Wednesday, December 19, 2007

Drafting error excused in indemnity contract

Court of Appeals remands case to district court with instruction to grant reformation remedy to correct "scrivener's" error.

Holding: Reformation is a proper remedy when the parties have reached a definite and explicit agreement, understood in the same sense by both, but, by their mutual or common mistake, the written contract fails to express this agreement. Champlin Oil & Ref. Co. v. Chastain, 403 S.W.2d 376, 377 (Tex. 1965). Because the agreement embodies the parties’ intent to apply the express negligence doctrine, but, due to a scrivener’s error, leaves out a few words in the indemnity trigger, the matter must be remanded to the trial court to reform the written contract to conform to the terms of the agreement.

We reverse the trial court’s judgment and remand the cause for the trial court to reform the indemnity trigger in the agreement.

Reece-Albert v. Contractor's Service Co. (Tex.App.- Houston [1st Dist.] Dec. 13, 2007)(Hanks)

In this contractual indemnity case, Reece Albert, Inc. (“Reece”) and Contractor’s Service Company (“CSC”) filed cross-motions for summary judgment. In two issues, Reece appeals the trial court’s grant of CSC’s motion and contends that (1) the trial court erred in ruling that the parties’ indemnity agreement is ambiguous, and, thus, unenforceable, and (2) the words omitted from the “trigger” portion of the indemnity agreement were the result of a scrivener’s error, which can be corrected through the doctrine of reformation. We reverse.

Reece-Albert v. Contractor's Service Co. (Tex.App.- Houston [1st Dist.] Dec. 13, 2007)(Hanks) (indemnity, reformation of contract, mutual mistake)
REVERSE TC JUDGMENT AND REMAND CASE TO TC FOR FURTHER PROCEEDINGS:
Opinion by Justice George C. Hanks, Jr.
Before Justices Taft, Hanks and Higley01-06-00700-CV
Reece-Albert, Inc. v. Contractor's Service Company, Contractor's Service, Ltd., and Contractor's Service, Ltd. f/k/a Contractor's Service Company
Appeal from 133rd District Court of Harris County (Hon. Lamar McCorkle)

Mailbox Rule applied to summary judgment response, but evidence of date of mailing attached to brief on appeal was too late

In the absence of a timely response, no-evidence summary judgment was properly granted by default. Court of Appeals also affirms denial of motion for continuance because diligence in conducting discovery prior to summary judgment hearing was not shown.

Landers v. State Farm Lloyd, No. 06-00181-CV (Tex.App. - Houston [1st Dist.] Dec. 13, 2007)(Hanks) (insurance coverage, home owner's insurance, plumbing leak, water damage to home, expert exclusion, MSJ, MFC)
Before Justices Taft, Hanks and Higley01-06-00181-CV E. Dean Landers and Margaret F. Landers v. State Farm Lloyds and Reuben Quintero
Appeal from 280th District Court of Harris County (
Hon. Tony Lindsay)
Disposition: Affirm trial court's no-evidence summary judgment for insurer

O P I N I O N

In this insurance coverage case, the trial court granted State Farm Lloyds’s (“State Farm”) motion to exclude E. Dean and Margaret F. Landers’ (“the Landerses”) experts and then granted State Farm’s no-evidence motions for summary judgment. On appeal, the Landerses contend that the trial court erred (1) in granting the motions for summary judgment because there are genuine issues of material fact, (2) in allowing State Farm’s expert to give new opinions and calculations at the Daubert/Robinson See Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 113 S. Ct. 2786 (1993); E.I.du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549 (Tex. 1995) (requiring trialjudges to scrutinize evidence for reliability). hearings that had not been timely supplemented and disclosed before the hearings, (3) in striking the Landerses’ experts from testifying at trial, and (4) in not granting the Landerses’ request for a continuance of the hearing on the motions for summary judgment. We affirm.

Procedural and Factual Background

The Landerses are named insureds under a homeowner’s insurance policy issued by State Farm. In August 2001, the Landerses notified State Farm that their home had suffered structural and cosmetic damage as a result of plumbing leaks. State Farm assigned Reuben Quintero as the adjuster for the claim. State Farm also hired a pipe inspection company and an engineering company to inspect the Landerses’ property and to provide a report to State Farm regarding the cause of the damage to the Landerses’ home. Following the completion of its investigation, State Farm determined that the damage claimed by the Landerses was not caused by a plumbing leak and that State Farm did not have a duty under the Landerses’ homeowner’s policy to pay the claim. The Landerses sued State Farm and Quintero for breach of State Farm’s obligations under the homeowner’s policy, breach of the duty of good faith and fair dealing, fraud, and for violations of the Texas Insurance Code and the Texas Deceptive Trade Practice Act (“DTPA”).

State Farm filed a motion to exclude the opinion testimony of Jim Linehan and Jeffery Lineberger, the Landerses’ two expert witnesses on the issue of causation. After two Daubert/Robinson hearings, the motion was granted, and both Linehan and Lineberger were prevented from testifying regarding the cause of the damage to the Landerses’ home.

Two months later, on November 1, 2005, State Farm filed its “Motion for No Evidence Summary Judgment on All of the Plaintiffs’ Claims and Supplement To the Motion for Summary Judgment on Plaintiffs’ Extra-Contractual Claims.” [State Farm had previously filed a traditional motion for partial summary judgment regarding the Landerses’ extra-contractual claims, which also sought the dismissal of Quintero.] This motion was set to be submitted to the trial court at 8:00 a.m. on November 28, 2005. At 9:20 a.m. on the morning of the submission, the district court clerk received the Landerses’ response to the motion. In addition to complaining of the trial court’s striking of their experts, the response also contains a motion seeking continuance of the submission of State Farm’s motion for summary judgment. The response does not contain a motion for leave to file tardy response.

The next day, the trial court, noting that it had found no response to the motions for summary judgment or motions to be considered by the court, granted State Farm’s motions for summary judgment and dismissed the Landerses’ claims against Quintero. A copy of this order was faxed to the Landerses’ counsel.

Eight days later, on December 7, 2005, the Landerses sent a letter to the trail court advising it that it was in error when it stated in the order that they did not file a response to the motions for summary judgment. They stated that a response was timely filed by certified mail, return receipt requested on November 21, 2005. They also stated that a motion for continuance of the hearing on State Farm’s motion for summary judgment was contained in the response.

Loree also states in the letter that, on November 23, 2005, he sent a draft order to thetrial court regarding his motion for a continuance. A copy of the alleged transmittalletter for this order was attached to the letter. Although the attached letter is datedNovember 23, 2005, it is file stamped as having been received by the clerk’s officeon December 13, 2005— almost three weeks after Loree claims to have mailed it tothe trial court.

The letter to the trial court did not include a certified mail receipt demonstrating a timely post mark or an affidavit verifying the facts alleged in his letter regarding the timeliness of the filing of the response.

The Landerses filed a motion for new trial. Although the motion asserts that the Landerses’ response and motion for continuance were timely filed on November 23, 2005, again, there was no copy of a certified mail receipt demonstrating a timely post mark of the United States Postal Service or an affidavit verifying the facts alleged in the motion regarding the timeliness of the filing of the response. The motion was overruled by operation of law, and this appeal followed.
Although Quintero is named in the style of this appeal, the Landerses do not contestthe trial court’s dismissal of Quintero from this suit.

Summary Judgment

In their first and second issues, the Landerses argue that the trial court erred in granting State Farms’s motions for summary judgment because there was summary judgment evidence creating fact issues with respect to all of the Landerses’ causes of action. We disagree.

Standard of Review

We review summary judgments de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). A no-evidence motion for summary judgment must be granted if, after adequate time for discovery, the moving party asserts that there is no evidence of one or more specified elements of a claim or defense on which the adverse party would have the burden of proof at trial and the respondent produces no summary judgment evidence raising a genuine issue of material fact on those elements. Tex. R. Civ. P. 166(a)(i); LMB, Ltd. v Moreno, 201 S.W.3d 686, 688 (Tex. 2006).

A party who files a no-evidence summary judgment motion pursuant to rule 166a(i) has essentially requested a pretrial directed verdict. Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 581 (Tex. 2006). When the movant files its motion in proper form, the burden shifts to the nonmovant to defeat the motion by presenting evidence that raises an issue of material fact regarding the elements challenged by the motion. Id. at 582; Weaver v. Highlands Ins. Co., 4 S.W.3d 826, 829 (Tex. App.—Houston [1st Dist.] 1999, no pet.).

Timeliness of the Landerses’ Response

In one pleading, State Farm filed two no-evidence motions for summary judgment. In the motions, State Farm asserts that it is entitled to summary judgment on the Landerses’ breach of contract claim because:

(1) The Landerses have no evidence that any peril or event covered under their policy with State Farm Lloyds was a producing cause of a loss.

(2)The Landerses have no evidence that any peril or event covered under their policy with State Farm Lloyds was a proximate cause of a loss.

(3)The Landerses have no evidence that State Farm Lloyds failed to comply with any of its duties under the homeowner’s policy.

(4)The Landerses have no evidence that any failure by State Farm Lloyds to comply with any of its duties under its contract with the Plaintiffs was a producing cause of damages.

(5)The Landerses have no evidence that any failure by State Farm Lloyds to comply with any of its duties under the homeowner’s policy was a proximate cause of the Landerses’ damages.
State Farm also asserts that, because there was no evidence of causation and no evidence of breach of contract, it had no liability under the Texas Insurance Code.

State Farm also supplemented a previously-filed traditional motion for summary judgment regarding the Landerses’ extra-contractual claims with a no evidence motion on these claims. In the supplement, State Farm asserts that it is entitled to summary judgment on the extra-contractual claims because there cannot be liability under extra-contractual causes of action if, as here, there is no evidence of a breach of the homeowner’s policy by State Farm. In addition, State Farm argues that there is no evidence that the conduct that State Farm allegedly engaged in was extreme or that it produced damages unrelated to or independent of the policy claim.

