Ross v. Arkwright Mut. Ins. Co.

• Decision Date: 07 May 1992
• Docket Number: No. B14-91-00485-CV,B14-91-00485-CV
• Citation: 834 S.W.2d 385
• Court: Texas Court of Appeals
• Parties: James E. ROSS and J. Douglas Sutter, Appellants, v. ARKWRIGHT MUTUAL INSURANCE COMPANY Formerly Named Arkwright-Boston Manufacturers Mutual Insurance Co., Mutual Marine Office, Inc., Brice Leon, Felix Salgado, Jr., Gonzalo Sosa, Charles R. Lipcon, Stevens F. Mafrige, Ronald Kormanik, Mafrige & Kormanik, P.C., Thomas N. Thurlow, Thomas A. Brown, G. Byron Sims and Brown, Sims, Wise & White, P.C., Appellees. (14th Dist.)

Page 385

834 S.W.2d 385

James E. ROSS and J. Douglas Sutter, Appellants, v. ARKWRIGHT MUTUAL INSURANCE COMPANY Formerly Named

Arkwright-Boston Manufacturers Mutual Insurance Co., Mutual

Marine Office, Inc., Brice Leon, Felix Salgado, Jr., Gonzalo

Sosa, Charles R. Lipcon, Stevens F. Mafrige, Ronald

Kormanik, Mafrige & Kormanik, P.C., Thomas N. Thurlow,

Thomas A. Brown, G. Byron Sims and Brown, Sims, Wise &

White, P.C., Appellees.

No. B14-91-00485-CV.

Court of Appeals of Texas,

Houston (14th Dist.).

May 7, 1992.

Opinion on Motion for Rehearing June 18, 1992.

Rehearing Denied Sept. 10, 1992.

Newton B. Swartz, Sally Takacs, Houston, for appellants.

David E. Sharp, William J. Boyce, Steven A. Lehy, Charles L. Cotton, Andrew S. Hanen, Daniel O. Goforth, Carlene Rhodes Lewis, Houston, for appellees.

Before PAUL PRESSLER, MURPHY and CANNON, JJ.

OPINION

CANNON, Justice.

This is an appeal from summary judgments granted in favor of appellees. Appellants bring a single point of error alleging the trial court erred in granting the summary judgments in favor of appellees. We dismiss the appeal.

In 1980, Gonzalo Sosa, a seaman, suffered injuries on the M/V Lago Izabal, a ship owned by Tracey Navigation. Mr. Sosa sued Tracey Navigation and the M/V Lago Izabal in federal court for personal injuries he sustained as a result of an explosion aboard the ship. Tracey Navigation was represented by the firm of Ross, Griggs & Harrison. Ross, a partner in the firm, and Sutter, an associate, were the attorneys handling the personal injury suit. Sosa was represented by Stevens F. Mafrige and Ronald Kormanik of Mafrige & Kormanik, P.C. (the Mafrige group). After a bench trial in federal court, Sosa obtained a judgment for approximately twenty-five million dollars. The Fifth Circuit affirmed the judgment in part and reversed and remanded in part to the federal district court. On November 9, 1984, the federal district court entered a judgment in Sosa's favor for approximately thirteen million dollars. See Sosa v. M/V Lago Izabal, 736 F.2d 1028 (5th Cir.1984).

Following the award in the personal injury suit, Tracey Navigation and its excess insurance carrier, Arkwright Manufacturers Mutual Insurance Company (Arkwright), brought separate legal malpractice suits against Ross and Sutter and against Ross, Griggs & Harrison in federal court for their handling of the personal injury suit. In its suit, Arkwright also sued other insurance carriers. The claims against the insurance carriers are not at issue in this suit. F.E. Billings represented Tracey Navigation in the malpractice action, and Thomas A. Brown, G. Byron Sims and their firm, Brown, Sims, Wise & White, P.C. (the Brown group), represented Arkwright. After the personal injury suit became final, the Mafrige group, on behalf of Sosa, settled Sosa's claims with Tracey Navigation and the Arkwright group for five million dollars. As a part of this settlement, Tracey Navigation and Arkwright assigned a portion of their legal malpractice claims against Ross and Sutter and Ross, Griggs & Harrison to Sosa. Later, the malpractice suits against Ross and Sutter and the firm were consolidated into a single suit. In the consolidated legal malpractice suit, the Mafrige group and Charles R. Lipcon represented Sosa, Thomas N. Thurlow represented Tracey Navigation, and the Brown group continued to represent Arkwright.

