Case Information
*0 FILED IN 13th COURT OF APPEALS CORPUS CHRISTI/EDINBURG, TEXAS 7/16/2015 2:49:47 PM CECILE FOY GSANGER Clerk *1 ACCEPTED 13-15-00127-CV THIRTEENTH COURT OF APPEALS CORPUS CHRISTI, TEXAS 7/16/2015 2:49:47 PM CECILE FOY GSANGER CLERK NO. 13-15-00127-CV IN THE COURT OF APPEALS FOR THE THIRTEENTH JUDICIAL DISTRICT CORPUS CHRISTI, TEXAS ___________________________________________________________________
TOM TUCKER,
Cross Appellee
v. CARL BEDGOOD AND LAURA BEDGOOD, Cross Appellants
______________________________________________________________ FROM THE COUNTY COURT AT LAW NO. ONE OF VICTORIA COUNTY, TEXAS THE HONORABLE TRAVIS ERNST, PRESIDING ___________________________________________________ BRIEF OF CROSS-APPELLEE ____________________________________________________ Robert P. Houston Attorney at Law 30 Meadow View Victoria, Texas 77904 (361) 573-5700 (361) 573-5040 Facsimile rph@rphouston.com ATTORNEY FOR APPELLEE TOM TUCKER *2 NO. 13-15-00127-CV IN THE COURT OF APPEALS FOR THE THIRTEENTH JUDICIAL DISTRICT CORPUS CHRISTI, TEXAS ___________________________________________________________________
TOM TUCKER,
Cross-Appellee,
v. CARL BEDGOOD AND LAURA BEDGOOD, Cross-Appellant
______________________________________________________________ FROM THE COUNTY COURT AT LAW NO. ONE OF VICTORIA COUNTY, TEXAS THE HONORABLE TRAVIS ERNST, PRESIDING _______________________________________________ TO THE HONORABLE JUSTICES OF THE THIRTEENTH COURT OF
APPEALS:
Cross-Appellee Tom Tucker (hereafter Tucker) files this brief in response to the Cross-Appellant’s Brief filed by Carl Bedgood and Laura Bedgood (hereafter
Bedgood) respectfully requesting that the trial court’s denial of Bedgoods’ request
for attorney fees only be affirmed in all respects.
ii *3 TABLE OF CONTENTS
Page:
Index of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii
Issues Presented . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv
Statement of Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Summary of theArgument..........................................................................................3
Argument...............................................................................................................3
Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Prayer.......................................................................................................................10
Certificate of Service................................................................................................10
Certificate of Compliance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
iii
Index of Authorities
Cases: Page:
McConnell v. Southside Independent School District,
858 S.W.2d 337 (Tex. 1993)..................................................................................4
Statutes & Rules:
Rule 166a[c ]… T…ex…. R…. C…iv…. P….. ………………………………….................................3
Rule 301 Tex. R. Civ. P. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Rule 67 Tex. R. Civ. P. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
iv
ISSUE PRESENTED
I.
The Trial Court was Correct in Failing to Award Attorney's Fees to
Cross-Appellant.
v *6 STATEMENT OF FACTS The Cross-Appellant’s Statement of Facts completely ignores the basis for the Trail Court’s decision and is not germane to the sole issue presented in their
appeal. As shown below, the salient facts which precluded an award of attorney
fees to Bedgood are procedural in nature and are not in controversy.
Simply put, the fact is that Bedgood neither pled for attorney fees on the basis they now seek them nor did they request summary judgment on the grounds
they now raise and therefore, it would have been clear reversible error if the Trial
Court had awarded them their requested fees.
The Bedgoods’ claim for attorney fees is found in their pleading denominated " Defendant Laura Bedgood’s Answer and Counter Claims,
Defendant’s Second Amended Answer and Counter Claims, and Defendant’s
Tex. Civil Practice & Remedies Code 10 Motion For Sanctions & Request For
Hearing." (CR 80-94 ) This was the live pleading on which they based their
Traditional Motion for Summary Judgment and in this pleading they specifically
limited their claim to two separate and distinct allegations. First they alleged that
Tucker had breached the 2008 Mutual Release, thus entitling them to attorney fees
pursuant to Chapter 38, Texas Civil P. & Remedies Code. (CR-90). Second, they
alleged a claim for a declaratory judgment regarding their rights and obligations
under the 2008 Mutual Release and pled that they could recover attorney fees
pursuant to Chapter 37, Texas Civil P. & Remedies Code. (CR 90).
In Bedgoods’ Traditional Motion for Summary Judgment, they simply reiterated their claim of breach of the Mutual Release as the sole basis for awarding
them attorney fees. (CR 125)
Since Bedgood never alleged in their live pleading or their Traditional Motion for Summary Judgment any claim that they were seeking attorney fees
pursuant to the terms of the Earnest Money Contract with Bryan, the Trial Court
had no alternative but to disallow attorney fees on such basis.
