Opinion
No. 05-10-00642-CV
Opinion Filed May 31, 2011.
On Appeal from the Court at Law No. 5, Dallas County, Texas, Trial Court Cause No. cc-09-08193-E.
Before Justices O'NEILL, FITZGERALD, and LANG.
MEMORANDUM OPINION
Appellee Mid-Continent Casualty Co. ("Mid-Continent"), sued its insureds Buescher Homes, Inc. and Buescher Interests, L.P. (the "Buescher Parties") for breach of contract. Appellant, Evan Lane "Van" Shaw ("Shaw") filed a petition in intervention that raised claims against Mid-Continent. The trial court granted Mid-Continent's motions for summary judgment and dismissed Shaw's claims. Shaw appeals that summary judgment. In two issues, Shaw argues: (1) the trial court erred in granting summary judgment on grounds not contained in Mid-Continent's motion for summary judgment; and (2) the trial court erred in granting summary judgment on "matters not pled" in Mid-Continent's answer. We decide against Shaw on his issues and affirm the trial court's summary judgment. Because all dispositive issues are well settled in law, we issue this memorandum opinion. Tex. R. App. P. 47.2(a), 47.4.
The Buescher Parties are not parties to this appeal.
I. FACTUAL AND PROCEDURAL BACKGROUND
From January 27, 2003 to January 27, 2004, Mid-Continent provided commercial general liability insurance for Buescher Homes, Inc. and Buescher Interests, L.P. (the "Buescher Parties") who were homebuilders. During that period, the Buescher Parties were sued by Lisa Feldman and Frisco Square HOA (the "Feldman Suit") and Mid-Continent allegedly incurred costs in the amount of $13,977.03 relating to providing a defense for the Buescher Parties in that suit. Then, in an effort to recover some of those costs, Mid-Continent filed suit against the Buescher Parties to recover $10,000, which was the amount of the deductible under the terms of the Buescher Parties' insurance policy (the "Deductible Suit"). Shaw filed a Petition in Intervention in the Deductible Suit, seeking recovery of his attorney's fees and expenses that he claimed he was due for representing the Buescher Parties in the Feldman Suit. Mid-Continent claimed, inter alia, that Shaw had no right to seek recovery of fees and expenses for that representation. The Buescher Parties were dismissed without prejudice from the Deductible Suit, leaving Shaw and Mid-Continent as the remaining parties.
Mid-Continent filed a Traditional and No Evidence Motion for Summary Judgment Against Shaw. The Motions asserted ten grounds for summary judgment: (1) Shaw was not a party to, or insured under the Buescher Parties' insurance policy; (2) the policy does not clearly and fully express any intent by the Buescher Parties or by Mid-Continent to confer a direct benefit to Shaw; (3) Shaw had no standing to assert a third-party beneficiary claim because was not a party to, or insured under, the insurance policy, and any benefit Shaw may have received under the policy was only incidental; (4) there was no evidence that the Buescher Parties and Mid-Continent had any intention under the terms of the insurance policy to confer a direct benefit to Shaw; (5) there was no evidence that Mid-Continent had a contract with Shaw to pay his attorney's fees; (6) there was no evidence that Mid-Continent had a duty to Shaw under any legal theory; (7) there was no evidence that Mid-Continent breached any duty to Shaw under any legal theory; (8) there was no evidence that Shaw had standing to bring his claims; (9) there was no evidence that Shaw was subrogated to any rights that the Buescher Parties had under their insurance policy; and (10) there was no evidence that Shaw is a person to whom the Buescher Parties were legally obligated to pay damages for "bodily injury" or "property damage" to which the insurance policy applied.
