*1 892 Id; public’s Barshop County
matter attention. see Underground Medina (Tex. Baldwin, Dist., Smith v. 614 Water Conservation 1980) (interpreting advertising in terms of 637 action); DTPA Freeman v. Greenbriar AGLI has not shown a clear abuse of Homes, Inc., (Tex. 397 in discretion the trial court’s denial attor n.r.e.) (same). App. writ refd — Dallas ney’s obligated fees. The trial court was not accept advertising To ANR’s definition attorney’s simply to award fees to AGLI any parties negotiated would mean that time because AGLI a summary won contract, any poten kind would be a there against ANR. See Tex.Civ.Prac. & Rem.Code coverage tial for advertising injury under (1998); § Barshop, 37.009 925 at S.W.2d 637. representations or during omissions made The trial court could have concluded negotiations. in this litigation could been re have pleadings against Gulsby We hold ANR’s in the solved suit removed to federal court if allege advertising not injury under opposed AGLI had not motion ANR’s policy. properly The trial court granted intervene the federal lawsuit. for AGLI on that point We overrule ANR’s of error and ground. subpart We B overrule of ANR’s cross-point attorney’s regarding AGLI’s fees. point of
sole error. judgment. We affirm the trial court’s
2. ANR’s Other Issues We do need to reach other ANR’s points challenging denying AGLI the order its cross- summary judgment.
motion for holding Our A.1, part under that AGLI had no defend, unnecessary makes it to consider By HARRIS, Thorough Carr, 569; those issues. S.W.2d Dar at Attorney Fact, His dari, 961 at S.W.2d HARRIS, Appellant, Analysis Cross-point
B. of AGLI’s cross-point, In its AGLI trial THE SPIRES COUNCIL OF awarding attorney’s court erred it the CO-OWNERS, Appellee. sought fees it Declaratory Judg- under the No. 01-97-01081-CV. disagree. ment We Act. Texas, Appeals of Court of a proceeding under the Declarato (1st Dist.). Act, ry Judgment may a trial court award attorney’s reasonable fees. 12, 1998. Nov. (1998). § 37.009 Tex.Civ.Prac. & Rem.Code attorney’s award denial of fees declaratory action is a matter for
the trial court’s discretion. Commissioners (Tex.1997); Agan,
Court v. S.W.2d Arthur M. Deck Crispin, & Assoc. v. 56, 62 (Tex.App.
S.W.2d — Houston 1994, writ will not We reverse of attorney’s court’s determination fees Agan, absent a clear abuse of discretion. 81; Crispin, at at 62. attorney’s A trial court’s determination of declaratory judgment fees action is not dependent party prevailed. whether
Facts managed high-rise is a condo- development.
minium Each condominium ownership owner has an interest in asso- *3 manages ciation that the common areas. employed The association Houshiar Moarefi managing agent Spires, begin- as the of the in ning charged 1989. Moarefi is with run- day-to-day ning operations Spires, of the reports directly and of the board directors. wife, Geneva, John and Harris his moved Spires to the in 1988. In the summer of began Mr. Mrs. experienc- and Harris ing problems health and found it daily to seek with assistance their affairs. Prudencio, The Harrises hired Martha for- employee mer of the to assist them. previously employed by Prudencio was Spires housekeeper as for the common areas of until the condominium but continued to for of work several residents independent on an Af- contract basis. passed away January ter in Geneva living John continued at the with Pru- McFarland, Wimberley, H. John Carl dencio’s assistance. Houston, Appellant. for Butler, Houston, Appellee. Fred Lee John was diagnosed with Alzheimer’s dis- in July ease in Har- 1994. Late David O’CONNOR, TAFT, Before Justices and ris, son, Toyota received a call from a SMITH.* dealership concerning guaranty John had executed to in leasing assist Prudencio a car. OPINION David became concerned about his father’s finances after and he reviewed them discov- TAFT, TIM Justice. $90,000 signed approximately ered John had Harris, Appellant, appeals John a sum- Prudencio, payable in checks to Pru- made mary judgment in appellee, entered favor of relatives,1 dencio’s or to cash. (the The Council of Co-Owners (1) Spires). 16, 1994, September We whether address the sum- On John executed a mary judgment stating evidence several before the notarized affidavit supported were in rendition disbursements to Prudencio made in loyalty favor recognition of her and Gene- negligent misrepresentation va, and him and that had asked to take Geneva (2) action, causes and whether the relation- care of after death. On Prudencio Geneva’s ship parties gave between the rise general to a fidu- October executed ciary duty. sons, part attorney We affirm in power appointed and reverse which his part. and in Rodney, attorneys remand as in his fact.2 Smith, Jr., private attorney *The Honorable Jackson B. to act A authorized another retired Justice, Appeals, Court stead, First District of Texas place particu- his in either some Houston, assignment. participating by at act, purpose, particular to do a lar as employees general, 1. Prudencio’s relatives were also of a transaction of business in Spires. legal authority This is conferred character. “ writing, called a 'letter instrument attorney 2. An in fact is: father, judg- David, fact that it is entitled fact his rial attorney as law; aas matter of negli- ment Spires alleging negligence, sued omission, gent misrepresentation disputed there deciding whether fiduciary duty. petition al- breach precluding material fact Pruden- leged Spires recommended that the favorable to the Harrises, Spires failed cio and that