*1 OPINION Rep- HILL, Individually Raynell and as BARAJAS, Chief Justice.
RICHARD Randina the Estate of resentative of Burleson, Deceased, Appellant, Raye the Court on its appeal This is before it to determine whether should own motion Tex.R.App. P. pursuant be dismissed BARTLETTE, McKinley Chad 38.8(a)(1),which states: Appellee. (a) appellant Cases. If an fails Civil No. 06-05-00031-CV. brief, court timely appellate file a may: Texas, Appeals Court Texarkana.
(1) appeal for want of dismiss prosecution, appellant unless the reason- Dec. 2005. Submitted ably explains appel- the failure and the Dec. Decided injured by the significantly lee is not timely appellant’s failure to file a brief. 4, 2005,
By a letter dated November this that no Appellant
Court’s clerk informed
appellant’s or motion for extension brief
time had been filed and of the Court’s appeal
intent to dismiss the for want of Tex.R.App.
prosecution pursuant to 38.8, P. response any party
absent a from within days grounds continuing
ten to show for appeal. response No has been re-
ceived as of this date. given have notice of our intent response appeal, requested
dismiss reasonable basis failure to file exists,
appellant’s brief and have received purpose
none. We see no would be by declining appeal
served to dismiss this stage proceedings.
at this Pursuant Tex.R.App. 38.8(a)(1), P. we dismiss the
appeal. *3 Robertson, Longview, appel- for
David lant. Goodwin, Crisp, J. David
Randall D. Poff, Burgess, & Crisp, Boyd, Schubert LLP, Texarkana, appellee. MORRISS, C.J., ROSS Before CARTER, JJ. a trial court’s granting
OPINION When order sum- mary judgment does specify not Opinion by Justice ROSS. ground grounds ruling, relied on for its summary judgment will be affirmed on Raynell McKinley Hill sued Chad Bart- appeal any of the theories advanced are wrongfully causing lette for the death of Doe, Star-Telegram, meritorious. Inc. v. daughter, Raye Randina Burleson. (Tex.1995). 915 S.W.2d In this granted summary judg- The trial court n case, the trial court specify did not appeals, ment in favor of Bartlette. Hill grounds on for ruling. relied its contending point her sole of error the may granting therefore reverse the granting judg- trial court erred in *4 summary judgment only genuine a issue ment. theory of material fact exists as to each judgment We affirm the trial court’s presented. Bartlette negate Hill because failed to Bartlette’s Background Also, limitations Bart- statute of defense. Paso, in daughter, Hill El but her lived proved lette as a matter of law that Hill is Burleson, sister, lived with Hill’s Jo Col- bringing barred from the current claims linsworth, husband, Jerry and Jo’s Collins- because there has been an accord and worth, Upshur County in while Burleson satisfaction on all claims. Kilgore College. Early attended on De- of Standard Review 25, 1999, passen- cember Burleson was the in summary ger an automobile driven Chad Bart- propriety judgment of a in County. lette Panola Bartlette fell question a of law. therefore review de asleep. roadway The car left novo the trial court’s decision. Natividad (Tex. Alexsis, Inc., 695, 699 slammed into concrete culvert. Burleson v. 875 S.W.2d 1994). less than two hours later. Summary judgment for a defen died proper negates dant is when the defendant Jerry1 through had Texas insurance plain at least one element of each of the on the Company Farmers Insurance auto- recovery pleads or tiffs theories riding mobile in which Burleson was at the conclusively establishes each element of an time of the accident. Texas Farmers Spectrum defense. v. affirmative Sci. anticipation firm in of claims hired law Martinez, 910, (Tex.1997); 941 911 S.W.2d against Jerry. Bartlette and The firm as- Casas, 782, v. 856 783 Wornick Co. Lessert, signed the to Todd an attor- case (Tex.1993). ney with the firm. doc- showing prepared The movant has the Lessert contacted Jo and burden could serve as the tem- genuine that there is no issue of material uments so Jo porary of Burleson’s estate. judgment fact and that it is entitled to as a administrator 2, 2001, Lessert con- Prop. Mgmt. law. v. Mr. Around November matter of Nixon (Tex.1985). 546, Co., sign Hill and her to a waiver 548-49 tacted asked 3, 2002, Hill However, January once the movant establishes that of service. On in which summary judgment, signed it is the waiver service she entitled appoint that the her agreed application shifts to the nonmovant to show burden Jo, sister, administrator summary temporary should not be as why judgment Brand, 551, could be heard without further notice granted. Casso v. 776 S.W.2d (Tex.1989). her. sharing distinguish the same last name. names are used to those 1. First his opponent, if the on limitations 24, 2002, Jo, vailing as capacity her May On rep make administrator, representatives or signed agent, settle- or Bartlette, Jerry, plaintiff releasing induce resentations limi grow- applicable all claims within the delay filing Farmers from suit and Texas return, Texas v. Earth Forrest Vital ing period. out of the accident. tations for Res., 480, (Tex.App.