Ross v. Arkwright Mut. Ins. Co.
| Decision Date | 08 December 1994 |
| Docket Number | No. B14-91-00485-CV,B14-91-00485-CV |
| Citation | 892 S.W.2d 119 |
| 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.) |
| Court | Texas Court of Appeals |
Newton B. Schwartz, Donald H. Cahilly, Joel Randal Sprott, Daniel O. Goforth, Houston, for appellants.
Andrew S. Hanen, William J. Boyce, Steven A. Leyh, Charles L. Cotton, Daniel O. Goforth, Carlene Rhodes Lewis, Houston, for appellees.
Before MURPHY, CANNON and PAUL PRESSLER, JJ.
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. On original submission, we found that not all of the appellees had addressed all of the causes of action pled by appellants. Ross v. Arkwright Mut. Ins. Co., 834 S.W.2d 385, 389 (Tex.App.--Houston [14th Dist.] 1992), rev'd, 866 S.W.2d 590 (Tex.1993). Therefore, we held that because all issues had not been expressly presented to the trial court, there was no final judgment and we dismissed the appeal for want of jurisdiction. Id. at 394.
The Texas Supreme Court granted appellees' writ of error. The supreme court held that "if a summary judgment order appears to be final, as evidenced by the inclusion of language purporting to dispose of all claims or parties, the judgment should be treated as final for purposes of appeal." Mafrige v. Ross, 866 S.W.2d 590, 592 (Tex.1993). The court went on to state that if the judgment grants more relief than requested, i.e., if the judgment disposes of issues that were never When this case was remanded by the supreme court back to this court, appellants filed a motion to remand the suit to the trial court for a trial "on all claims not specifically addressed by Defendants/Appellees in their motions for summary judgment." Appellees filed responses to this motion. We did not rule on the motion at the time it was filed and instead determined that it should be carried with the case. Our disposition of this appeal will in turn, dispose of the motion filed by appellants.
presented to the trial court, the proper course of action is to reverse and remand those issues to the trial court, but address the claims that were presented. Id. The court held that dismissal for want of jurisdiction is improper. Id. As to the judgments in this case, the court held that the trial court's use of the "plaintiff take nothing" language clearly evidenced the trial court's intent to dispose of all claims. Id. Thus, the supreme court held that we erred in dismissing the appeal for want of jurisdiction and reversed and remanded the case back to us for appropriate action. Id. We now hold, pursuant to the supreme court's decision, that we have jurisdiction over this appeal. 1 The judgment of the trial court is affirmed in part and reversed and remanded in part
In our original opinion, we first had to ascertain which of appellants' pleadings were live when appellees' filed their motions for summary judgment. Ross, 834 S.W.2d at 388. We determined that the live pleadings were Ross' second amended original petition and Sutter's original petition in intervention. 2 Id. That holding, undisturbed by the supreme court's opinion, is correct. Based on these pleadings, appellants alleged malicious prosecution, slander, libel, civil conspiracy, and negligence against all of the appellees. Id. Appellees filed separate motions for summary judgment in response. Id. Some of the appellees filed one motion as to both Ross and Sutter, while others filed separate motions as to each. Id. In all, there were eight motions for summary judgment filed by appellees. Id.
Arkwright Mutual Insurance Company, Mutual Marine Office, Inc., Brice Leon, and Felix Salgado, Jr. (the Arkwright group) 3 filed two motions for summary judgment: one against Ross, and one against Sutter. Id. Each motion contains the same grounds as to each appellant. The motions filed by the Arkwright group only address appellants' claim of malicious prosecution. Id. The motions did not address appellants' allegations of libel, slander, civil conspiracy, and negligence. Id. Therefore, the summary judgments in favor of the Arkwright group as to these four causes of action are reversed and remanded to the trial court for further action. See Mafrige, 866 S.W.2d at 592.
