Motion for summary judgment must state grounds – Duh!

MSJ 101: State your defense when moving for summary judgment on an affirmative defense (and plead it, too).
  

Failure to set forth affirmative defenses can’t be cured on appeal from improperly granted traditional summary judgment. Rather obvious point, but this opinion, released May 10, 2012, is still useful, as it provides a nice collection of caselaw cites that non-movants might want to invoke when faced with a woefully deficient motion for summary judgment -- with a view of avoiding an unnecessary appeal on a purely procedural issue. Better still if would-be movants who don't know what they are doing had a look at this opinion first.   

 EXCERPT FROM OPINION BY JUSTICE MASSENGALE 

We review de novo the trial court’s ruling on a motion for summary judgment.  Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009).  When both sides move for summary judgment and the trial court grants one motion and denies the other, we review the summary-judgment evidence presented by both sides and determine all questions presented.  Id. at 848; Comm’rs Court of Titus Cnty. v. Agan, 940 S.W.2d 77, 81 (Tex. 1997).  In such a situation, we render the judgment the trial court should have rendered.  Mann Frankfort Stein & Lipp Advisors, 289 S.W.3d at 848; Agan, 940 S.W.2d at 81.

The party moving for traditional summary judgment bears the burden of showing that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law.  Tex. R. Civ. P. 166a(c); see also Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215–16 (Tex. 2003).  A plaintiff moving for summary judgment must conclusively prove all essential elements of its claim.  See Rhone–Poulenc, Inc. v. Steel, 997 S.W.2d 217, 223 (Tex. 1999).  A matter is conclusively established if reasonable people could not differ as to the conclusion to be drawn from the evidence.  See City of Keller v. Wilson, 168 S.W.3d 802, 816 (Tex. 2005).  If the movant meets its burden, the burden then shifts to the nonmovant to raise a genuine issue of material fact precluding summary judgment.  See Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995).  The evidence raises a genuine issue of fact if reasonable and fair-minded jurors could differ in their conclusions in light of all of the summary-judgment evidence.  Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 755 (Tex. 2007) (per curiam). 

A defendant moving for summary judgment must conclusively negate at least one essential element of each of the plaintiff’s causes of action or conclusively establish each element of an affirmative defense.  Sci. Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997).  When reviewing a summary judgment, a court of appeals should consider summary judgment grounds that the trial court rules on and the movant preserves for appellate review that are necessary to a final disposition of the appeal.  Cincinnati Life Ins. Co. v. Cates, 927 S.W.2d 623, 626 (Tex. 1996).  In addition, in the interest of judicial economy, the appellate court may consider other grounds that the movant preserved for review and the trial court did not rule on.  Id. 

A motion for summary judgment must “state the specific grounds therefor.”  Tex. R. Civ. P. 166a(c); McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 341–42 (Tex. 1993) (“a motion for summary judgment must itself expressly present the grounds upon which it is made”); City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671 (Tex. 1979).  A motion for summary judgment must identify or address the cause of action or defense at issue and its elements.  Black v. Victoria Lloyds Ins. Co., 797 S.W.2d 20, 27 (Tex. 1990).  “[A] trial court cannot grant a summary judgment motion on grounds not presented in the motion.”  Timpte Indus., Inc. v. Gish, 286 S.W.3d 306, 310 (Tex. 2009); see McConnell, 858 S.W.2d at 341.  “In determining whether grounds are expressly presented, we may not rely on briefs or summary judgment evidence.”  Sci. Spectrum, 941 S.W.2d at 912.

When a motion does not state any grounds for summary judgment, the non-movant should file exceptions in the trial court.  McConnell, 858 S.W.2d at 342.  Nevertheless, Rule of Civil Procedure 166a(c) requires the party moving for summary judgment to show that he is “entitled to judgment as a matter of law on the issues expressly set out in the motion.”  Tex. R. Civ. P. 166a(c).  Therefore, even if the non-movant did not except to the motion in the trial court, he may argue on appeal that the motion did not set forth sufficient grounds for summary judgment.  McConnell, 858 S.W.2d at 342; Clear Creek Basin Authority, 589 S.W.2d at 678 (“While it would be prudent and helpful to the trial court for the non-movant always to file an [exception,] answer or response, the non-movant needs no [exception,] answer or response to the motion to contend on appeal that the grounds expressly presented to the trial court by the movant’s motion are insufficient as a matter of law to support the summary judgment.”).  When a motion states one or more grounds for summary judgment, summary judgment cannot be upheld based on a different ground.  Sci Spectrum, 941 S.W.2d at 912. 

