. Victoria Bank & Trust Co. v. Brady, 811 S.W.2d 931, 938 (Tex. 1991); see Keck, Mahin & Cate v. Nat'l Union Fire Ins. Co., 20 S.W.3d 692, 698 (Tex. 2000). Although releases generally contemplate claims existing at the time of execution, a valid release may also encompass unknown claims and damages that develop in the future. Keck, 20 S.W.3d at 698.
Barth signed four release agreements on May 23, 1995. Each release provided that "[i]t is understood and agreed that this Release applies not only to settlement of my/our claim for payment under the above-mentioned policy but also all claims by me/us relating to the handling by the Company of the aforementioned claim." Each release also contained the following clause: "This Release contains the entire agreement between us and the Company. Specifically no representations have been made to me/us other than what are contained in this paper."
Barth urges that Royal's releases do not preclude him from asserting his claims for affirmative relief, including "claims for the failure to pay benefits under the policy or for any obligations for claims based on extra-contractual liability, much less for additional claims made pursuant to agreements made by its agent at and around the time the instruments were signed." He contends the releases are limited in scope to claims arising out of the plumbing leaks that caused damage to his home.
We disagree with Barth's characterization of the release. The language in the release is broad, encompassing not only the settlement of Barth's claim for payment under the policy for damage caused by the water leaks, but also all claims by Barth relating to the handling of the claim by the Company. The releases are not limited to a specific type of claim resulting from the plumbing leaks, nor are they limited to claims existing at the time the releases were executed. Therefore, we conclude that the broad release is sufficient to foreclose all claims for damages related to the plumbing leaks and all claims related to Royal's actions in handling the claims. The trial court did not err in granting summary judgment on this ground.
2. Limitations
A movant seeking summary judgment based on the statute of limitations must: (1) prove when the cause of action accrued; and (2) must negate the discovery rule by proving as a matter of law that there is no genuine issue of fact about when the plaintiff discovered or should have discovered the nature of the injury. Burns v. Thomas, 786 S.W.2d 266, 267 (Tex. 1990); Jett v. Truck Ins. Exch., 952 S.W.2d 108, 109 (Tex. App.–Texarkana 1997, no writ).
As a general rule, the applicable period of limitations for a claim made pursuant to contract is four years from the date the cause of action accrues. See Tex. Civ. Prac. & Rem. Code Ann. § 16.004 (Vernon 2002). However, parties to a transaction may agree to the time in which a person must file suit, subject to section 16.070(a) of the civil practices and remedies code which provides that a person may not agree to a period shorter than two years. See id. § 16.070(a) (Vernon 1997); Jett, 952 S.W.2d at 109. In this case, paragraph eleven of Section 1–Conditions of the Texas Homeowners Policy provides that an "[a]ction brought against [Royal] must be started within two years and one day after the cause of action accrues." Texas courts have held that "when a policy states that the limitation period begins to run when the insured's cause of action accrues, the pivotal point in time is when liability is denied by the insurer." See Jett, 951 S.W.2d at 111. Barth settled his claims with Royal on May 23, 1995. If we construe the settlement as a denial of all other liability, Barth must have filed suit on his contract claims within two years and one day of May 23, 1995, when he signed the releases. Barth did not file suit until January 15, 1999. Furthermore, if we were to determine that Royal denied coverage, and thus liability, when it refused to reopen Barth's claim on July 28, 1996, at the latest, as testified to by Barth at his deposition, Barth should have discovered the nature of the injury at that time, and would have had to file suit on his contractual claims within two years and one day of July 28, 1996. He did not.
Barth's extra-contractual claims for alleged bad faith/breach of the duty of good faith and fair dealing, negligence, breach of warranty, and violations of the insurance code and the deceptive trade practices act are also time-barred. The statute of limitations for each is two years. See Tex. Civ. Prac. & Rem. Code Ann. § 16.003(a) (Vernon 2002); Tex. Ins. Code Ann. art. 21.21 § 16(d) (Vernon Supp. 2004-2005); Tex. Bus. & Com. Code Ann. § 17.565 (Vernon 2002). The summary judgment evidence establishes the causes of action would have accrued at the latest on July 28, 1996, these causes of action are time-barred because Barth did not file suit until January 15, 1999.
Finally, Barth's alleged fraud and fraudulent inducement claims which are subject to a four-year statute of limitations, are also time-barred. See Tex. Civ. Prac. & Rem. Code Ann. § 16.004 (Vernon 2002). The fraud claim was filed on October 29, 2001, more than five years after the date the action could have accrued, and the fraudulent inducement claim was filed on August 2, 2002. Moreover, causes of action do not "relate back" under section 16.068 of the civil practice and remedies code when the original causes of action asserted in the first pleading are barred by limitations. See Tex. Civ. Prac. & Rem. Code Ann. § 16.068 (Vernon 1997); Cooke v. Maxam Tool & Supply, Inc., 854 S.W.2d 136, 141 (Tex. App.–Houston [14th Dist.] 1993, writ denied) (two-prong test to determine whether amended pleading relates back: (1) original cause of action asserted in first pleading must not have been time barred when filed; and (2) pleading which changes facts or grounds of liability or defense must not be wholly based on new, distinct or different transaction or occurrence). Therefore, the doctrine of "relation back" does not apply to Barth's fraud and fraudulent inducement claims because the causes of action alleged by Barth in his original petition were subject to a plea of limitations on the date the petition was filed. Thus, we conclude Royal has proven when the cause of action accrued and has negated the discovery rule by proving as a matter of law that there is no genuine issue of fact about when Barth should have discovered the nature of the injury. See Burns, 786 S.W.2d at 267. The trial court did not err in granting summary judgment on the basis of limitations.
3. Accord and Satisfaction
Barth also contends the trial court erred by holding his claims were barred by accord and satisfaction. However, when the motion for summary judgment is based on several different grounds and the order granting the motion is silent as to the reason for granting the motion, as in this case, the appellant must show that each independent ground alleged in the motion is insufficient to support summary judgment, and the summary judgment must be affirmed if any of the theories are meritorious. See FM Props. Operating, Co. v. City of Austin, 22 S.W.3d 868, 872-73 (Tex. 2001). Because we have concluded the affirmative defenses of release and limitations are sufficient to support the summary judgment, we need not address Barth's remaining contention.
Therefore, taking as true all evidence favorable to Barth and indulging every reasonable inference in his favor, Cathey v. Booth, 900 S.W.2d 339, 341 (Tex. 1996) (per curiam), under our de novo review, see Natividad v. Alexsis, Inc., 875 S.W.2d 695, 699 (Tex. 1994); Tex. Commerce Bank Rio Grande Valley v. Correa, 28 S.W.3d 723, 726 (Tex. App.–Corpus Christi 2000, pet. denied), we conclude Royal has conclusively established its affirmative defenses of release and limitations. See Velsicol Chem. Corp. v. Winograd, 956 S.W.2d 529, 530 (Tex. 1997) (per curiam); Crain v. Smith, 22 S.W.3d 58, 59 (Tex. App.–Corpus Christi 2000, no pet.). The trial court did not err in granting summary judgment in favor of Royal. Barth's second issue is overruled.
III. Conclusion
We affirm the judgment of the trial court.
NELDA V. RODRIGUEZ
Justice
Dissenting Memorandum Opinion by Justice Castillo.
Memorandum Opinion delivered and
filed this 16th day of December, 2004.