Pursuant to Texas Rule of Civil Procedure 166a(c), the Landerses had until November 21, 2005, seven days before the hearing on the motions for summary judgment to file either (1) a response to these motions or (2) a motion for leave to file the response out of time. Tex. R. Civ. P. 166a(c). Rule 166a(c) provides, in pertinent part, that, “except on leave of court, the adverse party, not later than seven days prior to the date of the hearing may file and serve opposing affidavits or other written responses.” Tex. R. Civ. P. 166a(c).

The “ mail box” rule of Texas Rule of Civil Procedure 5, applies to responses to motions for summary judgment. Pursuant to this rule, a response, sent to the clerk by first class United States mail on the seventh day prior to the hearing, is deemed timely filed if received by the clerk not more than 10 days after its due date. Tex. R. Civ. P. 5. This rule further states that “a legible post mark affixed by the United States Postal Service shall be prima facie evidence of the date of mailing.” Id. In addition, Texas courts have held that, “in the absence of a proper postmark or certificate of mailing, an attorney’s un-controverted affidavit may be evidence of the date of mailing.” Lofton v. Allstate Ins., 895 S.W.2d 693, 694 (Tex. 1998).

Here, the Landerses’ response to the no-evidence motions for summary judgment was untimely filed. The Landerses did not present the trial court with proof of “a legible postmark affixed by the United States Postal Service” or an affidavit from any competent person establishing that the Landerses’ response to State Farms’s motion for summary judgment was timely mailed. Furthermore, the Landerses did not file a motion for leave to file their untimely response. Under these circumstances, we conclude that the Landerses’ response was filed on the date of the court clerk’s file stamp, November 28, 2005, and the Landerses’ allegations that their response was timely filed are unsupported in the record.

On appeal, the Landerses attach to their reply brief what purports to be a receipt for the delivery of their response to the motions for summary judgment. Attachments of documents as exhibits or appendices to briefs is not a formal inclusion in the recordon appeal. Till v. Thomas, 10 S.W.3d 730, 734 (Tex. App.—Houston [1st Dist.] 1999,no pet.). Therefore, we cannot consider it. Id.

Accordingly, the trial court did not err in granting the pending motions for summary judgment without considering the untimely response. See Atchely v. NCNB Texas Nat’l Bank, 795, S.W.2d, 336, 337 (Tex. App.—Beaumont, 1990, pet. denied) (“Untimely responses to motions for summary judgments are not properly before a trial court at a hearing on such motions.”)

Effect of Untimely Response

The Landerses argue that, even without their response, State Farms’s motions for summary judgment still should have been denied. The Landerses contend that State Farms attached the report of one of their experts, Taylor Sealy, to its earlier-filed traditional motion for partial summary judgment, and Sealy’s report creates a fact issue sufficient to defeat both subsequently-filed no-evidence motions for summary judgment. [The Landerses did not designate Sealy to testify at trial.] We disagree.

Absent a timely response, a trial court must grant a no-evidence motion for summary judgment that meets the requirements of Rule 166a(i). Tex. R. Civ. P. 166a(i). If a nonmovant wishes to assert that, based on the evidence in the record , a fact issue exists to defeat a no-evidence motion for summary judgment, he must timely file a response to the motion raising this issue before the trial court. Id. Before the advent of rule 166a(i), it was well settled that summary judgment could not be rendered based on the default of the opposing party. McConnell v. Southside Sch. Dist., 858 S.W.2d 337, 343 (Tex. 1993); Rizkallah v. Conner, 952 S.W.2d 580, 582–83 (Tex. App.—Houston [1st Dist.] 1997, no pet.). The nonmovant was not required to file a response to defeat the motion for summary judgment because deficiencies in the movant’s own proof or legal theories might defeat the movant’s right to judgment as a matter of law. See City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671, 678 ( Tex. 1979). However, as Texas courts have repeatedly held, the traditional prohibition against summary judgment by default is inapplicable to motions filed under Rule 166a(i). Roventini v. Ocular Scis., Inc., 111 S.W.3d 719, 723 (Tex. App.—Houston [1st Dist.] 2003, no pet.). As the court held in Jackson v. Fiesta Mart Inc.,

On appeal, [nonmovant] argues that the trial court may not grant a summary judgment by default for lack of an answer or response when the movant’s summary judgment proof is legally insufficient. [Nonmovant’s] argument is technically correct when applied to a motion for summary judgment filed under Rule 166a(c). [Movant’s] motion, however, was clearly a no-evidence motion for summary judgment filed under Rule 166a(i), which shifts the burden of raising a genuine issue of material fact to the nonmovant. 979 S.W.2d 68, 71 (Tex. App.—Austin, 1998, no pet.). Accordingly, where as here, the movant has filed a no-evidence motion, identifying the elements as to which there is no evidence, in a form which is neither conclusory nor a general no-evidence challenge, summary judgment must be rendered absent a legally adequate response by the nonmovant. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001); Roventini, 111 S.W.3d at 722. In this case, because the Landerses did not file a timely response, the trial court did not err in granting the no-evidence motions for summary judgment.

We overrule issues one and two.

Motion for Continuance

In issue five, the Landerses assert that the trial court erred in denying their motion for continuance of the hearing on motions for summary judgment. We disagree.

Standard of Review

We review the grant or denial of a motion for continuance for an abuse of discretion. Villegas v. Carter, 711 S.W.2d 624, 626 (Tex. 1986). We will not overrule the trial court’s decision unless the trial court acted unreasonably or in an arbitrary manner “without reference to any guiding rules and principles.” Beaumont Bank, N.A. v. Buller, 806 S.W.2d 223, 226 (Tex. 1991) (quoting Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985)).

The trial court may grant a continuance to a party opposing a motion for summary judgment to permit further discovery if the nonmovant can show the need for such discovery to oppose the motion. Tex. R. Civ. P. 166a(g). A motion for continuance seeking time for discovery must be supported by an affidavit that describes the evidence sought, explains its materiality, and shows that the party requesting the continuance has used due diligence to timely obtain the evidence. Tex. R. Civ. P. 251, 252; see Hatteberg v. Hatteberg, 933 S.W.2d 522, 527 (Tex. App.—Houston [1st Dist.] 1994, no writ). The affidavit of diligence must state with particularity what diligence was used; conclusory allegations of diligence are not sufficient. Gregg v. Cecil, 844 S.W.2d 851, 853 (Tex. App.—Beaumont 1992, no writ). A party who fails to diligently use the rules of discovery is not entitled to a continuance. State v. Wood Oil Distrib., Inc., 751 S.W.2d 863, 865 (Tex. 1988).

As discussed above, the Landerses did not file their motion for continuance until after the deadline had passed for their response. Furthermore, neither the motion nor the affidavit verifying the contents of the motion set forth any facts regarding the Landerses’ diligence in attempting to secure additional expert testimony prior to the deadline to respond to the motion for summary judgment.

The entirety of the Landerses’ motion for continuance states as follows:

Alternatively, Plaintiffs move for continuance so that they can designate another engineer and present evidence that the subject leaks caused damage to Plaintiffs’ home since the court has excluded such evidence from Mr. Linehan and Mr. Lineberger. This continuance would give Plaintiffs the opportunityto present evidence to controvert State Farm’s [sic] no-evidence motion for summary judgment. This continuance is not requested for purposes of delay,but so that justice may be done.

Under these circumstances, we hold that the trial court did not abuse its discretion in denying the motion for continuance. We overrule issue five.

Because we affirm the trial court’s granting of the two motions for summary judgment, we need not reach the remaining issues.

Conclusion

We affirm the trial court’s judgment.

George C. Hanks, Jr.
Justice

Panel consists of Justices Taft, Hanks, and Higley

Tuesday, December 18, 2007

Appellate panel splits on whether trial court should have heard declaratory judgment suit against City of Houston

Controversy here involved booze permit [okay: wine & beer]. The issue whether a declaratory judgment claim may be litigated under various contingencies, however, arises with some frequency in Texas courts, with inconsistent rulings on appeal.

Justice Edelman dissented in Supermercado Teloloapan, Inc. v. City of Houston (Tex. App.- Houston [14th Dist.] Dec. 18, 2007)(Dissenting Opinion by Justice Edelman) (exhaustion of administrative remedies, exclusive jurisdiction doctrine, lack of jurisdiction)

FROM THE DISSENTING OPINION

In 2005, Supermercado, a grocery store operator, applied to the Texas Alcoholic Beverage Commission (the "Commission") for an off-premise beer and wine permit. To satisfy a condition for obtaining the permit, Supermercado requested the City to certify that the location of its store was in a "wet area" and that the sale of beverages there was not prohibited by ordinance. See Tex. Alco. Bev. Code Ann. ' 61.37 (Vernon 2007). However, the City refused to certify the latter because it concluded that a charter school was located less than the required 300 feet from the store.

Because the certification sought from the City by Supermercado was one step in this permit application process, related directly to that process, and arises only in connection with such an application, this declaratory judgment action involves the same subject matter as that over which the Commission has exclusive jurisdiction. See Duenez, 201 S.W.3d at 676; Sells v. Roose, 769 S.W.2d 641, 643 (Tex. App.- Austin 1989, no writ). Therefore, because Supermercado had not exhausted its administrative remedies, the district court lacked subject matter jurisdiction over the declaratory judgment action, and we should reverse the judgment
of the trial court and order the case dismissed for lack of subject matter jurisdiction.

Supermercado Teloloapan, Inc. v. City of Houston (Tex.App.- Houston [14th Dist.] Dec. 18, 2007)(Hedges)(government entity law, regulation, declaratory judgment, UDJA)

M A J O R I T Y O P I N I O N [EXCERPTS]

In this declaratory judgment action, appellant, Supermercado Teloloapan, Inc. d/b/a Teloloapan Meat Market ("Supermercado"), appeals a take-nothing judgment in favor of appellee, the City of Houston ("the City"). In Supermercado's sole issue, it argues that the trial court erred in finding that the City's definition of the term "property line" is reasonable and consistent with the plain meaning of section 3-2(a) of Houston's Code of Ordinances. We affirm.

