Housour v. Southwest Tex Leasing Co., Inc., No. 07-03-0123-CV (TX 5/16/2005)
| Decision Date | 16 May 2005 |
| Docket Number | No. 07-03-0123-CV.,07-03-0123-CV. |
| Parties | JEFFERY HOUSOUR, Appellant, v. SOUTHWEST TEX LEASING CO., INC., Appellee. |
| Court | Texas Supreme Court |
Appeal from the 99th District Court of Lubbock County, No. 2001-515,925, Honorable Sam Medina, Judge.
Panel E: Before REAVIS and CAMPBELL, JJ. and BOYD, S.J.1.
Jeffery Housour appeals from a judgment denying his motion for summary judgment and granting the motion for summary judgment of Southwest Tex Leasing Co., Inc. d/b/a Advantage Rent-A-Car. We reverse the trial court's judgment insofar as it granted Advantage a money judgment including attorney's fees against Housour, and remand Advantage's claims, but affirm the judgment of the trial court in all other respects.
In January 2001, Housour was involved in a one-vehicle accident while driving a vehicle he had rented from Advantage. As a result of the accident the vehicle was a total loss. A utility pole and a switch box owned by Southwestern Bell Telephone Company were also damaged. Advantage made a demand on Housour for $21,525.28 in damages to the vehicle. Southwestern Bell alleged $11,501.83 in damages to its property.
Housour carried a personal auto policy issued by Allstate Property & Casualty Insurance Company, with property damage liability limits of $15,000 per accident. Allstate paid the claims of Southwestern Bell and Advantage on a pro rata basis, paying Advantage $9,780 and Southwestern Bell, $5,220.2 The wrecked vehicle was sold as salvage for $850.
The record reflects that on April 23, 2001, Housour orally agreed with a representative of Advantage3 to pay $11,745.58, the agreed balance due for damages to the vehicle, by making payments of $200.00 per month. Advantage sent Housour a "letter of agreed responsibility" reflecting this agreement, signed by a representative of Advantage. On May 1, 2001, Housour sent Advantage a $200 payment, but he never signed or returned the letter. He made no further payments.
Allstate required that Advantage execute a release in exchange for its payment of the $9780.00. Following discussions between Allstate and Advantage, Allstate prepared a release and provided it to Advantage. On May 3, 2001, Advantage returned the release to Allstate, whereupon Allstate sent Advantage its check.
In November of 2001 Housour filed suit against Advantage alleging violations of the Texas Insurance Code and the Deceptive Trade Practices Act,4 and breach of contract. Housour contended that under the terms and conditions of the car rental agreement Advantage had obligations of an insurer, including the duties to defend and indemnify him. Advantage met the financial responsibility requirements of the Motor Vehicle Safety Responsibility Act5 through a certificate of self-insurance issued by the Texas Department of Public Safety. Advantage counterclaimed for damages and attorney's fees, crediting Housour with the $200 May 1 payment. Housour responded to the counterclaim by asserting the affirmative defenses of accord and satisfaction and release. Both filed motions for summary judgment. Housour later filed a motion requesting a continuance arguing that he needed additional time to obtain further discovery concerning revisions Advantage had made to the form of its rental contracts. The trial court denied Housour's motions and granted Advantage's motion for summary judgment.
Our review of a summary judgment is de novo to determine whether a party's right to prevail is established as a matter of law. Tex. R. Civ. P. 166a(c); Dickey v. Club Corp. of Am., 12 S.W.3d 172, 175 (Tex.App.-Dallas 2000, pet. denied);Ortiz v. State Farm Mut. Auto. Ins. Co., 955 S.W.2d 353, 355 (Tex. App.-San Antonio 1997, writ denied). We take as true all evidence favorable to the nonmovant, and indulge every reasonable inference and resolve any doubt in the nonmovant's favor.Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex. 1985).
When the trial court grants one motion for summary judgment and denies the other, the reviewing court should review the summary judgment evidence presented by both sides and determine all questions presented. Commissioners Court of Titus County v. Agan, 940 S.W.2d 77, 81 (Tex. 1997). See Jones v. Strauss, 745 S.W.2d 898, 900 (Tex. 1988). The reviewing court should render such judgment as the trial court should have rendered. Jones, 745 S.W.2d at 900. Each party, though, bears the burden of establishing that it is entitled to judgment as a matter of law. See Guynes v. Galveston County, 861 S.W.2d 861, 862 (Tex. 1993).
