Kalyanaram v. Burck

• Decision Date: 08 June 2006
• Docket Number: No. 08-05-00132-CV.,08-05-00132-CV.
• Parties: Gurumurthy KALYANARAM, Appellant, v. Dan BURCK, Franklyn Jenifer, Charles Chaffin, Gwen Aguirre, Robert Lovitt, Hasan Pirkul, and Hobson Wildenthal, Appellees.
• Court: Texas Court of Appeals

225 S.W.3d 291

Gurumurthy KALYANARAM, Appellant, v. Dan BURCK, Franklyn Jenifer, Charles Chaffin, Gwen Aguirre, Robert Lovitt, Hasan Pirkul, and Hobson Wildenthal, Appellees.

No. 08-05-00132-CV.

Court of Appeals of Texas, El Paso.

June 8, 2006.

Cameron Davis Gray, Law Office of Cameron D. Gray, Dallas, for Appellant.

William T. Deane, Asst. Atty. Gen., Austin, for Appellees.

Before BARAJAS, C.J., McCLURE, and CHEW, JJ.

OPINION

DAVID WELLINGTON CHEW, Justice.

This is an appeal from a grant of a summary judgment. Appellees moved for both a traditional summary judgment and a no-evidence motion for summary judgment. The trial court granted both motions in favor of Appellees. On appeal, Appellant agues the trial court erred in granting the motions because: (1) Res Judicata does not bar his claim for malicious prosecution; (2) the release agreed to by Appellant does not address the claim for malicious prosecution; (3) the trial court erred when it granted the no-evidence summary judgment as to the claim of duress because Appellant submitted sufficient evidence of duress; (4) the trial court should not have considered the no-evidence summary judgment motion because it was submitted in violation of a governing scheduling order; and (5) Appellees were estoppel from relying on the settlement agreement because Appellant proved duress. We affirm.

Appellant Gurumurthy Kalyanaram was a faculty member employed by the University of Texas at Dallas ("UTD or University"). In August of 1998, Appellant's administrative assistant lodged allegations of misconduct concerning reimbursement expenses to University officials. Appellant was informed of the allegations of misconduct concerning these reimbursements the next month.

Appellant denied any wrongdoing and an internal review was conducted by the University. By letter dated December 9, 1998, Appellant was asked to step down as Academic Director of Masters Programs and Chair of Masters Program Committee, Area Coordinator for the Marketing Group, and Senior Faculty Liaison for External Affairs. Appellant was officially notified of the allegations of misconduct by letter dated December 10, 1998.

Subsequent to these allegations, Appellant met with University officials and after the meeting, he retained the services of a lawyer. At some point after the University officials initially informed Appellant of the allegations, he sent a letter to each member of the Board of Regents of the University System of Texas alleging that UTD officials had engaged in fraudulent activity in connection with the "Cohort MBA Program." Appellant also filed five separate lawsuits in both Federal and State courts including a suit to enjoin an internal academic investigation by UTD administration and faculty members.

Pursuant to a settlement agreement and release ("the release"), Appellant agreed to dismiss with prejudice the five pending suits and resign his faculty position at UTD in exchange for a sum certain to be paid in settlement of the claims. After entering into the settlement agreement, orders of dismissal were entered.

Appellant was subsequently indicted on felony counts of theft and securing execution of documents by deception in May of 1999. On June 26, 2002, Appellant was acquitted on both charges. Appellant then filed suit against the University of Texas at Dallas, the University System of Texas, and various named defendants in their "individual and official capacity." A plea to the jurisdiction was granted by the trial court and Appellant's claims against the University of Texas at Dallas and the University of Texas System were dismissed with prejudice. Appellee's moved to sever the dismissed claims and for final judgment on those claims and the motion was granted.

After the plea to the jurisdiction was granted, Appellant filed a second amended petition alleging malicious prosecution, conspiracy to commit malicious prosecution, and setting forth the affirmative defense of duress. Appellees moved for summary judgment and a hearing was held in August of 2004. After the hearing, Appellees filed a no-evidence summary judgment on Appellant's affirmative defense of duress. By order dated February 21, 2005, the trial court granted Appellees' "First Amended Second Motion for Summary Judgment" and "First Supplemental No-Evidence Motion for Summary Judgment."