In APPELLANT’s fourth, fifth, and sixth issues, APPELLANT contends that the trial court erred by granting summary judgment because the motion for summary judgment did not raise an affirmative defense or present any claims or arguments to defeat APPELLANT’s causes of action.  The MOVANTS’ motion states that it “embraces their affirmative defenses as to all claims and issues raised by [APPELLANT].”  It further states that “[t]here is no genuine issue as to any material fact necessary to establish each and every element of Defendants’ affirmative defenses and Defendants are entitled to judgment against [APPELLANT], as a matter of law.”  Likewise, the final summary judgment order recites that “the Court finds that there is no genuine issue as to any material fact regarding Defendants’ affirmative defenses to the claims and allegations raised by [APPELLANT] and that Defendants are entitled to judgment in this cause, as a matter of law.”

“An affirmative defense is a matter asserted in avoidance of a party’s argument or position, rather than a matter asserted in denial of that party’s position.”  Compass Bank v. MFP Fin. Servs., Inc., 152 S.W.3d 844, 851 (Tex. App.—Dallas 2005, pet. denied); see Gorman v. Life Ins. Co. of N. Am., 811 S.W.2d 542, 546 (Tex. 1991) (“Pleading an affirmative defense permits introduction of evidence which does not tend to rebut the factual propositions asserted in the plaintiff's case, but which seeks to establish an independent reason why the plaintiff should not recover. . . .  In short, an affirmative defense is one of avoidance, rather than a defense in denial.”).  The MOVANTS did not plead any affirmative defense in their answers.  Although an unpleaded affirmative defense may support a summary judgment when raised in the motion, see McConnell, 858 S.W.2d at 339, the MOVANTS’ motion for summary judgment did not identify any particular affirmative defense or any elements of an affirmative defense.  See Roberts, 811 S.W.2d at 146 (“Grounds may be stated concisely . . . [b]ut they must at least be listed in the motion.”).  We hold that the motion for summary judgment did not specifically state grounds of an affirmative defense that could support the trial court’s judgment.  Tex. R. Civ. P. 166a(c); McConnell, 858 S.W.2d at 341–42.  We sustain APPELLANT’s sixth issue.         

Although the trial court expressly based its ruling on affirmative defenses, in the interest of judicial economy, we will consider all grounds for summary judgment that the MOVANTS properly presented to the trial court.  See Cincinnati Life Ins., 927 S.W.2d at 625.  Their motion for summary judgment stated that APPELLANT was suing to set aside a “(deed of trust) foreclosure sale,” that the MOVANTS sought entry of a take-nothing judgment against APPELLANT, that APPELLANT’s claims “are simply without merit,” that APPELLANT’s “claim that there is a defect in the chain of title is simply without merit, as can be seen by the attached Exhibits,” that “Defendants are guilty of no wrongdoing,” and that “there is no merit to any of Plaintiff’s claims and allegations.”

Aside from stating that APPELLANT was seeking to set aside a foreclosure sale, the motion does not identify any of APPELLANT’s alleged causes of action.  It does not refer to any of the elements of any cause of action.  See Black, 797 S.W.2d at 27.  It does not explain how the lack of merit in APPELLANT’s contention of an earlier forgery in the chain of title relates to all of her alleged causes of action or why the court should render a take-nothing judgment if presented with conclusive proof that there is no defect in the chain of title.  The recitation of facts and the history of the transaction begins with Julia’s parents’ purchase of the house in question and does not anywhere address the alleged earlier forgery.  Although the MOVANTS’ appellate brief fills many of the gaps apparent in the motion for summary judgment, “summary judgments must stand on their own merits,” Clear Creek Basin Authority, 589 S.W.2d at 678, and we cannot uphold a summary judgment on the basis of “unstated” grounds.  See Roberts, 811 S.W.2d at 144.  Accordingly, we conclude that the MOVANTS’ motion was insufficiently specific as to the grounds upon which they sought summary judgment, and we hold that the trial court erred by granting summary judgment.  See McConnell, 858 S.W.2d at 342; Siegert, 961 S.W.2d 349–50.  Because this holding requires that we reverse and remand for further proceedings in the trial court, we need not address APPELLANT’s first three issues.

Conclusion

We reverse the trial court’s final summary judgment and remand for further proceedings.

SOURCE: HOUSTON COURT OF APPEALS – 01-11-00117-CV - 5/10/12 (Name of complaining party on appeal replaced with descriptive label “APPELLANT”, names of parties who filed defective motion in the 55^th District Court below “MOVANTS”)  

Are res judicata and collateral estoppel one and the same?

  
Court of appeals says res judicata and collateral estoppel are separate and distinct bases for summary judgment. Therefore, if the trial court grants summary judgment on both (or does not say which), the appellant may lose on appeal if he or she focuses only on one ground, but neglects to challenge and brief the other. In a case in which the First Court of Appeals issued a new opinion (on motion for rehearing) today, it would not have made a difference. But next time, it may.