the true; must be taken nonmovant had Harrises that Prudencio inform the be in- every inference must reasonable suspicion of fired under been of the nonmovant and dulged favor 7,1997, Spires moved for July On theft. any in its favor. doubts resolved ground summary judgment on Co., Management Property Nixon v. Mr. therefore, John, and, duty to owed no 546, 548-49 *4 law. of fail as a matter of causes action must granted this Au- motion on The Misrepre- Negligent Negligence A. 15,1997. gust or sentation Omission issue, he argues In first John’s Issues Presented duty ordinary care to a Spires breached of presents review: four issues for John law doctrine Harris. The common John (1) Spires duty a Whether owed (1) a of three elements: negligence consists Harris, and ordinary care to John another; duty person one to legal owed duty when that was breached whether (3) (2) damages duty; a of that breach that Spires recommended John resulting from the breach. proximately it employee a that Harris hire former Transp. Phillips, 801 v. Co. Greater stealing for or it failed had fired when threshold The knowledge relay special to that to John Id. duty. is One inquiry in a case Hams. who, duty a to pre-existing the absence (2) act, upon an Spires voluntarily a enters Whether owed nonetheless Harris,
duty affecting that the in to John and whether affirmative course of action duty Spires regarded assuming was breached when is terests of another act, duty hire a to must so with reasonable recommended that John Harris do Clark, Corp. employee Eng’g that it had fired former care. Otis Drillers, Inc., (Tex.1983); relay that stealing Yeager to when failed [1st special knowledge (T ex.App.—Houston to John Harris. writ). 1996,no Dist.] could Whether trial court deter- mine, law, if the as a matter of under- that, by recommending Pru- John lying facts of this case created a dencio, duty of ordi- Spires assumed a Spires and John and between him and breached nary care towards' Harris. Prudencio duty by failing inform him that to summary judgment evi- Whether the stealing suspected of when the had been compe- is Spires offered Therefore, dence if the her. Spires terminated tent and sufficient to defeat John conclusively proved that it did not of action under Geneva, Harris’s causes Prudencio to John and recommend summary in effect judgment standard summary and John’s August point, the raise a fact issue on that failed to Spires was entitled Judgment Summary negligence claims. appellate review of standard In its motion
summary judgment well is established: Pruden- not recommend Spires argued it did therefore, and, Geneva, (1)the showing cio John and movant has the burden position, support of its duty arose. genuine is of mate- such there ed.1979). (5th Dictionary 'power attorney,’ commonly, of at- more Black’s Law ” torney.’ Moarefi, attached the affidavit statement that the did not recommend managing agent which John Prudencio to and Geneva. See General he stated3: Inc., Supply Electroquip, Elec. Co. v. Gulf (Tex.App.—Houston
Neither The Council of Co-Owners nor employees recommended That Martha statement clearly fact, phrased Prudencio John and one of Geneva Harris and is not employment. of opinion. terms motion, response In his to the objection alleged John’s second objected to ground Moarefi’s affidavit on the although Moarefi’s affidavit states that he that it deposition testimony contradicted his personal knowledge has of the facts recited taken three weeks before the execution of his therein, it fails to acquired show how he deposition affidavit. testimony, Moarefi’s personal knowledge that the did not initially spoke he stated that when he recommend Prudencio Mr. and Mrs. Har finances, concerning ques he However, personal ris. because lack employees, tioned some but was knowledge of facts contained an affidavit is percent” able to confirm “100 one substance, in form defect and not of them did not refer Prudencio John and complaint any appeal by waived ob support Geneva. To judgment, a *5 jecting to on ground the affidavit this at trial. party’s evidence must be free from contra Conner, 580, See v. Rizkallah 166a(c). diction. See Tex.R. P. Howev Civ. (Tex.App.—Houston no er, assertions, contrary to John’s Moarefi’s writ). We hold that Moarefi’s affidavit was affidavit does not conflict with his earlier competent summary judgment proof, and deposition testimony. did Moarefi not state sufficiently duty it negated that the element deposition Spires his that the recom clearly negligence by stating of John’s claims Prudencio; rather, merely mended he stated Spires employees that neither the nor its spoke that at time he the with David he was to Mr. and Mrs. recommended Prudencio certainty with not able to confirm no that City Harris. Clear See Houston v. Creek employee Spires of the had recommended (Tex. Auth., Basin 678-79 Prudencio. This statement does not conflict 1979) (defendant may prevail on motion affidavit, with Moarefi’s approxi executed if summary judgment no establishes mately years three after the re discussion genuine issue of fact as to one of exists the ferred to in his deposition, which Moarefi plaintiffs essential elements of cause of ac personal knowledge attested to his the that tion). Spires did not recommend Prudencio to John and Geneva. Spires Because the succeeded in ne appeal, duty gating linchpin argument, John raises two additional the of John’s
On
objections
responsive
to the Moarefi affidavit that were we now consider whether John’s
First,
summary judgment
not raised in the trial court.
