Jeanne Calaway and Dorothy Hellums v. Pennington Memorial Corp., a Texas Corporation, D/B/A McCurdy Funeral Home ( 2000 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



NO. 03-99-00112-CV



Jeanne Calaway and Dorothy Hellums, Appellants

v.

Pennington Memorial Corp., a Texas Corporation,

d/b/a McCurdy Funeral Home, Appellee

FROM THE COUNTY COURT AT LAW NO. 1 OF CALDWELL COUNTY NO. 3445, HONORABLE EDWARD L. JARRETT, JUDGE PRESIDING

Appellants, Jeanne Calaway and Dorothy Hellums ("the daughters"), appeal from an order of the county court at law in a breach-of-contract action granting appellee, McCurdy Funeral Home ("McCurdy"), summary judgment and denying the daughters' request for summary judgment. By three issues on appeal, the daughters contend the trial court erred in granting McCurdy's summary judgment motion and in denying their own summary judgment motion because: (1) the parol evidence rule or, alternatively, lack of consideration renders unenforceable any promise they may have made to pay for their sister's funeral; (2) summary judgment was improperly based on deemed admissions that were waived by McCurdy; and (3) the court abused its discretion by failing to strike the daughters' deemed admissions. We will affirm the denial of summary judgment to the daughters, but reverse the grant of summary judgment for McCurdy and remand the cause to the trial court for further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

The subject of this suit is an alleged agreement surrounding a funeral service. Nancy Montero, the half-sister of the daughters, passed away in July 1987. At that time, Lucille Hellums ("the mother"), Montero's and appellants' mother, made arrangements for McCurdy to handle Montero's funeral service. The daughters were not parties to the contract for Montero's funeral. In December of 1995, the mother passed away and the daughters made arrangements with the same funeral home to perform their mother's funeral services. Gary Blume, a representative of McCurdy, claims he approached the daughters and informed them that their mother had never paid for Montero's funeral services and that the funeral home would not perform their mother's services unless the daughters paid Montero's past-due funeral bill. Blume testified by affidavit that the daughters agreed to pay for Montero's funeral as a condition of McCurdy's performing services for their mother. In affidavits attached to their motion for summary judgment, the daughters deny ever agreeing to pay for Montero's funeral bill. Jeanne Calaway testified that Blume did not tell her or her sister that McCurdy would not perform the funeral unless they agreed to pay for Montero's funeral. Dorothy Hellums testified that she never promised to pay for Montero's funeral.

In a signed, written Funeral Purchase Agreement, McCurdy agreed to perform the mother's funeral services for $4,390.00, and Dorothy Hellums agreed to pay that amount. There is no mention of the unpaid amount for Montero's funeral in the written agreement. In 1996, McCurdy sent both the daughters a bill for the funeral services of their mother. On the bottom of the bill was a charge for $4,035.00 for "Outstanding Account--Nancy Montero 1987." The bill in the amount of $4,390.00 for the mother's funeral was paid; however, the daughters refused to pay for Montero's funeral. McCurdy then sued the daughters for the amount of Montero's funeral. The daughters initially represented themselves. While the daughters were proceeding pro se, McCurdy's counsel served both of them with requests for admissions. For various reasons, neither of the daughters properly responded to McCurdy's requests for admissions, and counsel for McCurdy sought to have the admissions deemed. The trial court deemed the requested admissions admitted, which contradicted the daughters' summary judgment proof. Based on those admissions, the trial court granted summary judgment for McCurdy. The daughters appeal the grant of McCurdy's summary judgment motion and the denial of their own motion.

DISCUSSION

In three issues on appeal, the daughters contend the court erred in granting McCurdy's summary judgment motion and denying their own summary judgment motion because: (1) the parol evidence rule or, alternatively, a lack of consideration rendered the promise unenforceable; (2) the deemed admissions on which summary judgment was based were waived by McCurdy; and (3) the court abused its discretion by failing to strike the daughters' deemed admissions. Because the first point of error is dispositive, we will not address points two and three. ⁽¹⁾

McCurdy's Motion for Summary Judgment

McCurdy moved for summary judgment under Tex. R. Civ. P. 166a(c). The standard for reviewing a traditional motion for summary judgment is well established:

(1) the movant for summary judgment has the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law; (2) in deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the non-movant will be taken as true; and (3) every reasonable inference must be indulged in favor of the non-movant and any doubts resolved in its favor.

Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex. 1985). The function of summary judgment is not to deprive litigants of the right to trial by jury, but to eliminate patently unmeritorious claims and defenses. See Swilley v. Hughes, 488 S.W.2d 64, 68 (Tex. 1972).

Taking the deemed admissions as true, it is unclear from the summary judgment record whether the alleged oral agreement to pay for their sister's funeral took place before or after the written agreement for the mother's funeral was signed. If the alleged oral agreement between McCurdy and the daughters took place after the written agreement, there is no conclusive evidence of what consideration was given for that agreement. ⁽²⁾ If, on the other hand, the alleged oral agreement between McCurdy and the daughters took place before the written agreement, there is no conclusive evidence that would establish whether the agreement is subject to the merger doctrine of the parol evidence rule or whether it is a separate agreement altogether. ⁽³⁾

For this reason, McCurdy has not shown that there are no genuine issues of material fact or that it is entitled to judgment as a matter of law.

The Daughters' Motion for Summary Judgment  

The daughters filed their own motion for summary judgment pursuant to Rules 166a(c) and 166a(i). It is unclear under which standard the trial court denied summary judgment, so we will review this appeal under both the traditional summary judgment standard of Rule 166a(c) and the no-evidence standard of Rule 166a(i).

Under the traditional summary judgment standard of 166a(c), the daughters' motion for summary judgment was properly denied because there are material facts at issue. The daughters presented only affidavits from interested parties in support of their motion for summary judgment. The daughters' supporting affidavits are from Jeanne Calaway (defendant in this suit), John Calaway (relative of defendant), and Dorothy Hellums (defendant in this suit). To establish facts conclusively through an interested witness, the testimony must be uncontroverted, clear, positive, direct, credible, free from contradiction, and susceptible to being readily controverted. See Tex. R. Civ. P. 166a(c). Because the only evidence presented to support the daughters' motion for summary judgment came from interested parties and is controverted by McCurdy's version of the events, the daughters did not show themselves to be entitled to judgment as a matter of law.

Under the 166a(i) no-evidence standard, the daughters' motion for summary judgment was also properly denied. This Court has recently addressed the standards for reviewing a no-evidence summary judgment that is based on paragraph (i) of Rule 166a:

A no-evidence summary judgment is essentially a pretrial directed verdict, and we apply the same legal sufficiency standard in reviewing a no-evidence summary judgment as we apply in reviewing a directed verdict. Like a directed verdict, then, the task of the appellate court is to determine whether the plaintiff has produced any evidence of probative force to raise fact issues on the material questions presented. The appellate court must consider the evidence in the light most favorable to the party against whom the no-evidence summary judgment was rendered, and every reasonable inference must be indulged in favor of the nonmovant and any doubts resolved in its favor. A no-evidence summary judgment is properly granted if the nonmovant fails to bring forth more than a scintilla of probative evidence to raise a genuine issue of material fact as to an essential element of the nonmovant's claim on which the nonmovant would have the burden of proof at trial. If the evidence supporting a finding rises to a level that would enable reasonable, fair-minded persons to differ in their conclusions, then more than a scintilla of evidence exists. Less than a scintilla of evidence exists when the evidence is so weak as to do no more than create a mere surmise or suspicion of a fact, and the legal effect is that there is no evidence.

Jackson v. Fiesta Mart, Inc., 979 S.W.2d 68, 70-71 (Tex. App.--Austin 1998, no pet.) (citations and internal quotation marks omitted); see also Hon. David Hittner & Lynne Liberato, Summary Judgments in Texas, 34 Hous. L. Rev. 1303, 1356 (1998) (no-evidence summary judgment is essentially pre-trial directed verdict). The no-evidence summary judgment motion was properly denied because McCurdy, as the non-movant, brought forth more than a scintilla of probative evidence raising a genuine issue of material fact as to whether the daughters agreed to pay for Montero's funeral services.

CONCLUSION

Because there are material facts at issue, we affirm the judgment with respect to the denial of summary judgment for the daughters. For the same reason, we find that the trial court erred in granting summary judgment for McCurdy. We therefore reverse the trial court's grant of summary judgment in favor of McCurdy and remand the cause to the trial court for further proceedings.

J. Woodfin Jones, Justice

Before Justices Jones, Kidd, and Patterson

Reversed and Remanded in Part; Affirmed in Part

Filed: January 6, 2000

Do Not Publish

1. Even if we assume the trial court abused its discretion in failing to strike the daughters' deemed admissions or, alternatively, that the deemed admissions were waived by McCurdy, there still remains a material fact issue: whether the daughters ever agreed, orally or in writing, to pay for Montero's funeral.

