Opinion
No. 04-07-00380-CV
Delivered and Filed: March 19, 2008.
Appeal from the 407th Judicial District Court, Bexar County, Texas, Trial Court No. 99-CI-14256, Honorable Karen Pozza, Judge Presiding.
AFFIRMED.
Sitting: CATHERINE STONE, Justice, SANDEE BRYAN MARION, Justice, REBECCA SIMMONS, Justice.
MEMORANDUM OPINION
This case involves a dispute over insurance policy commissions paid to appellant Ventura Servin on policies that lapsed for nonpayment. Appellee Great Western Insurance Company ("Great Western") sued Servin for breach of contract to recover a prorated amount of the commissions it had paid to him. Servin counterclaimed for fraud/fraudulent inducement, malicious prosecution, and breach of fiduciary duty. The trial court granted Great Western's hybrid motion for traditional and no evidence summary judgment as to all of Servin's counterclaims. After a bench trial on Great Western's breach of contract claim, the trial court awarded Great Western $136,090.64 in damages as well as attorney's fees and prejudgment and post-judgment interest. Because the issues in this appeal involve the application of well-settled principles of law, we affirm the trial court's judgment in this memorandum opinion.
A. Summary Judgment Disposing of Servin's Counterclaims
Servin argues the trial court erred in granting Great Western's hybrid motion for traditional and no-evidence summary judgment as to his counterclaims. Traditional summary judgment under Texas Rule of Civil Procedure 166a(c) is proper only when a movant establishes there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Randall's Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex. 1995); see Tex. R. Civ. P. 166a(c). A defendant is entitled to summary judgment if the evidence disproves as a matter of law at least one element of each of the plaintiff's causes of action or if it conclusively establishes all elements of an affirmative defense. Randall's Food, 891 S.W.2d at 644.
A party may move for a no evidence summary judgment under Texas Rule of Civil Procedure 166a(i) "if there is no evidence of one or more essential elements of a claim or defense on which an adverse party would have the burden of proof at trial." Flameout Design Fabrication, Inc. v. Pennzoil Caspian Corp., 994 S.W.2d 830, 834 (Tex.App.-Houston [1st Dist.] 1999, no pet.); see Tex. R. Civ. P. 166a(i). "The trial court must grant the motion unless the nonmovant produces more than a scintilla of evidence raising a genuine issue of material fact on the challenged elements." Flameout Design, 994 S.W.2d at 834.
When reviewing the granting of either type of summary judgment motion, we indulge every reasonable inference from the evidence in favor of the nonmovant, resolve any doubts arising from the evidence in its favor, and take as true all evidence favorable to it. Malcomson Rd. Util. Dist. v. Newsom, 171 S.W.3d 257, 263 (Tex.App.-Houston [1st Dist.] 2005, pet. denied). If a movant prevails on a hybrid motion for summary judgment and the order granting summary judgment does not identify the basis for the judgment, the nonmovant must challenge, and prevail on, every traditional and no evidence ground raised in the motion for summary judgment to obtain a reversal on appeal. See Pierce v. Holiday, 155 S.W.3d 676, 679 (Tex.App.-Texarkana 2005, no pet.); Tesoro Petroleum Corp. v. Nabors Drilling USA, Inc., 106 S.W.3d 118, 134 (Tex.App.-Houston [1st Dist.] 2002, pet. denied).
The record shows Servin filed counterclaims against Great Western for fraud/fraudulent inducement, malicious prosecution, and breach of fiduciary duty. Although the trial court granted Great Western's summary judgment motion as to all of Servin's counterclaims, Servin has not asserted any error on appeal regarding his breach of fiduciary duty claim. Because Servin did not assert any error about his breach of fiduciary duty claim, he waived error as to this claim. See Ontiveros v. Flores, 218 S.W.3d 70, 71 (Tex. 2007) (per curiam).
Likewise, we conclude Servin has waived error on appeal regarding his contention that the trial court erred in granting summary judgment in favor of Great Western on his malicious prosecution claim. Servin's brief provides no substantive analysis to explain or develop his contention. A party asserting error on appeal must put forth some specific argument and analysis showing that the record and the law support his or her contentions. See Tex. R. App. P. 38.1(h) (requiring appellant's brief to contain "a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record"); see also Strange v. Cont'l Cas. Co., 126 S.W.3d 676, 678 (Tex.App.-Dallas 2004, pet. denied). By inadequately briefing his malicious prosecution complaint, we conclude Servin has waived his right to appellate review of this contention. See Helm Cos. v. Shady Creek Housing Partners, Ltd., No. 01-05-00743-CV, 2007 WL 2130186, *7 (Tex.App.-Houston [1st Dist.] 2007, pet. filed).
