Michael v. Dyke

• Decision Date: 01 March 2001
• Docket Number: No. 13-99-533-CV,13-99-533-CV
• Citation: 41 S.W.3d 746
• Parties: (Tex.App.-Corpus Christi 2001) MURRAY MICHAEL, INDIVIDUALLY, ET AL., Appellants, v. LESTER DYKE, M.D., Appellee.
• Court: Texas Court of Appeals

Page 746

41 S.W.3d 746 (Tex.App.-Corpus Christi 2001)

MURRAY MICHAEL, INDIVIDUALLY, ET AL., Appellants, v. LESTER DYKE, M.D., Appellee.

No. 13-99-533-CV

Court of Appeals of Texas, Corpus Christi.

March 1, 2001

Rehearing Overruled April 19, 2001.

On appeal from the 93rd District Court of Hidalgo County, Texas. [Copyrighted Material Omitted]

[Copyrighted Material Omitted]

Before Justices Dorsey, Rodriguez, and Seerden¹

OPINION

Dorsey, Justice.

This is an appeal from a summary judgment. Murray Michael and STEP, Inc.² sued Dr. Lester Dyke and others for various causes of action stemming from the circumstances surrounding the business competition between the parties.

Michael is a licensed perfusionist and also a principal in STEP, Inc., a business that provides perfusion services to hospitals. A perfusionist is a medical technician who operates the heart and lung machines during open heart surgery. With a partner, Michael formed the business, STEP, Inc., to provide perfusion services. That corporation employs other licensed perfusionists.

Michael alleges that Dr. Dyke, an open-heart surgeon, falsely criticized his company, his work, and his equipment in an effort to divert business from Michael's company to a competing perfusion company in which Dr. Dyke held a financial interest. Michael claims he was damaged as a result of Dr. Dyke's false claims about the quality of Michael's perfusion services. Specifically, Michael contends that Dr. Dyke's actions caused the Heart Hospital of McAllen to violate its contract with Michael which made Michael the exclusive provider of perfusion services at that hospital.

Michael sued Dr. Dyke for: (1) interference with a contractual relation; (2) fraud; (3) civil conspiracy; (3) defamation; and (4) intentional infliction of emotional distress. Dr. Dyke brought a motion for summary judgment that the trial court granted, and Michael appeals.

Construction of the Motion

The first issue we must address is whether the summary judgment was granted on traditional grounds or "no-evidence" grounds. That distinction is muddled by both parties. Careful review of the motion has revealed that it must be treated as a traditional summary judgment. In so doing, this Court holds that where a summary judgment motion does not unambiguously state that it is filed under rule 166a(i) and does not strictly comply with the requirements of that rule, it will be construed as a traditional summary judgment motion.

The failure to clarify whether summary judgment is sought under the no-evidence rule or under the traditional summary judgment rule is one the courts of appeal see with increasing frequency. See, e.g., Kelly v. LIN Television of Texas, L.P., 27 S.W.3d 564, 568 (Tex. App.--Eastland, pet. denied.); Amouri v. Southwest Toyota, Inc., 20 S.W.3d 165, 168 (Tex. App.--Texarkana 2000, pet. denied). This is troubling, because it has the potential of greatly increasing the burden on the responding party.

The distinction between a traditional and a no-evidence summary judgment is critical. The burden on a movant seeking summary judgment on traditional grounds is great. The movant must conclusively establish that no genuine issue of material fact exists and that the movant is, therefore, entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c). A summary judgment motion must stand on its own merits. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979). Even in the absence of a response from the nonmovant, in order to be entitled to judgment, "the movant still must establish his entitlement to a summary judgment on the issues expressly presented to the trial court by conclusively proving all essential elements of his cause of action or defense as a matter of law." Id. Or, as in this case, a defendant may show entitlement to judgment by conclusively negating an essential element of the plaintiff's cause of action. See Wornick Co. v. Casas, 856 S.W.2d 732, 733 (Tex. 1993).

In contrast, rule 166a(i) allows a party to move for a no-evidence summary judgment on the ground that no evidence exists of one or more essential elements of a claim or defense on which an adverse party would have the burden of proof at trial. Tex. R. Civ. P. 166a(i). The rule specifically states that "[t]he motion must state the elements as to which there is no evidence." Id. If a response is not filed producing evidence that raises a genuine issue of fact on the disputed element, rule 166a(i) clearly states that the motion "must be granted." Id. There is no need for the party seeking judgment to attach any evidence to his motion. If the respondent fails to produce evidence, the judgment will be granted; if the respondent succeeds in producing evidence, it will not. Id.