Shaw filed a response to the Motions and a Second Amended Petition in Intervention. In his original petition, Shaw did not state a legal theory to support his claim. However, in his Second Amended Petition, he sought recovery of his fees and expenses incurred in his defense of the Buescher Parties, under four legal theories: (1) Shaw was a direct beneficiary and/or a third party beneficiary to the Buescher Parties' insurance policy with Mid-Continent, and Mid-Continent's actions "constitute breach of contract"; (2) Mid-Continent had "waived any argument as to the payment of fees for a duty to defend, given payment of a portion of said fees"; (3) Mid-Continent was estopped, as a matter of law, from arguing it did not owe Shaw his attorney's fees, because Mid-Continent "promised to pay for a defense [of the Buescher Parties], partially paid for that defense BUT failed to fully pay for that defense" (emphasis original); and (4) Shaw was entitled to recover on a theory of quantum meruit because Mid-Continent accepted the benefit of Shaw's services, knew or should have know that Shaw expected compensation, and Shaw rendered valuable services for which he has not been fully compensated. Additionally, Shaw stated that "[a]ll conditions precedent have been performed or have occurred as required by Tex. R. Civ.P.54 [sic]." Mid-Continent filed a reply to Shaw's response to the Motions. There, Mid-Continent addressed the legal theories of recovery included in Shaw's Second Amended Petition by reasserting six of the ten grounds it raised in its Motions. These six restated grounds included: (1) Shaw was not party to the insurance contract, and that there was no valid contract between Shaw and Mid-Continent; (2) there was "no evidence that [Mid-Continent] had a contract with [Shaw] to pay his attorney's fees"; (3) the insurance policy "as a whole does not clearly and fully express any intent by [the Buescher Parties] and [Mid-Continent] for the Policy to confer a direct benefit to [Shaw]" and that "[n]either party has alleged that the Policy is ambiguous"; (4) there was no evidence the Buescher Parties and Mid-Continent "had any intention under the terms of the [insurance policy] to confer a direct benefit to [Shaw]"; (5) there was "no evidence that [Mid-Continent] had a duty to [Shaw] under any legal theory"; and (6) there was "no evidence that [Mid-Continent] breached any duty to [Shaw] under any legal theory."
The trial court granted both the traditional and no-evidence motions for summary judgment filed by Mid-Continent. The judgment of the trial court is silent as to the specific grounds on which it granted summary judgment. Shaw filed a Motion for New Trial which was overruled by operation of law. This appeal followed.
II. ANALYSIS A. Standard of Review and Applicable Law
We review the grant of a summary judgment de novo. Provident Life Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003). "Where, as here, the summary judgment does not state the grounds upon which it was granted, the nonmovant must show on appeal that each independent ground alleged is insufficient to support the summary judgment granted." Williams v. City of Dallas, 53 S.W.3d 780, 784 (Tex. App.-Dallas 2001, no pet.). "An appellate court must affirm the summary judgment if any of the theories presented to the trial court and preserved for appellate review are meritorious." McMahon Contracting, L.P. v. City of Carrollton, 277 S.W.3d 458, 468 (Tex. App.-Dallas 2009, pet. denied). However, if a party does not attack each of the summary judgment grounds on appeal, "[w]e have no duty to research [those] grounds without the assistance of counsel so as to determine whether any of them are supported by the record and by applicable rules of law." Thomson v. Norton, 604 S.W.2d 473, 477 (Tex. App.-Dallas 1980, no pet.). When a party fails to assign error to all the grounds upon which summary judgment could have been granted, the summary judgment should be affirmed. See id.; Rodriguez v. Morgan, 584 S.W.2d 558, 558 (Tex. Civ. App.-Austin 1979, writ ref'd n.r.e.).
B. Application of Law to Facts
In his first issue, Shaw argues the trial court erred by granting Motions on grounds not contained in the Motions. Specifically, Shaw contends the Motions did not address the legal theories Shaw added in his Second Amended Petition. Mid-Continent responds that Shaw's issue should be decided against him because Shaw has not challenged or briefed any of the summary judgment grounds stated in the Motions and re-asserted in its reply. Mid-Continent further argues that its Motions contained two grounds upon which the trial court could have properly granted summary judgment as to all of Shaw' claims, including the claims added in his amended petition: (1) there was no evidence Mid-Continent had a duty to Shaw under any legal theory; and (2) there was no evidence that Mid-Continent breached any duty to Shaw under any legal theory.
