Judwin Properties, Inc. v. Griggs and Harrison

• Decision Date: 09 November 1995
• Docket Number: No. 01-95-00381-CV,01-95-00381-CV
• Citation: 911 S.W.2d 498
• Parties: JUDWIN PROPERTIES, INC., Appellant, v. GRIGGS AND HARRISON, a Professional Corporation, Appellee. (1st Dist.)
• Court: Texas Court of Appeals

Page 498

911 S.W.2d 498

JUDWIN PROPERTIES, INC., Appellant, v. GRIGGS AND HARRISON, a Professional Corporation, Appellee.

No. 01-95-00381-CV.

Court of Appeals of Texas,

Houston (1st Dist.).

Nov. 9, 1995.

Thomas Kirkendall, Michael C. Falick, Houston, for Appellant.

Michael A. Hirsch, Houston, for Appellee.

Before HUTSON-DUNN, O'CONNOR and ANDELL, JJ.

OPINION

HUTSON-DUNN, Justice.

This is an appeal from a summary judgment granted in favor of appellee, Griggs & Harrison (Griggs). We affirm the judgment for the breach of contract, breach of implied warranty, and breach of fiduciary claims, and reverse the judgment for the negligence and gross negligence claims.

Summary of Facts

Tenants of the Edgebrook Apartments complained to the owner, Judwin Properties, Inc. (Judwin), appellant, of exposure to a termiticide known as chlordane. When litigation ensued, Judwin had a general liability policy with Reliance Insurance Company. Judwin demanded a defense and coverage, but Reliance refused to respond to either provide or deny coverage. As a result, Judwin retained the services of Griggs to defend it in the "chlordane" lawsuits, while still maintaining that Reliance owed it coverage. When Judwin refused to pay Griggs for its services, Griggs brought suit against Judwin Properties and Reliance Insurance for recovery of attorneys fees due, approximately $56,000. ¹

In its petition, Griggs attached the hourly fee statements that described the nature and extent of the services performed for Judwin. Judwin filed a counterclaim against Griggs alleging that the statement of services Griggs attached to its petition contained confidential and privileged information concerning Griggs' representation of Judwin. Because Judwin was still involved in a number of lawsuits involving chlordane, Judwin alleged this public disclosure resulted in immediate and irreparable harm to it because the statements disclosed litigation strategy and other privileged communications.

Additionally, Judwin included two paragraphs in its counterclaim that demonstrated that Judwin contemplated additional claims to be asserted against Griggs. Paragraph six reads, "Judwin reserves the right to Amend the Original Answer, including the assertion of counterclaims and additional affirmative defenses." Paragraph seven reads, "Judwin requests that judgment be entered in its favor on all claims alleged by Plaintiff ... and that Judwin recover damages by reason of the counterclaims asserted against Griggs & Harrison...."

In response to Judwin's counterclaim, Griggs filed a motion for summary judgment, alleging, "This Motion for Summary Judgment is limited to, and made upon one legal issue, only: the claim(s) of Judwin made for recovery of damages which are remote, contingent, and speculative; G & H reserves unto itself and intends the active defense of Judwin's claim(s) upon additional bases in law." Griggs also asserted that it was entitled to summary judgment because it conclusively negated the element of damages in each cause of action by showing that while Judwin claimed it sustained damages, it did not show any connection of cause and effect, and was only able (at best) to speculate as to any damages amount. In support of its motion, Griggs relied on the pleadings on file, and Judwin's responses to interrogatories.

Before the summary judgment hearing, Judwin amended its original counterclaim alleging the same facts which supported its original counterclaim and added that Griggs' conduct constituted a breach of contract, breach of implied warranty, breach of fiduciary duty, negligence (legal malpractice), and gross negligence. Under each of the headings, Judwin laid out an identical set of acts that it claimed caused it damages.

In its response to Griggs' motion for summary judgment, Judwin asserted that as to each cause of action, it created an issue of fact on the damages element. Judwin relied on an affidavit from its president, Jerold Winograd, and its supplemental answers to Griggs' interrogatories as its summary judgment proof. The trial court found that Griggs was entitled to judgment as a matter of law on all causes of action asserted by Judwin in its amended counterclaim. From this, Judwin appealed.

In its first point of error, Judwin contends that the judgment of the trial court should be reversed on Judwin's claims for breach of implied warranty, breach of fiduciary duty, and negligence because Griggs did not address these claims in its motion for summary judgment. In its second point of error, Judwin contends the judgment of the trial court should be reversed because Griggs did not conclusively disprove the damage elements of each of Judwin's causes of action as a matter of law.

