James E. ROSS and J. Douglas Sutter, Appellants, v. ARKWRIGHT MUTUAL INSURANCE COMPANY Formerly Named Arkwright-Boston Manufacturers Mutual Insurance Co., Mutual Marine Office, Inc., Brice Leon, Felix Salgado, Jr., Gonzalo Sosa, Charles R. Lipcon, Stevens F. Mafrige, Ronald Kormanik, Mafrige & Kormanik, P.C., Thomas N. Thurlow, Thomas A. Brown, G. Byron Sims and Brown, Sims, Wise & White, P.C., Appellees.
No. B14-91-00485-CV
Court of Appeals of Texas, Houston (14th Dist.).
May 7, 1992
Opinion on Motion for Rehearing June 18, 1992. Rehearing Denied Sept. 10, 1992.
385
Nevertheless, the record does not establish laches, which requires proof of (1) unreasonable delay by one asserting legal or equitable rights and (2) a good faith, detrimental change of position because of the delay. Rogers v. Ricane Enter., Inc., 772 S.W.2d 76, 80 (Tex.1989); Stergios v. Forest Place Homeowners’ Ass‘n, Inc., 651 S.W.2d 396, 401 (Tex.App.-Dallas 1983, writ ref‘d n.r.e.). “Mere lapse of time raises no presumption of laches. It must be an unreasonable delay which has worked injury to another person.” Gulf, Colorado & Santa Fe Ry. v. McBride, 159 Tex. 442, 322 S.W.2d 492, 500 (1958); accord, Culver v. Pickens, 142 Tex. 87, 176 S.W.2d 167, 170-71 (1943).
Frieden cites Bailey v. Baker, 696 S.W.2d 255 (Tex.App.-Houston [14th Dist.] 1985, no writ), in which relator waited more than three months after a discovery order to seek mandamus relief two weeks before trial. The court denied leave to file a petition for mandamus in part because of the delay. Here there is neither a showing of detrimental reliance nor a possibility of last-minute interference with an impending trial. Moreover, in contrast to our review of discovery rulings, if we were to deny mandamus relief Bitter would still suffer from an order that the trial court lacked jurisdiction to issue.
Because the trial court lacked jurisdiction to grant the new trial, we conditionally grant the writ of mandamus. Bitter has not sought relief from the order of dismissal, and therefore this court may not set it aside.
David E. Sharp, William J. Boyce, Steven A. Lehy, Charles L. Cotton, Andrew S. Hanen, Houston, for appellees.
OPINION
CANNON, Justice.
This is an appeal from summary judgments granted in favor of appellees. Appellants bring a single point of error alleging the trial court erred in granting the summary judgments in favor of appellees. We dismiss the appeal.
In 1980, Gonzalo Sosa, a seaman, suffered injuries on the M/V Lago Izabal, a ship owned by Tracey Navigation. Mr. Sosa sued Tracey Navigation and the M/V Lago Izabal in federal court for personal injuries he sustained as a result of an explosion aboard the ship. Tracey Navigation was represented by the firm of Ross, Griggs & Harrison. Ross, a partner in the firm, and Sutter, an associate, were the attorneys handling the personal injury suit. Sosa was represented by Stevens F. Mafrige and Ronald Kormanik of Mafrige & Kormanik, P.C. (the Mafrige group). After a bench trial in federal court, Sosa obtained a judgment for approximately twenty-five million dollars. The Fifth Circuit affirmed the judgment in part and reversed and remanded in part to the federal district court. On November 9, 1984, the federal district court entered a judgment in Sosa‘s favor for approximately thirteen million dollars. See Sosa v. M/V Lago Izabal, 736 F.2d 1028 (5th Cir.1984).