SUMMARY OF THE ARGUMENT Rule 166a[c] Tex R. Civ. P. unambiguously provides that “The motion for summary judgment shall state the specific grounds therefore”. The Supreme Court
has held that “a motion for summary judgment must itself expressly present the
grounds upon which it is made” and it would be reversible error for a trial court to
grant relief on a basis not specifically alleged in the motion.
Since Bedgood did not plead for an award of attorney fees under the earnest money contract with Bryan and since they did not seek summary judgment on that
basis, they were not entitled to an award of attorney fees by the Trial Court on that
basis.
ARGUMENT
Standard of Review
Bedgood cites Tex. R. Civ. P. 301 and Tex. R. Civ. P. 67 as authority for their
contention that a trial court may award attorney fees in a summary judgment
proceeding even if the movant wholly fails to expressly state the grounds upon
which it seeks such relief. This is an incorrect statement of the law and an
improper standard of review.
The rule that controls the disposition of this appeal is Rule 166a[c] Texas R.
Civ. P. And that rule unambiguously requires that the specific grounds for
summary judgment must be set forth in the written Motion for Summary Judgment
and cannot be found in a written brief or in oral argument. Moreover, the non-
movant has no duty to object or otherwise except to statements in a brief or oral
argument raising grounds not set forth in the motion since: “The motion for
summary judgment must itself state specific grounds on which judgment is sought”
and “The motion for summary judgment must stand or fall on the grounds it
specifically and expressly sets forth.” McConnell v. Southside Independent School
District 858 S.W.2d 337 (Tex. 1993).
Questions raised on appeal
Cross-Appellants’ issue on appeal raises two subsidiary, but fundamental, legal
questions for determination by this Court, to wit:
1) Is it imperative that a movant expressly state in the written motion for summary judgment the specific ground on which it seeks summary judgment?
2) If the movant fails to expressly state the specific ground on which it seeks summary judgment, is it necessary that the non-movant object to such failure?
Fortunately, neither of these is an open question, since both have been
conclusively answered by the Texas Supreme Court.
A motion for summary judgment must expressly and specifically state the grounds for seeking the summary judgment.
In McConnell v. Southside Independent School District 858 S.W.2d 337 (Tex.
1993) the Texas Supreme Court was called on to decide whether or not a Motion
for Summary Judgment must expressly set out the specific grounds on which the
judgment is sought. There, a trial court entered a summary judgment based on a
general allegation in a Motion for Summary Judgment that there were no genuine
issues of fact and therefore summary judgment was proper. The movant also filed
a brief in which it set out with specificity each ground for its allegation that there
was no fact issue in the case.
On appeal from the granting of the summary judgment, the non-movant argued
that since the motion did not set out the specific grounds underlying the claim that
there was no fact issue, summary judgment was improper, even though the movant
did set out expressly and with specificity the grounds for the motion in a brief filed
contemporaneously with the filing of the motion and even though the parties
argued about each ground at the oral hearing on the motion.
In considering the non-movant’s appeal, the Supreme Court stated that “This
case presents the question whether grounds for summary judgment must be
expressly presented in the motion for summary judgment itself or whether such
grounds may be presented in either a brief filed contemporaneously with the
motion or in the summary judgment evidence.” The court answered this question
by stating “We conclude that grounds for summary judgment must be expressly
presented in the summary judgment motion itself.”
The Court then cited rule 166a[c] Tex. R. Civ. Proc. which it said “plainly
provides ‘The motion for summary judgment shall state the specific grounds
therefor.’” Accordingly, the court held that the rule means what it says and that if
the motion fails to expressly set out the specific grounds supporting the request for
judgment, it is error if the court grants the motion.
In the present case, Bedgood did state expressly and specifically the grounds
on which they sought summary judgment. (CR 90). Their problem is that these are
not the grounds they now claim supports an award of attorney fees.
Bedgood alleged in their live pleadings and in their Traditional Motion
for Summary Judgment the specific basis on which they claimed to be
entitled to an award of attorney fees.
The Bedgood’s live pleading is denominated " Defendant Laura Bedgood’s Answer and Counter Claims, Defendant’s Second Amended Answer and Counter
Claims, and Defendant’s Tex. Civil Practice & Remedies Code 10 Motion For
Sanctions & Request For Hearing." (CR 80-94) In that pleading, Bedgood
expressly stated that their counter-claim against Tucker was for attorney fees and
that the basis on which they were entitled to an award of attorney fees was Chapter
38, Tex. Civ. Practice & Remedies Code. They then stated that under this statute
they were entitled to an award of attorney fees because Tucker breached the 2008
Mutual Release with Bedgood.
