*1 tiоns taken in June 1993. The indictments against appellees both were returned on Jesse CARTER and Jesse 12, appellees’ applications June 1996. In Thomas, Appellants, corpus, they
writ of habeas acknowledged aggravаted perjury that degree third felony under Tex. Pen.Code Ann. 37.03 COMPANY, ALLSTATE INSURANCE (Vernon 1994). statutory But for a excep Appellee. tion, aggravated perjury would fall within the three-year statute of limitations under Tex. No. 01-96-00071-CV. 12.01(6) (Vernon Code Crim. P. Ann. art. Supp.1998). However, Texas, specifi Appeals article 12.01 Court of cally “[ejxcept provided (1st Dist.). states as in Article Houston 12.03,” provides “any which that offense that 5, Feb. ‘aggravated’ bears the title carry shall period same primary limitation as the crime.”
Because the pri statute of limitations of the offense,
mary perjury, misdemeanor is two
years, the aggra same limitation obtains for perjury,
vated though felony. even it is a agree.
We dealing
Three recent cases with the statute aggravated penury limitations for have period
held that the years. limitations is two Matthews, parte
In Ex the Court of Criminal stated, dicta,
Appeals albeit in “[i]n the aggravated, perjury period
stant cause of years, being period
is two the same as 12.03(d) (an
perjury. Article offense titled
“aggravated” carries the pe same limitation crime).” primary parte
riod as Ex Mat
thews, 134, 933 S.W.2d 136 (Tex.Crim.App.
1996) (emphasis in original). The San Anto appeals
nio court of held that the statute of aggravated perjury
limitations for was two
years, citing parte parte Ex Matthews. Ex
Zain, 253, (Tex.App. 940 S.W.2d — San 1997, pet.). Antonio no The Waco court of
appeals holding echoed that in Deckard v.
State, (Tex.App. — Waco pet.). agree no We with these authori although
tiеs the statute of limitations felony aggravated perjury
for the offense of
is inconsistent with that of most other felo 12.03(d)
nies, nonetheless, unambigu article believe,
ously says. means what it We do not argues,
as the State that the result is absurd. Matthews, parte
See Ex
We of the trial court. *2 Chalker, Houston, Appellee,
Wilton TAFT, WILSON, MIRABAL and Before JJ. ON MOTION
OPINION REHEARING FOR TAFT, Justice. rehearing
Appellee has filed a motion for motion, deny but with- this case. We one previous opinion draw our and issue this Appellants, in its Jesse Carter and stead. Thomas, Jesse had an auto accident with Appellants sued Allstate Allstate’s insured. alleged for failure to honor oral settlement agreements. We determine whether applies preclude Statute of Frauds en- presuit forcement of an oral agreement. and We reverse remand.
Facts car collided in- Appellants’ with Allstate’s Appel- sured’s car on November attorney Joseph lants hired Onwuteaka to injuries represent them in their claim fоr April from the automobile collision. On 1994, Mr. sent a demand letter Onwuteaka appellants’ to All- for settlement of claims adjustor, Weatherly. state’s Mr. On- Gracie made, Weatherly and he wuteaka claims Ms. accepted, agreements oral settlement on be- appellants. half of When Allstate did not agreements, appellants suit honor the filed 30, 1995, May contract. on for breach of summary judgment Allstate filed for based (1) (2) Frauds; acceр- on: of no valid Statute (3) withdrawal; no tance of offer before “meeting agree- an of the minds” form Weatherly’s af- ment. Allstate attached Ms. stating appellants that neither nor Mr. fidavit accepted any agree- Onwutеaka Appellants response a ar- ment offers. filed guing inapplicable of Frauds was the Statute acceptance meeting and the issues of questions jury the minds were of fact for the Appellants to decidе. attached Mr. Onwut- 28,1994, April stating that on eaka’s affidavit Weatherly specific had made offers for Ms. Onwuteaka, Houston, orally accepted. Joseph Appel- appellants both which he had 5, 1995, granted trial court lants. On October summary judgment stating particu- without Statute of Frauds lar basis. error, point second alleged contend the is
Summary Judgment Standard
governed by
the Statute of Frauds. All
appellate
The standard for
review state claims the
applica
Statute of Frauds is
*3
summary judgment
alleged agreement
of a
ble to the
promise
for a
as “a
defendant is
by
person
debt,
another
to answer for the
summary judgment
whether the
proof estab
default,
miscarriage
person.”
or
of another
lishes,
law,
aas matter of
that there is no
26.01(b)(2)
§
Tex. Bus. &
Ann.
Com.Code
genuine issue of fact
toas
one or more of the
(Vernon 1987).
provision
This
of the Statute
plaintiffs
essential elements of the
causе of
commonly
of Frauds is
referred to as the
action.
Corp.,
Gibbs v. General Motors
450
“suretyship provision.” E. Allan Farns
(Tex.1970).
827,
summary
S.W.2d
828
A
worth,
(2d ed.1987).
6.2,
§
Contracts
judgment
disposes
for a defendant that
of
if,
proper only
the entire case is
as a matter
determining
One test for
whether a
law,
plaintiff
of
the
upon
could not succeed
promise
pay
to
the debt of another is within
any
petition.
of the
in
theories
its
Bhalli v.
or without the Statute of Frauds is whether
(Tex.
207,
Hosp.,
Methоdist
896 S.W.2d
209
promisor
surety,
the
only secondarily
is a
denied).
liable,
App.
1995,
accepted
or
primary responsibility
[1st Dist.]
writ
has
— Houston
for the
appeal
Liquid
In an
debt.