* * *
The dissent believes this Court does not have jurisdiction to address the merits of the declaratory judgment because the Commission has exclusive jurisdiction. The dissent finds that the issuance of the certification by the City in this case is but "one step" in the process of seeking a permit from the Commission. Relying on Sells v. Roose, 769 S.W.2d 641, 643 (Tex. App.CAustin 1989, no writ), the dissent concludes that Supermercado's remedy lies with the administrative agency. In Sells, Roose and other business owners applied for a beer retailer's permit with the Commission. The county clerk refused to certify that Roose's premises were in a "wet" area. The business owners filed a petition for writ of mandamus seeking to compel Sells to perform her statutory duty and issue the certificate. The court of appeals found that Sells's duty to issue a certificate as to the "wet" or "dry" status of a location arises only in connection with an application for a permit authorized by the Code. Id. at 643. In that regard, the court recognized exclusive jurisdiction in the administrative agency, with the result that the district court lacked subject-matter jurisdiction. Id.

In this case, however, Supermercado filed a declaratory judgment action seeking clarification of a Houston City ordinance. Unlike the business owners in Sells, Supermercado did not seek to compel the City to issue a certification of "wet" status. Supermercado sought a declaratory judgment to interpret the Ordinance, which is specifically permitted by the Texas Civil Practice and Remedies Code. See Tex. Civ. Prac. & Rem. Code Ann.' 37.004(a) (Vernon 1997).

Supermercado is not required to exhaust administrative remedies with the Commission to obtain an interpretation of the Ordinance. See Burgess, 101 S.W.3d at 554. Therefore, Supermercado's cause of action and remedy for enforcement is not derived from the Code.

Before Chief Justice Hedges, Justices Fowler and Edelman; Justice Edelman dissented
Appellate Cause No. 14-06-00472-CV
Full case style: Supermercado Teloloapan, Inc. d/b/a Teloloapan Meat Market v. City of Houston
Appeal from 80th District Court of Harris County (Hon. Kent Sullivan, [since succeeded on that bench by Judge Lynn M. Bradshaw-Hull])

Find terms: municipal, local government law, suits, litigation involving City of Houston, government entities, governmental immunity, city ordinance

Back on the appellate radar: Eric Andell

Gone South - Unremarkable per curiam opinion denying mandamus relief indicates that former Houston appeals court justice Eric Gordon Andell has returned to his prior calling as a jurist, hearing cases as a visiting judge in Brazoria County.

In Re Julius Thompson , No. 14-07-01010-CV (Tex.App.- Houston [14th Dist.] Dec. 18, 2007)
(Before Chief Justice Hedges, Justices Fowler and Frost)
Appeal from 300th District Court of Brazoria County
Disposition: Motion or writ denied (trial court order re: DNA testing)

Also see: In re James Yost , NO. 14-06-01017-CV (Tex.App.- Houston [14th Dist.] Jan. 9, 2007)(per curiam denial)
(temporary orders mandamus against Judge Eric Andell denied) (Before Justices Anderson, Hudson and Fowler)
Appeal from 300th District Court of Brazoria County (Hon. Eric Andell, sitting by assignment)

Appellant's brief cited no case law - Court of Appeals nevertheless decides the merits


Court affirms damages against restaurant that did not honor its marketing contract. Admission of business records testimony found proper.

Loredana Enterprise, Inc., d/b/a Babbo Bruno and Stefano Bertolotti v. Rewards Network Services, Inc., f/k/a Idine Restaurant Group, Inc., No. 14-07-00118-CV (Tex.App.- Houston [14th Dist.] Dec. 18, 2007)(Opinion by Justice Seymore)(breach of contract, small business litigation, debt, personal guarantee, exclusion of evidence) (Before Chief Justice Hedges, Justices Anderson and Seymore)
Appeal from 280th District Court of Harris County (Hon. Tony Lindsay)
Disposition: Judgment for Plaintiff on breach of contract claim in bench trial affirmed

Appellee, Rewards Network Services, Inc. ("Rewards") sued appellants, Loredana Enterprise, Inc. ("Loredana") and Stefano Bertolotti, alleging breach of contract. Following a bench trial, the court found for Rewards and entered judgment for $29,520.24 plus pre-judgment interest, post-judgment interest, attorney's fees, and costs. In three issues, appellants challenge the legal and factual sufficiency of the evidence to support the trial court's judgment.[1] All dispositive issues are clearly settled in law. Accordingly, we issue this memorandum opinion and affirm. See Tex. R. App. P. 47.4.

I. Background

Loredana operates Babbo Bruno, a restaurant in Webster, Texas. Rewards is a marketing and advertising company that provides services to the restaurant industry. In February 2004, Loredana and Rewards entered into a contract whereby Loredana agreed to provide Rewards with dining credits for the purchase of food, beverages, and other services at Babbo Bruno. In exchange, Rewards agreed to pay Loredana a sum of money and promote Babbo Bruno to its members by providing credits cards funded with the dining credits. Under the agreement, Rewards was to receive ninety percent of each transaction. Additionally, to facilitate payment, Loredana agreed to place all the funds earned at Babbo Bruno through dining credits transactions into a bank account, segregated from its other funds. Rewards had access to the account and could withdraw its share of each transaction. Stefano Bertolotti provided his personal guaranty in the event Loredana failed to fulfill its obligations under the contract.

Subsequently, Rewards was denied access to the account and could not withdraw its portion of $183.24 in dining credit transactions. At the time, the total remaining credits equaled $39,360.33. Under the liquidated damages clause of the contract, Rewards was entitled to seventy-five percent of the remaining credits in the event of a breach of contract by Loredana. Rewards sued Loredana and Bertolotti for breach of contract. The trial court rendered a judgment in favor of Rewards; this appeal followed.

II. Analysis

To recover in a breach of contract case, a plaintiff must prove (1) existence of a valid contract; (2) plaintiff performed or tendered performance; (3) defendant breached the contract; and (4) plaintiff was damaged as a result of that breach. Apache Corp. v. Dynegy Midstream Serv. Ltd. P'ship, 214 S.W.3d 554, 560 (Tex. App. - Houston [14th Dist.] 2006, no pet.).

In their stated appellate issues, appellants claim only that Rewards did not prove the third element of its claimCthat Loredana breached the contract. Specifically, appellants contend: (1) no evidence supports the trial court's finding that Loredana breached the contract; (2) the evidence was insufficient to support the trial court's finding that Loredana breached the contract; and (3) in the absence of a breach of contract by Loredana, there is no evidence to support the finding of liability of Bertolotti under his personal guaranty. Additionally, although not addressed in their stated issues, in their "Summary of the Argument," appellants seem to challenge the damages awarded. Accordingly, we will consider their complaints concerning the breach of contract finding and damages.

A. Breach of Contract

In their first and second issues, appellants contend there is no evidence or the evidence is factually insufficient to support the trial court's finding that Loredana breached the contract because (1) Rewards failed to prove Loredana owed money to Rewards; (2) Rewards' damages were not the result of any act or omission of Loredana; (3) the trial court could not rely on the testimony of Rewards' sole witness; and (4) Rewards made no demand for any amount owed.

1. Standard of Review

A trial court=s findings in a bench trial are reviewable for legal and factual sufficiency of the evidence under the same standards as are applied in reviewing evidence supporting a jury=s findings. Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex. 1994). Findings of fact in a bench trial have the same force and dignity as a jury=s verdict on jury questions. Arrellano v. State Farm Fire & Cas. Co., 191 S.W.3d 852, 855B56 (Tex. App.CHouston [14th Dist.] 2006, no pet.). However, the trial court=s findings are not conclusive when, as here, there is a complete reporter=s record. Id.

When reviewing the legal sufficiency of the evidence, we review the evidence in the light most favorable to the challenged finding and indulge every reasonable inference that would support it. City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex. 2005). We credit favorable evidence if a reasonable fact finder could, and disregard contrary evidence if a reasonable fact finder could not. Id. at 827. The evidence is legally sufficient if it would enable a reasonable and fair-minded person to reach the verdict under review. Id. There is Ano evidence@ or legally insufficient evidence when (a) there is a complete absence of evidence of a vital fact; (b) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact; (c) the evidence offered to prove a vital fact is no more than a mere scintilla; or (d) the evidence conclusively establishes the opposite of the vital fact. See Id. at 810; Merrell Dow Pharms., Inc., v. Havner, 953 S.W.2d 706, 711 (Tex. 1997).

In reviewing factual insufficiency claims, we consider all the evidence in the record, both supporting and contrary to the finding. See Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986). We may set aside a verdict only if it is so contrary to the overwhelming weight and preponderance of the evidence that it is clearly wrong and manifestly unjust. See id.

2. Whether Loredana Owed Money to Rewards?

Loredana contends the trial court erred in finding it breached the contract because Rewards failed to prove Loredana owed money pursuant to section 9 of the contract. We disagree.

Under Section 9 of the contract, Rewards was entitled to withdraw from Loredana=s bank account Aany amounts owed.@ The record contains ample evidence proving Loredana owed money to Rewards. Lisa Massey, Rewards= regional manager for Texas and Louisiana, testified that, pursuant to the contract, Rewards provided $15,000 to Loredana in return for $24,000 in dining credits. At some point, Rewards purchased additional dining credits, making the total dining credits due $47,000. Under the contract, Rewards held the right to withdraw from Loredana=s bank account ninety percent of the funds earned at Babbo Bruno through dining credits transactions. To document these transactions, Rewards introduced its Exhibit 5, an itemized list of its member=s dines. This exhibit documented that between May 19, 2004 and May 21, 2004 Rewards members spent $183.78 in dining credits at Babbo Bruno. Under the contract, Loredana owed Rewards ninety percent of these transactions. Massey testified Rewards was denied permission to withdraw the funds from Loredana=s bank account, and that Rewards was never paid these funds. This evidence demonstrates that Rewards was owed its share of the $183.78 in dining credits transactions. Therefore, we conclude Rewards presented sufficient evidence to support the trial court=s finding that Loredana owed money under Section 9 of the contract.

3. Whether Any Act or Omission of Loredana Prevented Rewards From Withdrawing Money Owed?

Loredana further contends Rewards presented insufficient evidence for the trial court to find the stop payments, which denied Rewards access to Loredana=s bank account, were the result of any act or omission by Loredana. We disagree.