McSchaffry v. Amegy Bank NA (Tex. App. - Houston [1st Dist.] Dec. 15, 2011, no pet. h.)(Opinion by Justice Jane Bland)

Mark McShaffry v. Amegy Bank National Association; Amegy Corporation; LBM-Jones Road, L.P; LBM-Jones Road GP, Inc; WDJ Management, LLC; Gerald Peter Jacob and Lee Gittleman -- Appeal from 125th District Court of Harris County (Hon. Kyle Carter)

EXCERPT FROM OPINION ON MOTION FOR REHEARING BY JUSTICE BLAND

When multiple grounds for summary judgment exist and the trial court does not specify the ground on which it granted summary judgment, an appellant must negate on appeal all possible grounds. Star-Telegram, Inc. v. Doe, 915 S.W.2d 471, 473 (Tex. 1995); Ellis v. Precision Engine Rebuilders, Inc., 68 S.W.3d 894, 898 (Tex. App.—Houston [1st Dist.] 2002, no pet.). If the appellant fails to negate each possible ground upon which the judgment may have been granted, an appellate court must uphold the summary judgment. See Ellis, 68 S.W.3d at 898. An appellant also may assert a general complaint that the trial court erred in granting summary judgment. See Malooly Bros., Inc. v. Napier, 461 S.W.2d 119, 121 (Tex. 1970). McShaffry, however, makes no such assertion.

LBM moved for summary judgment against McShaffry on the grounds of res judicata and collateral estoppel. Res judicata and collateral estoppel are independent affirmative defenses. Because the order granting summary judgment did not specify the particular grounds on which it was rendered; McShaffry must defeat each of these grounds. See Carr v. Brasher, 776 S.W.2d 567, 569 (Tex. 1989).

Res judicata has been used as a broad term for the related concepts of claim preclusion (res judicata) and issue preclusion (collateral etoppel). Barnes v. United States Parcel Serv., Inc., No. 01-09-00648-CV, 2010 WL 6808024, at *4 (Tex. App. Houston—[1st Dist.] June 23, 2011); see Barr v. Resolution Trust Corp., 837 S.W.2d 627, 628 (Tex. 1992). However, within this doctrinal umbrella there are two distinct legal theories—namely res judicata and collateral estoppel. Barr, 837 at 628. Res judicata prevents the relitigation of a claim or cause of action that has been finally adjudicated in a prior lawsuit. Id. Collateral estoppel, or issue preclusion, prevents relitigation of a fact issue resolved in a prior dispute. Id. Although claim preclusion and issue preclusion are related concepts, each provides a distinct affirmative defense. Therefore, McShaffry must negate on appeal both grounds upon which the trial court’s judgment may have been granted.

We conclude that McShaffry has not briefed the alternative ground of collateral estoppel. See Williams v. Crum & Forster Commercial Ins., 915 S.W.2d 39, 42–43 (Tex. App.—Dallas 1995) (noting that issue is waived when appellant fails to cite legal authority in support of issue, as required by rules of appellate procedure, and thereby affirming summary judgment because appellant had not properly challenged each ground asserted in support of summary judgment), rev’d on other grounds, 955 S.W.2d 267 (Tex. 1997). McShaffry confines his appeal to res judicata, asserting that “[t]he trial court erred in granting Appellees’ res judicata Motion for Summary Judgment because McShaffry did not have a claim against Appellees until after the trial court entered a Judgment resolving all claims against all parties in the previous lawsuit.” McShaffry offers no legal analysis, argument, citations to the record, nor any authorities to support his contention on appeal that his claims are not barred by collateral estoppel. See TEX. R. APP. P. 38.1(h). Because the trial court could have granted summary judgment on the basis that McShaffry’s claims were barred by either res judicata or collateral estoppel, and McShaffry did not brief the collateral estoppel ground, we must affirm the summary judgment. See Ellis, 68 S.W.3d at 898; Iglesia Hispana Nueva Vida Houston, Inc. v. Rosin, No. 01-06-00048-CV, 2007 WL 1633723, at *3 (Tex. App.—Houston [1st Dist.] June 7, 2007, no pet.) (mem. op.) (affirming summary judgment on collateral estoppel because appellant did not address it as possible ground for trial court’s summary judgment ruling); McIntyre v. Wilson, 50 S.W.3d 674, 681–82 (Tex. App.—Dallas 2001, pet. denied) (upholding summary judgment because trial court could have granted summary judgment on ground that appellant failed to adequately brief, by offering no discussion on issue, making passing reference to ground in other issues, and citing generally to law review article).

