Thomas Muller & La Paz Golf Villas, LLC v. Stewart Title Guaranty Co.
| Decision Date | 20 June 2017 |
| Docket Number | No. 14-16-00311-CV.,14-16-00311-CV. |
| Citation | 525 S.W.3d 859 |
| Parties | Thomas MULLER and La Paz Golf Villas, LLC, Appellants v. STEWART TITLE GUARANTY COMPANY and Joseph Alvarado, Appellees |
| Court | Texas Court of Appeals |
Jack G. Carnegie, James M. Kimbell, Zachary W. Thomas, Houston, TX, for Appellants.
John A. Koepke, Scott Masur McElhaney, Dallas, TX, Jennifer A. Bryant, Houston, TX, for Appellees.
Panel consists of Justices Christopher, Jamison, and Brown.
This case arises out of a business venture involving property for a golf resort in La Paz, Mexico. Thomas Muller was one of three individuals who formed La Paz Golf Villas, LLC. La Paz and Desarrollos Punta La Paz S. de R.L. de C.V. entered into an escrow agreement with the international division of Stewart Title Guaranty Company (STGC) serving as escrow agent. Muller contributed funds for the escrow. After La Paz and Desarrollos cancelled the agreement, STGC released the remaining escrow funds to a La Paz account. In pertinent part, Muller brought claims against STGC and STGC's employee, Joseph Alvarado, for releasing the funds to the La Paz account instead of releasing the funds to him. The trial court granted STGC's and Alvarado's motions for traditional and no-evidence summary judgment; STGC's and Alvarado's motion to strike a fifth amended petition naming La Paz as an additional plaintiff; and STGC's and Alvarado's motion to strike La Paz's petition in intervention and to enter final judgment.
On appeal, Muller argues that: the trial court erred in granting summary judgment against him on his contract and fiduciary claims; the trial court abused its discretion by not continuing the summary-judgment hearing for Muller to conduct additional discovery; the trial court abused its discretion in striking the fifth amended petition; and the trial court abused its discretion in striking La Paz's petition in intervention. We affirm.
Thomas Muller, James Limperis, and Frederick Stock formed La Paz Golf Villas, LLC, a Nevada company, in order to purchase development property for a golf resort in La Paz, Mexico, from Desarrollos Punta La Paz S. de R.L. de C.V., a Mexican company. In August 2005, Desarrollos as Seller and La Paz as Purchaser entered into an escrow agreement. Under the agreement, Stewart Information International1 served as escrow agent. The agreement stated that "[t]he parties mutually desire[d] to create an escrow account with [STGC] for the purpose of receiving, holding, administering and distributing the funds deposited as required herein." The agreement provided that $1,172,000 would be deposited in the agent's escrow account, with half of that amount being released immediately to Desarrollos for "advance real estate commissions." The agreement stated that "Seller and Purchaser are sometimes collectively identified as the ‘Parties.’ " The agreement also provided that "the Party(ies) making deposit(s)" could have the escrowed funds maintained in an interest-bearing money market account and that "[a]ll interest thereon shall be paid to Purchaser." Muller was not listed as a party to the escrow agreement. Limperis signed the agreement on behalf of La Paz. STGC sent La Paz a letter confirming the receipt of a deposit of $1,172,000 from Cummings & Lockwood and of $1,172,000 from Thomas R. Muller.
A few months later, there arose "a disagreement among the members of La Paz." Muller, Limperis, and Stock signed a settlement agreement in 2006 and another settlement agreement and mutual release in 2008.
In August 2011, Limperis sent STGC a letter as a "managing member" of La Paz. In that letter, La Paz requested a transfer of "interest only to date" from the escrow account to La Paz's "business bank account with Nevada State Bank." The letter provided wiring instructions for this account.
In October 2011, Muller (on behalf of himself and Stock) and Limperis signed the "La Paz Golf Villas, LLC, Agreement." This agreement stated that Limperis as a "managing member" of La Paz "has established our entity bank account and facilitated the withdrawal of interest only from our Escrow Account with" STGC, and that the interest-only amount of $183,531.77 was wired and received in La Paz's bank account in August 2011. This agreement outlined what would occur in the event the closing and acquisition of the property was unsuccessful. In pertinent part, the agreement provided that Limperis would release the escrow funds to the same La Paz bank account at Nevada State Bank.
