Clarendon Nat. Ins. Co. v. Thompson

• Court: Texas Court of Appeals
• Writing for the Court: Laura Carter Higley
• Citation: Clarendon Nat. Ins. Co. v. Thompson, 199 S.W.3d 482 (Tex. App. 2006)
• Decision Date: 20 July 2006
• Docket Number: No. 01-06-00049-CV.,No. 01-06-00450-CV.,No. 01-05-01071-CV.,01-05-01071-CV.,01-06-00049-CV.,01-06-00450-CV.
• Parties: CLARENDON NATIONAL INSURANCE COMPANY, Appellant, v. Dennis Ross THOMPSON, Appellee. Clarendon National Insurance Company, Appellant, v. Dennis Ross Thompson, Appellee. In re Clarendon National Insurance Company, Relator.

199 S.W.3d 482

CLARENDON NATIONAL INSURANCE COMPANY, Appellant, v. Dennis Ross THOMPSON, Appellee.

Clarendon National Insurance Company, Appellant, v. Dennis Ross Thompson, Appellee.

In re Clarendon National Insurance Company, Relator.

No. 01-05-01071-CV.

No. 01-06-00049-CV.

No. 01-06-00450-CV.

Court of Appeals of Texas, Houston (1st Dist.).

July 20, 2006.

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Robert C. McCabe, Holm, Bambace & McCabe, L.L.P., Houston, TX, for Appellant.

James A. West, James A. West, P.C., Houston, TX, for Appellee.

Panel consists of Justices JENNINGS, HANKS, and HIGLEY.

OPINION

LAURA CARTER HIGLEY, Justice.

These two appeals and one original proceeding arise from a no-answer default judgment obtained by Dennis Ross Thompson (Thompson) against Clarendon National Insurance, Company (Clarendon). Clarendon filed a petition for bill of review to challenge the default judgment. The trial court granted Thompson's motion for summary judgment, denying Clarendon's petition for bill of review. Clarendon also filed a separate suit, seeking a temporary injunction to enjoin Thompson from executing on the default judgment. The trial court denied Clarendon's request for temporary injunctive relief.

In appellate cause number 01-05-01071-CV, Clarendon contends, in two issues, that the trial court erred in granting the motion for summary judgment on its bill of review claim.¹ In appellate cause number 01-06-00049-CV, Clarendon asserts one issue challenging the trial court's denial of its request for a temporary injunction.² Clarendon has also filed a related petition for writ of injunction in this Court, cause number 01-06-00450-CV.

We reverse the judgment of the trial court granting Thompson's motion for summary judgment and remand the proceeding to the trial court; affirm the judgment of the trial court denying Clarendon's request for a temporary injunction; and deny Clarendon's petition for writ of injunction.

Background

Thompson filed suit against Clarendon and its third-party administrator, Americomp Billings Solutions, Inc. On May 5, 2003, the trial court signed an interlocutory default judgment against Clarendon in favor of Thompson. The judgment recited that Clarendon's registered agent had been served with process and that the citation and proof of service had been filed with the trial court. The judgment further recited that Clarendon had not filed an answer to Thompson's suit. On June 10, 2003, the trial court signed an order granting Thompson's motion to nonsuit his claims against Americomp Billings Solutions.

On December 27, 2004, Clarendon received a letter from Thompson's attorney pursuing collection of the judgment. On March 15, 2005, Clarendon filed a petition for bill of review directly attacking the judgment. Clarendon alleged that it had not been notified by the district clerk's office of the default judgment. Clarendon complained that, because it did not have notice of judgment, it was deprived of its right to file a motion for new trial.

Also on March 15, 2005, in a separate action, Clarendon filed a petition for temporary injunction seeking to enjoin Thompson from executing on the default judgment. Clarendon asserted that it would succeed on its bill of review and alleged that it feared Thompson would quickly spend any funds he obtained from executing the default judgment, leaving Clarendon without meaningful recourse against Thompson when it succeeded on its bill of review.

In the bill of review proceeding, Thompson filed a motion for summary judgment and a supplemental motion for summary judgment to which Clarendon responded. The trial court granted Thompson's motion for summary judgment, without stating the basis. In the temporary injunction proceeding, the trial court denied Clarendon's requested relief.

In separate appeals, Clarendon challenges the trial court's summary judgment and the trial court's order denying its temporary-injunction request. Clarendon has also filed a petition for writ of injunction in this Court, seeking to enjoin the disbursement of its funds to Thompson, which the trial court had placed in receivership to satisfy the default judgment.

