james-e-golleher-v-allstate-property-and-casualty-insurance-company-and ( 2005 )

NO. 07-02-0378-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL B
JANUARY 31, 2005
______________________________
JAMES E. GOLLEHER, APPELLANT
V.
ALLSTATE PROPERTY AND CASUALTY INSURANCE COMPANY, APPELLEE
________________________________
FROM THE 223RD DISTRICT COURT OF GRAY COUNTY;
NO. 32039-B; HONORABLE LEE WATERS, JUDGE
_______________________________
Before JOHNSON, C.J., and QUINN and CAMPBELL, JJ.
MEMORANDUM OPINION
James E. Golleher appeals from a summary judgment in favor of Allstate Property
and Casualty Insurance Company in Golleher’s suit for uninsured/underinsured motorist
benefits. We affirm.
BACKGROUND
On December 11, 1996, James E. Golleher was a passenger in a vehicle being
driven by Scott Davis. A collision occurred between Davis’ vehicle and a vehicle driven by
Norma McBee. As a result of this accident McBee died and Davis and Golleher sustained
injuries. At the time of the accident McBee had liability insurance coverage with policy
limits of $300,000 per accident and $100,000 per person. Davis had insurance with Allstate
Property and Casualty Insurance Company which included uninsured/underinsured
motorist (UIM) benefits.
Davis and Golleher brought suit against McBee’s executor (“McBee”). Golleher and
McBee’s liability insurer settled Golleher’s claim against McBee and Golleher dismissed his
suit with prejudice. Golleher did not obtain Allstate’s consent before settling his claim or
dismissing the suit.
Golleher then sued Allstate for UIM benefits. Allstate filed a motion for summary
judgment, asserting that it was not liable to Golleher as a matter of law based on two
contractual provisions: (1) Allstate’s liability for damages was limited to those damages
which a covered person was “legally entitled to recover from the owner or operator of an
[uninsured/underinsured] motor vehicle . . .”; and (2) coverage was not provided if “[the
covered] person or the legal representative settles the claim without our written consent.”
Allstate urged that Golleher materially breached the terms of the insurance contract when
he did not obtain Allstate’s consent before settling his claim against McBee. Allstate
claimed that the breach was material because the settlement of Golleher’s claims against
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McBee prejudiced Allstate’s subrogation rights against McBee’s solvent estate. Allstate
further asserted that Golleher’s dismissal with prejudice precluded Golleher from
establishing that he was legally entitled to recover from McBee.
The trial court set October 22, 2002 as submission date1 for the summary judgment
motion. By written order pursuant to Golleher’s motion, the trial court extended the time
for Golleher to file “additional summary judgment evidence” in support of his response to
Allstate’s motion until October 29th. The order did not vacate or continue the October 22nd
submission date.
The court had not ruled on Allstate’s motion by the time the case was set on a trial
docket for November 13, 2002. Pursuant to Golleher’s motion at the November 6th docket
call, the trial court extended the discovery deadline. The court’s November 6th docket
sheet entry indicates that Golleher requested extension of the discovery deadline to depose
two Allstate adjusters, and that the case was continued subject to depositions and the
“Court’s ruling on pending SJ.” This entry does not evidence any change in the submission
date.
The case was continued from several subsequent trial dockets and was eventually
set on a September 2003 trial docket. In June 2003, counsel for Allstate sent a letter
reminding the trial court of the pending motion for summary judgment and seeking a ruling.
Golleher responded to Allstate’s request with an unsworn letter request for further time to
1
The court directed that the summary judgment motion would be submitted without
oral argument.
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engage in discovery, including depositions, and to submit evidence in opposition to the
motion for summary judgment.
Without addressing Golleher’s request and without stating the basis for its ruling, the
court entered summary judgment in favor of Allstate. Golleher filed a motion for new trial,
which was denied.
On appeal, Golleher does not present a general issue challenging the summary
judgment. See Malooly Bros., Inc. v. Napier, 461 S.W.2d 119, 121 (Tex. 1970). Rather,
by three issues, he contends that the trial court erred by granting Allstate summary
judgment. In issue one he alleges that Allstate did not establish, as a matter of law, that
it had been actually prejudiced by Golleher’s settlement of his claim against McBee. In
issue two he urges that he raised a genuine issue of material fact regarding whether
Allstate had been actually prejudiced by his settlement. In issue three he contests the trial
court’s action in granting summary judgment without first setting another specific date or
deadline by which Golleher was required to file evidence controverting Allstate’s motion for
summary judgment. We will begin by addressing the third issue.