evidence raised a fact
eonclusory
question
duty.
contends that the affidavit is
be
See
on the element
Wheel
Hosp.,
paragraph
cause the first
of the
Kersting
affidavit
er
Yettie
Mem’l
following
contains
“I
(Tex.App.—Houston [1st Dist.]
the
statement:
have S.W.2d
writ) (to
personal
knowledge
summary judg
each
the
preclude
facts and
herein,
ment,
opinions
recited
and all
those facts
non
fact
on
movant must raise
opinions
(empha
successfully
are true and correct”
negat
element of cause of action
added).
movant).
Although
correctly
by
sis
points
only responsive
ed
John’s
evi
refuting
out
affidavits must
dence
Moarefi’s affidavit was the
Harris,
opinions,
state
facts and not
this sentence
affidavit of David
which stated
does not
pertinent part4:
alter
character of Moarefi’s later
Spires
3. The
also
included
4. John
evi-
also included as
(1)
(1)
deposition testimony
power
attorney
executed
Moarefi
dence
John,
explaining
John Harris's affidavit
the affidavit of the individual who
payments
power
attorney.
day of
nature of the
made to Prudencio.
notarized the
On the
successfully negated
duty element
(my Spires
From
John Harris
about
father)
(my
pre-
negligence
his
Harris
cause of action
wife Geneva
of John’s
mother)
of The
stating
owners and residents
senting
were
Moarefi’s affidavit
time,
During
my parents
Spires.
to Mr.
Spires
recommend Prudencio
did not
daily
However,
some assistance with their
needed
John’s state-
and Mrs. Harris.
affairs,
Spires of that
and notified The
Spires
ment
in his affidavit that
Thereafter,
Spires
recom-
need.
directly controverted
recommend Prudencio
(“Prudencio”),
mended Martha Prudencio
affidavit, and, therefore,
raised
Moarefi’s
employees.
one of its former
duty
concerning the
element
fact issue
added).
Accordingly, the trial
cause of action.
(emphasis
granted summary
improperly
reply
response,
In its
to John’s
negli-
Spires objected to
affidavit on the
David’s
misrepresentation causes of action.
gent
in it
grounds that the statements contained
hearsay,
upon
supposition, and
were based
argument presented in
We sustain John’s
assumption,
repeats
and the
those
issue for review.5
first
However,
objections
appeal.
ruling
objec
did not obtain a written
on its
Fiduciary Duty
B. Breach of
ob
tions from the trial court. Because the
issue,
he
John’s second
jections
form and
relate
sub
fiduciary
owed and breached a
affidavit,
stance of David’s
waived
recognizes
Property
him. The
Code
objections
appeal.
these
See Eads
that each officer or member of
condomini
Bank, N.A.,
208, 211
American
um
of the unit
board
liable as
writ)
(holding
(Tex.App.
— Waco
officers’ or members’ acts or
owners
summary judgment movant waived form ob
omissions.
See
Tex.
PROP.Code Ann.
jection
obtaining
to affidavit
written
*6
(Vernon 1995).
82.103(a)
§
The officers and
ruling from trial court based
rationale
on
the
members must fulfill the duties owed to
summary judgments
that review of
must be
care, diligence,
unit owners with reasonable
by
the
conducted
evidence considered
faith,
good
judgment.
and
See
Restatement
court,
appellate
spec
not on what an
court
Agenoy
(1958).
§ 401
(Second)
fiducia
A
of
considered);
may
ulates the trial court
have
may
by
ry duty
also arise
contract or in the
Acceptance Corp.,
Wilson General Motors
social,
moral,
context of an informal
domes
818,
(Tex.App.