-Texar to Jo issued a check Farmers 120 S.W.3d denied) $25,000.00. 2003, (citing Cook pet. kana Smith, (Tex.App.-Dal 673 S.W.2d check, had several receiving After Jo n.r.e.)). ref 'd las writ regarding how conversations with They even- money should be distributed. of five estoppel consists Equitable and Hill claims tually impasse, reached an (1) or representation a false elements: any of the settlement she did not receive (2) fact; rep of material concealment proceeds. knowledge made with resentation was years half after Burleson’s Three and a facts; of the true knowledge the means death, against the current lawsuit filed (3)the party to a was made representation wrongful death and Bartlette. She asserts of knowl knowledge or the means without *5 claims. survival (4) facts; representa the the true edge of summary it a motion for made with the intention Bartlette filed tion was (5) on; party court. He ad- the to judgment with the trial be acted would of that support three theories in made relied representation vanced the whom One, by Hill’s claims are barred motion. Vills. prejudice. on it to his or her Two, Torres, 259, applicable statute of limitations. 264 874 S.W.2d Greenbriar 1994, there has been an accord and satisfaction writ [1st Dist.] (Tex.App.-Houston barring on all claims the current lawsuit. Cook, denied); 673 at 235. S.W.2d Three, underlying settle- ratified raising a the burden of Hill bears preclud- ment and therefore is equitable element of fact issue as to each bringing from the current lawsuit. ed face of a motion estoppel. When Defense Statute of Limitations is the action summary judgment shows wrongful for a person bring A must suit limitations, the nonmovant bears by barred years claim two death or survival within summary judg producing burden injured person. Tex. after the death of the a fact sufficient to raise ment evidence 16.003(b) § Ann. Civ. Prac. & Rem.Code estop- defense of the affirmative issue on (Vernon died De- Supp.2005). Burleson 486; Forrest, also 120 at see pel. S.W.3d 25, Thus, the limitations 1999. cember Sw., 182, 712 v. Bank Gifford 26, The period ended December 1986, (Tex.App.-Houston Dist.] [14th 184 25, filed until June lawsuit was not present writ). not raise If the nonmovant does no 2003, months after the limitations eighteen equita every element of a fact issue as to period had ended. proper. is summary judgment estoppel, ble not filed Cook, the lawsuit was at 235. agrees 673 S.W.2d See con- period. limitations She within the estoppel applying equitable cases however, tends, equita- that the doctrine of by a defen- involving promises are cases from prohibit Bartlette estoppel should ble fulfilled, to be dant, are not intended which of limitations defense. asserting a statute to induce are intended but instead until after delay filing the suit equitable plaintiff es- may invoke plaintiff A Forrest, period has run. the limitations pre- an from prevent opponent toppel 546 settlement, involving proceeds
received, pay he would her claim. After denied). is, Fort This Worth writ adjuster the insurance had received sever- therefore, a situation in which the doctrine Frank, al medical bills from he sent a equitable estoppel might applied. be informing letter Frank that the statute of passed limitations had and that he would Failure to Disclose Interest Conflicts of *6 pay any expenses. not claims or more Id. Hill first equitable estop- contends Appeals The First of found these Court Lessert pel applied should be because adjuster representations by the insurance failed to disclose conflicts of interest. to a fact question were sufficient create conflicts allegedly These arose when Les- equitable estoppel on and to avoid sum- attorney-client sert entered into an rela Id.; Cook, mary judgment. see also 673 tionship reject with Hill. this conten that, adjuster at (finding S.W.2d 235 when no evidence in the tion because we find paid, told claimant medical bills would be attorney-client relationship record that an adjuster fact issue raised as to whether peri time was formed within the relevant falsely made those statements to induce od. suit). delay in filing person to inducing The events unique. issue the instant case is par until after a delay particular action Here, company paid the the insurance must occur before logically ticular date promised, amount but Hill claims she Thus, only misrepresenta that date. timely would have filed suit not misled Hill have relied to her tions on which could attorney. Hill company’s the-insurance detriment must have occurred before De attorney-client claims she established an 26, 2001, the of the limitations cember end relationship with Lessert. She asserts Greenbriar, period. See Vills. of that, acting attorney, while as her Lessert at 264. misrepresentations on which she re- made only of com- particular, In The record contains one set lied to her detriment. she represen- conflicts munications Hill and a alleges Lessert failed to disclose between interest, or Texas Farmers falsely promised she would re- tative of Bartlette to be done 26, nature of the work about the occurred before December This compensation paid. to be and the 2, 2001, con- Lessert Around November may implied by the conduct contract be by telephone Hill and asked her to tacted necessary It is parties. the two in connection with sign a waiver service mani explicitly implicitly or parties either He then administration. attorney- an to create fest an intention letter, of service sent her a with the waiver Carnahan, Parker v. relationship. client enclosed, memorializing telephone con- (Tex.App.