ford-motor-company-v-ezequiel-castillo-individually-maria-de-los ( 2006 )

                             NUMBER 13-04-638-CV

                         COURT OF APPEALS

               THIRTEENTH DISTRICT OF TEXAS

                  CORPUS CHRISTI - EDINBURG

FORD MOTOR COMPANY,                                         Appellant,

                                           v.

EZEQUIEL CASTILLO, ET AL.,                                     Appellee.

                  On appeal from the 404th District Court

                          of Cameron County, Texas.

                        DISSENTING OPINION

          Before Chief Justice Valdez and Justices Castillo and Garza

                                  Opinion by Justice Castillo

This is an appeal from a summary judgment with respect to breach of a settlement agreement.  By its first issue, appellant Ford asserts that the trial court improperly granted summary judgment on an unpleaded contract claim.  By its second issue, Ford asserts that the trial court abused its discretion by disallowing discovery on the question of potential misconduct by the presiding juror.  By its third issue, Ford maintains that the trial court erred in striking the jurors' affidavits.  Because I would sustain the first issue presented, I respectfully dissent.

I.  Background

Trial lasted approximately three weeks.  The jury began deliberations on a Friday afternoon and recessed for the weekend.  The jury continued deliberations the following Monday, recessed on Tuesday, and resumed deliberations on Wednesday.  Meanwhile, on Tuesday evening, settlement discussions occurred between the litigants.  On Tuesday, deliberations were recessed because a member of the presiding juror's family was ill.  When deliberations ensued on Wednesday morning during the liability phase of the charge, the presiding juror caused the following question to be delivered to the trial court:  "What is the maximum amount that can be awarded?"  The case settled promptly.  Before effecting settlement, Ford requested time to investigate the events leading up to the presiding juror's question.  The trial court denied the request.  Ford also requested the trial court to investigate.  The trial court did not do so.  Appellees later filed a motion for summary judgment asserting as grounds breach of the settlement agreement.  Having entered prior orders to compel settlement, the trial court granted appellees' motion for summary judgment.  This appeal ensued.

II.  Pleadings

By its first issue, Ford maintains that appellants did not plead contract or breach of contract and summary judgment is thus improper. The record demonstrates that appellees' live pleading does not contain a cause of action for breach of contract.

Respectfully, I would hold that the trial court had no authority to enter a summary judgment since no live pleading existed urging a cause of action from which a judgment could be taken.  A pleading, by definition, determines the issues to be tried. Erisman v. Thompson, 167 S.W.2d 731, 733 (Tex. 1943).  There must be some pleading pending against which a summary judgment can be granted. Granado v. Madsen, 729 S.W.2d 866, 870 (Tex. App.BHouston [14th Dist.] 1987, writ ref'd. n.r.e.) (finding that summary judgment order in case where there were no live pleadings and, thus no cause of action against which summary judgment could be granted, was a nullity and of no effect); Seber v. Glass, 258 S.W.2d 122, 124 (Tex. Civ. App.BFort Worth 1953, no writ) (finding that where appellee filed no pleadings seeking affirmative relief, trial court was wholly without jurisdiction as to parties or subject matter and purported order granting affirmative relief was void).  Where there is no pleading, there can be no judgment.  Cunningham v. Parkdale Bank, 660 S.W.2d 810, 813 (Tex. 1983). 

In this case there is no pleading to support the summary judgment granted. Accordingly, I would sustain Ford's first issue presented. Because the issue is dispositive, I do not address the remaining issues.  See Tex. R. App. P. 47.1.

III. Conclusion

Because I would hold that summary judgment on an unpleaded cause of action is improper, I respectfully dissent. 

ERRLINDA CASTILLO

Justice

Dissenting Opinion delivered and filed

this 8th day of June, 2006.