The record reflects that although Shaw's Petition in Intervention did not expressly state a legal theory to support his claim for relief, his Second Amended Petition specifically asserted four legal theories. Mid-Continent's Motions were filed prior to Shaw's Second Amended Petition and were not amended. Shaw argues the grounds for relief in Mid-Continent's summary judgment motion were "not sufficient" to dispose of the newly added claims. However, in his brief, he does not discuss the merits of any of Mid-Continent's ten summary judgment grounds. Instead, he contends Mid-Continent's reply to Shaw's "Response to Plaintiff's Traditional and No Evidence Motion for Summary Judgment Against Intervenor" was an impermissible attempt to bolster an insufficient motion for summary judgment. We do not agree.
Shaw accurately states that grounds asserted for summary judgment must be in the summary judgment motion itself and not in a reply brief. See McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 340-41 (Tex. 1993) ("A motion must stand or fall on the grounds expressly presented in the motion."). However, Mid-Continent's reply did not raise new grounds attacking the cause of action specifically identified in Shaw's amended petition. Rather, Mid-Continent's reply re-asserts six of the ten summary judgment grounds that were raised in its Motions and argues based upon those six grounds, summary judgment should be granted on all of Shaw's claims included in Shaw's Second Amended Petition. Shaw does not discuss the merits of any of those six summary judgment grounds in his brief to this Court.
On this record, we conclude Shaw has not shown that the trial court's summary judgment was based on grounds not contained in Mid-Continent's summary judgment motion. The fact that Shaw amended his petition after Mid-Continent filed its summary judgment motion, alone, does not lead to the conclusion that the grounds in the original motion were, as Shaw asserts, "not sufficient" to address his newly added claims. We decide against Shaw's on his first issue. See Thomson, 604 S.W.2d at 477; Rodriguez, 584 S.W.2d at 558.
In Shaw's second issue, he argues the trial court erred in granting summary judgment on "matters not plead" in Mid-Continent's answer, and because, in Shaw's original and amended petitions in intervention, he plead that "[a]ll conditions precedent have been performed or have occurred" as required by Tex. R. Civ. P. 54. Shaw's sole argument on this issue is that because Mid-Continent responded to the petition in intervention with a general denial, it admitted all conditions precedent "occurred" and "[a]ccordingly, the court erred in granting summary judgment as to [Shaw's] claims wherein a specific affirmative defense was not plead." We cannot agree.
"A condition precedent is an event that must happen or be performed before a right can accrue to enforce an obligation." Centex Corp. v. Dalton, 840 S.W.2d 952, 956 (Tex. 1992); see also Etsy v. Beal Bank S.S.B., 298 S.W.3d 280, 300 (Tex. App.-Dallas 2009, no pet.). The effect of Mid-Continent's general denial was to admit that all conditions precedent had occurred. See Love of God Holiness Temple Church v. Union Standard Ins. Co., 860 S.W.2d 179, 180 (Tex. App.-Texarkana 1993, writ denied). However, establishing that conditions precedent have been met, does not relieve Shaw of the burden of proving the other elements of his claim. See Broesche v. Jacobson, 218 S.W.3d 267, 273 n. 4 (Tex. App.-Houston [14th] 2007, pet. denied). Further, in order to prevail on an appeal from the grant of a summary judgment, Shaw must show "that each independent ground alleged is insufficient to support the summary judgment granted." Williams, 53 S.W.3d at 784. Shaw has not briefed or presented argument respecting any of Mid-Continent's summary judgment grounds. We decide against Shaw on his second issue.
III. CONCLUSION
We conclude the trial court did not err in granting summary judgment. The trial court's judgment is affirmed.