Standard of Review for Summary Judgment

In a summary judgment proceeding brought by a defendant, ² the movant-defendant must present summary judgment proof establishing, as a matter of law, that there is no genuine issue of material fact on one or more of the essential elements of the plaintiff's cause of action. Union Pump Co. v. Allbritton, 898 S.W.2d 773, 774 (Tex.1995); Gibbs v. General Motors Corp., 450 S.W.2d 827, 828 (Tex.1970). The movant-defendant may accomplish this by offering summary judgment evidence showing that at least one element of nonmovant's cause of action has been established conclusively against the nonmovant. Union Pump Co., 898 S.W.2d at 774. It is not necessary for the movant-defendant to disprove all elements of the nonmovant's cause of action; rather, if a movant-defendant can disprove any one of the essential elements, then the court should render summary judgment for that movant-defendant. Wheeler v. Yettie Kersting Memorial Hosp., 866 S.W.2d 32, 36 (Tex.App.--Houston [1st Dist.] 1993, no writ). If the movant-defendant negates one or more of the essential components of the nonmovant's causes of action, the burden is on the nonmovant to produce controverting evidence raising a fact issue as to the elements negated. Pinckley v. Gallegos, 740 S.W.2d 529, 531 (Tex.App.--San Antonio 1987, writ denied). However, if the movant-defendant's summary judgment proof does not establish as a matter of law that there is no genuine issue of fact as to one or more of the essential elements of each of the nonmovant's causes of action, then the nonmovant does not have the burden, to avoid summary judgment, of going forward with summary judgment proof of like quality. Swilley v. Hughes, 488 S.W.2d 64, 67-68 (Tex.1972). On appeal, evidence favorable to the nonmovant will be taken as true; every reasonable inference must be indulged in favor of the nonmovant and any doubts resolved in its favor. Montgomery v. Kennedy, 669 S.W.2d 309, 311 (Tex.1984).

We consider each of the points of error in light of this standard.

Analysis

In point of error one, Judwin contends that the judgment of the trial court should be reversed on its claims for breach of implied warranty, breach of fiduciary duty, and negligence because Griggs did not address these claims in its motion for summary judgment. Upon examining the original counterclaim, the motion for summary judgment, and the amended counterclaim, we hold that Griggs' motion for summary judgment contemplated all causes of action set out in Judwin's amended counterclaim.

Judwin argues that at the time Griggs moved for summary judgment, the only claim asserted by Judwin was a claim Griggs characterized in its motion for summary judgment as a breach of contract. Because Griggs did not amend its motion for summary judgment, Judwin argues Griggs did not seek summary judgment on Judwin's newly asserted causes of action.

Judwin relies on Rose v. Kober Financial Corp., 874 S.W.2d 358 (Tex.App.--Houston [14th Dist.] 1994, no writ). In that case, the plaintiff, Philip Rose, initially filed suit against Kober solely under the Deceptive Trade Practices Consumer Protection Act. Id. When Kober moved for summary judgment on Rose's pleading, Rose amended his petition to assert additional causes of action for breach of contract, breach of fiduciary duty, misrepresentation, and negligence. Id. at 360. Kober did not amend its motion for summary judgment to address these causes of action. Id. Although the trial court granted summary judgment as to all causes of action, the appellate court held that since Kober had not amended its motion for summary judgment to address Rose's four additional causes of action, "the trial court erred in attempting to enter an all inclusive final summary judgment." Id. at 362. Arguing that the Rose case is factually similar, Judwin requests this Court to reverse the summary judgment on the causes of action not addressed in Griggs' summary judgment.

Griggs argues that the Rose decision would be on point but for the fact that its motion for summary judgment was made clearly upon the "claim(s) " asserted in Judwin's counterclaim which were contemplated and comprehended by the amended counterclaim. Moreover, Griggs argues that Judwin's original counterclaim made factual pleadings without clearly delineating each cause of action which it contemplated by those pleadings. Griggs refers to paragraph eight and nine of Judwin's original counterclaim:

8. G & H [Griggs] has attached to the Original Petition filed with this Court copies of G & H's statement of services rendered and expenses incurred that were previously transmitted to Judwin. These statements detail the legal services provided by G & H to Judwin in the chlordane lawsuits. G & H's statements contain confidential and privileged information concerning G & H's representation of Judwin in the chlordane lawsuits. Judwin never authorized G & H to disclose these confidential attorney-client communications publicly nor are these communications reasonably necessary to recover the claims asserted by G & H in this case.

9. The public disclosure of G & H's statements has resulted in immediate and irreparable harm to Judwin. Judwin is still embroiled in...