As an alternative to this basis, Bedgood also pled their entitlement to attorney fees under Chapter 37, Tex. Civ. Practice & Remedies Code, because they
were seeking a declaration of their rights and obligations under the Mutual
Release. (CR 91)
Bedgood then filed their Traditional Motion for Summary Judgment expressly stating that they were entitled to attorney fees because Tucker had
breached the Mutual Release. (CR-125) . They stated no other grounds for the [1]
relief they requested.
Nowhere in their live pleadings or in their Motion for Summary Judgment did Bedgood claim a right to recovery of attorney fees under the terms of the Bryan
earnest money agreement. (CR 80-94; CR 109–131) .
Tucker responded by challenging in writing Bedgoods’ right to attorney
fees on the grounds set forth in their live pleadings and motion and
Bedgood made no reply to that challenge.
Tucker responded to the motion for summary judgment by citing the legal authorities that hold that a party to a release cannot, in the absence of specific
contractual language to the contrary, recover attorney fees for breach of the release.
(CR 286-288) . Bedgood never challenged those authorities or argued that the law
is to the contrary. Indeed, in this appeal, Bedgood makes no claim that this is not a
correct statement of the law or that the trial court erred in failing to award them
attorney fees for breach of the Mutual Release. Instead, Bedgood claims that it
was error for the court to refuse to grant summary judgment on a different, unpled
ground that is completely unrelated to that set forth in the motion.
Tucker had no duty to object or otherwise except to grounds orally raised by Bedgood that were not set forth in their Motion for Summary Judgment.
Bedgood does not claim that they actually complied with the requirement that their motion expressly state the basis for their request for attorney fees. Rather
they contend that Tucker’s attorney failed to “object to Pierce’s argument
regarding attorney fees under the earnest money contract. (Cross-Appellants Brief
p.7 ) And then Bedgood makes the totally unfounded claim that because they
sought attorney fees in their motion (albeit on a specific ground unrelated to the
ground they now allege) and because Bedgoods’ attorney orally raised the issue at
the hearing on the motion, the issue of attorney fees was both pled and preserved
for appeal because Tucker did not object to consideration of this ground. But the
Texas Supreme Court expressly addressed this type of argument in McConnell
supra, and rejected it out of hand.
In McConnell, the plaintiff who was trying to uphold the award of summary judgment argued that even if he had not expressly set forth the specific ground on
which he was seeking summary judgment, he had made that ground clear to the
trial judge in a brief and at the oral hearing on the motion. The Supreme Court
however held that while a specific ground had been made known to the trial judge,
and the matter had been briefed and argued, and apparently the Judge had granted
judgment based on such ground, all that was insufficient if the ground was not
expressly set forth in the written motion.
Moreover, the Court held that if the underlying pleadings and motion set forth ground A & B as a basis for entry of the summary judgment, but the parties
then orally raise, brief and argue ground C & D, it would be reversible error for the
court to grant the summary judgment on grounds not set forth in the written
motion.
Here, Bedgood specifically pled the basis on which they sought summary judgment (breach of the Mutual Release), but then tried to raise a different ground
(prevailing party provision of the Bryan earnest money contract) orally at the
hearing and in a motion for reconsideration. Under the clear holding of the
Supreme Court this is not sufficient and the trial court was completely correct in
denying attorney fees to Bedgood.
Conclusion
Bedgoods’ failure to allege in their Motion for Summary Judgment the earnest money contract as a ground for awarding them attorney fees was fatal to
their attempt to get such fees. The trial court’s decision as to attorney fees was
mandated by the Supreme Court and is therefore not reversible error.
Prayer
WHEREFORE, Cross Appellee Tom Tucker requests that this court affirm only the Trial Court’s denial of attorney fees to Cross Appellant, and for all other
relief to which he is entitled.
Respectfully submitted, ________________ _______________ /s/ Robert P. Houston
Robert P. Houston
Attorney at Law
30 Meadow View
Victoria, Texas 77904 (361) 573-5700
(361) 573-5040 Facsimile ATTORNEY FOR APPELLEE *16 Certificate of Service
This is to certify that a true correct and complete copy of Cross Appellee's Brief has been sent to all parties to the judgment by electronic filing on this 16 day
of July, 2015, as follows:
/s/ Robert P. Houston Robert P. Houston Rachel Klotzman
603 Mesquite Lane
Victoria TX 77904
rachel@klotzmanlaw.com
Certificate of Compliance I hereby certify that the applicable parts of the Brief of Cross Appellee contains a
total of 2,400 words, as verified by the software of Word Perfect X5, in
compliance with Tex. R. App. P 9.4(I)(2)(B)
/s/ Robert P. Houston
Robert P. Houston
[1] It is important to note that in their Traditional Motion for Summary Judgment Bedgood did not invoke, plead or seek to recover attorney fees under the Declaratory Judgment Act. The sole basis for their claim for attorney fees in their motion was the alleged breach of the Mutual Release.