Following the award in the personal injury suit, Tracey Navigation and its excess insurance carrier, Arkwright Manufacturers Mutual Insurance Company (Arkwright), brought separate legal malpractice suits against Ross and Sutter and against Ross, Griggs & Harrison in federal court for their handling of the personal injury suit. In its suit, Arkwright also sued other insurance carriers. The claims against the insurance carriers are not at issue in this suit. F.E. Billings represented Tracey Navigation in the malpractice action, and Thomas A. Brown, G. Byron Sims and their firm, Brown, Sims, Wise & White, P.C. (the Brown group), represented Arkwright. After the personal injury suit became final, the Mafrige group, on behalf of Sosa, settled Sosa‘s claims with Tracey Navigation and the Arkwright group for five million dollars. As a part of this settlement, Tracey Navigation and Arkwright assigned a portion of their legal malpractice claims against Ross and Sutter and Ross, Griggs & Harrison to Sosa. Later, the malpractice suits against Ross and Sutter and the firm were consolidated into a single suit. In the consolidated legal malpractice suit, the Mafrige group and Charles R. Lipcon represented Sosa, Thomas N. Thurlow represented Tracey Navigation, and the Brown group continued to represent Arkwright.
The federal trial court ordered separate trials for the legal malpractice claims and the claims against the other insurance carriers. On August 31, 1989, the court called the legal malpractice suit for trial. At that time, Tracey Navigation, Sosa and Arkwright advised the court that a settlement had been reached with Ross, Griggs & Harrison for $250,000. The parties also dismissed their claims against Sutter. Following a bench trial, the trial court entered a take-nothing judgment in favor of Ross. In September of 1989, Ross and Sutter filed separate motions for sanctions under
On March 16, 1990, Ross filed an original petition in state court against appellees. On January 11, 1991, Sutter intervened and adopted the claims asserted by Ross in his petition. The trial court eventually granted summary judgments in favor of all appellees. Appellants appeal from the orders granting summary judgments in favor of
This court must first determine which pleadings were live when the motions for summary judgments were filed, and thereby identify the causes of action asserted by appellants. Appellants contend the trial court abused its discretion when it struck appellant Ross’ third amended original petition and Sutter‘s first amended original petition in intervention. On April 19, 1991, after all appellees had filed their motions for summary judgment, Ross and Sutter filed amended pleadings that added additional causes of action for conspiracy to commit tortious interference with a business contract and tortious interference with a business contract. With the exception of these additional causes of action, the allegations in the new pleadings were identical to those in Ross’ second amended original petition and Sutter‘s original petition in intervention. On April 29, 1991, the Brown group filed a motion asking the trial court to strike Ross’ third amended petition and Sutter‘s first amended petition in intervention. The trial court granted this motion. On appeal, appellants present several arguments contending this action by the trial court was in error; however, appellants never presented these arguments to the trial court after the court struck their amended pleadings.
In order to preserve a complaint for appellate review, a party must have presented to the trial court a timely request objection or motion, stating the specific grounds for the ruling he desired the court to make ...
Ross’ second amended original petition against all appellees contained claims of malicious prosecution, slander, libel, negligence, and civil conspiracy. Because Sutter‘s original petition in intervention simply adopts the claims asserted by Ross in his second amended original petition, Sutter has asserted the same causes of action against appellees. Appellees filed separate motions for summary judgment in response to the claims asserted by Ross and Sutter. Some of the appellees filed one motion as to both Ross and Sutter, while others filed separate motions as to each. This court turns first to appellants’ contention that, because all appellees did not specifically address certain claims pled by appellants, appellees failed to meet their summary judgment burden of proof as required under
In all, there were eight motions for summary judgment filed by appellees. Arkwright, Mutual Marine Office, Inc., Brice Leon, and Felix Salgado, Jr.2 (the Arkwright group) filed two motions for summary judgment: one against each of the appellants. Each motion, however, contains the same grounds as to each appellant. The motions filed by the Arkwright group address only the claim of malicious prosecution. The motions fail to address the other claims brought by appellants, i.e., libel, slander, negligence, and civil conspiracy.3
Appellee Thurlow filed separate motions for summary judgment as to each appellant. In his motions, Thurlow addresses malicious prosecution and responds somewhat vaguely to the conspiracy claim; however, he fails to address libel, slander, and negligence. The Brown group also filed separate motions for summary judgment as to Ross and Sutter. The motions address all claims asserted by appellants except negligence. Appellee Lipcon filed one motion for summary judgment as to both Ross and Sutter. Lipcon addressed all causes of action urged by appellants except negligence. The Mafrige group filed one motion for summary judgment as to appellants, and addressed all the claims asserted by appellants. The Mafrige group addressed the negligence cause of action in its reply to Ross and Sutter‘s response to the motion for summary judgment. Though the Mafrige group never specifically mentions negligence, it asserts that appellants have only a malicious prosecution claim and the other causes of action are improperly fractured out of that one cause of action. From the motions for summary judgment filed by the appellees, it is clear that not all appellees addressed all causes of action asserted by Ross and Sutter. In fact, only the Mafrige group responded to every claim brought by appellants.