Standards of Review

The standards for reviewing traditional and no-evidence summary judgment rulings are well-established. The movant for traditional summary judgment has the burden of showing there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. See TEX. R.CIV.P. 166a(c); Nixon v. Mr. Property Management Co., Inc., 690 S.W.2d 546, 548-49 (Tex.1985); Duran v. Furr's Supermarkets, Inc., 921 S.W.2d 778, 784 (Tex.App.-El Paso 1996, writ denied). When a defendant is the movant for summary judgment, it must either disprove at least one element of the plaintiff's theory of recovery or conclusively establish all essential elements of an affirmative defense. Sci. Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex.1997); City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671, 678-79 (Tex.1979).

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, 589 S.W.2d at 678-79. In determining whether there is a disputed material fact issue precluding summary judgment, all evidence favorable to the non-movant must be taken as true and all reasonable inferences, including any doubts, must be resolved in the non-movant's favor. Nixon, 690 S.W.2d at 548-49; DeLuna v. Guynes Printing Co. Of Texas, Inc., 884 S.W.2d 206, 208 (Tex. App.-El Paso 1994, writ denied).

A no-evidence summary judgment under Rule 166a(i) is essentially a pretrial directed verdict and as such, we apply the same legal sufficiency standard in reviewing a no-evidence summary judgment as we apply in reviewing a directed verdict. Wyatt v. Longoria, 33 S.W.3d 26, 31 (Tex.App.-El Paso 2000, no pet.). The party moving for no-evidence summary judgment must assert 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. To raise a genuine issue of material fact, the non-movant must set forth more than a scintilla of probative evidence as to an essential element of the non-movant's claim or defense. See id.; Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex.1997), cert. denied, 523 U.S. 1119, 118 S.Ct. 1799, 140 L.Ed.2d 939 (1998).

More than a scintilla of evidence exists when the evidence "`rises to a level that would enable reasonable and fair-minded people to differ in their conclusions.'" Havner, 953 S.W.2d at 711. 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 the existence of a fact, and the legal effect is that there is no evidence. Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex.1983). 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. See Havner, 953 S.W.2d at 711.

Where 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 are meritorious. See State Farm Fire & Cas. Co. v. S.S., 858 S.W.2d 374, 380 (Tex.1993); Rogers v. Ricane Enter., Inc., 772 S.W.2d 76, 79 (Tex.1989).

In Issue Two, Appellant argues that the trial court erred in granting the Appellees' motion for traditional summary judgment. Appellant contends that his claims were not barred by the doctrine of release because the release does not address an unaccrued cause of action and three of the Appellees are not beneficiaries to the agreement.

As a preliminary matter, Appellant suggest that there is no evidence before this Court or the trial court to support a finding of release. When Appellees filed the first motion for summary judgment, they did not attach a copy of the release to the motion. Instead, a notice was attached to the motion which stated that the release "was submitted only to Judge Jay Patterson for in camera inspection." [Emphasis in original].

We note that Appellant did not object to the summary judgment evidence during the hearing. Further, on appeal, Appellant has failed to cite any relevant legal authority in support of his argument. Appellant has waived this argument. See Velasquez v. Waste Connections, Inc., 169 S.W.3d 432, 435-36 (Tex.App.-El Paso 2005, no pet.). However, even if Appellant preserved this error and cited relevant case law in support of his position, we disagree with his argument.

Although the release was not attached to the motion, it is clear from the record that the release was before the court. Appellees properly filed a motion to seal which was never addressed by the court. Further, the final order states that "[a]fter considering the pleadings, motions, responses, evidence on file, and Plaintiff's replies the Court is of the opinion that Defendants motion[s] are meritorious ...." Finally, the release was properly attached to a third motion for summary judgment filed before the court rendered a decision.

Appellant next argues that the release does not address the cause of action for malicious prosecution. We again disagree. A release is an agreement or contract in which one party agrees that a duty or obligation owed by the other party is discharged immediately on the occurrence of a condition. National Union Fire Ins. Co. Of Pittsburgh, P.A. v. Insurance Co. of N. Am., 955...