Nonetheless, we conclude that the trial court properly granted summary judgment based on res judicata. Res judicata prevents parties and those in privity with them from relitigating a case that a competent tribunal has adjudicated to finality. Ingersoll–Rand Co. v. Valero Energy Corp., 997 S.W.2d 203, 206 (Tex. 1999). Res judicata bars claims or defenses that could have been litigated in the earlier suit but were not. Id. at 206–07. “The doctrine is intended to prevent causes of action from being split, thus curbing vexatious litigation and promoting judicial economy.” Id. at 207. Under the doctrine of res judicata, a party is precluded from litigating a claim in a pending action if: (1) in a previous action, a court of competent jurisdiction rendered a final determination on the merits of a claim; (2) the parties that litigated the prior claim are identical to or in privity with the parties litigating the pending claim; and (3) the pending claim (a) is identical to the prior claim or (b) arises out of the same subject matter as the prior claim and could have been litigated in the previous action. Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 862 (Tex. 2010); Amstadt v. U.S. Brass Corp., 919 S.W.2d 644, 652 (Tex. 1996).

Judgments—except judgments void for lack of jurisdiction—are not subject to collateral attack; they may only be challenged on direct attack by appeal. Browning v. Placke, 698 S.W.2d 362, 363 (Tex. 1985). A collateral attack, unlike a direct attack, seeks to avoid the effect of a judgment in a later proceeding not instituted for the purpose of modifying or vacating the judgment, but instituted in order to obtain some relief that the judgment currently stands as a bar against. Henderson v. Chambers, 208 S.W.3d 546, 550 (Tex. App.—Austin 2006, no pet.) (holding that wife’s suit based on fraud claim was collateral attack on prior judgment); see Kendziorski v. Saunders, 191 S.W.3d 395, 408 (Tex. App.—Austin 2006, no pet.) (“A collateral attack . . . ‘is an attempt to avoid the effect of a judgment in a proceeding brought for some other purpose.’”) (quoting Employers Cas. Co. v. Block, 744 S.W.2d 940, 943 (Tex. 1988)). “[T]he prohibition against collateral attack extends to claims that false swearing or fraud of a party to the judgment renders it voidable.” In re Cantu, 961 S.W.2d 482, 486 (Tex. App.—Corpus Christi 1997, no writ) (citing Glenn v. Dallas Cnty. Bois D’Arc Island Levee Dist., 268 S.W. 452 (Tex. 1925); Kaphan v. Fid. & Deposit Co. of Md., 564 S.W.2d 459, 462 (Tex. Civ. App.—Houston [1st Dist.] 1978, writ ref’d n.r.e.)).

McShaffry sued LBM alleging that LBM interfered with a contract between McShaffry, Brindsen and Gerow by settling with Brindsen and assigning the county court judgment to him. McShaffry also alleged that LBM engaged in fraud by procuring false testimony in the county court. According to McShaffry, Brindsen paid LBM to settle the breach of commercial lease claim in exchange for LBM’s participation in a county court trial. LBM then assigned the resulting judgment to Brindsen so that Brindsen could obtain more money from McShaffry than he could have under their agreement. In all material respects, McShaffry’s claims in this case attack the judgment against him in the county court, because each of them stems from allegations that LBM obtained perjured testimony, with Brindsen’s help, in the earlier suit. McShaffry was a party to the suit, but chose not to appear at the trial. McShaffry’s claims present a collateral attack on the county court judgment: they are in substance claims that the county court proceedings were intrinsically fraudulent. But he makes no showing that he could not raise have raised these claims before the county court, during the proceeding to which he was a party. See Browning v. Prostok, 165 S.W.3d 336, 346 (Tex. 2005) (holding that bondholders’ claims that directors fraudulently undervalued company in earlier bankruptcy proceeding were intrinsic to bankruptcy court’s order and collateral attack on the judgment); see also Henderson, 208 S.W.3d at 550 (holding that wife’s suit based on claims her ex husband and lawyers fraudulently mischaracterized property was collateral attack on prior judgment). Because McShaffry’s claims represent an attack on the integrity of the county court proceedings—proceedings that involved the same nucleus of operative facts and to which he was a party—his claims present an impermissible collateral attack and are res judicata. [1] See Browning, 165 S.W.3d at 346; see also Henderson, 208 S.W.3d at 550.

Conclusion

We conclude that the trial court’s judgment, as based on collateral estoppel grounds, was not challenged on appeal; the judgment may stand on this basis alone. Further, the trial court properly granted summary judgment based on the affirmative defense of res judicata. Accordingly, we affirm the judgment of the trial court.