821-22
— Houston
tic,
relationship in
personal
which one
writ)
(noting
hearsay
no
[1st Dist.]
person trusts or relies on another. See Crim
form).
in an affidavit is
defect
There
Int’l.,
Truck
Tractor Co. v. Navistar
&
fore,
propriety
we must review the
of the
summary judgment
light
of
the
all
sum
evidence,
mary judgment
including David’s
reported
has
Only one
case
addressed
affidavit.
duty
fiduciary
by
owed
a condo
contractual
stated,
linchpin
minium association to
owners. See Sas
previously
As
of
the
Tanglegrove
duty argument
sen v.
Townhouse Condomini
was that the
recom-
Ass’n,
(Tex.App.
and Mrs. Harris.
um
mended Prudencio Mr.
summary
As the movant
the —Texarkana
Sassen sued
Med.,
summary judgment hearing,
lege
(Tex.App.—
the
filed an
of
affidavit,
writ).
by
no
[1st Dist.]
affidavit
Janice Crow. In her
Crow
that,
David,
during meeting
stated
Moarefi,
between
Crow,
Manuel
review,
and
Moarefi interviewed
In
and
his third
fourth issues
Puente, Jr.,
Spires.
concierge
court,
the
of the
Accord-
jury,
not the
should
Crow,
ing
had
duty
Puente admitted that he
recom-
give rise to a
determine whether the facts
proof
by
mended that Mr. and Mrs. Harris hire Pruden-
the
offered
However,
support summary judgment.
cio.
because this affidavit was filed
does not
date,
days
hearing
concerning
seven
and no
arguments
within
of
we
Because
sustain John’s
record,
appears
negli-
propriety
judgment
of
in the
leave of
misrepresentation
presume
negligent
gence
we
did not
causes
must
that the trial court
action,
Baylor
separately
we do not
address these issues.
the affidavit. See
Col-
consider
Griffin
his condominium
association
breach of
the association exclusive control over condo-
fiduciary duty
using
when it insisted on
operations
maintenance,
its minium
such as
re-
own
to repair
contractor
Sassen’s fire-dam-
pair,
Sassen,
and administration.
unit,
aged
and refused to allow her to make
fiduciary duty
court found that a
arose from
repairs
complained
her own
after she
of the
they
the condominium’s declarations in that
work
done
the association’s contractor.
allowed the association to exercise exclusive
Id. at 490-91. The
Ap-
Texarkana Court of
units,
repair
control over the
of individual
peals recognized that the condominium decla-
and that the association
arbitrarily
acted
granted
authority
rations
exclusive
to the
capriciously
repair
in its
of Sassen’s condo-
association to contract for and conduct re-
Spires,
minium. Id. The
declarations
pairs
individual units.
Id. at 491-92.
however,
grant
do not
the association the
The Sassen court then concluded that
authority
provision
exclusive
over
association,
agent,
as Sassen’s
breached its
hiring
personal
household services or the
her,
fiduciary duty
jury’s
based
assistants.
parties’
Based on the
having
the association
determined
acted arbi-
evidence,
arguments and
we hold
trarily
capriciously in repairing
Sassen’s
relationship
informal or confidential
condominium. Id. at 492-93.
existed between the
As
association and John.
stated,
previously
fiduciary relationships are
summary judgment,
its motion for
extraordinary.
presented
Spires argued
Because John
distinguish-
that Sassen was
evidence to rebut evidence offered
able because the
declarations
existed,
relationship
that no such
sum-
which were attached as
evidence,
mary judgment
proper on John’s
grant
did not
was
breach
association the
Therefore,
authority
fiduciary duty
provide
exclusive
to contract for or
claims.
we re-
ject
argument presented
housekeeping
in his second
services such as those Pruden-
provided
cio
to Mr. and
not owe a
Mrs. Harris. The
review.
did
specific
fiduciary duty
maintained Sassen was fact
to John.
general
create a
owed
association
its members. See
Conclusion
Sassen,
Furthermore,
As ther consistent this noted the a with relationship is extraordinary an one that the O’CONNOR, recognize lightly.