-Texarkana 772 S.W.2d versation. denied). 1989,writ conversa- telephone The details of the deposition she believed Hill stated in her In Les- dispute. deposition, tion are in However, attorney. there Lessert was her Hill represent- sert stated he told he was of, agree- or an any discussion was never Jerry, to ing Bartlette and and wished on, attorney’s fees. There was never In her secure a release on their behalf. the nature of work Les- an on that, Hill could deposition, stated while she Hill. Hill never perform sert would conversation, Lessert not remember represent her. Lessert asked Lessert only he Burle- representing told her was attorney. told Hill that he was her never stated Lessert nev- son’s estate. She also Moran, & Elkins v. he Bartlette cites Vinson representing er told her (Tex. App.-Houston [14th Jerry. by agr.), support dism’d writ Dist.] The entire letter from Lessert attorney-client an rela contention that reads: The facts of that case tionship existed. Hill: Ms. presented to the here. are dissimilar facts Affidavit find Please enclosed stat- Moran, of an estate the executors ing you objection have no to Jo Collins- (V firm hired the and Elkins law & Vinson being appointed Temporary worth Ad- E) relating them on matters to advise your daughter’s ministrator of estate. court held the estate administration. The Please take the time to review this docu- factually legally and sufficient there was ment, providing your ap- it meets conduct, that, by its V & evidence to find proval, please sign it in front of a Nota- *7 relation- attorney-client E an had formed Public, notarized, ry your signature have of the ship with the Moran beneficiaries return it to me in the and self-addressed at 405. estate. Id. stamped envelope your also enclosed attended meet- The estate beneficiaries on the convenience. As we discussed gave E ings attorneys & where V having Tem- telephone, appointed Jo as and regarding advice taxes beneficiaries pro- this porary Administrator will allow The firm advised consequences. tax ceeding go smoothly to far more on no less than four distinct beneficiaries you any questions quickly. Should have attorneys they legal issues. The stated any about this document or other mat- family, the Moran “the Moran represented ters, please do not hesitate to contact Estate, family, [and] the Moran Estate me. Estate interests.” The beneficia- Moran Sincerely, from mailings directly ries received several TODD G. LESSERT “quite had a & E. The beneficiaries V attorneys. E attorney-client relationship of contacts” with V & number Further, were in effect contractual. It arises from the the beneficiaries purely is firm’s fees legal E’s fees. The express agreement parties paying V & clear paid Thus, expected proceeds. were out of the distributions Lessert did not have pro from the on the rata estate based knowledge or the means of knowledge that beneficiary expected share each was to Hill not get paid. would receive. Id. at 403-04. Lessert could not have intended for Hill contrast, only Hill had one contact rely representation to on his false he did 26, 2001, with December a Lessert before Therefore, not know it was false. with single telephone only call. She received regard alleged misrepresentation, to this Lessert, mailing one from a letter memori- genuine Hill has failed to raise a issue of Hill alizing paid any part that call. never fact respect material with to at least two fees, legal directly of Lessert’s either equitable elements of estoppel. indirectly. Hill Lessert never advised on Necessity Temporary Administration of matters, any legal other than to ask her to sign a waiver service. The number and temporary Hill contends a admin in nature the interactions this case are istration not necessary complete was to different from those in Moran. process. settlement She asserts that ei heirship ther or dependent affidavits a ad in