Appellees have devised several arguments in response to appellants’ contention that not all of the causes of action were addressed in the motions for summary judgment. The argument asserted by a majority of appellees is that appellants stated only a cause of action for malicious prosecution and nothing more. While such an argument may be true, appellees never made this argument to the trial court in their motions for summary judgment, and thus it may not be raised for the first time on appeal. See City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 675 (Tex.1979);
As to the first argument, we disagree. Ross’ second amended original petition clearly asserts a negligence claim. During oral argument, Lipcon‘s attorney admitted that a “weird form of negligence” was pled, and argued it was meritless using arguments two and four as set out above.
As to the second argument, while it may be true, no appellee, except the Mafrige group, made this argument in its motion for summary judgment, and thus only Mafrige can raise it on appeal. See Clear Creek Basin Auth., 589 S.W.2d at 675. The third argument, that the summary judgment proof as to the causes of action that were addressed negates the negligence claim, is technically correct in part; however, appellants, while alleging that appellees negligently defamed them, also contended that appellees were negligent in omitting to tell appellants’ client that the legal malpractice claim was without merit. Therefore, the summary judgment proof as to the other causes of action does not completely defeat the negligence claim.
This third argument ties in with the fourth wherein certain appellees contend that as a matter of law appellees owed no duty to appellants’ client and under the rules of professional conduct could not have ethically contacted appellants’ client, and therefore, appellees were not negligent as a matter of law. This argument, while
All appellees, except the Mafrige group, failed to address one or more of the causes of action asserted by appellants: the Arkwright group failed to address defamation, negligence, and conspiracy; Thurlow failed to address defamation and negligence; and the Brown group and Lipcon failed to address negligence. The fact that the claims asserted by the appellants may have no merit should have been addressed in the motions for summary judgment, not in the briefs presented to this court on appeal. Therefore, we must decide the appropriate disposition of the case in light of the foregoing facts.
A motion for summary judgment must state the specific grounds upon which judgment is sought. Clear Creek Basin Auth., 589 S.W.2d 671, 676; Hall v. Harris County Water Control & Improvement Dist. No. 50, 683 S.W.2d 863, 867 (Tex.App.-Houston [14th Dist.] 1984, no writ);
Although the supreme court recites these rules, it has disposed of summary judgment cases in a manner inconsistent with these rules. The court treats some summary judgments as final and appealable, while dismissing others as interlocutory. Compare Teer, 664 S.W.2d 702 with New York Underwriters Ins. Co. v. Sanchez, 799 S.W.2d 677 (Tex.1990) (per curiam). Analysis of these holdings reveals certain factual distinctions underlying the supreme
In Schlipf v. Exxon, 644 S.W.2d 453, 455, the supreme court found a trial court order granting summary judgment final even though the judgment failed to mention the plaintiff‘s claim for prejudgment interest. Schlipf, 644 S.W.2d at 455. The trial court‘s order granting summary judgment contained a “Mother Hubbard” clause,4 and the supreme court held that the use of the Mother Hubbard clause “expressly disposes of all parties and issues in the case, including Schlipf‘s claim for prejudgment interest.” Schlipf, 644 S.W.2d at 455. The court added that the judgment was drafted in the form of a final judgment, and since neither party complained of the form of the judgment, the court refused writ of error. Id.