Pursuant to the contract, Loredana agreed to maintain funds earned though dining credits transactions in a bank account, and it authorized Rewards to withdraw any amounts owed from this bank account at any time. In its Exhibit 4, Rewards introduced business records detailing its understanding regarding why payments from Loredana=s bank account were stopped. The exhibit contains notes from a conversation between a Rewards representative and a Loredana representative indicating Loredana believed the usage of dining credits was Atoo much@ and that the relationship was putting Loredana in a Afinancial snaffue [sic].@ According to the exhibit, payment was stopped because Loredana cancelled the payment.

Nevertheless, appellants contend Rewards did not prove the stop payment resulted from any act or omission by Loredana. In their brief, appellants suggest a number of alternative reasons why the bank may have stopped payment. However, at trial, after asserting Amyriad@ reasons might explain the bank=s stop payment, including accident by the bank, appellants offered no evidence to establish those reasons. Therefore, the evidence was sufficient to support the trial court=s finding that the stop payment order resulted from Loredana=s actions.

4. Whether the Trial Court Erred In Relying On Lisa Massey=s Testimony?

Massey was Rewards= sole witness at trial. Appellants contend the trial court erred in basing its judgment on Massey=s testimony because she relied on business records not within her personal knowledge, the relevant records were not admitted into evidence, and she did not have personal knowledge regarding the Loredana account.

a. Business Records

When a witness possesses knowledge regarding the preparation and retention of records, she may testify regarding the contents. See in re E.A.K., 192 S.W.3d 133, 142 (Tex. App.CHouston [14th Dist.] 2006, no pet.). Here, Massey demonstrated that she had knowledge regarding Rewards= business records. Regarding Rewards= Exhibit 4 (Rewards= Merchant Information records), Massey testified that Rewards maintained a call center whereby its representatives entered notes in their computers regarding all conversations with merchants. Regarding Rewards= Exhibit 5 (transaction list of Rewards= members= dining credits purchases), Massey testified Rewards tracked individual transactions through an automated process that tabulated the amount of dining credits in each transaction with a merchant and debited that amount from the total dining credits remaining under the agreement. Regarding Rewards= Exhibit 7 (Rewards= write-off statement), Massey testified that Rewards= legal department created the statement by determining the amount of dining credits Rewards would have been entitled to receive if Loredana had not breached the contract. Because Massey had knowledge regarding the preparation and retention of each business record, the trial court was entitled to rely on her description of those records. See in re E.A.K., 192 S.W.3d at 142.

b. Rewards' Exhibit 6

Appellants contend the trial court erred in finding that Loredana never remitted the amounts owed to Rewards because Rewards relied on its Exhibit 6 - records from a third party that were not admitted into evidence. However, Massey=s testimony was not based solely on Rewards= Exhibit 6. As stated above, Rewards= Exhibit 5 reflected the amount Loredana owed to Rewards. Rewards= Exhibit 7, prepared by its legal department, reflected the total amount of dining credits written-off by Rewards. Additionally, Massey had supervisory authority over Rewards= account with Loredana, and testified that she would have personal knowledge if Loredana had, at any time, paid Rewards. Therefore, even if we disregard Rewards= Exhibit 6, Rewards presented sufficient evidence to prove Loredana failed to remit the amount owed under the contract.

Accordingly, we conclude that the trial court did not err in relying on Massey=s testimony pertaining to Rewards= relationship and business transactions with Loredana.

5. Whether Rewards Made A Demand For Amounts Due?

Lastly, appellants contend Loredana did not breach the contract because the evidence is insufficient to prove Rewards made a demand for payment as required by the contract. Section 9 of the contract provides, in part: Afunds will be maintained by [Loredana] in the Bank Account and will be payable to [Rewards] on demand.@ (emphasis added). Also, under Section 9, Rewards may obtain payment of any amount owed from Loredana=s bank account through an automated clearinghouse debit or otherwise. Appellants contend the contract required Rewards to make a demand on Loredana for any amounts owed after receiving notice regarding the stop payment from the bank. However, in finding Loredana breached the contract, the trial court implicitly found Rewards made a demand as contemplated by the contract.

Under the framework created by the contract to facilitate payment, Loredana would segregate dining credit funds from other revenue earned at Babbo Bruno into a separate bank account from which Rewards could withdraw any amounts owed. However, when Rewards attempted to withdraw the amount owed for the May 19, 2004 through May 21, 2004 transactions, this payment was stopped. In finding Loredana breached the contract, the trial court implicitly concluded that the attempt to withdraw was a demand for amounts owed as contemplated by the contract. We conclude the evidence was sufficient to support the trial court=s implicit finding that Rewards demanded the amount due under the contract.

In sum, the evidence is legally sufficient to support the trial court=s breach of contract finding, and the finding is not so contrary to the overwhelming weight and preponderance of the evidence that it is clearly wrong and manifestly unjust. Appellants= first and second issues are overruled.

B. Personal Guaranty

In their third issue, appellants claim that, in the absence of a breach of contract by Loredana, there is no evidence to establish any liability by Stefano Bertolotti under his guaranty of the contract between Loredana and Rewards.[2] However, having found the evidence sufficient for the trial court to conclude Loredana breached the contract with Rewards, the trial court did not err in holding Bertolotti to his guaranty of the contract. Appellants= third issue is overruled.

C. Damages

Although not included as a stated issue, in their ASummary of the Argument,@ appellants seem to challenge the damages awarded by the trial court. Appellants contend the trial court erred in finding appellants jointly and severally liable for $29,520.24 to bear post-judgment interest at the rate of 8.25% per annum plus attorney=s fees. However, we conclude the trial court properly calculated damages.

Under the liquidated damages clause of the contract, appellants were liable for seventy-five percent of the dining credits remaining at the time of a breach of contract plus reasonable attorney=s fees. At the time of breach, there were $39,360.33 in dining credits remaining under the contract. Seventy-five percent of $39,360.33 is $29,520.24. The trial court properly awarded judgment in the amount of $29,520.24.

Under the Finance Code, a money judgment on a contract that does not provide for interest or time price differential earns post-judgment interest at the prime rate as published by the Board of Governors of the Federal Reserve System on the date of computation. See Tex. Fin. Code Ann. ' 304.003 (Vernon 2006). The date of computation in this case was November 27, 2006, and the prime rate during November 2006 was 8.25%. The trial court imposed a post-judgment rate of interest at 8.25%; therefore, the rate of post-judgment interest does not violate the Finance Code. Accordingly, to the extent appellants challenge the amount of damages awarded, we overrule these complaints.

For the reasons stated above, the judgment of the trial court is affirmed.

/s/ Charles W. Seymore
Justice

Judgment rendered and Memorandum Opinion filed December 18, 2007.
Panel consists of Chief Justice Hedges and Justices Anderson and Seymore.

[1] Appellants= brief to this court contains no index of authorities and, in fact, cites no authority whatsoever as required by the Texas Rules of Appellate Procedure. See Tex. R. App. P. 38.1. However, we will review this case on the merits despite these deficiencies.

[2] Appellants do not challenge the validity of the personal guaranty itself. Appellants= sole contention is that in the absence of a breach of contract by Loredana, there is no evidence to find Bertolotti liable under his personal guaranty of the contract.

Thursday, December 13, 2007

Sanctions against out-of-state debt collector affirmed


Plaintiff's attorney was no-show for trial in debt collection suit in which defendant maintained that the alleged debt had been paid. Trial court imposed frivolous suit sanctions against Hosto & Buchan, an Arkansas law firm that sues individuals and businesses on behalf of creditors (or their alleged assignees) in Texas courts. First Court of Appeals, in opinion written by Chief Justice Radack, finds that complaint against sanctions order was not preserved for appellate review, but reforms judgment to reflect dismissal without prejudice for want of prosecution.

Midland Funding NCC-2 Corp. v. Josiah Azubogu, No. 01-06-00801-CV (Tex.App. - Houston [1st Dist.], Dec. 13, 2007)(Opinion by Justice Radack) (DWOP, reinstatement, appellate deadlines, sanctions for baseless suit)
Appeal from 165th District Court of Harris County (
Hon. Elizabeth Ray)

MEMORANDUM OPINION

Appellant, Midland Funding NCC-2 Corp. (“Midland”), filed suit against appellee, Josiah Azubogu. The trial court dismissed the case with prejudice for want of prosecution and imposed sanctions against Midland’s law firm, Hosto & Buchan, P.L.L.C., for filing a frivolous lawsuit and failing to appear at trial. In two points of error, Midland contends the trial court erred in (1) dismissing Midland’s case with prejudice for want of prosecution and (2) awarding sanctions on its own initiative, without notice of hearing and with no countersuit asserted.

We modify the judgment, and, as modified, we affirm.

Background

Midland, represented by Hosto & Buchan, filed an original petition against Azubogu in the 165th Judicial District of Harris County, Texas on April 18, 2005. Midland claimed to be the assignee of an account in default originally owed by Azubogu. Azubogu filed an original answer on May 16, 2005, setting forth a general denial and asserting the affirmative defense that the alleged debt had been fully satisfied.

On October 14, 2005, the trial court generated a docket control order setting the date of trial at May 22, 2006. Azubogu and his counsel appeared at 10:00 A.M. on May 31, 2006, when the court coordinator called the case for trial. Neither Midland nor Midland’s counsel appeared at that time.

No one at Hosto & Buchan returned several calls made by the court coordinator. The trial court telephoned lead counsel at a number in Dallas and left two voice mail messages. The trial court also called a Little Rock, Arkansas number and reached Mr. Hosto, a named partner of the firm. Mr. Hosto was unaware of the proceedings and told the court that he was not licensed in Texas. Mr. Hosto informed the court he would send a Dallas or Houston lawyer to the court immediately.

The trial court advised Mr. Hosto that the file showed the case was being frivolously prosecuted and it planned to award sanctions under Rule 13 in the amount of $5,000 against Hosto & Buchan. The trial court also advised Mr. Hosto that it would reconsider its position if Mr. Hosto dispatched an attorney to the court immediately.

Midland’s counsel failed to timely appear. The court dismissed the case for want of prosecution, with prejudice, and awarded sanctions under Rule 13 for filing a frivolous lawsuit.