There is no evidence the record rais- ministration could have been used. She ing genuine issue of material fact about contends the to use a decision attorney-client whether an relationship administration to effectuate the settlement Hill existed between and Lessert before a misrepresentation. amounts to December 2001. Hill’s mistaken im- pression attorney Lessert was her is not employ particular The decision to one attorney- sufficient to itself create legal process rather than another is a mat- relationship. client Because there was no professional judgment. ter of Even if that attorney-client there relationship, was no astute, decision not particularly as Hill conflict of concerning such rela- interest suggests, it not amount to does a false tionship required that Lessert was to dis- representation. Hill has therefore failed has, therefore, close. Hill to faded raise repre- show Lessert made a false respect an issue of material fact with sentation regard allegation. with to this all the elements of equitable estoppel. genuine has failed raise issue of Failure To Receive Settlement Proceeds respect material fact with to each element that, alleges when Lessert equitable estoppel. She therefore has in contacted her November he told not- proof met burden order to her she would receive all the settlement equitable estoppel invoke the doctrine of proceeds. Hill did not receive claims she negate Bartlette’s limitations defense. Ac- this, any of those Because of proceeds. cordingly, summary judgment she contends was a Lessert’s statement *8 properly granted based on Bartlette’s as- representation false that caused her to de of sertion of a statute limitations defense. lay filing suit until after the limitations and Accord Satisfaction period. the Bartlette contends settlement any money,
If Hill did not receive of the agreement constitutes an accord and satis agreement it was because of a failed be- claims, present all sister, barring Hill faction on Hill’s There is no tween and her Jo. Hill the lawsuit. contends settlement evidence in the record that Lessert knew an accord agreement does not constitute agree- or could have known that future Hill fail and satisfaction of her claims. She further ment between and Jo would and void get agreement that Hill not the settlement contends the settlement is would the es- and does not benefit authority to beneficiaries the did not have because Jo Co., Trust Palmer v. Coble Wall and survival tate. wrongful the death settle (Tex.1992). However, 178, 181-82 claims. S.W.2d statutory au- administrators have estate pay conditional tender of The death actions wrongful thority pursue to claim disputed unliquidated on a or ment if such of those beneficiaries on behalf satisfaction. may constitute an accord and own not done so on their have beneficiaries con regarding of the general The rule law after the death three months behalf within neces payment element ditional tender injured the individual. & Tex. Civ. PRAC. and satisfac sary to constitute accord 1997). 71.004(c) (Vernon § Ann. Rem.Code the conditional tender must be tion is that temporary adminis- next contends or declarations with suf expressed acts authority the settle trator does not have creditor will clarity so that the ficient of an estate. bring suit on behalf claims or acceptance of the know that his or statutory authority for a is Again, there full of the payment payment will constitute just to do that. temporary administrator Choate, Inc. v. claim. H.L. “Brownie” “personal authorizes the The Probate Code Co., Drilling Southland “[m]ake of an estate to representative” (Tex.1969); 678-79 see also Jenkins in relation compromises or settlements Co., 454, 455 Henry Beck C. dispute litigation” in or claims property (Tex.1969). to the court. application on written Tex. language hold that the of the settle- 2003). 234(a)(4) (Vernon § Ann. PROB.Code to consti- agreement was sufficient “personal defines The Probate Code and The rele- tute an accord satisfaction.2 “executor, independent as representative” language vant reads: administrator, executor, independent ad- IT EXPRESSLY AGREED AND IS administrator, ministrator, to- temporary undersigned UNDERSTOOD that the successors.” gether with their Tex. PROb. sums accepts payment men- 2003) 3(aa) (Vernon (empha- § Ann. Code full, final complete, tioned above as a added). sis of all claims binding compromise and hereby, court’s against parties probate released Hill also contends the issues, authority to disputed regardless grant Jo the which involve order did not may death wrongful too much or too little whether settle the survival provides, paid. expressly agreed have It is The Probate Code been claims. shall have and acceptance “Temporary and understood that the administrators as only rights powers is in full AC- such the sum mentioned above exercise order of expressed of a specifically CORD AND SATISFACTION are acts Any them.... disputed appointing claim.... the court doubtful and by temporary administrators performed contends settlement expressly not authorized shall that are so void because an estate ad (Ver- § be void.” Tex. PROB.Code Ann. authority ministrator does not have 2003). non In contrast wrongful settle a death claim. as claim, appointing order Jo wrongful death a survival with following granted her statutory administrator belongs claim is an action that *9 Inc., complete payments constitute shall Hycarbex, Anglo-Suisse, v. “These 2. See Inc. obligation,” was sufficient of our (Tex.App.