In Teer v. Duddleston, 664 S.W.2d 702, 702-03, the trial court granted summary judgment in favor of all defendants even though only two had moved for summary judgment. There was no severance. The supreme court held that the trial court should have entered a partial or interlocutory summary judgment. Id. at 705. Rather than dismissing the appeal, however, the supreme court reversed the judgment and remanded only the cause of action against the defendant who had not moved for summary judgment. Id. While acknowledging that a summary judgment that fails to dispose of all parties or issues is interlocutory, the court did not dismiss the appeal as an attempted appeal of an interlocutory and unappealable order as Pan American and
Further, in discussing the use of a Mother Hubbard clause, the court stated that in a conventional trial on the merits, the use of a Mother Hubbard clause eliminates the
Following the supreme court‘s lead, the First Court of Appeals acted similarly in Wheeler v. Yettie Kersting Memorial Hosp., 761 S.W.2d 785 (Tex. App.-Houston [1st Dist.] 1988, writ denied). That court held that even though the motion for summary judgment did not address all of the claims asserted by the plaintiff, the judgment was final and appealable because the judgment contained a Mother Hubbard clause. Id. citing Schlipf, 644 S.W.2d at 455. The court reformed the judgment to reflect an interlocutory judgment as to the claims addressed in the motion for summary judgment and remanded the unaddressed claims back to the trial court. Id. at 787.
Based on the holdings in Teer and Chessher, the supreme court treats a summary judgment as final and appealable, though remanding unadjudicated issues and parties to the trial court, where the judgment on its face purports to be a final judgment. In other words, if the summary judgment order specifically refers to all issues and parties or contains a Mother Hubbard clause, the supreme court holds that, although the trial court erred in not rendering a partial and interlocutory judgment, the judgment is to be treated as final for appeal purposes. See Teer, 664 S.W.2d at 704-05; Chessher, 658 S.W.2d at 564.
On the other hand, where the summary judgment does not specifically state that it disposes of all parties and issues and where the order granting summary judgment contains no Mother Hubbard language, the supreme court holds the judgment interlocutory and unappealable, and dismisses the case. See New York Underwriters Ins. Co. v. Sanchez, 799 S.W.2d 677, 679 (Tex. 1990) (per curiam); see also, Chase Manhattan Bank v. Lindsay, 787 S.W.2d 51, 53 (Tex.1990) (orig. proceeding) (where trial court granted defendant‘s motion for summary judgment on plaintiff‘s claim and then refused to allow defendant to initiate discovery on counterclaim, supreme court held trial court retained jurisdiction because summary judgment was interlocutory). In Sanchez, the plaintiff sued the defendants for breach of the duty of good faith and fair dealing and violations of the DTPA. Sanchez, 799 S.W.2d at 678. The defendants asserted a counterclaim for attorney‘s fees as to the DTPA claim, alleging the claim was groundless and brought in bad faith. Id. The defendants filed a motion for summary judgment, and the trial court granted summary judgment in favor of the defendants, but its judgment did not dispose of the defendants’ counterclaim. Id. The trial court‘s judgment granted defendants’ motion for summary judgment and decreed that plaintiff take nothing by and under his claims against the defendants, and that the defendants shall go hence without day, with costs to be taxed against the plaintiff. Id. The plaintiff appealed and both parties, in their arguments to the court of appeals and the supreme court, briefed the case as if the summary judgment were final and appealable. Id.
The supreme court held that in the absence of a statute making an interlocutory order appealable, a judgment is final and appealable if it disposes of all issues and parties, including those presented by counterclaim or cross action. Id. at 678-79. Because the judgment failed to dispose of the defendants’ counterclaim, the court held that the summary judgment was interlocutory and unappealable. Id. at 679. The court further held that the court of appeals erred in assuming jurisdiction, and that, even though neither party asserted the issue, the error was fundamental jurisdictional error that should have been noticed by the court. Id. The court then
Sanchez is distinguishable from Schlipf, Teer and their progeny in that the Sanchez order contained no Mother Hubbard clause nor any other express reference to the parties or issues. Thus, in determining whether a summary judgment is final and appealable or interlocutory and unappealable, the supreme court apparently focuses on whether the order contains Mother Hubbard language.
It seems obvious that where a movant styles his motion as “Motion for Partial Summary Judgment” and the trial court‘s order states that it grants partial summary judgment, the judgment does not dispose of all issues and parties and is interlocutory and unappealable. Where the motion is not styled as a motion for partial summary judgment, but it nevertheless addresses some, but not all claims alleged, it seems equally clear that the order granting the motion does not dispose of all issues and parties and is effectively a grant of partial summary judgment. In either case, we believe an order granting a motion for summary judgment that fails to address all issues and parties should be held interlocutory and unappealable despite the inclusion of any Mother Hubbard language. The supreme court, however, holds otherwise. See Teer, 664 S.W.2d at 704-05; Chessher, 658 S.W.2d at 563.
