Lawrenson v. Global Marine, Inc.

• Decision Date: 07 December 1993
• Docket Number: No. 06-92-00084-CV,06-92-00084-CV
• Citation: 869 S.W.2d 519
• Court: Texas Court of Appeals
• Parties: James LAWRENSON, Appellant, v. GLOBAL MARINE, INC. & Global Marine Drilling Company, Appellees.

Page 519

869 S.W.2d 519

James LAWRENSON, Appellant, v. GLOBAL MARINE, INC. & Global Marine Drilling Company, Appellees.

No. 06-92-00084-CV.

Court of Appeals of Texas Texarkana.

Dec. 7, 1993.

Rehearing Denied Jan. 19, 1994.

Michael Kerensky, O'Quinn, Kerensky & McAninch, Richard P. Hogan, Jr., David W. Holman, Houston, for appellant.

Marion E. McDaniel, Jr., Houston, for appellees.

Before CORNELIUS, C.J., and BLEIL and GRANT, JJ.

OPINION

GRANT, Justice.

James Lawrenson appeals from a summary judgment. Lawrenson, a British national, sued Global Marine, Inc. for injuries sustained aboard the ship Glomar Adriatic I in Angolan national waters.

Lawrenson contends that the trial court erred in granting Global Marine's motion for summary judgment because the motion did not expressly address his Texas state law claims and because there were disputed issues of fact regarding his claims under the Jones Act in federal maritime law. He also argues that any ruling based upon limitations was erroneous as a matter of law.

On June 6, 1983, Lawrenson was injured while working on an off-shore drilling platform that was located just off the shore of Angola. The contract Lawrenson was working under did not specifically provide that the work was to be done in Angolian waters, but the work was to be done wherever the ship Glomar Adriatic I was ordered. He filed suit against Global Marine, Inc. (GMI) on March 11, 1986, and added Global Marine Drilling Corporation (GMDC) as a defendant on January 24, 1991, as the parties allegedly responsible for his injuries. Where appropriate, we will refer to both entities as Global. Global Marine Drilling Corporation is a wholly-owned subsidiary of Global Marine, Inc.

STANDARD FOR REVIEW

Summary judgment is proper when the movant establishes that there is no genuine issue of material fact and that he is entitled to judgment as a matter of law. TEX.R.CIV.P. 166a(c); City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671 (Tex.1979); Baubles & Beads v. Louis Vuitton, S.A., 766 S.W.2d 377 (Tex.App.-Texarkana 1989, no writ). The question on appeal is not whether the summary judgment proof raises a fact issue with reference to the essential elements of the plaintiff's cause of action, but whether the summary judgment proof establishes that the movant is entitled to summary judgment as a matter of law. Gonzalez v. Mission American Ins. Co., 795 S.W.2d 734, 736 (Tex.1990). Because the movant bears the burden of proof, all conflicts in the evidence are disregarded, evidence favorable to the nonmovant is taken as true, and all doubts as to the genuine issue of material fact are resolved in favor of the nonmovant. Nixon v. Mr. Property Management, 690 S.W.2d 546 (Tex.1985). A defendant who moves for summary judgment must demonstrate that at least one essential element of the plaintiff's cause of action has been disproved as a matter of law. Hammonds v. Thomas, 770 S.W.2d 1 (Tex.App.-Texarkana 1989, no writ). Once the defendant has negated an essential element of the plaintiff's cause of action, the burden then shifts to the plaintiff to produce evidence of probative force raising an issue of fact as to the element negated. Goldberg v. United States Shoe Corp., 775 S.W.2d 751, 752 (Tex.App.-Houston [1st Dist.] 1989, writ denied). In cases in which multiple causes of action are alleged, a movant may not be granted judgment on a cause of action not addressed by the proceeding. A movant must establish his entitlement to a summary judgment on the issues expressly presented to the trial court. Chessher v. Southwestern Bell Telephone, 658 S.W.2d 563, 564 (Tex.1983); Clear Creek Basin Authority, 589 S.W.2d 671; Christensen v. Sherwood Ins. Services, 758 S.W.2d 801, 803 (Tex.App.-Texarkana 1988, writ denied).

STATUTE OF LIMITATIONS

Global contends that the judgment should be affirmed on limitations grounds. Global argues that, since both GMI and its wholly-owned subsidiary GMDC were in bankruptcy at the time of the filing of the initial petition and since Lawrenson did not file the action during the thirty-day window provided by the Bankruptcy Code after bankruptcy actions were completed, the case was not timely filed. The applicable statute of limitations for the claim under federal law is provided by the Jones Act, 46 U.S.C.A.App. § 688 (West 1975 & Supp.1993), which incorporates the three-year period set out by the Federal Employers' Liability Act. If Texas negligence law were applied, the proper limitations period would be two years. The following chronology of events is set forth in Global's motion for summary judgment.