This Court has long recognized that the summary judgment rule, and all other rules of civil procedure, "were never designed as traps for the unwary nor should they be construed in order to prevent a litigant from presenting the truth to the trier of facts." Bynum v. Shatto, 514 S.W.2d 808, 811 (Tex. Civ. App.--Corpus Christi 1974, writ ref'd n.r.e.). Summary judgment was intended to be a procedure to allow summary dismissal of "patently unmeritorious claims or untenable defenses." See Gulbenkian v. Penn, 252 S.W.2d 929, 931 (Tex. 1952). In a traditional summary judgment, "the nonmovant's failure to answer or respond cannot supply by default the summary judgment proof necessary to establish the movant's right." McConnell v. Southside Independent School Dist., 858 S.W.2d 337, 343 (Tex. 1993) (citing Clear Creek, 589 S.W.2d at 678). Failure to respond to a no-evidence motion is fatal.

We agree with our sister courts that "the better practice is either to file two separate motions, one containing the no evidence summary judgment and one containing the ordinary summary judgment, or to file one document containing both motions but with the arguments and authorities for each clearly delineated and separate from one another." Grant v. Southwestern Elec. Power Co., 20 S.W.3d 764, 768 (Tex. App.--Texarkana 2000, pet granted); see also Banzhaf v. ADT Sec. Systems Southwest, Inc., 28 S.W.3d 180, 184 n.3 (Tex. App.--Eastland 2000, pet. denied). When it is not readily apparent to the trial court that summary judgment is sought under rule 166a(i), the court should presume that it is filed under the traditional summary judgment rule and analyze it according to those well-recognized standards. Also, an order granting summary judgment should clarify whether the motion is granted on no-evidence grounds or traditional grounds. When an order fails to so clarify, a motion requesting such clarification should be filed with the trial court.³

In this case, we treat Dr. Dyke's motion as a traditional summary judgment motion. His motion intermixes language from the traditional summary judgment rule and the no-evidence rule, fails to clearly state under which rule summary judgment is sought, fails to follow rule 166a(i) precisely by identifying the particular elements in dispute, and attaches evidence that would be appropriate for a traditional motion, but not a no-evidence motion. Treating it as a traditional summary judgment, we review the trial court's granting of the motion de novo. Natividad v. Alexsis, Inc., 875 S.W.2d 695, 699 (Tex. 1994); Texas Commerce Bank Rio Grande Valley v. Correa, 28 S.W.2d 695, 699 (Tex. App.-- Corpus Christi 2000, pet. denied). Dr. Dyke was required to establish that there existed no genuine issue of material fact and that judgment should be granted as a matter of law. Tex. R. Civ. P. 166a; Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548 (Tex. 1985). We must presume all evidence favorable to Michael to be true, and must indulge all reasonable inferences and resolve any doubts in his favor. Nixon, 690 S.W.2d at 548-49.

Intentional Interference with Contractual Relations, Fraud, and Civil Conspiracy Causes of Action

In his motion, Dr. Dyke contends that Michael is unable to establish at least one essential element for each of his causes of action for interference with contract, fraud and civil conspiracy. As proof, Dkye attached excerpts from Michael's deposition as an exhibit. In the motion itself, Dr. Dyke referred to the following excerpts from that exhibit, contending that this passage shows that Michael cannot establish an essential element on each of the three causes of action:

Q. You don't have any evidence that he was an owner of that company during this period of time?

A. No, I don't have any evidence.

Q. Okay. In your lawsuit you say that Dr. Dyke proceeded to disparage the quality of work provided by STEP, okay? What -- what did he say to disparage the quality of work provided by Step and when did he say it?

A. Well, as I stated before, he never said anything directly to me. He said it to the administrators at the Heart Hospital. I -- I --

Q. What do you consider -- I'm sorry. I'll let you finish.

A. I think if Dr. Dyke really had a specific problem with me, he would approach me directly. And I -- I think it was his attempt to get his perfusionist into the Heart Hospital for -- for business advantage for MPA.

Q. All right. You stated in your lawsuit that all the defendants, Dyke, Gashette and the hospital and Hetzler committed conspiratorial acts to interfere with your contract. What conspiratorial acts did they commit?

. . .

Q. Anything else that you can think of that he conspired with anybody else?

A. I have no direct evidence.

This excerpt "proves" nothing material.

We begin with the fraud cause of action. We must determine whether Dr. Dyke's summary judgment evidence conclusively established the lack of an essential element of Michael's cause of action. The elements of a cause of action for fraud are: (1) a material misrepresentation was made; (2) the misrepresentation was made recklessly or with knowledge of its falsity; (3) the misrepresentation was made in anticipation of...