The federal trial court ordered separate trials for the legal malpractice claims and the claims against the other insurance carriers. On August 31, 1989, the court called the legal malpractice suit for trial. At that time, Tracey Navigation, Sosa and Arkwright advised the court that a settlement had been reached with Ross, Griggs & Harrison for $250,000. The parties also dismissed their claims against Sutter. Following a bench trial, the trial court entered a take-nothing judgment in favor of Ross. In September of 1989, Ross and Sutter filed separate motions for sanctions under rule 11 of the Federal Rules of Civil Procedure against Arkwright, the Mafrige group, Lipcon, and Sosa. The motions alleged that the legal malpractice suit was groundless and brought in bad faith. The federal trial court denied the motions. Ross and Sutter appealed the denials to the Fifth Circuit. The Fifth Circuit dismissed the appeal of the denial of the rule 11 sanctions because the insurance claims were still pending. Therefore, the court held, there was no final judgment from which an appeal could be prosecuted.

On March 16, 1990, Ross filed an original petition in state court against appellees. On January 11, 1991, Sutter intervened and adopted the claims asserted by Ross in his petition. The trial court eventually granted summary judgments in favor of all appellees. Appellants appeal from the orders granting summary judgments in favor of the appellees. ¹

This court must first determine which pleadings were live when the motions for summary judgments were filed, and thereby identify the causes of action asserted by appellants. Appellants contend the trial court abused its discretion when it struck appellant Ross' third amended original petition and Sutter's first amended original petition in intervention. On April 19, 1991, after all appellees had filed their motions for summary judgment, Ross and Sutter filed amended pleadings that added additional causes of action for conspiracy to commit tortious interference with a business contract and tortious interference with a business contract. With the exception of these additional causes of action, the allegations in the new pleadings were identical to those in Ross' second amended original petition and Sutter's original petition in intervention. On April 29, 1991, the Brown group filed a motion asking the trial court to strike Ross' third amended petition and Sutter's first amended petition in intervention. The trial court granted this motion. On appeal, appellants present several arguments contending this action by the trial court was in error; however, appellants never presented these arguments to the trial court after the court struck their amended pleadings.

Rule 52(a) states, in pertinent part:

In order to preserve a complaint for appellate review, a party must have presented to the trial court a timely request objection or motion, stating the specific grounds for the ruling he desired the court to make ...

TEX.R.APP.P. 52(a).

Rule 52(a) applies to summary judgment cases. Vawter v. Garvey, 786 S.W.2d 263, 264 (Tex.1990) (per curiam); A.C. Collins Ford, Inc. v. Ford Motor Co., 807 S.W.2d 755, 760 (Tex.App.--El Paso 1990, writ denied); White v. Wah, 789 S.W.2d 312, 318 (Tex.App.--Houston [1st Dist.] 1990, no writ). Nothing in the record indicates that appellants raised the complaints asserted here before the trial court. Having failed to preserve any complaint regarding the stricken pleadings under rule 52(a), appellants cannot urge such arguments on appeal. Therefore, the live pleadings, i.e., the pleadings to which the motions for summary judgment should have responded, are Ross' second amended original petition and Sutter's original petition in intervention.

Ross' second amended original petition against all appellees contained claims of malicious prosecution, slander, libel, negligence, and civil conspiracy. Because Sutter's original petition in intervention simply adopts the claims asserted by Ross in his second amended original petition, Sutter has asserted the same causes of action against appellees. Appellees filed separate motions for summary judgment in response to the claims asserted by Ross and Sutter. Some of the appellees filed one motion as to both Ross and Sutter, while others filed separate motions as to each. This court turns first to appellants' contention that, because all appellees did not specifically address certain claims pled by appellants, appellees failed to meet their summary judgment burden of proof as required under TEX.R.CIV.P. 166a(c).

In all, there were eight motions for summary judgment filed by appellees. Arkwright, Mutual Marine Office, Inc., Brice Leon, and Felix Salgado, Jr. (the Arkwright group) filed two motions for summary judgment: one against each of the appellants. ² Each motion, however, contains the same grounds as to each appellant. The motions filed by the Arkwright group address only the claim of malicious prosecution. The motions fail to address the other claims brought by appellants, i.e., libel, slander, negligence, and civil conspiracy. ³ Appellee Thurlow filed separate motions for summary judgment as to each appellant. In his motions, Thurlow addresses malicious prosecution and responds somewhat vaguely to the conspiracy claim; however, he fails to address libel, slander, and negligence. The Brown group also filed separate motions for summary judgment as to Ross and Sutter. The motions address all claims asserted by appellants except negligence. Appellee Lipcon filed one motion for summary judgment as to both Ross and Sutter. Lipcon addressed all causes of action urged by appellants except negligence. The Mafrige group filed one motion for summary judgment as to appellants, and addressed all the claims asserted by appellants. The Mafrige group addressed the negligence cause of action in its reply to Ross and Sutter's response to the motion for summary judgment. Though the Mafrige group never specifically mentions negligence, it asserts that appellants have only a malicious prosecution claim and the other causes of action are improperly fractured out of that one cause of action. From the motions for summary judgment filed by the appellees, it is clear that not all appellees addressed all causes of action asserted by Ross and Sutter. In fact, only the Mafrige group responded to every claim brought by appellants.

Appellees have devised several arguments in response to appellants' contention that not all of the causes of action were addressed in the motions for summary judgment. The...