ISSUE THREE: FAILURE TO SET ADDITIONAL
DATE FOR FILING SUMMARY JUDGMENT EVIDENCE
Rule 166a(c) of the Texas Rules of Civil Procedure requires that a motion for
summary judgment and notice of a hearing date be served on the non-movant at least 21
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days before the time specified for hearing. TEX . R. CIV . P. 166a(c).2 Rule 166a also directs
that the non-movant may file a response, with or without supporting evidence, at least
seven days before the hearing. Because the hearing date determines when the response
to the motion is due, notice of a specific hearing date is required. See Martin v. Martin,
Martin & Richards, Inc., 989 S.W.2d 357, 359 (Tex. 1998). Provided that the requirements
contained in Rule 166a are satisfied, a trial court has broad discretion in setting reasonable
deadlines in summary judgment proceedings. See McClure v. Attebury, 20 S.W.3d 722,
729 (Tex.App.–Amarillo 1999, no pet.).
The record does not show that the trial court ever altered the original October 22nd
submission date. The trial court’s granting of extensions for filing of evidence and
discovery, and further subsequent delay in ruling on Allstate’s motion, increased Golleher’s
time to file, or to attempt to file, evidence. He did not do so. The trial court’s ruling in the
face of Golleher’s request for more time to attempt to engage in discovery was not an
abuse of discretion and was not error. See Brown v. Capital Bank, N.A., 703 S.W.2d 231,
234 (Tex.App.–Houston [14th Dist.] 1985, writ ref’d n.r.e.).
We have reviewed the cases Golleher references as authority, and find them
inapposite. The cases he references deal with the requirement that each party to a suit is
entitled to timely notice of a specific date for hearing or submission of a summary judgment
motion. Golleher does not dispute his receipt of timely notice of the October 22nd
submission date. Additionally, Golleher did not request a new submission date in his June
2
Further reference to rules of civil procedure will be by reference to “Rule ___.”
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2003 letter seeking time for further discovery; his motion for new trial did not protest the trial
court’s failure to set a new submission date; and his appellate issue references only the trial
court’s failure to set a second specific date for filing of controverting summary judgment
evidence.
Moreover, Golleher does not contend that he was precluded from filing evidence
because an additional date for filing of the evidence was not provided. Rather, he argues
that resolution of discovery disputes and possible depositions after June 2003 might have
yielded evidence which might have created a fact question sufficient to avoid summary
judgment. Under this record, however, speculation as to what evidence additional
discovery might have yielded does not warrant our concluding that the trial court’s failure
to set a second specific date by which Golleher was to file summary judgment evidence,
even if error, probably caused rendition of an improper judgment. See TEX . R. APP . P.
44.1(a).
Accordingly, we overrule issue three.
ISSUES ONE AND TWO:
FAILURE TO OBTAIN CONSENT TO SETTLE
Golleher’s first two issues are closely related. They assert, in effect, that the
summary judgment evidence presented an issue of material fact as to whether Allstate had
been actually prejudiced by Golleher’s settlement with McBee. Golleher does not present
a general issue challenging the summary judgment. Nor does he present an issue
challenging the second ground of Allstate’s summary judgment motion by which Allstate
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asserted that Golleher was precluded from showing that he was legally entitled to recover
from McBee.
When the trial court does not specify grounds for its grant of summary judgment, an
appellant must challenge all grounds urged in the motion for summary judgment to avoid
waiving the right to challenge those grounds. The challenge may be either by a general
issue complaining of summary judgment, or by specific appellate issues directed to each
possible basis for summary judgment. See Malooly Bros., Inc., 461 S.W.2d at 121;
Capstead Mortgage Corp. v. Sun America Mortgage Corp., 45 S.W.3d 233, 238
(Tex.App.–Amarillo 2001, no pet.). If summary judgment may have been granted, properly
or improperly, on a ground not challenged, the summary judgment must be affirmed. See
Williams v. United Pentecostal Church Int’l, 115 S.W.3d 612, 614 (Tex.App.–Beaumont
2003, no pet.); Ellis v. Precision Engine Rebuilders, Inc., 68 S.W.3d 894, 898 (Tex.App.–
Houston [1st Dist.] 2002, no pet.); Holloway v. Starnes, 840 S.W.2d 14, 23
(Tex.App.–Dallas 1992, writ denied).
Because Golleher does not challenge the second ground on which Allstate sought
summary judgment, the summary judgment must be affirmed. See Malooly, 461 S.W.2d
at 121; Williams, 115 S.W.3d at 614; Holloway, 840 S.W.2d at 23. Having thus determined
that we must affirm the summary judgment, we need not and do not consider Golleher’s
first and second issues which challenge the first ground of Allstate’s motion for summary
judgment. See TEX . R. APP . P. 47.1.
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The judgment of the trial court is affirmed.
Phil Johnson
Chief Justice
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