Kyle v. West Gulf Maritime Ass'n

• Decision Date: 14 June 1990
• Docket Number: No. A14-89-00235-CV,A,No. 1525,1525,A14-89-00235-CV
• Citation: 792 S.W.2d 805
• Parties: 118 Lab.Cas. P 10,686 Murdock James KYLE & Ernest Davis, Appellants, v. WEST GULF MARITIME ASSOCIATION and International Longshoremen's Associationppellees. (14th Dist.)
• Court: Texas Court of Appeals

Page 805

792 S.W.2d 805

118 Lab.Cas. P 10,686

Murdock James KYLE & Ernest Davis, Appellants, v. WEST GULF MARITIME ASSOCIATION and International Longshoremen's Association No. 1525, Appellees.

No. A14-89-00235-CV.

Court of Appeals of Texas Houston (14th Dist.).

June 14, 1990.

Ross Asher, Tom M. White, Houston, for appellants.

Eric H. Nelson, Houston, for appellees.

Before J. CURTISS BROWN, C.J., and JUNELL and DRAUGHN, JJ.

OPINION

JUNELL, Justice.

This is an appeal from a summary judgment in a suit for damages for breach of contract. Suit was brought by two union members (appellants or "members") against the union (appellee or "union") which had represented them in the negotiation of a collective bargaining agreement. Judgment was against the two members who now appeal by bringing points of error alleging: (1) the controlling law is the common law of contracts as applied in Texas and not federal labor law; and (2) there are genuine issues of material fact. We affirm.

Appellants brought suit in 1979 against the union and an association which represented employers. The original petition constitutes appellants' only pleadings in the record. The gist of these pleadings is a claim for damages arising under a contract between the union and appellants' employers. The breach of a collective bargaining agreement is alleged without more specificity. The pleadings assert that the terms of the contract cannot be set forth because the union and the employers refused to produce the contract for inspection. Damages sought were: $9,000 in "benefits"; $25,000 in exemplary damages; and $25,000 for mental pain and suffering. The union answered by pointing out that appellants had never filed grievances as provided for in the contract between the union and the employer, and that any necessary remedy would have resulted through arbitration if appellants had filed an appropriate grievance. The trial court granted a summary judgment against appellants which this court reversed and remanded on appeal in 1984, ¹ upon which occasion this court also granted motion to dismiss the employer group, West Gulf Maritime Association. The union was the sole defendant at the second trial and is the only appellee now before us.

In proof supporting a new motion for summary judgment filed after remand, the union showed the members had a grievance involving a collective bargaining agreement over which federal law applies; that the cause of action accrued not later than June 1, 1977; the members' suit was filed more than six months after the cause of action accrued; and the action was time barred by limitation under federal law. Summary judgment proof included a 1988 deposition of member Kyle (Davis was then deceased), and two contracts between the union and appellants' employer ² properly supported by affidavit of the employer's representative who stated that no complaints or grievances had ever been filed by either of the two members concerning the supplemental benefits believed to be in dispute.

Appellants responded to the motion for summary judgment only by unsworn rebuttal which asserts that the suit was brought to recover damages for failure by the union to perform on a contract between the union and its members, and that the contract between the union and the employer is a collateral issue, citing International Ass'n of Machinists v. Gonzales, 356 U.S. 617, 618, 78 S.Ct. 923, 924, 2 L.Ed.2d 1018 (1958), Association of Westinghouse Salaried Employees v. Westinghouse Elec. Corp., 348 U.S. 437, 445, 75 S.Ct. 489, 492-93, 99 L.Ed. 510 (1955), and Galveston Maritime Ass'n, Inc. v. South Atlantic and Gulf Coast Dist. Int'l Longshoremen's Ass'n, 234 F.Supp. 250, 252 (S.D.Tex.1964), in an attempt to persuade the court below that Texas law should be applied to an existing contract between the members and the union, in which case a four-year limitation would apply, and as a consequence, the lawsuit is not time-barred.