Jane Bland

Justice

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

Insufficient Notice of Summary Judgment Hearing: The three extra days when service is by mail cannot be taken for granted

Question: Is the nonmovant entitled to 24 days notice instead of 21 when a motion for summary judgment is served by mail or fax? [under Tex. R. Civ. P. 21a]

Answer: Yes, but ...

As Justice Higley explains in an opinion released last week, a complaint about insufficient notice must be made to the trial court, and not after the fact. A motion for new trial is too late to raise the issue. Nor will the non-movant prevail on appeal if error was not properly preserved in the court below.

FROM THE OPINION:
Hatler filed a motion for new trial in which he asserted, for the first time, that he had not received timely notice of the motion-for-summary-judgment hearing. Hatler pointed out that he had received only 21-days notice of the hearing. He asserted that, pursuant to the rules of civil procedure, he was entitled to 24-days notice. The trial court did not rule on the motion for new trial, and it was ultimately overruled by operation of law.

Hatler now appeals the summary judgment.
Preservation of Complaint Regarding Late Notice
In his only issue, Hatler contends that the trial court erred in granting Moore Wallace's motion for summary judgment. As he did in his motion for new trial, Hatler contends that he did not receive timely notice of the summary judgment hearing.
A. Relevant Legal Principles
In a summary judgment proceeding, the nonmovant is entitled to 21-days notice of the hearing or submission. Tex. R. Civ. P. 166a(c). When the motion is served by certified mail or by facsimile, three additional days are added to the prescribed period. See Tex. R. Civ. P. 21a. As a result, a nonmovant is entitled to a minimum of 24-days notice of a hearing or of the submission date if he has been served by certified mail or by facsimile. See Tex. R. Civ. P. 21a, 166a(c); Lewis v. Blake, 876 S.W.2d 314, 316 (Tex. 1994). The notice provision serves to provide the nonmovant with a full opportunity to respond to the merits. See Stephens v. Turtle Creek Apartments, Ltd., 875 S.W.2d 25, 26 (Tex. App.--Houston [14th Dist.] 1994, no writ).

Nonetheless, lack of proper notice of a summary judgment hearing is a non-jurisdictional defect that the nonmovant can waive. See May v. Nacogdoches Mem'l Hosp., 61 S.W.3d 623, 626 (Tex. App.--Tyler 2001, no pet.); see also White v. Wah, 789 S.W.2d 312, 319 (Tex. App.--Houston [1st Dist.] 1990, no writ).

To preserve error, a nonmovant, who receives notice that is untimely but sufficient to enable the nonmovant to attend the summary judgment hearing, must file a motion for continuance or raise the late-notice complaint in writing, supported by affidavit evidence. May, 61 S.W.3d at 626; Rios v. Texas Bank, 948 S.W.2d 30, 33 (Tex. App.--Houston [14th Dist.] 1997, no writ). The nonmovant should also raise the issue before the trial court at the summary judgment hearing. May, 61 S.W.3d at 626; Rios, 948 S.W.2d at 33.

A nonmovant may not preserve a complaint that he received late notice in a post-trial motion. See Nguyen v. Short, How, Frels, & Heitz, P.C., 108 S.W.3d 558, 561 (Tex. App.--Dallas 2003, pet. denied). A nonmovant may preserve error in a post-trial motion only when he complains that he was not given notice of the summary judgment hearing or that he was deprived of his right to seek leave to file additional affidavits or other written response. See id. at 560-61; May, 61 S.W.3d at 626.
B. Analysis
In this case, Hatler correctly asserts that he did not receive timely notice of the motion for summary judgment hearing. It is undisputed that he was entitled to a 24-day notice but received only a 21-day notice. Nevertheless, to preserve his complaint, Hatler was required to file a motion for continuance or to raise the late-notice complaint in writing before the trial court granted Moore Wallace's motion for summary judgment. See May, 61 S.W.3d at 626; Rios, 948 S.W.2d at 33. Despite having ample time to do so, Hatler did neither. See, e.g., Fertic v. Spencer, 247 S.W.3d 242, 247-48 (Tex. App.--El Paso 2007, pet. denied) (determining that nonmovant had sufficient time to file written objection to late notice when nonmovant claimed he had only 8 days notice); Mays, 61 S.W.3d at 627 (concluding that two-day notice was adequate time for nonmovant to have filed a written objection to late notice). Instead, Hatler raised the complaint for the first time in his motion for new trial. Hatler's motion for new trial does not preserve his late-notice complaint. See Fertic, 247 S.W.3d at 248 n.4 (noting that raising late notice issue in motion for new trial did not preserve complaint); Nguyen, 108 S.W.3d at 561 (concluding that late-notice issue raised for first time in affidavit attached to motion for new trial did not preserve error).

