Joan DeYoung, Stephen DeYoung, M.D., and David DeYoung v. William L. Maynard, Individually and as of the Estate of Judy Page Maynard, and Maynard Properties, L.P.

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 ' \"~ ¢~ ~ ¢~ ~ ~ ¢~ ~ It::)if@ ¢~ ~ 1-(f ~ ~ ·i>.~~ A~ v ~ 0©5 ~ oJ!llf ·e.~t.fJ \~~ & ~~ 2 Rule 166a. Summary Judgment, TX R RCP Rule 166a                 !" # $  %&'' &''(()*(  (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"#45#"'$ 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!42'2156 ,#-, 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 © 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 [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 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 5 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, © 2015 Thomson Reuters. No claim to original U.S. Government Works. 6 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 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 7 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 $200 million. This much-touted c:Ns whiz ·b""• cW.,oto;rr""«~ •o high-tech food concem is near collapse. be "' « pc•,;,., du• ol Co-p. """"'S· iu ~ RUJ\2f.et'M.nC: Ceo vu$ "";. .. corpon.,i: san o{ the foNt c. .. 'The :apd Ol by Wo The bi ~ 19S6 Hou.ncm-buc.d SW'UI~ of 'Sc"'JJC:t"d pub~ cu1 o8' the. nO¥· o( new t\at!d.t. inco c1K \l< :a.nd pri"'~t~ ~eci.e1 into Qttic. don· ins Vld unbryo tnNfc.n. The plus Grullda pva1c-nhiP1 bca~c rcm~4 moJ• of me a.x ._""~<cy did \.now wu Cs.t Da~ic: oua. Sl billioo u n<< ~0· SQ. Uc.r ~ 1 procnintot '~ i.a How· .... IC>t<: "' """' hiJI> «.e~>· 'on't"kbrify~. H e and h» ...-ifc.. 1991. P...CU: Wd>. Gn.o>cb's - noloQ u>li>< ....;- cn1t of~ l..ind.>.. ' Clvo>th o6>ci>l """' ....,;.... lOt<< w slw.ol: "' below 900 &em m.;,)y <>Cik fum!A'" l.o.r.c 1970.. G"""cla ..rn.O • \be. \~ar, ...uc: &c:quc:cdy fu~d on 25,000 &o01 I millio,.. rcpuu tioa for IUOI'dl: .i.o.tO WJ)1 of d\c Jocicty P'~ JC$ ~d phl ~ C,.1UU"J'. '£Ua Kf'lled (0\W ~C Vl U .,;,_.~oo.. Gt> (1990 ,., . Ill>< •gdG,.,.- wo uld produCt: 1n0rc mot oc milk r~ ~ u ~c-mrr, bWJO· ...,...a, , Sdcoca (S I6 million). They uc "' chup a'bk to pub· From 197S oa, d>c o•tfit ..,..,.,,,. )u~ now the l£n)st- h frni.n& fut. tish '-~c.ir !9'90 l.'V1U~ tcpons. Tbe I~ 6nu>ccd by t>:<·shdtOkum )"'~-c'VtP ~CIJ ' G.l .1.1 buct ..;.d\ • sc.n~ of sc\o""" 1981•o 1986, be ni>h.u ,.,uOon. M~r ""'•· Cn.· ui!J il )"Ct moth~t 4.1SC. o( the: oorct-'llllithour :t VOlt oflim,iud pa.n· dort )~vc Gnmdl on :t c .o.o. bu". tn<,.S,, \1\.d Q'Uif i.n.va.ten al:l..."'S u- ~~o Gnto>c!a food> .>.nc1 Cn· ~ v QS CntudJ D ~mu ...,. *~"cn'c.d d&.ic3 ~t h« .U,c,: lD ~»d> llioSOcbca, ..;» crujorily- ~ ocatti"'U h ad bo\l[lfa !972 i:hY!d Uc.c. o~· ; 3, 1tld hil owncd .I>Y II« EJlcn. S ~00,000 cl noct ....;u, cocnpw r 1>1<><.'>::: ) >D~v .,., Sl19 ~0 "'D1>bGC IO:JA\., J. •cc.min& o,;occ. o( c~t.. •• *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 " 12312 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 24 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#34 #2 52*"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$  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.” © 2015 Thomson Reuters. No claim to original U.S. Government Works. 4 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 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 5 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 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 6 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 © 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 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 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 8 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 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 9 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: © 2015 Thomson Reuters. No claim to original U.S. Government Works. 10 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. © 2015 Thomson Reuters. No claim to original U.S. Government Works. 11 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 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 12 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 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 13 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 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 14 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 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 15 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 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 16 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 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 17 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. © 2015 Thomson Reuters. No claim to original U.S. Government Works. 18 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 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 19 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 232452 6 7 ()89 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.    !"#!$! %$ &'&()*() West Headnotes (7) +')",( +')!,) %,-  " (,.)/,0%,-  ", 0.)1 2 ",0.) [1] Courts Construction and application of rules in %,- ",%,- ()*" 3 general +,1 2 ()",%,-  ", +-451 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, © 2015 Thomson Reuters. No claim to original U.S. Government Works. 4 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’ © 2015 Thomson Reuters. No claim to original U.S. Government Works. 5 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 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 6 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 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 7 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, © 2015 Thomson Reuters. No claim to original U.S. Government Works. 2 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 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 3 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, © 2015 Thomson Reuters. No claim to original U.S. Government Works. 4 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 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 5 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 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 6 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, © 2015 Thomson Reuters. No claim to original U.S. Government Works. 7 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 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 8 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; © 2015 Thomson Reuters. No claim to original U.S. Government Works. 9 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 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 11 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 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 12 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. , -.- / )" 01. / 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 - 12312244516 7 &822 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 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. 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 / ,!1213! 14 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