George M. Bishop v. John J. King ( 2006 )

Affirmed and Memorandum Opinion filed November 7, 2006

Affirmed and Memorandum Opinion filed November 7, 2006.

In The

Fourteenth Court of Appeals

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NO. 14-05-01138-CV

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GEORGE M. BISHOP, Appellant

V.

JOHN J. KING, Appellee

On Appeal from the 164th District Court

Harris County, Texas

Trial Court Cause No. 04-42128

M E M O R A N D U M  O P I N I O N

In one issue, appellant, George M. Bishop, appeals a summary judgment in favor of appellee, John J. King.  Because all dispositive issues are clearly settled in law, we issue this memorandum opinion and affirm.  See Tex. R. App. P. 47.4.

Background

This suit arises out of Bishop=s withdrawal from the law partnership of Sullivan, Bailey, King, Bishop & Sabom in 1982.  As a part of the withdrawal, Bishop entered into an agreement, dated May 6, 1983, with the successor partnership, assigning his partnership interest in the firm.  The agreement further provided that Bishop would be compensated later for contingency cases that were not yet settled, including the Vina Darko case.  Bishop alleges that without his knowledge or consent, King established two trust accounts containing funds owed to Bishop due to his withdrawal from the partnership.  Bishop alleges the trusts were created in 1983 at University Savings Association and in 1991 at Nations Bank.  In December 1999, King responded to a letter from Bishop explaining that he had opened the University Savings Association account in 1983 when Bishop failed to execute documents releasing the law firm in exchange for the funds and since then, the University Savings Association had closed. King also explained that he was not responsible for the funds since Bishop had failed to execute the documents releasing the funds.  At or around this same time, Bishop allegedly learned from an I.R.S. agent, and verbally from King, of another trust set up at Nations Bank in 1991.  Upon learning of the trusts in 1999, Bishop did not assert any claims against King or his other former law partners.  Instead, according to his petition, he Aelected to continue the trust for the time being as a result of other more pressing matters.@  On October 2, 2002, Bishop sent a letter to King terminating the trust with the funds from Bishop=s interest in the partnership and requesting his share of the funds from the 1991 Darko settlement.  When King did not forward the funds, Bishop filed this suit.  

Discussion

In his petition, Bishop sued King asserting claims for (1) breach of trust for refusing to distribute proceeds of the alleged trusts established in favor of Bishop, (2) negligence in that King as trustee did not prudently invest the funds or provide an accounting, (3) conversion  arguing King did not give Bishop the funds upon request, (4) accounting of the former partnership=s receipts under the Texas Uniform Partnership Act, (5) declaratory judgment of his rights under the Texas Declaratory Judgment Act, (6) breach of contract for taking funds owed to Bishop under the May 6, 1983, contract, and (7) attorney=s fees under the Texas Civil Practice and Remedies Code.  King filed both a traditional motion for summary judgment under Texas Rule of Civil Procedure 166a(c) and a no-evidence motion for summary judgment under Texas Rule of Civil Procedure 166a(i).  Both motions address all of Bishop=s claims. 

The trial court granted King=s motion for summary judgment.  However, the trial court did not specify the grounds or designate which motion for summary judgment was granted.   When a movant asserts multiple grounds for summary judgment and the trial court does not specify the ground on which summary judgment was granted, the appellant must attack all grounds on appeal.  See State Farm Fire & Cas. Co. v. S.S., 858 S.W.2d 374, 381 (Tex. 1993); Haas v. George, 71 S.W.3d 904, 912 (Tex. App.CTexarkana 2002, no pet.); Lewis v. Adams, 979 S.W.2d 831, 833 (Tex. App.CHouston [14th Dist.] 1998, no pet.).  If an appellant fails to attack each ground upon which the summary judgment may have been granted, we must uphold the summary judgment.  See State Farm Fire & Cas. Co., 858 S.W.2d at 381; Haas, 71 S.W.3d at 912; Lewis, 979 S.W.2d at 833; see also Fields v. City of Texas City, 864 S.W.2d 66, 68 (Tex. App.CHouston [14th Dist.] 1993, writ denied) (ABecause summary judgment may have been granted on a ground not challenged on appeal, i.e., consent, we may affirm the summary judgment on that basis alone.@).  Therefore, on appeal Bishop must attack all the grounds on which the trial court could have granted summary judgment. 

In his sole issue, Bishop contends that King did not establish his right to a summary judgment.  In his sub-issues, he asserts that (1) the trial court erred in rendering summary judgment based on affirmative defenses of statute of limitations or laches, (2) the trial court erred in entering summary judgment on his breach of trust claim as limitations ran from the termination of the trust and not from the date of discovery, (3) King had the burden of proof on the affirmative defense of limitations and failed to prove this defense conclusively, and (4) the affirmative defense of laches does not apply because King failed to prove it or show exceptional circumstances.  

Bishop addresses only King=s grounds for traditional motion for summary judgment based on statute of limitations and doctrine of laches.  However, with respect to each of Bishop=s claims, except the claim for an accounting, King moved for traditional summary judgment on one or more grounds in addition to statute of limitations and laches.  Therefore, we may uphold the traditional motion for summary judgment with respect to all the claims, except the claim for an accounting, for the sole reason that Bishop did not attack all the grounds on which the trial court could have granted summary judgment.  See State Farm Fire & Cas. Co., 858 S.W.2d at 381; Haas, 71 S.W.3d at 912; Lewis, 979 S.W.2d at 833. 

Furthermore, Bishop failed to address King=s no-evidence motion for summary judgment on all the claims. Therefore, we must uphold the no-evidence motion for summary judgment on all the claims.  See State Farm Fire & Cas. Co., 858 S.W.2d at 381; Haas, 71 S.W.3d at 912; Lewis, 979 S.W.2d at 833.  We overrule Bishop=s sole issue. 

Accordingly, the judgment of the trial court is affirmed.

/s/        Charles W. Seymore

Justice

Judgment rendered and Memorandum Opinion filed November 7, 2006.

Panel consists of Chief Justice Hedges and Justices Seymore and Mirabal.^[1]

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^[1]  Senior Justice Margaret Garner Mirabal sitting by assignment.