We hold that Hatler did not preserve his late-notice complaint for our review. See Nguyen, 108 S.W.3d at 561; Mays, 61 S.W.3d at 627. We overrule his sole issue.
Conclusion
We affirm the judgment of the trial court.

Hatler v. Moore Wallace North America, Inc. (Tex.App.- Houston [1st Dist.] Feb. 4, 2010)(Higley) (21 days vs 24 days notice prior to summary judgment hearing depending on method of service; insufficient notice is not jurisdictional and can be waived, requirement for preservation of complaint about inadequate notice in the trial court)
AFFIRM TC JUDGMENT: Opinion by Justice Higley
Before Chief Justice Radack, Justices Alcala and Higley01-07-00181-CV Paul Hatler v. Moore Wallace North America, Inc.
Appeal from 268th District Court of Fort Bend County
Trial Court Judge: Hon. Brady G. Elliott

Texas Rule of Civil Procedure (TRCP) 21a provides in relevant part: Whenever a party has the right or is required to do some act within a prescribed period after the service of a notice or other paper upon him and the notice or paper is served upon him by mail or by telephonic document transfer, three days shall be added to the prescribed period. Tex. R. Civ. P. 21a

Siblings' Bystander Claim in Brother's Drowning Death Rejected

Does it make a difference if you actually saw your little brother die, or "just" saw his dead body when it flushed out of a drainage pipe? Apparently it does, but justices on panel reviewing summary judgment in favor of city in suit complaining of uncovered culverts are not of one mind.

Jones v. City of Houston (Tex.App.- Houston [1st Dist.] Aug. 27, 2009)(Jennings)

In the plaintiffs' second amended petition, the Jones siblings alleged that on June 25, 2004, Logan Jones, their thirteen-year-old brother, drowned when he was sucked into and trapped underwater in a culvert owned and maintained by the City. After spending over an hour waiting by the culvert for rescue teams to find their brother, the Jones siblings saw Logan's body float out of a culvert several blocks north of the culvert. After seeing Logan's injuries and that he had died, the Jones siblings "began to experience extreme nervousness, anxiety, depression, mental anguish, distractibility, and difficulty sleeping," and they sought recovery for these damages as bystanders. The Jones siblings based their bystander claims for wrongful death on the City's gross negligence in creating and maintaining the culvert.

The City, in its motion for summary judgment, contended that the Jones siblings were not entitled to recover for their emotional trauma and mental anguish as bystanders.


* * *

[W]e hold that the City's summary judgment evidence established as a matter of law that the Jones siblings could not recover as bystanders for any mental anguish and emotional trauma caused by their brother's drowning.


Jones v. City of Houston (Tex.App.- Houston [1st Dist.] Aug. 27, 2009)(Jennings) (TTCA, drowning death of child, uncovered culvert, siblings' bystander claim rejected, drowning deaths)

Disposition: Trial Court Judgment Affirmed
Appellate Opinion by Justice Jennings
Panel composition: Before Justices Jennings, Alcala and Higley
Appellate cause no: 01-08-00905-CV
Full style of case in the court of appeals: Landon Jones and Loren Jones v. City of Houston
Court below: Appeal from 215th District Court of Harris County
Trial Court Judge: Hon. Levi J. Benton

Dissenting Opinion by Justice Elsa Alcala in Jones v. City of Houston

JUDGMENT FOR HOME OWNERS' ASSOCIATION NOT VOID Bankruptcy Discharge Defense Was Not Presented to the Trial Court and WasThus Waived

In this pro-se appeal from a summary judgment in favor of a home owners' association, the Fourteenth Court of Appeals, in a panel opinion penned by a former justice sitting as a visiting judge, holds that the collection of delinquent assessments was not barred by homeowner's bankruptcy discharge. The argument was not properly presented to the trial court. As an affirmative defense, the bankruptcy discharge defense must be properly pleaded, and must be asserted in a proper response when the Plaintiff moves for summary judgment on its claim. The defendant/appellant in this case did neither. It was too late to raise the issue in a motion for new trial.

Relevant part of the opinion by Senior Justice Price follows:

Discharge in Bankruptcy

In the final issue presented on appeal, [the homeowner/appellant] claims the trial court's judgment is void because the debt he owed to Westgate was discharged in bankruptcy. However, discharge in bankruptcy is an affirmative defense that must be pleaded. See Tex. R. Civ. P. 94; Sparks v. Booth, 232 S.W.3d 853, 871 (Tex. App.- Dallas 2007, no pet.).

