Reverse and Render : Texas Appellate Lawyer & Attorney : Cowles & Thompson Law Firm : Court of Appeals, Texas Supreme Court

Yet another summary judgment gone wrong.

Sundance Resources, Inc. v. Ole Brook Energy Services, Inc. reminds me of my sixth grade math teacher; she used to deduct points from tests when students failed to show their work.  In this case, the attorneys concluded they were entitled to summary judgment  but they didn't show their work.  They got away with it in the trial court, but weren't so lucky under the 7th Court of Appeals' scrutiny.  

Ole Brook  contracted to perform well services for a group of entities.  When it was not paid for its services, Ole Brook sued the owner of the land, Sundance, even though its name was not in any of the contracts.  Old Brook alleged breach of contract, sworn account, lien foreclosure, and recovery of attorney's fees. 

Shortly after filing suit, Ole Brook moved for summary judgment.  Its motion, however, did not state the basis on which Ole Brook was entitled to summary judgment.  Also, Ole Brook didn't identify the elements of any of its claims.  Instead, the motion merely alleged a contract with Sundance and that the contract obligated Sundance to satisfy the unpaid balance.  Assuming Ole Brook intended this language to mean its breach-of-contract claim, it did not address each element of that claim.

Sundance, unable to determine what exactly Ole Brook was moving for, filed special exceptions to the motion, which the trial court denied.  The trial court then ruled in Ole Brook's favor.  On appeal, however, the Amarillo Court of Appeals reversed the summary judgment holding the trial court abused its discretion for failing to sustain the special exception.

Plain and simple, the attorneys didn't show their work, and lost on appeal.  The lesson: Don't be too casual in filing your summary-judgment motion. 

 The opinion is here.

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When should a party specially except to the grounds of a summary judgment motion?  Should the non-movant specially except when the grounds are ambiguous?  Or if the grounds are not expressly present? 

The Dallas Court of Appeals addressed this issue in Garza v. CTX Mortgage Company, LLC. 

The Garzas sued CTX for various causes of action relating to CTX's management and administration of the loan proceeds used to construct their house.  CTX successfully moved for summary judgment on all of the Garzas' claims.  The Garzas appealed.

On appeal, the Garzas argued for the first time that CTX did not identify and negate an essential element of each of their claims.  CTX argued that the Garzas waived the argument on appeal because they did not specially except in the trial court.  Did the Garzas waive their right to contest the grounds of CTX's motion?

According to the Court, the Garzas did not need to specially except because special exceptions to summary judgment grounds are only required when the motion is ambiguous.  Here, the motion simply failed to identify and negate elements of each of the Garzas' claims, which is an issue that may be presented for the first time on appeal.

Here is the opinion.  

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How effective is a motion for summary judgment that has no evidence attached to it?  Not very.  Sometimes you can dodge a few bullets.  Ultimately, you will get hit.  That's what happened in the Dallas Court of Appeals' opinion in  American Board of Obstetrics and Gynecology, Inc. v. Yoonessi.

The American Board of Obstetrics and Gynecology ("ABOG"), a non-profit, sued one of its members, Mahmood Yoonessi, M.D., for breach of contract, abuse of process, and malicious prosecution.  This lawsuit was a response to lawsuits Yoonessi had filed against it in California and New York.

Yoonessi filed a traditional motion for summary judgment, but attached only ABOG's original petition as evidence.  The court was able to use ABOG's evidence attached in its response to dismiss the breach of contract and malicious prosecution claims.  However, Yoonessi was not so lucky with his abuse of process argument.

In the abuse of process argument, Yoonessi claimed that he used process to maintain a lawsuit "which is a proper use of service, regardless of the actual merits of the case."  But Yoonessi failed to provide any evidence that his use of process was proper.  Thus, the court of appeals reversed judgment on the abuse of process claim and remanded to the trial court for further proceedings. 

You may read this short opinion here.

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The Texas Supreme Court recently held that Rule 193.6 of the Texas Rules of Civil Procedure applies to summary judgment proceedings.  Thus, any discoverable information, including expert information under Rule 194, that has not been properly disclosed or supplemented, should be excluded.  The Court stated that "the 'hard deadline' established by the pretrial discovery rules ensures that the evidence presented at the summary judgment stage and the trial stage remains the same.  Accordingly, the 193.6 exclusionary rule applies equally to both proceedings."  This decision agrees with most courts of appeals that have addressed the issue except for Corpus Christi and Texarkana, both of which had declined to apply Rule 193.6 to summary judgment proceedings.  The Court's per curiam opinion in Fort Brown Villas III Condominium Ass'n, Inc. v. Gillenwater can be found at this link.