Appellee Thomas Thurlow also filed separate motions for summary judgment as to each appellant. Ross, 834 S.W.2d at 389. In his motions, Thurlow failed to address appellants' claims for libel, slander, conspiracy and negligence. Originally, we found that Thurlow had addressed the conspiracy claim. Id. Upon reexamination of his motion for summary judgment, we find that while Thurlow recognized that appellants pled conspiracy, that was all he did. He did not, as the Brown group, Lipcon, and the Mafrige group did, make any argument or provide any summary judgment proof to negate the conspiracy claim. 4 Further, appellants alleged there Thomas A. Brown, G. Byron Sims and their firm, Sims, Wise & White, P.C. (the Brown group) also filed two motions for summary judgment: one as to Ross, and the other as to Sutter. Id. These motions addressed every allegation pled by appellants except negligence. Therefore, the trial court's summary judgment in favor of the Brown group is reversed and remanded as to the negligence claim. See Mafrige, 866 S.W.2d at 592. Charles Lipcon filed a single motion for summary judgment applicable to both appellants. Ross, 834 S.W.2d at 389. The motion for summary judgment, like those filed by the Brown group, also addressed every cause of action alleged by appellants except negligence. Id. Thus, the judgment will be reversed and remanded as to that cause of action. See Mafrige, 866 S.W.2d at 592.
was a conspiracy as to malicious prosecution and defamation. Thurlow only addressed malicious prosecution in his motion; he did not address libel or slander. Thus, Thurlow certainly did not address conspiracy as it relates to the claim for defamation. Thus, the trial court's summary judgments in favor of Thurlow on libel, slander, conspiracy, and negligence are reversed and remanded. See Mafrige, 866 S.W.2d at 592.
Stevens F. Mafrige, Ronald Kormanik, and their firm, Mafrige & Kormanik, P.C. (the Mafrige group), were the only appellees to respond to every cause of action pled by appellants. Thus, there is nothing to reverse and remand to the trial court under the supreme court's holding in Mafrige.
We note here that the appellees on original appeal and in response to appellants' motion to reverse and remand argued that they did address all of the claims asserted by appellants. The main argument asserted by appellees is that appellants stated nothing more than a claim for malicious prosecution and that the other claims are simply fractured out of that one cause of action. Ross, 834 S.W.2d at 389. While this argument may in fact be true, appellees never raised this contention in their motions for summary judgment. Id. Therefore, it may not be raised for the first time on appeal. Id. ().
The other arguments propounded by appellees on this issue are directed toward appellants' allegation of negligence. Every appellee except the Mafrige group failed to address the negligence claim. Ross, 834 S.W.2d at 389. These arguments will be addressed later in this opinion.
The causes of action that were not addressed by the Arkwright group, the Brown group, Thurlow, and Lipcon are reversed and remanded to the trial court. See Mafrige, 866 S.W.2d at 592. The claims that were addressed by these appellees will be reviewed under the appropriate summary judgment standard. Because the Mafrige group addressed all of the allegations made by appellants, there is nothing to reverse and remand insofar as "unaddressed" claims are concerned. We will now undertake a review of the summary judgments granted in favor of appellees as to the causes of action that were addressed in the individual motions for summary judgment. 5
Though appellants bring only one point of error alleging that the trial court erred in granting summary judgment in favor of the appellees, they make several arguments under that point. Appellants first argue that the trial court's summary judgment orders failed to dispose of all of their claims. This contention has been addressed above. The trial court's summary judgment orders contained language purporting to make the judgments final, therefore, they are final for purposes of appeal. Mafrige, 866 S.W.2d at 592. The issues not addressed by appellees are reversed and remanded as stated earlier in this opinion.
Appellants next claim the trial court abused its discretion "in denying appellants' motions for continuance of consideration of the appellees' motions for summary judgment." Two motions for continuance were filed in this case. The first was filed August 24, 1990, by Ross. The second motion was filed by Ross and Sutter on February 12, 1991.
On April 1, 1991, the same day the trial court granted some of the motions for summary judgment, it denied appellants' motions for continuance. Appellants complain that the denial of the motions for continuance was an abuse of discretion. They argue that the fact that the trial court postponed ruling on their motion to compel discovery and motions for continuance until after ruling on some of the motions for summary judgment prejudiced their case.
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