On June 7, 2006, Midland timely moved for new trial, requesting that the case be reinstated, or alternatively, that the judgment be modified to a dismissal without prejudice. Midland’s motion was not verified. Midland filed notice of its appeal on August 28, 2006.

Jurisdiction

Midland’s motion for new trial requests that the trial court (1) reinstate the case, or, alternatively, (2) reform the judgment to dismiss the case without prejudice. To seek reinstatement of a dismissed case, the movant must set forth the grounds for reinstatement in a verified motion filed with the clerk within 30 days after the dismissal order is signed. Clark v. Yarbrough, 900 S.W.2d 406, 408 (Tex. App.—Texarkana 1995, writ denied). Rule 165a(3) requires that “[a] motion to reinstate shall set forth the grounds therefor and be verified by the movant or his attorney. It shall be filed with the clerk within 30 days after the order of dismissal is signed. . . .” Tex. R. Civ. P. 165a(3) (emphasis added). A timely and proper motion to reinstate extends the trial court’s plenary jurisdiction until 30 days after the motion to reinstate is overruled. McConnell v. May, 800 S.W.2d 194, 194 (Tex. 1990). An unverified motion to reinstate, however, extends neither the trial court’s plenary power, nor the time in which to perfect an appeal. Butts v. Capitol City Nursing Home, Inc., 705 S.W.2d 696, 697 (Tex. 1986).

Midland’s motion for new trial is unverified; therefore, as a motion to reinstate, it is insufficient to extend the time in which to perfect an appeal. The trial court’s order became final on June 30, 2006. Under rule 26.1(a) of the Texas Rules of Appellate Procedure, a notice of appeal was required to be filed on or before July 30, 2006. Tex. R. App. 26.1(a). Even implying an extension of time, the notice of appeal could be filed no later than August 15, 2006. Midland’s notice of appeal was not filed until August 28, 2006. Thus, Midland’s notice of appeal is untimely unless its motion for new trial sought more than reinstatement of the case. See Tex. Dep’t of Transp. v. Martini, 902 S.W.2d 138, 140–41 (Tex. App.—Houston [1st Dist.] 1995, no writ) (holding that postdismissal motion need not have been verified to extend appellate timetables because it sought more relief than mere reinstatement of case).

In this case, Midland’s postdismissal motion sought two forms of relief—reinstatement of the case or, alternatively, reformation of the judgment to a dismissal without prejudice. We hold that the portion of the motion seeking reformation of the judgment is more than a motion to reinstate; it is a motion for new trial. See id. A proper motion for new trial will extend one’s appellate timetables. See Tex. R. App. 26.1(a)(1) (notice of appeal must be filed within 90 days, not 30 days, if motion for new trial filed). Because Midland’s motion for new trial extended the appellate timetable, its notice of appeal is timely and this Court has jurisdiction. Thus, we turn to the merits of the appeal.

Dismissal with Prejudice for Want of Prosecution

In issue one, Midland contends the trial court erred by dismissing its case for want of prosecution with prejudice. We agree.

When a plaintiff fails to appear and prosecute his case, the court’s only remedy is to dismiss the case. Smock v. Fischel, 207 S.W.2d 891, 892 (Tex. 1948). A judge rendering a judgment other than that authorized by Rule 165a has exceeded his jurisdiction. Lum v. Lacy, 616 S.W.2d 260, 261 (Tex. Civ. App.—Houston [1st Dist.] 1981, no writ) (citing Freeman v. Freeman, 327 S.W.2d 428, 433 (Tex. 1959)); see Burton-Lingo Co. v. Lay, 142 S.W.2d 448, 448 (Tex. Civ. App.—El Paso 1940, no writ) (holding trial court is without jurisdictional power to render any judgment against non-appearing plaintiff other than dismissal of plaintiff’s suit for want of prosecution). Dismissal for want of prosecution does not preclude the filing of another suit; therefore, dismissing a case with prejudice for want of prosecution is improper. See Willis v. Barron, 604 S.W.2d 447, 450 (Tex. App.—Tyler 1980, writ ref’d n.r.e.). If a case has been dismissed with prejudice for want of prosecution, the order of the trial court dismissing the suit must be reformed to eliminate the words “with prejudice.” Id.; Melton v. Rylander, 727 S.W.2d 299, 303 (Tex. App.—Dallas 1987, writ ref’d n.r.e.). Although the trial court had authority to dismiss Midland’s case for want of prosecution under Rule 165a, it improperly dismissed the case with prejudice.

Accordingly, we sustain Midland’s first point of error. We modify the judgment to dismiss the case for want of prosecution without prejudice.
Sanctions

In its second issue on appeal, Midland contends the award of sanctions must be reversed because the trial court (1) did not provide Hosto & Buchan with proper notice and hearing before imposing sanctions; (2) accepted evidence from Mr. Azubogu at the time of trial regarding payment of the account, and such evidence improperly formed the basis of the sanctions imposed for filing a frivolous lawsuit; (3) erred by awarding monetary sanctions on its own initiative; (4) erred by failing to state the particulars of good cause for the order of Rule 13 sanctions, and (5) lacked authority to impose sanctions for Midland’s failure to appear at trial.

Midland did not raise these complaints in its motion for new trial and cannot complain on appeal of such error, if any. See Tex. R. App. P. 33.1(a)(1)(A) (“[a]s a prerequisite to presenting a complaint for appellate review, the record must show that the complaint was made to the trial court by a timely request, objection, or motion that stated the grounds for the ruling that the complaining party sought from the trial court with sufficient specificity to make the trial court aware of the complaint”); see Sterling v. Alexander, 99 S.W.3d 793, 797 (Tex. App.—Houston [14th Dist.] 2003, pet. denied) (“We find appellant waived his objection to the trial court’s sanction because he does not cite to any place in the record nor have we identified anything in the record where he preserved his argument.”). Midland has waived any error regarding the award of sanctions and cannot now complain on appeal.

Accordingly, we overrule Midland’s second issue on appeal.

Conclusion

We modify the judgment to dismiss the case without prejudice, and, as modified, we affirm.

Sherry Radack
Chief Justice

Panel consists of Chief Justice Radack and Justices Alcala and Bland.

Tuesday, December 11, 2007

City of Houston sought to enrich itself with illegal fee - Court of Appeals denies immunity defense and reverses trial court

Texas cities and other government entities like to wrap themselves with the legal trappings of "sovereign" immunity, and thus defeat law suits against them on jurisdictional grounds that they might otherwise lose on the merits. Here the City of Houston fails in this scheme as the Fourteenth Court of Appeals, in an opinion by Justice John Anderson, holds that it was collecting an illegal fee, which the plaintiff had paid under duress. New civil county court at law judge Jacqueline Lucci-Smith , formerly with the Harris County Attorney's Office, gets reversed for the first in her new career as a county court judge over the immunity issue.

Saturn Capital Corporation v. The City of Houston, No. 14-07-00379-CV (Tex.App. - Houston [14th Dist.] Dec. 11, 2007)(Opinion by Justice Anderson)(sovereign governmental immunity, government entity law, municipalities, illegal fee tax, economic duress)
Panel members: Chief Justice Adele O. Hedges, Justices John Anderson and Charles Seymore
Full style: Saturn Capital Corporation v. The City of Houston ---> See law suits involving City of Houston
Appeal from County Civil Court at Law No 2 [CCCL#2] of Harris County (Hon. Jacqueline Lucci-Smith)

O P I N I O N

Appellant, Saturn Capital Corporation ("Saturn"), appeals the trial court’s granting of the City of Houston’s (the "City") Plea to the Jurisdiction. Finding the trial court erred when it granted the City’s Plea, we reverse and remand to the trial court for further proceedings in accordance with this opinion.

Factual and Procedural Background

In 1992, the City demolished buildings on the property located at 8526 Pitner Road. The City assessed a fee for the cost of the demolition against the Pitner Road property which was owned by L.A. Investments, Inc. When L.A. Investments did not pay the demolition fee, the City filed a demolition lien on the Pitner Road property. On February 15, 2000, the City, Spring Branch Independent School District ("SBISD"), and other taxing authorities, obtained a judgment against L.A. Investments for delinquent taxes on the Pitner Road property. On May 15, 2000, an Order of Sale in Tax Suit was obtained and on June 22, 2000, the constable gave notice that the property would be sold at a public tax sale. With the approval of L.A. Investments, Saturn purchased the tax lien from SBISD and later foreclosed on the tax lien at a public tax foreclosure sale. Saturn purchased the Pitner Road property at the tax sale. The City did not bid at the tax sale. At the time Saturn purchased the Pitner Road property, Saturn, taking the position that the tax sale extinguished all inferior liens, did not pay off the City’s demolition lien.

In 2003, Saturn agreed to sell the Pitner Road property to Pitner Road Affordable Housing, Ltd. However, the title company would not issue title insurance and close the sale unless the City released its demolition lien on the property. In addition, the purchaser was unwilling to go forward with the deal as long as the City refused to release its lien. Saturn, arguing the demolition lien was invalid because it had been extinguished by the tax sale, made demand on the City that it release the lien. The City refused to release the demolition lien until the lien had been paid in full.

Faced with the loss of the sale of the Pitner Road property, Saturn paid the City the full amount of the demolition lien, $88,500.32, under protest and with full reservation of rights to litigate and recover the funds paid. Saturn then filed suit against the City seeking to recover its payment of the demolition lien. The City filed a plea to the jurisdiction arguing it was immune from Saturn’s suit, which the trial court granted. This appeal followed.

Discussion

In a single issue on appeal, Saturn contends the trial court erred when it granted the City’s Plea to the Jurisdiction on the basis of sovereign immunity.