2. For an agreement to be legally enforceable, it must be supported by consideration. See Federal Sign v. Texas S. Univ., 951 S.W.2d 401, 408 (Tex. 1997). Whether a contract is supported by valid consideration is a question of law. See Brownwood Ross Co. v. Maverick County, 936 S.W.2d 42, 45 (Tex. App.--San Antonio 1996, writ denied). Requests for admissions cannot compel a party to answer legal conclusions. See Esparaza v. Diaz, 802 S.W.2d 772, 775 (Tex. App.--Houston [14th Dist.] 1990, no writ). That the daughters admitted a legal issue (the existence of consideration) in McCurdy's requests for admission does not establish that element as a matter of law. See id.

3. "When a writing is intended as a completed legal transaction, the parol evidence rule excludes other evidence of any prior or contemporaneous expressions of the parties relating to the transaction." Pitman v. Lightfoot, 937 S.W.2d 496, 516 (Tex. App.--San Antonio 1996, writ denied). "The parol evidence rule is a rule of substantive law which provides that in the absence of fraud, accident, or mistake, extrinsic evidence is not admissible to vary, add to, or contradict the terms of a written instrument that is facially complete and unambiguous." Id. at 515-16. "Absent pleading and proof of ambiguity, fraud, or accident, a written instrument presumes that all the parties' earlier agreements relating to the transaction have merged into the written instrument." Fish v. Tandy Corp., 948 S.W.2d 886, 898 (Tex. App.--Fort Worth 1997, writ denied).

issues on the material questions presented. The appellate court must consider the evidence in the light most favorable to the party against whom the no-evidence summary judgment was rendered, and every reasonable inference must be indulged in favor of the nonmovant and any doubts resolved in its favor. A no-evidence summary judgment is properly granted if the nonmovant fails to bring forth more than a scintilla of probative evidence to raise a genuine issue of material fact as to an essential element of the nonmovant's claim on which the nonmovant would have the burden of proof at trial. If the evidence supporting a finding rises to a level that would enable reasonable, fair-minded persons to differ in their conclusions, then more than a scintilla of evidence exists. Less than a scintilla of evidence exists when the evidence is so weak as to do no more than create a mere surmise or suspicion of a fact, and the legal effect is that there is no evidence.

Jackson v. Fiesta Mart, Inc., 979 S.W.2d 68, 70-71 (Tex. App.--Austin 1998, no pet.) (citations and internal quotation marks omitted); see also Hon. David Hittner & Lynne Liberato, Summary Judgments in Texas, 34 Hous. L. Rev. 1303, 1356 (1998) (no-evidence summary judgment is essentially pre-trial directed verdict). The no-evidence summary judgment motion was properly denied because McCurdy, as the non-movant, brought forth more than a scintilla of probative evidence raising a genuine issue of material fact as to whether the daughters agreed to pay for Montero's funeral services.

CONCLUSION

Because there are material facts at issue, we affirm the judgment with respect to the denial of summary judgment for the daughters. For the same reason, we find that the trial court erred in granting summary judgment for McCurdy. We therefore reverse the trial court's grant of summary judgment in favor of McCurdy and remand the cause to the trial court for further proceedings.

J. Woodfin Jones, Justice

Before Justices Jones, Kidd, and Patterson

Reversed and Remanded in Part; Affirmed in Part

Filed: January 6, 2000

Do Not Publish

1. Even if we assume the trial court abused its discretion in failing to strike the daughters' deemed admissions or, alternatively, that the deemed admissions were waived by McCurdy, there still remains a material fact issue: whether the daughters ever agreed, orally or in writing, to pay for Montero's funeral.

2. For an agreement to be legally enforceable, it must be supported by consideration. See Federal Sign v. Texas S. Univ., 951 S.W.2d 401, 408 (Tex. 1997). Whether a contract is supported by valid consideration is a question of law. See Brownwood Ross Co. v. Maverick County, 936 S.W.2d 42, 45 (Tex. App.--San Antonio 1996, writ denied). Requests for admissions cannot compel a party to answer legal conclusions. See Esparaza v. Diaz, 802 S.W.2d 772, 775 (Tex. App.--Houston [14th Dist.] 1990, no writ). That the daughters admitted a legal issue (the ex