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The more time you spend studying City of Dallas v. Dallas Morning News, the more I.Q. points you lose.  This case may be more important for what it doesn't answer than for what you hope it will answer. 

The primary issue in this appeal is whether e-mails that are sent to and from private e-mail addresses of the Mayor and other city officials and which involve matters of official public business, are public information and subject to the Texas Open Records Act.

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I've wanted to write something about Boenig v. Starnair, Inc. since I first read it because I believe the analysis is incorrect. 

This case involves the intersection of the responsible third party statute and a statute of repose.

Boenig sued contractor Pulte in November 2005 for injuries she allegedly sustained when she fell through the attic floor of a home Pulte built.  On July 19, 2007, Pulte filed a motion for leave to designate Starnair as a responsible third party.  Starnair was a subcontractor that performed the heating, ventilation, and air conditioning installation in the home.  On August 23, 2007, Boenig filed her fourth amended petition in which she joined Starnair as a defendant.

Starnair moved for summary judgment in reliance upon the ten-year statute of repose set out in Civil Practice and Remedies Code Section 16.009.  The trial court granted the motion and Boenig appealed.

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Can the non-movant in a summary judgment context use the movant's evidence (attached to support a traditional motion for summary judgment) to challenge no-evidence grounds for summary judgment on appeal?

According to the El Paso Court of Appeals, the answer is "no." 

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The Waco Court of Appeals recently held, once again, that parties should obtain written orders on objections to summary judgment evidence in order to preserve error for review on appeal.  The Court went on to analyze when rulings are implicit and held that while rulings can be inferred, they can only be inferred from the record of which the docket sheet is not a part.  As a result, the Court treated the objections as not having been ruled upon.  The Court's opinion in Willis v. Nucor Corp. can be found at this link.

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In Shaw v. Radionic Industries, Inc., the plaintiff moved for summary judgment against the pro se defendant on a claim for a suit on a sworn account. The court set a hearing for the motion on April 2, 2007. Later, the plaintiff sent a transmittal letter dated March 22, 2007 to the defendant to inform him of the hearing. The letter did not contain a certificate of service.

Did the defendant receive proper notice?

The trial court did grant the summary judgment, but the Dallas Court of Appeals later overturned the judgment in a restricted appeal. Because summary judgment is such a harsh remedy, the court scrutinized the record and discovered that the plaintiff was dilatory in sending the notice of hearing letter.  As a result, the defendant only received 11 days notice of the hearing.  But Tex. R. Civ. P. 166a(c) requires that the non-movant receive notice 21 days before the hearing. So the court reversed the summary judgment and remanded the case back to the trial court for further proceedings.

Because the untimely notice was sufficient to overturn the judgment, the court did not reach the other complaints regarding service. One involved the lack of a certificate of service in the letter. Incidentally, if a party sends notice of a hearing by way of a transmittal letter as oppposed to a completed fiat, notice may be defective unless the letter contains a certificate of service.  See Tex. R. Civ. P. 21a.

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The Beaumont Court of Appeals recently addressed the difference between judicial estoppel and a judicial admission.  Plaintiff filed a claim with the EEOC and brought suit against defendant for gender discrimination.  After her federal suit was dismissed, she sued the defendant in state court for unlawful termination based on her refusal to perform an illegal act.  Defendant sought summary judgment arguing that plaintiff's federal pleading consituted a judical admission that plaintiff had been fired because of her gender.  In deciding the case, the court of appeals noted that the defendant moved for summary judgment on the basis of plaintiff's alleged judicial admission, but the plaintiff's response only addressed judicial estoppel.   The court explained the difference:

Judicial admission and judicial estoppel are separate principles.  Judicial estoppel is a rule of procedure based on justice and sound policy that bars a party from taking a position inconsistent with one taken in a earlier proceeding.  A judicial admission, by contrast, results when a party makes a statement of fact which conclusively disproves a right of recovery or defense currently asserted.

The court then held that plaintiff's statment in her federal pleadings that she was fired for gender discrimination constituted a judicial admission barring recovery on her state claim under Sabine Pilot that she was fired for refusing to perfom an illegal act.  The court affirmed summary judgment for the defendant.  The court's opinion in Louviere v. Hearst Corp., can be found at this link. 

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The Texarkana Court of Appeals held that a no-evidence motion for summary judgment need only identify the challenged element in order to comply with Rule 166a(i).  Plaintiff argued that the motion must list all of the elements and identify the challenged element(s).  The court of appeals disagreed and held the motion sufficient if it "merely reference[s] the element on which there is no evidence,"  in this case cause-in-fact.  The opinion in Driskill v. Ford Motor Co. can be found at this link. 

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