A. The Standard of Review

Sovereign immunity from suit defeats a trial court’s subject matter jurisdiction and is properly asserted through a plea to the jurisdiction. Texas Dept. of Parks and Wildlife v. Miranda, 133 S.W.3d 217, 225-26 (Tex. 2004). Whether a trial court has subject matter jurisdiction is a question of law reviewed de novo. Id. at 228. In deciding a plea to the jurisdiction, a court may not consider the merits of the case, but only the pleadings and the evidence relevant to the jurisdictional inquiry. Moore v. University of Houston-Clear Lake, 165 S.W.3d 97, 101 (Tex. App.- Houston [14th Dist.] 2005, no pet.). When reviewing a trial court’s ruling on a plea to the jurisdiction, we construe the plaintiff’s pleadings liberally in the plaintiff’s favor and look to the pleader’s intent. Miranda, 133 S.W.3d at 226. We take as true all evidence favorable to the nonmovant and indulge every reasonable inference and resolve any doubts in the nonmovant’s favor. Id. at 228. In addition, the question of whether undisputed evidence, which is the situation we are presented with here, establishes a trial court’s jurisdiction, is a question of law. Id. at 226.

B. Is the City Immune From Saturn’s Suit?

Texas has long recognized, and the City conceded during oral argument, that sovereign immunity does not prevent a party who paid illegal government taxes and fees under duress from filing a lawsuit to seek their repayment. Dallas County Community College District v. Bolton, 185 S.W.3d 868, 877 (Tex. 2005). Thus, to resolve the issue of whether or not the City is immune from Saturn’s suit, two questions must be answered: (1) does Saturn’s payment of the demolition lien constitute the payment of an illegal tax or fee; and (2) if so, did Saturn pay off the demolition lien under duress?

1. The Pitner Road Property Tax Sale Extinguished the City’s Demolition Lien

In Texas, a demolition lien is subordinate to a tax lien. See Tex. Loc. Gov’t Code Ann. ' 214.001(o) (Vernon 1999). Therefore, a tax foreclosure sale extinguishes a demolition lien on the subject property. See Tex. Tax Code Ann. ' 33.95 (Vernon 2001) ("A purchaser for value at or subsequent to the tax sale may conclusively presume the validity of the sale and takes free of any claim of a party with a prior interest in the property. . ."); see also Conseco Finance Servicing Corp. v. J & J Mobile Homes, Inc., 120 S.W.3d 878, 881B82 (Tex. App.- Fort Worth 2003, pet. denied) (stating that a junior lien does not survive the foreclosure of a superior tax lien). Here, because Saturn purchased the Pitner Road property at a properly conducted tax sale, the City’s inferior demolition lien was extinguished and Saturn took the Pitner Road property free from that lien.

2. Because the Demolition Lien Had Been Extinguished, the City’s Refusal to Release the Demolition Lien and Subsequent Acceptance of Saturn’s Payment of the Lien Amount Constitutes the Collection of an Illegal Fee

A fee is defined as a fixed charge or a charge for a service. The Merriam-webster Dictionary (New Edition, 2004). The City’s demolition lien imposed on the Pitner Road property was to cover the cost incurred by the City when it performed a service: demolishing dangerous buildings on the property. Therefore, the costs of the demolition constitute a fee. As discussed above, the demolition lien was extinguished as a result of the tax sale. Therefore, when the City sent, after the tax sale, a letter to the title company handling Saturn’s sale of the Pitner Road property stating "[The City] will issue releases for the Notice and the Order of Building Official (Clerk’s File Nos. T118848 and N576628, respectively), once the lien(s) have been paid in full," we hold this constitutes an effort to collect an illegal fee.

3. Saturn Paid Off the City’s Demolition Lien Under Duress

Saturn argues that it paid the City’s demolition lien under duress because it faced (1) the loss of the pending sale of the Pitner Road property if the City’s demolition lien was not paid off; and (2) the ultimate loss of the property because if the sale did not go through, it would be unable to continue paying the taxes on the property. In response, the City contends Saturn voluntarily paid the lien as the loss of a pending sale of the property is insufficient to constitute duress. We agree with Saturn.

The Texas Supreme Court has consistently recognized that business compulsion[1] arising from the payment of illegal or improper government fees and taxes coerced by financial penalties, loss of livelihood, or substantial damage to a business can constitute duress and allow for the recovery of an illegal tax or fee. Bolton, 185 S.W.3d at 878. The duress necessary to authorize the recovery of an illegal tax or fee is established when the unauthorized tax or fee is required, necessary, or shall be paid to avoid the government’s ability to charge penalties or halt a person from earning a living or operating a business. Id. at 879. Because the record demonstrates that (1) Saturn faced substantial damage to its business if the Pitner Road property sale did not go through; (2) the sale could not be completed unless the City released its extinguished demolition lien; and (3) Saturn paid off the extinguished demolition lien only after the City demanded payment in full before it would release the lien, the payment was not voluntary but made under duress. Accordingly, sovereign immunity is not at issue and does not preclude Saturn from pursuing its suit against the City.[2] We sustain Saturn’s only issue on appeal.

Conclusion

Having sustained Saturn’s only issue on appeal, we reverse the judgment of the trial court and remand this case to the trial court for further proceedings consistent with this opinion.

/s/ John S. Anderson
Justice

Judgment rendered and Opinion filed December 11, 2007.]

Panel consists of Chief Justice Hedges and Justices Anderson and Seymore.
--------------------------------------------------------------------------------

[1] "Business compulsion" has also been referred to as "economic duress" or "implied duress." Dallas County Community College District v. Bolton, 185 S.W.3d 868, 877-78 (Tex. 2005).

[2] In its brief, the City emphasizes the role of Alfred Antonini, the president of Saturn, and alleges that the transfer of the SBISD tax lien to Saturn violates the Fraudulent Transfer Act. These issues constitute affirmative defenses to Saturn’s suit and are not relevant to this appeal, which addresses only the trial court’s subject matter jurisdiction and does not reach the merits of the case. Moore v. University of Houston-Clear Lake, 165 S.W.3d 97, 101 (Tex. App. - Houston [14th Dist.] no pet.).

Monday, December 10, 2007

Judge Criss Gets Mandamussed Again by Court of Appeals


Another BP explosion-related case detours to Houston - on petition for mandamus relief against Galveston district court judge Susan Criss, who is running as a Democrat for Phil Johnson's seat on the Texas Supreme Court. Justice Hanks, of the all-Republican First Court of Appeals, finds that Criss abused her discretion - at least somewhat - in having plaintiffs' mental health examinations proceed.

In re Medina, No. 01-07-00747-CV (Tex.App.- Houston [1st Dist.] Dec. 6, 2007)(Hanks) (IME, mental injury, legal malpractice, multiple plaintiffs)
Before Justices Taft, Hanks and Higley
In re Michael Medina, et al
Appeal from 212th District Court of Galveston County (Hon. Susan Elizabeth Criss)
Disposition: Grant Petition for Writ of Mandmus (partially and conditionally)

MEMORANDUM OPINION BY JUSTICE GEORGE C. HANKS, JR.

By petition for writ of mandamus, relators (“the Medina Plaintiffs”) challenge the trial court’s order authorizing independent medical examinations (“IME”) to assess physical and mental injuries of the 55 Medina Plaintiffs.

1 The underlying case is Michael Medina, et al. v. The Ammons Law Firm, L.L.P., Robert E. Ammons, Individually, Arthur J. Gonzalez, Individually, Sprain Law Firm, P.C., and Michael L. Sprain, Individually, Cause No. 06-CV-1043, in the 212th District Court of Galveston County, Texas, the Honorable Susan E. Criss presiding.

We deny in part and grant in part.

Background

The Medina Plaintiffs are workers who suffered personal injuries from the British Petroleum Texas City Refinery (“B.P.”) explosion on March 23, 2005. Ammons represented the Medina Plaintiffs in their suit against B.P. and negotiated a settlement on their behalf. The Medina Plaintiffs later filed a legal malpractice suit against Ammons alleging, among other things, negligence and breach of fiduciary duty.

Ammons filed a Motion for Independent Medical and Psychological Examinations for all 55 of the Medina Plaintiffs. The trial court granted this Motion, and also ruled that no representatives of the Medina Plaintiffs could attend the examinations or videotape or audiotape the examinations.

Standard of Review

Mandamus relief is available only to correct a clear abuse of discretion when there is no adequate remedy by appeal. Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992) (orig. proceeding). A court clearly abuses its discretion when it reaches a decision so arbitrary and unreasonable that it amounts to a clear and prejudicial error of law. Id.IMEs

The Medina Plaintiffs allege that the requirements for obtaining the IMEs had not been satisfied and the global order for all 55 of them was inappropriate. See Tex. R. Civ. P. 204.1. Ammons, however, contends that IMEs are appropriate because a legal malpractice case is actually a “suit-within-a-suit.” Specifically, Ammons argues that, because the common claim of the Medina Plaintiffs’ is that they should have received more money for their personal injury suit against B.P., Ammons should be permitted to conduct IMEs to help determine the legitimacy of the claims. Ammons alleges that the examinations are appropriate because the Medina Plaintiffs have claimed that Ammons settled the case before their future medical care was resolved. Moreover, Ammons asserts that the psychological examinations were necessary because the Medina Plaintiffs collectively have asserted post-traumatic stress disorder.

The Law

IMEs are regulated under Texas Rule of Civil Procedure 204.1, which provides in relevant part:
(c) Requirements for Obtaining Order. The court may issue an order for examination only for good cause shown and only in the following circumstances:

(1) when the mental or physical condition (including the blood group) of a party, or of a person in the custody, conservatorship or under the legal control of a party, is in controversy; or

(2) except as provided in Rule 204.4, an examination by a psychologist may be ordered when the party responding to the motion has designated a psychologist as a testifying expert or has disclosed a psychologist’s records for possible use at trial.

Tex. R. Civ. P. 204.1.(c). Accordingly, good cause must be shown for issuance of the exams. Additionally, the mental or physical condition of the party must be in controversy or the party responding to the motion must have designated a psychologist as a testifying expert or disclosed a psychologist’s records for possible use at trial. Good cause is shown when (1) the examination is relevant to issues in the case and that the examination will produce, or is likely to lead to, relevant evidence; (2) there is a reasonable nexus between the condition of the person to be examined and the examination sought; and (3) it is impossible to obtain the desired information through means that are less intrusive than a compelled examination. Coates v. Whittington, 758 S.W.2d 749, 753 (Tex. 1988).