Fertilizer
v.
summary judgment,
from a
Co.
the
Gulf
Titus,
260,
378,
163 Tex.
354 S.W.2d
382
standard
presumptions
of review аnd
favor
(1962); Tex. Bus. & Com.Code Ann.
judgment.
reversal of the
Nixon v. Mr.
26.01(b)(2).
liable,
§
party
primarily
If the
is
Co.,
Property Management
546,
690 S.W.2d
promise
pay
required
its
to
a debt is not
to
(Tex.1985).
548-49
writing by
inbe
the Statute of Frauds. See
If a
summary
defendant moves for
Howevеr,
Liquid, 354
at 382.
if
S.W.2d
Gulf
judgment
defense,
based on an affirmative
party
surety,
promise
pay
the
is a
the
to
the
the
prove
defendant’s burden is to
conclu
party
required
debt of a third
is
to
in
be
sively all the
of
elements
the affirmative writing.
Id.
defense as
Montgomery
a matter of law.
portion
The relevant
of the insurance con-
(Tex.1984).
Kennedy,
309,
669 S.W.2d
310-11
appears
Weatherly’s
tract
within Ms.
affida-
conclusively
Unless the movant
establishes
vit:
defense,
the affirmative
the non-movаnt
pay damages
bodily injury
We will
or
plaintiff has no
in response
burden
to a mo
property damage
any
for which
covered
summary
tion for
judgment filed on the basis
person
legally responsible
becomes
be-
of an affirmаtive defense. Torres v. Western
Property
cause of an auto accident.
dam-
Co.,
(Tex.
50,
Casualty & Sur.
age
damaged
includes loss of use of the
1970).
defend,
property.
willWe
settle or
as we
appropriate, any
consider
claim or suit
Agreement
Existence of Oral
asking
damages.
for these
error,
appellants’
point
first
of
only
responsibility
Had Allstate
assumed
to
granting
contend the trial court
in
erred
pay damages
its
whenever
insured became
summary judgment
Allstate’s motion for
be
legally responsible, it would have assumed
genuine
cause there is a
issue of material fact
surety.
the role of a
Allstate
When
took the
agreement.
as to the
existencе
an oral
As
initiative to settle the claim for which its
above,
parties’ summary judg
set out
yet
legally responsi-
insured had not
become
ment evidence conflicts about
there
whether
ble, however,
settling
only
it was
its
accеptance
of Allstate’s offer to settle
potential liability
possi-
insured’s
but its own
appellants’
Accordingly,
claims.
we hold
obligation
pay
duty
ble
and its own
to
genuine
there is a
issue of material fact
promise
defend its insurеd. The oral
to set-
precluding summary judgment regarding ac
original undertaking,
prom-
tle was an
not a
ceptance
meeting
before withdrawal and
ise to answer for the debt of the insured.
point Therefore,
the minds. We sustain
first
suretyshiр provision
apply
of error.
of Frauds
Statute
does not
Allstate’s
promise
Klag
to settle.
Agreement
See
v. Home Ins.
26.01. Promise or
Must be
Co.,
Ga.App.
158 S.E.2d
451-52
In Writing
(1967) (holding
promise
insurer’s oral
to set-
(a)
promise
agreement
A
or
described in
original
tle a claim was an
undertaking and
(b)
Subsection
of this section is not en-
writing).1
need
in
not be
promise
agreement,
forceable unless the
or
it,
argues
or a memorandum of
underly
the rationale
is
ing
applicablе
Tex.R. Civ. P.
is
(1)
to this
writing;
case, making
agreement
(2)
by
signed
person
charged
to be
disagree.
unenforceable. We
In Estate of
promise
by
with the
or
or
McMurrey,
Pollack v.
Supreme
the Texas
lawfully
someone
sign
authorized to
attesting
Court held that affidavits
to an oral
him.
settlement were sufficient evidence of the
(b)
(a)
applies
Subsection
of this section
to:
to establish a meritori
*4
(Tex.
ous defense. 858 S.W.2d
392-93
(2) promise by
person
a
one
to answer for
1993).
рlaintiff
argued
The
had
the
debt, default, miscarriage
the
or
of another
writing,
settlement
and
person.
therefore unenforceable under Tex.R.
P.
Civ.
11; Pollack,
In Allstate Insurance (Tex.1994), Supreme analyzed relationship the nature of the
Court third-party an insur- claimant and
between company,
ance concluded: party
A third claimant has no contract insured, insurer or has not
with the any premiums, legal relation-
paid has no relationship
ship special the insurer or
of trust with insurer. at 149.
Id. relationship any legal
In the absence compa- appellants
between and the insurance case,
ny present the insurance in the how can appellants,
company “primarily be liable” to mаjority respectfully I submit
as the holds? majority has erred. 26.01(a) (b), All-
According to section *5 if verbal- pay, even
state’s
ly accepted by appellants, is not enforceable writing not in
because Therefore, I signed.1 would overrule two,
appellants’ point of error and affirm
summary judgment. Formerly CO., INC., E
E L CHIPPING & Lowery Co., Inc., Lester L Lumber & “Buddy” Lowry, Appellants,
and Elvin COMPANY,
The HANOVER INSURANCE Company, Lloyd’s
Hanover Insurance Company, and
The St. Paul Insurance Inc., Companies, Paul
The St. Insurance
Appellees.
No. 09-96-232 CV. Texas, Appeals
Court
Beaumont. 30, 1997. Oct.
Submitted
Decided Feb. reliance problem or other detrimental tions it is 1. I note that uncontroverted statute of preclude applicability eight days after would its oral offer to settle withdrew limita- frauds. made. no statute of offer was There is