As for Servin's claim that the trial court erred in granting summary judgment in favor of Great Western on his fraud/fraudulent inducement claims, we must reject his contention. Servin claims Great Western is liable to him under theories of fraud/fraudulent inducement because its regional director, Matt Boyd, made a false representation to him to induce him to execute his general agent agreement with the company and hire unlicensed agents to solicit and sell Great Western insurance for him. Servin alleges that the unlicensed agents he hired as a result of Boyd's false representation to him were the individuals responsible for procuring the majority of the policies that are the subject of the parties' underlying commission dispute. He claims that had Boyd not falsely represented to him that he could rely on unlicensed agents to solicit business for him, he would not have entered the agent agreement and hired the unlicensed agents responsible for selling the policies that eventually lapsed for nonpayment.
Great Western moved for summary judgment on Servin's fraud/fraudulent inducement claims on the ground that, as a matter of law, Servin could not rely on the alleged misrepresentation by Boyd because it directly contradicted the express terms of the parties' general agent agreement. See DRC Parts Accessories, L.L.C. v. VM Motori, S.P.A., 112 S.W.3d 854, 858 (Tex.App.-Houston [14th Dist.] 2003, pet. denied) (stating "[o]ne of the elements of a fraud claim is that the plaintiff actually and justifiably relied on the misrepresentation to suffer injury."); see also DeClaire v. G B McIntosh Family Ltd. P'ship, No. 01-06-00423-CV, 2007 WL 3293774, *9 (Tex.App.-Houston [1st Dist.] 2007, no pet.). According to Great Western, the general agent agreement executed by Servin included language that expressly barred him from utilizing and paying commissions to unlicensed agents. Great Western thus asserted that Servin's reliance upon an oral representation that is directly contradicted by the express terms of the parties' written agreement is not justified as a matter of law. See VM Motori, 112 S.W.3d at 858 ("[R]eliance upon an oral representation that is directly contradicted by the express, unambiguous terms of a written agreement between the parties is not justified as a matter of law."); see also DeClaire, 2007 WL 3293774 at *9; Playboy Enters., Inc. v. Editorial Caballero, S.A. de C.V., 202 S.W.3d 250, 258 (Tex.App.-Corpus Christi 2006, pet. denied).
The record shows the alleged representation about which Servin complains is directly contradicted by the express, unambiguous terms of the parties' general agent agreement, which prohibits Servin's use of unlicensed agents. Consequently, we hold Servin was not justified in relying upon Boyd's alleged representation as a matter of law. See VM Motori, 112 S.W.3d at 858; DeClaire, 2007 WL 3293774 at *9. Because Servin was not justified in relying upon Boyd's alleged representation as a matter of law, we conclude the trial court properly granted summary judgment in favor of Great Western as to Servin's fraud/fraudulent inducement claims.
B. Bench Trial Disposing of Great Western's Breach of Contract Claim
Servin further contends there is insufficient evidence to support the trial court's liability and damages findings in connection with Great Western's breach of contract claim. When there is an appeal involving only a partial reporter's record, like this case, we generally presume the omitted portions of the record are relevant and support the trial court's judgment. Mason v. Our Lady Star of Sea Catholic Church, 154 S.W.3d 816, 819 (Tex.App.-Houston [14th Dist.] 2005, no pet.). Texas Rule of Appellate Procedure 34.6(c), however, provides an exception to this general presumption. Id.; Tex. R. App. P. 34.6(c). Under Rule 34.6(c), an appellant may present an appeal on a partial reporter's record and not be subject to the general presumption if he includes in his request for the reporter's record a statement of the points or issues to be presented on appeal. Tex. R. App. P. 34.6(c)(1); see Mason, 154 S.W.3d at 819. "This statement limiting the points or issues to be presented on appeal puts the other parties on notice that the appellate court will presume the designated portions of the record constitute the entire record for reviewing the stated points or issues, and it allows the other parties the opportunity to request any additional portions of the record they believe are relevant to the issues or points." Mason, 154 S.W.3d at 819.
In the case at bar, Servin did not file a statement of the points or issues on which he intended to rely as required by Rule 34.6(c)(1). We must therefore presume the omitted portions of the record are relevant and support the trial court's judgment. See id. Accordingly, we reject Servin's sufficiency complaint and affirm the trial court's judgment. See Bennett v. Cochran, 96 S.W.3d 227, 229 (Tex. 2002) (stating that "had [appellant] completely failed to submit his statement of points or issues, Rule 34.6 would require the appellate court to affirm the trial court's judgment."); see also Davis v. Kaufman County, 195 S.W.3d 847, 851 (Tex.App.-Dallas 2006, no pet.).