Despite supreme court‘s holdings in Teer and Chessher, at least two court of appeals have determined that where a motion for summary judgment does not address all of the plaintiff‘s claims, the trial court‘s order granting the motion is interlocutory and unappealable despite the trial court‘s inclusion of a Mother Hubbard clause in the order. See Bethurum v. Holland, 771 S.W.2d 719 (Tex. App.---Amarillo 1989, no writ); Sakser v. Fitze, 708 S.W.2d 40 (Tex. App.-Dallas 1986, no writ). In Bethurum, the plaintiffs brought suit as shareholders. 771 S.W.2d at 720. After the
In Sakser, the defendant moved for summary judgment on one of the plaintiff‘s five claims. Sakser, 708 S.W.2d at 41. The trial court entered an order granting the motion and included a Mother Hubbard clause in the order. Id. The Dallas court held that a “Mother Hubbard clause does not convert an intrinsically interlocutory partial summary judgment into a final judgment disposing of claims concerning which no motion for summary judgment had been filed.” Id. at 42. Consequently, the court ruled that the summary judgment order was not final and dismissed the appeal. Id. at 43.
We think the approach taken by the Dallas and Amarillo court of appeals is correct and far less confusing in application than the approach of the supreme court; however, courts of appeals are constrained by law to follow precedent set by the Texas Supreme Court. Thus, courts of appeals will continue to wade through this muddy area determining whether to dismiss the appeal or to reverse and remand based on whether the trial court used a Mother Hubbard clause in the order granting summary judgment. Such an approach is, in our opinion, in direct contravention of
In their post-submission briefs, the Mafrige group and Lipcon argue that
Appeal dismissed.
OPINION ON MOTION FOR REHEARING
Lipcon, the Brown group, and the Mafrige group filed motions for rehearing alleging this court‘s opinion conflicts with our decision in Merrill Lynch Relocation Management v. Powell, 824 S.W.2d 804 (Tex. App. - Houston [14th Dist.] 1992, orig. proceeding). Appellants are incorrect and the motions for rehearing are overruled.
[A]fter considering such Motion, “Defendants‘/Counter-Plaintiffs’ Opposition to Plaintiff‘s/Counter-Defendant‘s Motion for Summary Judgment” filed herein on July 8, 1988, the deposition transcripts and trial testimony referenced in the Motion and the response thereto, the pleadings, admissions and affidavits of the parties, and the argument of counsel, [the Court] was of the opinion that such Motion was well taken and should be granted.
It is accordingly ordered ... that [Bryan] take nothing by their counterclaim.
Id. (emphasis in the original). After quoting the entire order in Merrill Lynch, this court stated that the order clearly disposed of the causes not addressed in the motion for summary judgment because the order specifically recited that the trial court considered Bryan‘s response to the motion for summary judgment. This response referenced and attached as an exhibit, Bryan‘s amended answer and counterclaim. Thus, in considering the response, the trial court also considered the amended answer and counterclaim. Accordingly, the summary judgment could and did dispose of all causes of action, even those not addressed in the motion. Id.
In this case, we held that, based on the Supreme Court‘s holdings in Teer and Chessher, a summary judgment is final and appealable where the judgment on its face purports to be a final judgment, such as where the summary judgment order specifically refers to all issues and parties, or contains a Mother Hubbard clause. See Teer, 664 S.W.2d at 704-05; Chessher, 658 S.W.2d at 564. The order in Merrill Lynch specifically referred to all issues and parties by referencing motions or responses raising all issues. The order in this case, however, simply recited that plaintiffs should take nothing and should pay costs. There was no specific reference to the unaddressed issues or to any summary judgment documents raising those issues. Furthermore, there was no Mother Hubbard clause. Thus, appellants are incorrect in asserting that this court‘s holding in Merrill Lynch conflicts with the holding in this case.
Appellants’ motions for rehearing are overruled.
TEXAS EMPLOYERS’ INSURANCE ASSOCIATION, Appellant, v. Cindy Mothershead BORUM, Appellee.
No. 04-91-00259-CV.
Court of Appeals of Texas, San Antonio.
May 20, 1992.
Rehearing Denied May 20, 1992. Rehearing Denied July 8, 1992.