The “in controversy” requirement varies according to whether physical or mental IMEs are at issue. Physical injuries have been held to be in controversy when a party (1) places the condition into controversy by employing it either in support of, or in defense of, a claim or (2) a party affirmatively shows that the condition is in controversy. Williams v. Sanderson, 904 S.W.2d 212, 214–15 (Tex. App.—Beaumont 1995, no writ). Mental IMEs are subject to a more rigorous standard due to their sensitive nature. As noted in Coates, “Plaintiffs should not be subjected to public revelations of the most personal aspects of their private lives just because they seek compensation for mental anguish associated with an injury.” Coates, 758 S.W.2d at 752. Accordingly, routine allegations of mental anguish or emotional distress accompanying physical injury do not place mental condition “in controversy.” Id. at 753. To obtain an IME, the plaintiff must claim a mental injury exceeding the common emotional reaction to an injury or loss. Id.

Analysis

In their Ninth Amended Petition, the Medina Plaintiffs allege that the settlements were undertaken “during a time when many of the plaintiffs had not reached maximum medical recovery, nor had the status of their future medical care been resolved.” Moreover, the Medina Plaintiffs assert various allegations that necessarily place their physical status in issue. For example, Demetrio Diaz claims that Ammons did not fully investigate and assess his individual claim. Oscar Alanis alleges that Ammons improperly interjected himself in Alanis’s medical care and treatment by urging neck surgery to increase the value of his case. Jose R. Arellano claims that Ammons told him that further surgery would not affect the value of his case.

In the Medina Plaintiffs’ case against Ammons, physical IMEs will likely reveal relevant evidence because the present physical condition of the 55 plaintiffs will help determine the legitimacy of their claims. Furthermore, there is a reasonable nexus between the condition of the person to be examined and the examination sought based on the Medina Plaintiffs’ suit-within-a-suit claim that they should have obtained more money from B.P. than what they procured in settlement. It is impossible to obtain the desired information through means that are less intrusive than a compelled examination. The Medina Plaintiffs have put their physical condition in issue in their Ninth Amended Original Petition. Accordingly, physical IMEs were properly issued.

In contrast, some of the Medina Plaintiffs allege severe mental injury warranting an IME and others do not. Ammons attempts to persuade the Court that psychological IMEs are justified because the Medina Plaintiffs designated psychological experts and collectively asserted post-traumatic stress disorder. In fact, the Medina Plaintiffs did not designate experts and did not collectively assert post-traumatic stress disorder.

With respect to the expert designation, the Medina Plaintiffs responded to Request for Disclosure 194.2(f) with the following:

Plaintiffs, of course, designate themselves and the witnesses identified as individuals having knowledge of relevant facts who may be offering expert testimony in their area of knowledge. Plaintiffs will supplement pursuant to the Texas Rules of Civil Procedure and/or any Scheduling Orders entered in this case.

This information is not responsive to Rule 194.2(f), which demands the subject matter on which the expert will testify and the general substance of the expert’s mental impressions and opinions and basis for them. Moreover, the referenced list of “witnesses identified as individuals having knowledge of relevant facts” does not supply this information.

In the suit at bar, the Medina Plaintiffs are not all claiming post-traumatic stress disorder. Post-traumatic stress disorder justifies a psychological IME because it is the type of mental injury exceeding the common emotional reaction to an injury that was contemplated in Coates. See Coates, 758 S.W.2d at 752. Only a portion of the 55 Medina plaintiffs are asserting post-traumatic stress disorder. Ammons contends, however, in the underlying suit against B.P., there was a collective claim for post-traumatic stress disorder in the settlement letter. Ammons has not included this letter in the appellate record.

Ammons notes that the Medina Plaintiffs’ responses to interrogatories reference “depression” and “anxiety.” Ammons then cites Coates to support his contention that depression and anxiety are “mental injuries above and beyond any emotional distress that accompanies personal injury.” Id. In fact, “anxiety” is never mentioned in Coates and “depression” is not necessarily imbued with IME-triggering status. However, Coates articulates a standard by which depression and other mental disturbances can be assessed with regard to issuance of an IME. Coates, 758 S.W.2d at 753.

If the depression felt by the Medina Plaintiffs is the standard sort that, in all probability, a person would feel if he were injured by, and lost friends in, an explosion, no psychological IME is warranted. See id. at 752. However, if the depression exceeds common emotional reaction, is severe, and requires treatment by a professional, an IME is justified. See id. at 752–53. In the case at hand, it is impossible for this Court, based on the record provided, to determine which of the 55 Medina Plaintiffs assert mental injury to warrant psychological IMEs.

Under the standard promulgated in Texas Rule of Civil Procedure 204.1, psychological IMEs are appropriate for some and inappropriate for some of the Medina Plaintiffs. The Medina Plaintiffs explicitly state that only a portion of them will assert deep-seated mental injury. Because no experts have been designated by the Medina Plaintiffs, Rule 204.1(c)(2) cannot justify IME issuance. Therefore, the propriety of psychological IMEs for the individual 55 Medina Plaintiffs can only be determined after a showing of (1) good cause and (2) mental condition in controversy. Based on the record before us, there is no evidence that any of the Medina Plaintiffs have placed their mental condition in controversy.

Conclusion

We hold that the trial court did not abuse its discretion by ordering physical IMEs for all of the Medina Plaintiffs. However, because the evidence before the district court showed that not all of the plaintiffs are asserting mental injury beyond the distress normally accompanying physical injury, the district court abused its discretion in granting a global IME to assess psychological health. We conditionally grant the petition for writ of mandamus for the portion of the Order granting IMEs for psychological health. The writ will issue only if the trial judge refuses to rescind the portion of the Order granting IMEs for psychological health.

George C. Hanks, Jr.
Justice

Panel consists of Justice Taft, Justice Hanks, and Justice Higley.

Notice of Appeal Was Late, but Extension Saves Appeal for Decision on the Merits

Appeal from summary judgment survives jurisdictional challenge, but appellant loses on the merits in case involving dispute over access to land. Justice Jane Bland's opinion explains the law of implied easements and easements of necessity.

Bradley v. Peters , No. 01-07-00081-CV (Tex.App.- Houston [1st Dist.] Dec. 6, 2007)(Bland)(appellate procedure, deadlines, tardy notice of appeal, Texas real estate case law, easement)
Opinion by Justice BlandBefore Chief Justice Radack, Justices Alcala and Bland
Paul D. Bradley v. Milton Peters, Rodney Rice and Laura Rice
Appeal from 21st District Court of Washington County (Hon. Terrill L. Flenniken)
Disposition: Affirm trial court judgment

MEMORANDUM OPINION

Appellant Paul Bradley challenges a no-evidence summary judgment rendered in favor of appellees Milton Peters, Rodney Rice, and Laura Rice. Peters and the Rices move to dismiss the appeal for want of jurisdiction, alleging that Bradley’s notice of appeal was untimely filed. Bradley moves for an extension of time.

As to the merits, Bradley contends in two issues that the trial court erred in granting summary judgment, and erred in denying his motion to strike certain summary judgment evidence. We conclude that we have appellate jurisdiction, grant Bradley’s motion for extension, and deny the motion to dismiss. We further conclude that the trial court did not grant more relief than requested in the motion for summary judgment and therefore affirm.

Background

This is an easement dispute involving adjoining land owned by the parties in Washington
County. The properties are situated off a private roadway known as Renn Lane, which intersects public road F.M. 1370. Bradley’s property is located past the Peters and Rice properties on Renn Lane, further from F.M 1370. This dispute arose when Peters and the Rices locked an iron gate across Renn Lane, preventing Bradley from using it to access his property. Appellees contend that Bradley can access F.M. 1370 and his property by a different route, which does not involve the use of Renn Lane.

Bradley sued, claiming an “easement by implication” along Renn Lane. Appellees counterclaimed and moved for summary judgment. Although it was a no-evidence motion, appellees attached evidence, including a photo of another access road and mailbox, a map of the property showing an access road, and affidavits from landowners on Renn Lane. Bradley objected to this evidence and filed a response, attaching numerous deed records that he contends show unity of title, and his affidavit stating that access via Renn Lane is necessary. The trial court granted summary judgment against Bradley on July 14, 2006. On August 17, 2006, Bradley moved for a new trial. Following a bench trial on appellees’ counterclaims, on October 17, 2006, the trial court signed a final judgment, making the interlocutory summary judgment final and disposing of appellees’ counterclaims. Bradley filed his notice of appeal, along with a motion for an extension of time to file the notice of appeal, on January 24, 2007.

Appellate Jurisdiction

As an initial matter, appellees contest our jurisdiction over the appeal. Specifically, they argue that Bradley’s motion for a new trial, filed before final judgment, but after the trial court granted its interlocutory summary judgment, was overruled by operation of law and thus, was “no longer a live pleading capable of extending the appellate deadline for filing a Notice of Appeal.” We disagree. A prematurely filed motion for new trial extends the deadline to file a notice of appeal under Rule 306c of the Texas Rules of Civil Procedure and Rule 27.2 of the Texas Rules of Appellate Procedure, as long as the motion complains of error brought forward in the subsequent judgment. Tex. R. Civ. P. 306c; Tex R. App. P. 27.2.

Generally, a party must file its notice of appeal within thirty days after the trial court signs its final judgment. Tex R. App. P. 26.1. If a party timely moves for a new trial, however, the deadline to file the notice of appeal extends to ninety days after the judgment is signed. Tex. R. App. P. 26.1(a)(1). An appellate court must “treat actions taken before an appealable order is signed as relating to an appeal of that order and give them effect as if they had been taken after the order was signed.” Tex. R. App. P. 27.2. Such actions include motions for new trial. Houston County Hosp. Dist. v. Estrada, 831 S.W.2d 876, 878 (Tex App.—Houston [1st Dist.] 1992, no writ). In particular, a motion for new trial prematurely filed “shall be deemed to have been filed on the date of but subsequent to the time of signing of the judgment the motion assails.” Tex. R. Civ. P. 306c. Thus, “a motion for new trial that complains of error brought forward in a subsequent judgment preserves those complaints on appeal to the extent they are applicable to that judgment.” Wilkins v. Methodist Health Care Sys., 160 S.W.3d 559, 562 (Tex. 2005). Such a motion will extend the appellate timetable on the judgment it assails. See id.; see also Nuchia v. Woodruff, 956 S.W.2d 612, 614 (Tex. App.—Houston [14th Dist.] 1997, pet. denied).