-Houston fulfillment [14th Dist.] S.W.2d 103 writ), accord and satisfaction. holding language, to constitute full the no that “To the Estate and powers: represent Burleson’s estate. Whether she later dis- Ray heirs of Randina Burleson in all proceeds [sic] tributed the of that proper- check necessary respects regarding any and all ly does not alter the nature of the earlier against of the Estate and claims heirs valid settlement agreement. Collinsworth, Jerry Chad Bartlett [sic] authority pres- Jo had the to settle the arising from an automobile accident on or signed ent claims on Hill’s behalf. She about December 1999.” Hill contends agreement releasing settlement Bartlette language grant this not the authori- did Jo return, from In these claims. she received ty to wrongful settle the death and surviv- $25,000.00 a check .in the amount as disagree. al claims. .We in the agreed agreement. settlement Ac- expressly grants power The order the cordingly, summary we hold the judgment “represent Estate and of Randi- the heirs proper was because there has been an Ray necessary na Burleson in all [sic] re- claims, all accord and satisfaction on there- ” all spects regarding any and claims.... by barring present the lawsuit. language We hold that this is sufficient to Ratification convey power the to assert and settle sought summary judg- Bartlette also Further, specifically claims. the order that, ment on the basis even the settle- mentions the automobile accident agreement was voidable fraudu- caused hold Burleson’s death. We this lent, agreement through Hill ratified the language sufficiently specific to include subsequent conduct. We have con- wrongful claims death and survival agreement cluded that the settlement was arising out of the accident. proper by because it was entered into probate Hill further contends a court authority someone with the to do so. Hill jurisdiction wrongful does not have over fraudulently party was not made a to that support death and claims. In survival find it unneces- agreement. We therefore Hall, this, Hill Seay cites sary to Bartlette’s ratification ar- address (Tex.1984). Seay, Supreme In the Texas gument. proper Court determined that forum Conclusion for such cases was in the state district holding courts. Id. at 25. was ex- This Summary judgment properly was based Palmer, pressly overruled at on Bartlette’s statute of limitations defense Palmer, recognized the court genuine issue because failed raise Legislature had amended the Probate of material fact as to each element of Seay following give Code decision estoppel. Alternatively, sum- equitable jurisdiction probate wrongful courts over mary proper because Bart- judgment death and survival claims. Id. at 182. matter of there was a proved lette as a law constituting an agreement valid settlement finally contends the settlement on all claims. accord and satisfaction agreement should not constitute an accord and satisfaction on her claims because she Accordingly, judgment. we affirm the sign did not and she did not proceeds.
receive the settlement As J., CARTER, concurring. above, authority shown Jo had the to settle Concurring Opinion . Justice behalf; signature on Hill’s the claims Hill’s CARTER. Further, necessary. it is undis- was not $25,000.00 judgment I concur in the of the Court puted received a check made Jo regard- agree analysis I to the administrator of because with payable *10 My concern of limitations. mg the statute the opinion in the
is the statement administra- granting
order authority to the estate represent
tor give her the sufficient to
and heirs was claim. The Probate to settle the
right personal represen- states: “[w]hen
Code it for the interest
tative deems
estate, may, upon application written he court, au- granting order
to the (4) or set-
thority compromises ... [m]ake or claims property
tlements in relation to litigation.” Tex. PROB.Code dispute
in 2003) 234(a)(4) (Vernon (emphasis §
Ann.
added). There is no contention that applica- filed an
temporary administrator ap- requesting probate court
tion probate the settlement or that the
prove specifically autho-
court entered order agree I
rizing the settlement. order, had, by court
representative and heirs
authority represent the estate case, in but once she
of the deceased this settlement, negotiated proposed
had she required application to file a written probate
and to obtain an order from the authorizing her to settle the suit.
court
In re HARBROOK TOOL & CO., Relator.
MFG. James, Goldman & Corey Haugland, W. No. 08-05-00359-CV. Paso, P.C., El for relator. Haugland, Texas, Appeals Court Paso, pro respondent El Aguilar, Luis El Paso. se. 22, 2005. Dec. Jones, Jobe, Thomas E. Luther Martie 18, Rehearing Overruled Jan. Paso, Stanton, inter- parties El for real
est. McCLURE, BARAJAS, C.J.,
Before CHEW, JJ.