The order granting summary judgment does not set out the grounds therefor. Under such circumstances appellants must show that each of the independent grounds alleged in the motion for summary judgment is insufficient to support the order. Tilotta v. Goodall, 752 S.W.2d 160, 161 (Tex.App.--Houston [1st Dist.] 1988, writ denied); McCrea v. Cubilla Condominium Corp. N.V., 685 S.W.2d 755, 757 (Tex.App.--Houston [1st Dist.] 1985, writ ref'd n.r.e.). The summary judgment will be affirmed on appeal if any of the theories advanced in the motion for summary judgment are meritorious. See Borg-Warner Acceptance Corp. v. C.I.T. Corp., 679 S.W.2d 140, 142 (Tex.App.--Amarillo 1984, writ ref'd n.r.e).

A summary judgment is not entitled to the same deference given to a judgment following a trial on the merits. Unlike an appeal following a trial on the merits, when reviewing the grant of a summary judgment, the appellate court does not view the evidence in the light most favorable to the judgment of the trial court. At either the trial or appellate level, the question is not simply whether the non-movant raised a material fact issue to defeat the motion. Unless the movant proved beyond question it was entitled to judgment as a matter of law, this court must remand the case for a trial on the merits. Gibbs v. General Motors Corp., 450 S.W.2d 827, 828-829 (Tex.1970). The standards that must be applied when reviewing a summary judgment have been clearly mandated by the Texas Supreme Court:

1. The movant for summary judgment has the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law.

2. In deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the non-movant will be taken as true.

3. Every reasonable inference must be indulged in favor of the non-movant and any doubts resolved in its favor.

Nixon v. Mr. Property Management Co., Inc., 690 S.W.2d 546, 548-549 (Tex.1985); Montgomery v. Kennedy, 669 S.W.2d 309, 310-11 (Tex.1984); Wilcox v. St. Mary's University of San Antonio, Inc., 531 S.W.2d 589, 592-93 (Tex.1975).

Further, this court must not consider evidence that favors the movant unless it is uncontroverted. Great Am. Reserve Ins. Co. v. San Antonio Plumbing Supply Co., 391 S.W.2d 41, 47 (Tex.1965).

The judgment of the trial court cannot be affirmed on any grounds not specifically presented in the motion for summary judgment. City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671, 675 (Tex.1979).

A defendant who moves for summary judgment may show no material issue of fact exists by proving that at least one element of plaintiff's cause of action has been established conclusively against the plaintiff. Gray v. Bertrand, 723 S.W.2d 957, 958 (Tex.1987); Otis Eng'g Corp. v. Clark, 668 S.W.2d 307, 311 (Tex.1983); Gibbs v. General Motors Corp., 450 S.W.2d at 828.

A summary judgment for the defendant disposing of the entire case is proper only if, as a matter of law, the plaintiff could not succeed upon any theories pleaded. Delgado v. Burns, 656 S.W.2d 428, 429 (Tex.1983); Gibbs, 450 S.W.2d at 828; Dodson v. Kung, 717 S.W.2d 385, 390 (Tex.App.--Houston [14th Dist.] 1986, writ ref'd n.r.e.).

Appellants' pleadings complain of the breach of a contract between the employer and the union. The union's motion for summary judgment responds to those pleadings by showing the agreement brought into issue by the appellants' pleadings is controlled by federal law which has a six-month limitation on the filing of suit, that this lawsuit was time barred, and the trial court was without jurisdiction as a result.

The movant for a summary judgment on the basis of the running of the statute of limitations assumes the burden of showing as a matter of law that the suit is barred by limitations. Delgado v. Burns, 656 S.W.2d 428 (Tex.1983).

Viewing with favor, as we must, appellants' contention that the real issue before us is not the collective bargaining agreement itself, but another separate contract between the members and the union, and notwithstanding the lack of specific pleadings by appellants on such a second and separate contract, we find the following.

It is undisputed that this action can be heard in state court. But there is an issue as to whether federal or state law applies. Appellants argue that the union renegotiated a contract with the members' employer without the consent, approval, or ratification of the union membership;...