June 6, 1983 Cause of action arose

January 27, 1986 GMI and GMDC filed bankruptcy, triggering automatic stay under 11 U.S.C.A. § 362(a) (West 1993)

March 11, 1986 Lawrenson sues GMI while GMI was under the automatic stay

June 11, 1986 Last date to file lawsuit if GMI had not filed bankruptcy

February 28, 1989 GMI emerges from bankruptcy and the automatic stay lifts by operation of law

March 30, 1989 Last date for commencing lawsuit under 11 U.S.C.A. § 108(c) (West 1993) (date of ending bankruptcy plus 30 days)

April 28, 1989 Lawrenson files second amended petition

January 24, 1991 Lawrenson files third amended petition, adding for the first time a claim against GMDC

The first question that we must determine is whether any of this information is competent summary judgment proof. Normally, pleadings, including motions for summary judgment and responses to motions, are not competent evidence. ¹ However, in the present case, an unusual situation presents itself for review. The vice president of Global provided an affidavit that was attached to the motion for summary judgment. The affidavit contained various factual statements and concluded, "I have read the foregoing motion for summary judgment, and the facts contained therein are within my personal knowledge and are true and correct." In effect, he adopted as his own all factual statements made in the motion. This is not the proper format for an affidavit filed in support of summary judgment. "To satisfy Rule 166a(e) the affidavit must itself set forth facts and show the affiant's competency...." Keenan v. Gibraltar Sav. Ass'n, 754 S.W.2d 392, 394 (Tex.App.-Houston [14th Dist.] 1988, no writ). However, TEX.R.CIV.P. 166a(f) provides that defects in affidavits must be specifically pointed out with opportunity, but refusal, to amend before grounds for reversal are shown. In the present case, counsel never complained about the fact that the affidavit attempted to incorporate facts by reference. In fact, Lawrenson admitted in his response to the motion for summary judgment that he had filed suit while Global was in bankruptcy and then addressed Global's argument on its merits. Accordingly, we hold that Lawrenson has waived any complaint about the form of the affidavit. We therefore treat the facts contained within Global's motion for summary judgment and incorporated within the affidavit as proper summary judgment evidence and will consider them in our review.

The automatic stay provided by the Bankruptcy Code under 11 U.S.C.A. § 362(a)(1) (West 1993) states that the commencement of a bankruptcy case operates as a stay of

the commencement or continuation, including the issuance or employment of process, of a judicial, administrative, or other action or proceeding against the debtor that was or could have been commenced before the commencement of the case under this title, or to recover a claim against the debtor that arose before the commencement of the case under this title.

This stay arises automatically when bankruptcy is filed and is effective whether or not a party learns of it prior to acting. That stay remains in effect until the bankruptcy proceeding is concluded or the property is no longer in the estate. The stay remains applicable to the debtor until the case is closed or discharge is granted. 11 U.S.C.A. § 362(c) (West 1993); see George H. Tarpley, Impact of Bankruptcy on Civil Litigation, in STATE BAR OF TEXAS PROF. DEV. PROGRAM, 2 Advanced Civil Trials Course K (1988), see also Mina Clark and Ann van Bever, How the Bankruptcy Code Affects State Court Litigation: A Basic Guide for the General Practitioner, 51 TEX. B.J. 784 (1988).

When a creditor does not seek relief from a stay but attempts to take some action commencing or continuing such a suit, as in the present case, the action taken is void, not merely voidable. Kalb v. Feuerstein, 308 U.S. 433, 60 S.Ct. 343, 84 L.Ed. 370 (1940); In re Louisiana Ship Management, Inc., 761 F.2d 1025 (5th Cir.1985); Continental Casing Corp. v. Samedan Oil, 751 S.W.2d 499, 501 (Tex.1988). Under these statutes and cases, Lawrenson's filing of suit was a void act without legal consequence. He could not validly commence the case until the bankruptcy court gave its permission or until the automatic stay was otherwise lifted. 11 U.S.C.A. § 362(c)(2). ² Therefore, his filing of suit during the bankruptcy, without the permission of the bankruptcy court, is a nullity.

The Bankruptcy Code further provides under 11 U.S.C.A. § 108(c) (West 1993) that if the time period for commencing a civil action expires while the debtor is in bankruptcy, a plaintiff has an additional thirty days after notice of the termination or expiration of the stay to file suit.

That thirty-day time period, however, is not the only consideration. Of the three-year limitations period, four and one-half months remained when Global entered bankruptcy. If limitations were tolled by the bankruptcy, Lawrenson would retain that four and one-half months time period during which to file his suit. Precisely this situation has been examined in detail by the Austin Court of Appeals in Peterson v. Texas Commerce Bank-Austin, 844 S.W.2d 291 (Tex.App.-Austin 1992, no writ).

In that case, the court reviewed prior Texas cases, analogized to a recent Supreme Court decision, and concluded that it had

discovered no...