Here, the trial court granted appellees’ motion for summary judgment on July 14, 2006. Bradley moved for a new trial on August 17, 2006. The trial court never expressly overruled the motion. Had the summary judgment been a final judgment, the motion for new trial would have been overruled by operation of law on September 27, 2006. See Tex. R. Civ. P. 329b. But here, the trial court signed and filed its final judgment on October 17, 2006, which disposed of the remaining claims in the case. Thus, the motion for new trial did not become “live” until that moment. Bradley’s motion for new trial complains of error brought forward in the subsequent judgment.[1] Because the motion assails the final judgment, we treat it as relating to this appeal, and give effect to it as if it had been filed after the trial court signed the final judgment. Wilkins, 160 S.W.3d at 567. We hold that Bradley’s premature motion for new trial extends the notice of appeal deadline to ninety days after the trial court signed the final judgment in this case, or January 15, 2007.

Bradley noticed his appeal on January 24, 2007, nine days after the deadline for filing it.

According to the Rules of Appellate Procedure, an appellate court may extend the deadline for a party to file the notice of appeal if the party, within 15 days after the original deadline, files the notice of appeal in the trial court and moves for an extension of time in the appellate court. Tex. R. App. P. 10.5(b), 26.3. A motion to extend time to file the notice of appeal, under Rule 10.5(b), must state (1) the original deadline for filing the notice, (2) facts which reasonably explain the need for an extension, (3) the identity of the trial court, (4) the date of the trial court’s judgment, and (5) the case number and style of the case. Tex. R. App. P. 10.5(b). Under the rule, “reasonable explanation means ‘any plausible statement of circumstances indicating that failure to file within the [required] period was not deliberate or intentional, but was the result of inadvertence, mistake or mischance.’” Smith v. Houston Lighting & Power Co., 7 S.W.3d 287, 289 (Tex. App.—Houston [1st Dist.] 1999, no pet.) (quoting Garcia v. Kastner Farms, Inc., 774 S.W.2d 668, 669 (Tex. 1989)). Unless it is found that an appellant’s conduct was deliberate or intentional, “the court of appeals should ordinarily accept the appellant’s explanations as reasonable.” Hone v. Hanafin, 104 S.W.3d 884, 887 (Tex. 2003). Bradley’s motion for an extension stated facts reasonably explaining his need for one. See Smith, 7 S.W.3d at 289. We therefore grant Bradley’s motion for extension of time to file notice of appeal, overrule appellees’ motion to dismiss the appeal, and consider the merits of the appeal.

Summary Judgment

Bradley contends that his original petition pleaded an easement by necessity. He further contends that appellees’ no-evidence summary judgment attacks a claim for an implied easement, not an easement by necessity, and thus is facially defective. As a result, Bradley asserts, the trial court erred in granting final summary judgment, because the court granted relief on a claim (easement by necessity) that appellees did not attack in their motion. To support his argument, Bradley directs us to allegations in his original petition, which, he contends, imply (without using the term) that his cause of action is for an easement by necessity, and not simply for an implied easement. Appellees respond that Bradley’s petition expressly pleaded an implied easement and failed to give fair notice of Bradley’s unpled intent to also claim easement by necessity. They further note that their no-evidence motion for summary judgment challenges the specific claims made in Bradley’s petition, and thus encompasses Bradley’s necessity claim to the extent it was made in the petition.

Summary Judgment Standard of Review

In a Rule 166a(i) no-evidence motion for summary judgment, the movant represents that no evidence exists as to one or more essential elements of the non-movant’s claims, upon which the non-movant has the burden of proof at trial. Tex. R. Civ. P. 166a(i). The non-movant then must present evidence raising a genuine issue of material fact on the challenged elements. Id. A no-evidence summary judgment is essentially a pre-trial directed verdict. Bendigo v. City of Houston, 178 S.W.3d 112, 113–14 (Tex. App.—Houston [1st Dist.] 2005, no pet.); Jackson v. Fiesta Mart, 979 S.W.2d 68, 70–71 (Tex. App.—Austin 1998, no pet.). The respondent need not marshal its proof; it need only point out evidence that raises a fact issue on the challenged elements. Tex. R. Civ. P. 166a(i) cmt.

Law of Easements
Easements by necessity arise by implication. See Othen v. Rosier, 226 S.W.2d 622, 626, 148 Tex. 485, 491 (Tex. 1950) (stating that easement by necessity “necessarily can arise only from an implied grant or implied reservation”); Ward v. Bledsoe, 105 S.W.2d 1116, 1117 (Tex. Civ. App.—Waco 1937, no writ) (“A way of necessity does not arise merely because of inconvenience. It is dependent upon an implied grant or reservation . . . .”); Jordan v. Rash, 745 S.W.2d 549, 553 (Tex. App.—Waco 1988, no writ) (“An easement of necessity can only arise between a grantor and grantee through an implied grant or reservation.”). If a grantor conveys property surrounded by land owned by others, Texas law presumes that the grantor intended to grant a roadway to enable full enjoyment of the conveyed property, and “the failure to grant a passageway was an oversight and will be implied in the grant.” Grobe v. Ottmers, 224 S.W.2d 487, 489 (Tex. Civ. App.—San Antonio 1949, writ ref’d n.r.e.); see also Machala v. Weems, 56 S.W.3d 748, 755 (Tex. App.—Texarkana 2001, no pet.).

To establish an easement by necessity, a landowner must show: (1) unity of ownership before severance; (2) that access is a necessity and not a mere convenience; and (3) the necessity existed at the time of severance of the two estates. Koonce v. Brite Estate, 663 S.W.2d 451, 452 (Tex. 1984); Crone v. Brumley, 219 S.W.3d 65, 68 (Tex. App.—San Antonio 2006, pet. denied).

To establish an implied easement, a party must show (1) unity of ownership between the dominant and servient estates at the time of severance; (2) apparent use of the easement at the time of the grant; (3) continuous use of the easement before the severance of the dominant and servient estates; and (4) that the easement is reasonably necessary to the use and enjoyment of the dominant estate.[2] Houston Bellaire, Ltd. v. TCP LB Portfolio I, L.P., 981 S.W.2d 916, 919 (Tex. App.—Houston [1st Dist.] 1998, no pet.).

Some overlap thus exists in the requisite elements for an easement by necessity and an easement implied from the severance of title. Common to both, a party must show unity of ownership between the dominant and servient estates at the time of severance, and that the easement is reasonably necessary to the use and enjoyment of the dominant estate. Id.

Sufficiency of the No-Evidence Summary Judgment

In his petition, Bradley did not expressly state a separate cause of action for easement by necessity. Instead, he requested a declaratory judgment “establishing that a valid easement by implication exists in favor of BRADLEY with regards to his right to go upon Renn Lane to access his real property located off of Renn Lane.” Bradley claimed that his right to use Renn Lane “arises by operation of law through the doctrine of easement by implication.” Bradley contends that, liberally construed, his petition contains all the elements of an easement by necessity; therefore, the trial court should not have granted summary judgment on an implied easement claim. In his brief, Bradley does not contend that he raised a fact issue in the trial court so as to defeat the motion, but instead maintains that the defendant’s motion was facially defective in that it did not address a claim for easement by necessity.

The defendants’ no-evidence summary judgment asserts that Bradley failed to provide evidence of unity of ownership and that the easement was reasonably necessary, two elements of a claim for easement by necessity. Assuming that Bradley pleaded an easement by necessity, the defendants’ no-evidence motion challenged two of its elements: “(1) There is no evidence of unity of title between the Bradley Property and either of the Peters Property of the Rice Property. . . (4) There is no evidence that the use of Renn Lane is reasonably necessary to the use of the Bradley Property.” This required Bradley to respond, and he did respond, with evidence of (1) unity of title and (2) necessary use. Thus, the issue as to these elements was properly joined in the trial court. As Bradley does not challenge the substantive merit of the motion, we do not evaluate its substantive merit. We merely conclude that the no-evidence motion fairly challenged two elements of the cause of action set forth in Bradley’s petition. Accordingly, the trial court did not err in granting more relief than was requested.[3] See Blancett v. Lagniappe Ventures, Inc., 177 S.W.3d 584, 592 (Tex. App.—Houston [1st Dist.] 2005, no pet.) (summary judgment may be proper when ground asserted in motion conclusively negates common element of newly and previously pleaded claims); see also Judwin Props., Inc. v. Griggs & Harrison, 911 S.W.2d 498, 502–03 (Tex. App.—Houston [1st Dist.] 1995, no pet.).

Conclusion

We conclude that we have jurisdiction over this appeal. We further conclude that the trial court did not grant more relief than requested in the no-evidence motion for summary judgment. We therefore grant Bradley’s motion for extension, deny the appellee’s motion to dismiss, and affirm the judgment of the trial court.

Jane Bland
Justice

Panel consists of Chief Justice Radack and Justices Alcala and Bland.

[1] In his motion for new trial, Bradley stated that he “should be granted a new trial because the grounds upon which DEFENDANTS based their summary judgment was inapplicable to the case at bar. Since there was not a valid summary judgment against BRADLEY’S cause of action for an implied easement by necessity and no admissible evidence to support said motion, the Order granting DEFENDANTS’ summary judgment motion should be vacated and this case reinstated.” (emphasis added).[2] The degree of necessity required for the establishment of an implied easement depends on whether it is an easement by implied reservation or implied grant. Here, the relevant degree of necessity is “reasonably necessary to the use and enjoyment of the dominant estate” since, should there be an implied easement, it would arise out of a grant with no reservation by the original grantor. Houston Bellaire, Ltd. v. Tcp LB Portfolio I, L.P., 981 S.W.2d 916, 919 (Tex. App.—Houston [1st Dist.] 1998, no pet.).[3] In his second issue, Bradley asserts that the trial court erred in denying his objections to certain summary judgment evidence. Given our disposition of Bradley’s first issue, we do not address this issue, because Bradley does not attack the merit of the summary judgment beyond contending that the court granted more relief than was requested.