On April 19, 2012, La Paz and Desarrollos sent STGC a signed notice of cancellation and requested that the remaining escrow funds be released to La Paz's bank account at Nevada State Bank. Limperis signed the notice for La Paz. The notice included wiring instructions with the same account number and routing number as in the August 2011 interest request.
On April 23, 2012, Alvarado sent Limperis an email regarding processing the cancellation. Alvarado stated:
Limperis replied to Alvarado's email:
STGC released just under $1.76 million to La Paz's account at Nevada State Bank.
In April 2014, Muller originally brought suit against Limperis, STGC, Alvarado, Does 1–10, and Roes Cos. 11–20. By April 2015, Muller had amended his petition four times. Muller removed Limperis as a defendant and named five additional defendants (Steve Gottardy, Mitch Creekmore, Tanya M. Harris, Farah A. Najjar, and Veronica Ramos) who allegedly were employees of STGC.2 Against STGC, Muller brought claims for breach of contract, negligence, gross negligence, breach of fiduciary duty, negligent hiring, retention, and supervision, and vicarious liability. Against Alvarado, Muller brought claims for negligence, gross negligence, and breach of fiduciary duty. Muller requested attorney's fees pursuant to section 38.001 of the Texas Civil Practice and Remedies Code.
On September 29, 2015, STGC filed a traditional and no-evidence motion for summary judgment, and a notice of hearing.3 Alvarado also filed a traditional and no-evidence motion for summary judgment, which incorporated STGC's summary-judgment motion and exhibits. Muller filed a response.4
STGC's and Alvarado's summary-judgment motions were set for hearing on Monday, December 14, 2015. On Sunday, December 13, Muller sent counsel for STGC and Alvarado a supplemental declaration in support of opposition to defendants' traditional and no-evidence motions for summary judgment, as well as a fifth amended petition naming La Paz as a plaintiff. The file stamps on these documents indicate that they were filed first thing on December 14, 2015. That same day, the trial court held the summary-judgment hearing and signed orders granting STGC's and Alvarado's traditional and no-evidence motions.
In January 2016, STGC and Alvarado filed a verified motion to strike the fifth amended pleading and to show authority, and motion to enter final judgment. The trial court held a hearing on the motion on February 22, 2016. On February 25, 2016, La Paz as intervenor-plaintiff filed a petition in intervention. On March 2, 2016, the trial court signed an order of dismissal and interlocutory judgment. The next day, STGC and Alvarado filed a motion to strike the petition in intervention and to enter final judgment. The trial court held another hearing on March 14, 2016. That same day, the trial court signed its order striking intervention and rendering final judgment.
Muller and La Paz timely appealed.
In an overarching first issue, Muller contends that the trial court erred in granting summary judgment and requests reversal and remand of his breach-of-contract and breach-of-fiduciary-duty claims. Second, Muller argues that there is a genuine issue of material fact regarding whether he is an intended, third-party beneficiary of the escrow agreement and therefore owed contractual and fiduciary duties. Third, Muller argues that there is a fact issue regarding breach of those contractual and fiduciary duties.5 Finally, in his fourth issue, Muller asserts that the trial court abused its discretion by refusing to continue the summary-judgment hearing to allow additional discovery.
We address Muller's fourth issue first. Muller argues that the trial court abused its discretion in refusing to continue the summary-judgment hearing until Muller was able to conduct the discovery he needed to be able to adequately respond to STGC's and Alvarado's no-evidence motion for summary judgment.6 Muller contends that he requested additional discovery in his summary-judgment opposition and attached his affidavit explaining the need for further discovery.
STGC and Alvarado respond that because Muller did not obtain a written ruling on his request to continue the summary-judgment hearing, he failed to preserve error on his argument that the trial court abused its discretion when it went ahead with the hearing....
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