An affirmative defense that is not pleaded or proved, and on which findings are not obtained,
is waived and cannot be preserved by raising the affirmative defense for the first time in a motion for new trial. Hamm v. Millennium Income Fund, L.L.C., 178 S.W.3d 256, 268 (Tex. App.- Houston [1st Dist.] 2005, pet. denied).

Here, discharge in bankruptcy was not raised or even hinted-at by the pleadings. Instead, the affirmative defense was not presented to the trial court until Monk's motion for new trial, which did not preserve the issue for our review. See id. Thus, we overrule [the homeowner's] final issue.

Monk v. Westgate Homeowners' Association, Inc. (Tex.App.- Houston [14th Dist.] Aug. 11, 2009)(Price) (motion for new trial and preservation of error for appellate review, discharge in bankruptcy as affirmative defense required to be pleaded)
AFFIRMED: Opinion by Senior Justice Frank C. Price
Before Price, Justices Brock Yates and Guzman
14-07-00886-CV Joseph Monk v. Westgate Homeowners' Association, Inc.
Appeal from 270th District Court of Harris County
Trial Court Judge: Brent Gamble

SJ Standard & Review on Appeal: Justice Keyes Chides Appellate Panel for Approving Resolution of Disputed Pivotal Fact Issues by Summary Judgment

Kennamer v. The Estate of Alwin Noblitt (Tex.App.- Houston [14th Dist.] 2009)(Higley) (liability for personal injury damages caused by animals)

In a sharply worded dissent from denial of en banc rehearing of a summary judgment appeal from a personal injury suit occasioned by a cow gone wild, Justice Evelyn Keyes takes three of her colleagues to task for "jumping through hoops" and turning established standards of summary judgment review upside down by allowing a key fact issue - whether the defendant owned the cow that went on the rampage - be resolved by summary judgment.

FROM JUSTICE KEYES' OPINION

DISSENTING FROM DENIAL OF EN BANC REVIEW:

I respectfully dissent from denial of en banc review. The sole issue on which appellees moved for summary judgment in this case was ownership of the cow that attacked and injured appellant John Kennamer, upon which appellees’ duty to Kennamer was predicated in this suit for damages for negligence.

This was a hotly disputed fact issue, as the summary judgment proofs of both sides demonstrate.

The standard of proof of traditional summary judgment is well-established. Specifically, summary judgment shall be granted if the summary judgment proofs and the pleadings establish show, “except as to the amount of damages, there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law on the issues expressly set out in the motion or in an answer or any other response.” Tex. R. Civ. P. 166a(c) (emphasis added).

The standard of review for a traditional summary judgment motion is threefold: (1) the movant must show that there is no genuine issue of material fact and that he is entitled to judgment as a matter of law; (2) in deciding whether there is a disputed material fact issue precluding summary judgment, the court must take evidence favorable to the nonmovant as true; and (3) the court must indulge every reasonable inference in favor of the nonmovant and resolve any doubts in the nonmovant’s favor. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548–49 (Tex. 1985); see Tex. R. Civ. P. 166a(c).

Here, the panel jumps through hoops to uphold the summary judgment, spending six pages of the slip opinion weighing the deposition testimony attached as summary judgment proof and determining for itself on the basis of its assessment of the credibility of the witnesses and the weight it assigns their deposition testimony that appellees did not own the cow. It concludes that appellees are entitled to summary judgment because they did not own the cow by disregarding all of the summary judgment evidence of ownership of the cow favorable to Kennamer, the non-movant, including his recognition of the cow as one owned by Noblitt, its age, its color, its skinniness, the length of its horns, the notches on the cow’s ears, the brands and absence of brands on Noblitt’s, Kennamer’s, and Fitzgerald’s cows, and by seizing upon Kennamer’s testimony that the cow was branded and the movants’, appellees’, conflicting testimony that Noblitt’s cows were not branded. It then credits as true Noblitt’s testimony that his cows were not branded (although one deposition witness suggested that Noblitt might have owned some branded cattle), and, having credited the movant’s self-serving testimony on one of many disputed fact issues as dispositive of ownership of the cow, the panel concludes that no reasonable jury, presented with all the evidence from witnesses subject to cross-examination in a courtroom where their demeanor might be observed and all the disputed indicia of ownership of the cow might be weighed, could have found that Noblitt owned the cow.

Therefore, the panel holds that appellees were entitled to judgment as a matter of law declaring them not liable for Kennamer’s injuries.

* * *

If appellants’ summary judgment evidence is taken as true and appellants’ conflicting evidence is disregarded, as required by Texas law, the summary judgment in favor of appellees cannot be sustained.