law not Stephanz dissenting. does Justice Laird, ( Tex.App.—H O’CONNOR, Justice, dissenting. ouston That [1st Dist.] a panel’s I holding from the that the not, dissent person subjectively trusts another does Co-Owners, movant, more, Council of as person placed without that indicate the objections its to the non-movant’s waived confidence another in the sense demanded it because by evidence fiduciary relationship. a Id. at 901-02. objections. ruling I obtain a on its be- Something apart from the transaction be necessary lieve that it was not for the parties required. tween the Id. objections. separate ruling a his obtain on response In ap- to the motion and on Rafati, 948 Salinas v. S.W.2d Cf. peal, on proposi- John relies Sassen for the (Tex.1997) (holding ruling granting that a fiduciary duty a may imposed tion that be on motion, party’s opposite one which was the an association in favor of its members. See motion, “automatically” party’s the other de- Sassen, 877 at 492-93. John .refers motion). party’s the nied other excerpts us to several from the declarations by-laws Spires, stating they filing the purpose objections are The sum- they grant mary judgment similar to those in because inform the trial Sassen evidence is to adoption of the new for it since the grant grant refuse to cation why it should court summary Appellate If the Procedure. New judgment. for Texas Rules of the motion objections par- 33.1, Rule replaced to either former trial court believes Rule which summary ty’s are well- Rule quite that clear. 33.1 should make motion, taken, the trial court will rule on the provides: objections. a trial court on the When (a) general. prerequisite In As grants for the motion complaint appellate for re- presenting a necessarily objections the filed sustains view, record must show that: the by the the movant and overrules those filed non-movant. this recognize I number of cases from a trial court: the appeals have that courts of held other (A) request, objec- the ruled on objections summary judgment proce-
the tion, motion, expressly or im- are if not overruled either dure or evidence waived the granting plicitly. motion or in ... the order I believe those itself. App. 33.1(a)(l)-(2)(A) (emphasis R. P. Tex. eases are error. added). By granting the for sum- motion objec requirement ruling a on for implicitly mary judgment, the trial court sus- tion to evidence resur movant objections tains the made procedure Supreme rects a similar to one those the non-movant. overrules made rejected regarding requests for find Court Appellate Procedure Even former Rule predated ings procedure fact. that Under require the movant to secure 52 did not Indus., Magallanes, Inc. Che rne objection, only ruling on the non-movant (Tex.1989), party required was required ruling. The mov- was to secure request findings fact “present” for ant, party appeal, prevailing was judge of law to the trial conclusions Rule exempt requirement because from signature judge’s request; obtain the on the provided that: party judge’s if unable was to secure the complaining for necessary It is ... signature request, request ruling objec- party a written to secure Cheme, findings was Su waived. motion, response, party’s tion to the other preme long line Court reversed a of cases or evidence. filing request findings held added) (rule App. (emphasis Tex. R. P. 52 error, preserve was not sufficient to that the Thus, holding repealed). panel’s is at request presented must be Rule and former odds with both current 33.1 signature preserved. was before error Rule 52. filing Id. at 770. The Court held request findings re was all was summary, I it is not believe *8 present quired; requiring party to court to rule on the movant’s for the trial judge justified request to the trial was “not summary judg- objections the motion for plain language of the rule.” Id. Sim ment.2 ilarly, nothing Proce in Texas Rule Civil requires parties 166a secure
dure objections ruling on their judgment evidence. ruling necessary
If to obtain a it was ever objections (which 1), certainly justifi I doubt there is reasons, I do believe it is Supreme the Salinas case in 2. For the same
1. The Court issued ruling necessary Appellate for the non-movant obtain Proce- before the new Rules of Thus, enacted, motion for sum- September objections I to the movant's 1997. dure were courts, including mary get judgment. A number do believe it was ever Not ours, Washington necessary. it is objections. have held See separate ruling Long Ba “David” NGUYEN and Ngoc Phuong Huynh,
Lan Appellants, TECHNICAL AND SCIENTIFIC APPLI-
CATION, T.S.A., INC. and William d/b/a Smith, Individually, Appellees.
C.
No. 01-98-00094-CV. Texas, Court Appeals (1st Dist.). Nov. Lore, Houston,
Michael Appel- lants. Helfand, Jewell,
William S. Kevin D. Hous- ton, Appellees. COHEN, HEDGES,
Before Justices TAFT.
OPINION
COHEN, Justice. The issue this an em- case whether ployee constructively discharged, iswho *9 but fired, may wrongful sue for termination exception under the Pilot to the em- Sabine ISD, 686, Co., 819, Tyler (Tex. (Tex.App.— Highlands v. 932 S.W.2d 689 Ins. 822 1996, n.w.h.); Tyler 1992, writ); App. v. Roberts Friendswood Dev. Paso no Williams Con — El Co., 363, ISD, (Tex.App. (Tex.App roe — Houston . —Beau denied); writ); Pipeline Fox Elec. Co. v. mont no Utilities Co. v. Sec., Inc., (Tex. Tone Mktg., Guard American Petrofina App. writ); 1988, writ). Hopkins (Tex.App. Worth — Fort — Dallas