Appeal of Summary Judgment (No. 01-05-01071-CV)

Clarendon presents two issues challenging the trial court's granting of Thompson's motion for summary judgment.³

A. Standard of Review

Though he did not expressly state whether he sought traditional or no-evidence summary judgment, Thompson's motion for summary judgment reads as a hybrid summary judgment motion in which Thomson raised both traditional and no-evidence points. This is an important distinction because the two forms of summary judgment invoke different standards of review. Compare TEX.R. CIV. P. 166a(c), with TEX.R. CIV. P. 166a(i) (setting forth the different burdens borne by movant and nonmovant under each section).

The movant for traditional summary judgment must show that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. TEX.R. CIV. P. 166a(c); Nixon v. Mr. Property Management Co., Inc., 690 S.W.2d 546, 548 (Tex.1985). A defendant moving for traditional summary judgment must conclusively negate at least one essential element of each of the plaintiff's causes of action or conclusively establish each element of an affirmative defense. Sci. Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex.1997). Evidence is conclusive only if reasonable people could not differ in their conclusions. City of Keller v. Wilson, 168 S.W.3d 802, 816 (Tex.2005). Once the defendant establishes its right to summary judgment as a matter of law, the burden shifts to the plaintiff to present evidence raising a genuine issue of material fact, thereby precluding summary judgment. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678-79 (Tex. 1979). When reviewing a traditional summary judgment, we take as true all evidence favorable to the nonmovant, and we indulge every reasonable inference and resolve any doubts in the nonmovant's favor. Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 157 (Tex.2004).

In contrast, the party moving for no-evidence summary judgment must assert only that there is no evidence of one or more essential elements of a claim or defense on which the non-movant would have the burden of proof at trial. See TEX.R. CIV. P. 166a(i). The burden then shifts to the non-movant to produce evidence raising a fact issue on the challenged elements. See id. A no-evidence summary judgment is improper if the respondent brings forth more than a scintilla of probative evidence to raise a genuine issue of material fact. TEX.R. CIV. P. 166a(i); Forbes Inc. v. Granada Biosciences, Inc., 124 S.W.3d 167, 172 (Tex.2003). Less than a scintilla of evidence exists when the evidence is so weak as to do no more than create a mere surmise or suspicion of a fact. Forbes, 124 S.W.3d at 172. More than a scintilla of evidence exists if it would allow reasonable and fair-minded people to differ in their conclusions. Id. As with a traditional summary judgment, we view the evidence in the light most favorable to the non-movant, disregarding all contrary evidence and inferences. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex.2003).

If the trial court has granted summary judgment without specifying the ground or grounds relied on for the ruling, summary judgment will be affirmed on appeal if any of the theories advanced is meritorious. See State Farm Fire & Cas. Co. v. S.S., 858 S.W.2d 374, 380 (Tex.1993).

B. Analysis of Grounds Asserted to Support Summary Judgment

Clarendon's first issue challenges the grounds offered by Thompson in support of his motion for summary judgment.

1. Did Clarendon's negligence in failing to answer defeat its claim for bill of review?

Thompson asserted, as his first ground for summary judgment, that Clarendon's bill of review should be denied, as a matter of law, because it was Clarendon's negligence in failing to file an answer that prevented it from asserting its defense to the suit. As cited by Thompson, a bill of review plaintiff must ordinarily plead and prove (1) a meritorious defense to the underlying cause of action, (2) which the plaintiffs were prevented from making by the fraud, accident or wrongful act of the opposing party or official mistake, (3) unmixed with any fault or negligence on their own part. Caldwell v. Barnes, 154 S.W.3d 93, 96 (Tex.2004).

In contrast, Clarendon contends, as it did in the trial court, that whether its failure to answer was unmixed with its own negligence is irrelevant under the facts pled. Clarendon points out that it did not allege that it was denied the opportunity to answer Thompson's suit. Rather, Clarendon alleged in its bill of review petition that it was deprived of the opportunity to request a new trial because of official mistake, that is, because the district clerk did not send notice of judgment.

Relying on Hanks v. Rosser, Clarendon asserts that a plaintiff alleging that it was denied its right to request a new trial because of official mistake is not required to show that it was free from negligence in failing to answer. Instead, when such allegations are involved, the bill of review plaintiff must show that its failure to answer was not intentional or as a result of conscious indifference. 378 S.W.2d 31 (Tex.1964). We agree with Clarendon.⁴ See id. at 34-35.

This is not to say that negligence is not a consideration in bill of review proceedings in which the plaintiff alleges that it lost the opportunity to request a new trial. In its opinions following Hanks, the supreme court reiterated that a plaintiff must show an absence of negligence with regard to the loss of the defensive opportunity of which the plaintiff complains in its bill of review petition.⁵ See Gracey v. West, 422 S.W.2d 913, 915-16 (Tex.1968); Petro-Chemical Transport, Inc. v. Carroll, 514 S.W.2d 240, 246 (Tex.1974). Thus, when a plaintiff...