This Court should have reversed the summary judgment and sent the case back for trial on the disputed material fact issue of who owned the cow. It should not have weighed conflicting evidence, determined the credibility of witnesses from the summary judgment proofs, and determined for itself that the red cow was branded with an upside-down “U,” that appellants’ cows were not branded with an upside-down “U,” and, therefore, no reasonable juror could have decided the case in favor of appellants.

The panel, however, reads Keller as requiring it to weigh the evidence for itself and to determine whether reasonable people could differ with its own judgment. I believe that this is a plainly erroneous interpretation of controlling law and that it misapplies the summary judgment rule in a way that subverts both the language and purpose of the rule, results in a miscarriage of justice in this case, and distorts summary judgment practice within the jurisdiction of this Court.

I believe it wrongfully encourages parties to file summary judgment motions on fact issues as to which there is conflicting evidence in the hope that this Court, following its own precedent, will determine that no reasonable person could disagree with its own determination of disputed facts, transforming summary judgment practice from a means of disposing of cases that present only legal issues to a means of trying material fact issues by selected proofs submitted to the court, as in the continental European system. For those reasons, I believe this case satisfies the criteria for en banc review. See Tex. R. App. P. 41.2(c).

I would grant en banc review.

Evelyn V. Keyes

Justice

Panel consists of Chief Justice Radack and Justices Higley and Nuchia.

Justice Keyes, dissenting to the denial of en banc review.

Kennamer v. The Estate of Alwin Noblitt (Tex.App.- Houston [14th Dist.] 2009)(Higley)
(animal law, liability of injuries caused by cow running loose, ownership of cow disputed, summary judgment, no ownership, no duty, no liability)
AFFIRM TC JUDGMENT: Opinion by Justice Higley
Before Chief Justice Radack, Justices Nuchia and Higley
01-08-00134-CV John L. Kennamer, Individually and John L. Kennamer and Mora Kennamer d/b/a K-Bar land and Cattle Company v. The Estate of John Alwin Noblitt, Deceased, Charles R. Noblitt, Jr., Individually and as Administrator of the Estate of John Alwin Noblitt, Deceased, and Jo Ann Jones, Individually and as Heir of The Estate of John Alwin Noblitt, Deceased
Appeal from County Court at Law No 2 & Probate Court of Brazoria County
Trial Court Judge: Hon. Mark Holder
Dissenting Opinion by Justice Keyes (criticizing panel for subverting summary
judgment standard and permitting resolution of issues of disputed fact by summary judgment, crediting
evidence submitted by movant).

SP Midtown Ltd v. Urban Storage, LP (Tex.App.- Houston [14th Dist.] 2008)

This is an appeal from the granting of a no-evidence summary judgment in favor of appellees, Urban Storage, L.P. d/b/a Midtown Mini Storage and d/b/a Midtown Mini Warehouse and d/b/a/ Midtown Self Storage, Midtown Storage, L.L.C., and The Jenkins Organization, Inc. In two issues, appellant, SP Midtown, Ltd. d/b/a/ Space Place Midtown argues (1) the trial court erred in granting Midtown's no-evidence motion for summary judgment because Space Place presented more than a scintilla of evidence on each challenged element, and (2) the trial court erred in denying Space Place's objections to Midtown's summary judgment evidence. The Fourteenth Court of Appeals, in opinion by Justice John Anderson, affirms in part, and reverses and remands in part.

SP Midtown Ltd. v. Urban Storage, LLC (Tex.App.- Houston [14th Dist.] May 8, 2008)(Anderson) (summary judgment case, trade secrets, tortious interference)
AFFIRMED IN PART; REVERSED & REMANDED IN PART: Opinion by Justice Anderson Before Chief Justice Hedges, Justices Anderson and Boyce
14-07-00717-CV SP Midtown Ltd. d/b/a Space Place Midtown v. Urban Storage, L.P. d/b/a Midtown Mini Storage and d/b/a Midtown Mini Warehouse and d/b/a Midtown Self Storage , Midtown Storage, L.L.C. and The Jenkins Organization, Inc.
Appeal from 80th District Court of Harris County
Trial Court Judge: Lynn M. Bradshaw-Hull

CONCLUSION

We reverse the judgment of the trial court granting Midtown's summary judgment motion as to Space Place's causes of action for theft, misappropriation, and/or misuse of confidential information and/or trade secrets; unjust enrichment; tortious interference with contractual relationships; and conspiracy to misappropriate, tortiously interfere with contractual relationships, and induce the breach of a fiduciary duty. We remand these portions of the judgment to the trial court for further proceedings consistent with this opinion. We affirm the judgment of the trial court granting Midtown,s summary judgment motion as to Space Place's causes of action for tortious interference with prospective business relationships and conspiracy to tortiously interfere with prospective business relationships.