A motion for summary judgment must expressly present the grounds on which it is made, and must stand or fall on these grounds alone. Science Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 912 (Tex. 1997).See Johnson v. Brewer & Pritchard, P.C., 73 S.W.3d 193, 204 (Tex. 2002); Stiles v. Resolution Trust Corp., 867 S.W.2d 24, 26 (Tex. 1993). When, as here, a trial court's order granting summary judgment does not specify the grounds relied upon, the reviewing court must affirm summary judgment if any of the summary judgment grounds are meritorious. FM Properties Operating Co. v. City of Austin, 22 S.W.3d 868, 872-73 (Tex. 2000); Star-Telegram, Inc. v. Doe, 915 S.W.2d 471, 473 (Tex. 1995).
On appeal, Housour presents two issues, questioning first whether the trial court erred in granting Advantage's motion for summary judgment and denying his, and second whether it erred in failing to grant his motion for continuance.
Housour first renews on appeal his assertion that Advantage's counterclaim for damages is barred under the doctrine of release.6 Advantage's motion for summary judgment on its counterclaim did not address Housour's contention that Advantage had released him from further liability under the rental contract by its execution of the Allstate release and negotiation of the Allstate check. In a response to Housour's motion for summary judgment, Advantage contended Housour could not have been released by virtue of the Allstate document for two reasons, first, because neither Advantage nor anyone acting on its behalf signed the document, and second, in the alternative, because the document acted only to discharge Allstate from future claims and did not act to release Housour's individual liability.7
Advantage's burden to establish its entitlement to judgment as a matter of law on its counterclaim necessarily required that it negate Housour's affirmative defense of release. See DeBord v. Muller, 446 S.W.2d 299, 301 (Tex. 1969). A release is a contract subject to the rules of contract construction. Williams v. Glash, 789 S.W.2d 261, 264 (Tex. 1990); Loy v. Kuykendall, 347 S.W.2d 726, 728 (Tex.Civ.App.-San Antonio 1961, writ ref'd n.r.e.). In construing a release, effort is made primarily to ascertain and give effect to the intention of the parties. Id. at 728. As with other written contracts, the words used in a release provide the primary guide to the intention of the parties. National Union Fire Ins. Co. of Pittsburgh, Pa. v. Insurance Co. of North America, 955 S.W.2d 120, 127 (Tex.App.-Houston [14th Dist.] 1997), aff'd sub nom. Keck, Mahin & Cate v. National Union Fire Ins. Co. of Pittsburgh, Pa., 20 S.W.3d 692 (Tex. 2000). See Coker v. Coker, 650 S.W.2d 391, 393 (Tex. 1983). In this summary judgment record, neither of the grounds Advantage asserted in opposition to the Allstate document negates the defense of release as a matter of law. There is summary judgment evidence to support Advantage's contention the Allstate document was not signed. Coppere Williams, an employee of Advantage's collection agency Alternative Claims Management, L.L.C., handled Advantage's claims against Housour, and the discussions with Allstate. One of the two affidavits signed by Williams appearing in the record says the copy of the release she sent Allstate was "unsigned." But there is controverting evidence. The record contains documents from Allstate's file, one of which is a copy of the release containing Williams's signature on the line that appears following the word "undersigned" in the document. As noted, the document contained no other signature line. In a later affidavit, Williams said she forwarded the document to Allstate, but "never actually executed this document." The record also contains deposition testimony in which Williams acknowledged that she signed her name on the line in the document before returning it to Allstate. The summary judgment record does not establish that the Allstate release went unsigned.
The difficulty with Advantage's second ground of opposition to Housour's release defense, by which Advantage contended the Allstate document was intended to benefit Allstate only, is that the document does not name Allstate as a party released, but names Housour. The language of the document stating that it released Housour raises an inference precluding summary judgment against him on that issue. See Loy, 347 S.W.2d at 728. Advantage did not meet its burden of establishing as a matter of law its entitlement to judgment on its counterclaim in the face of Housour's affirmative defense of release.
Too, the summary judgment evidence concerning the circumstances surrounding Advantage's delivery of the release to Allstate, including the evidence of Advantage's concurrent negotiations with Housour, raises inferences that prevent summary judgment for Housour on his release defense. See id.
Housour's remaining arguments in support of his first issue on appeal contend that the trial court should have granted him summary judgment on his claims against Advantage. We begin with his breach of contract claim.8 The parties' arguments focus on paragraphs 5 and 6 of the printed Terms and Conditions of the car rental contract.
Paragraph 5 provided, in part, "Renter is responsible for and agrees to...
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