Fred Samson v. James Manley and Don Jackson ( 2009 )

Affirmed and Memorandum Opinion filed October 6, 2009.

In The

Fourteenth Court of Appeals

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NO. 14-07-01085-CV

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FRED SAMSON, Appellant

V.

JAMES MANLEY AND DON JACKSON, Appellees

On Appeal from the 125^th District Court

Harris County, Texas

Trial Court Cause No. 2005-59467

M E M O R A N D U M   O P I N I O N

This is an appeal from the granting of two motions for summary judgment in favor of appellees, James Manley and Don Jackson.  Appellant argues the trial court erred in granting the summary judgments.  We affirm.  

Factual and Procedural Background^[1]

Appellant sued his former attorney, appellee James Manley, who represented him during settlement negotiations in a 1988 workers= compensation suit.  He also sued the opposing counsel representing the employer=s liability insurer in the workers= compensation suit, appellee Don Jackson.  Manley and Jackson both filed  summary judgment motions on appellant=s claims and both were granted by the trial court.  Appellant argues the granting of these motions was in error. 

Appellant, Fred Samson, was employed by Bowen Tools in the early 1980's.  On August 21, 1984, appellant sustained an on-the-job injury and filed a workers= compensation claim with the Industrial Accident Board of the State of Texas.  The Industrial Accident Board entered appellant=s award on February 23, 1987.^[2] On March 1, 1987, appellant filed suit in Harris County District Court against Highlands Insurance Company, Bowen Tools= liability insurer, to set aside the award of the Industrial Accident Board.^[3] Before going to trial, the parties reached a settlement agreement.  The trial court entered a final judgment on December 9, 1988 approving the settlement agreement.  In its judgment, the trial court set aside the award of the Industrial Accident Board and ordered, pursuant to the parties= settlement agreement, appellant take $34,000.00 in full and final judgment of his claims for workers= compensation benefits, twenty-five percent of which was awarded to his attorney, appellee James Manley, as reasonable attorney=s fees. Additionally, the trial court ordered Highlands Insurance Company to pay future medical expenses, including hospitalization, but not limited thereto, reasonably related to plaintiff=s injury and necessary for his treatment for the remainder of his lifetime.  The final judgment was signed by appellee Don Jackson, an attorney at the law firm of Vinson & Elkins representing Highlands Insurance Company; appellee James Manley, an attorney at the law firm of Manley & Alter representing appellant; and appellant Fred SamsonCall of whom were present at the settlement conference.   

Due to disagreements with his attorneys, by the time the parties agreed on a settlement appellant was being represented by  his fourth attorney, appellee James Manley.  During the settlement negotiations, but before the final agreement was reached, Claude Masters, an attorney at Manley=s firm, Manley & Alter, represented appellant.  Masters left Manley & Alter before the trial court entered the final judgment on the settlement agreement.  Appellee Manley assumed the firm=s responsibilities to represent appellant.

Appellee Don Jackson=s only involvement in the settlement agreement was through his representation of then-defendant, Highlands Insurance Company.  Jackson was not the insurance carrier=s in-house counsel, but was a retained attorney employed by the law firm of Vinson & Elkins.

In January of 2004, Highlands Insurance Company ceased making payments to appellant.  The record indicates Highlands had become insolvent sometime in 2003.  The discontinuation of appellant=s medical payments was the catalyst of this lawsuit. 

On September 14, 2005, appellant, acting pro se, filed suit in Harris County District Court against Highlands Insurance Company.  Appellant alleged four different Acauses of action@: breach of contract, negligence, mental anguish and conspiracy.^[4] Appellant sought  fifty-five million dollars in damages.  On July 21, 2006, appellant filed a AMotion for Leave  to File Multiple Defendants.@  Pursuant to this motion, appellant added six new defendants, including: Bowen Oil Tool Inc., Haliburton Co., Dr. John DeBender, Dr. Boris Rubashkin, James Manley, and Don Jackson.  He also added a melange of new alleged causes of action and damage theories, including: constructive fraud, conspiracy, breached [sic] of duty, intentional infliction of emotional distress, deceptive trade practice, mental anguish, stress, depression, lost [sic] of past and future capacity [sic], pain past and future [sic], mental and physical pain and suffering [sic].  A long battle of pleadings ensued.  By August 17, 2007, all defendants, with the exception of appellees Manley and Jackson, were granted dispositive relief.  The trial court signed an order severing Manley and Jackson from the other defendants. 

On July 5, 2007, appellee Don Jackson filed a motion for summary judgment.  On August 10, 2007, appellant filed a document titled APlaintiff=s Motion for Leave to Response to Defendant Don Jackson=s Motion for No-Evidence Summary Judgment and Motion for Continuance.@  The substance of this document appears to be a response to Jackson=s motion for summary judgment.  On August 20, 2007, Don Jackson filed a reply to appellant=s response.  On August 22, 2007, the trial court granted Jackson=s motion without specifying any particular  grounds upon which summary judgment was being granted.

October 22, 2007, appellee Manley filed a motion for summary judgment.  Appellant filed a response and the court held a hearing on the motion.  On October 29, 2007, the court granted Manley=s motion, but again did not specify particular  grounds.

On November 2, 2007, the trial court signed a final judgment stating A[a]ll of the claims of plaintiff in this case have been resolved through summary judgments in favor of the defendants.@  Appellant filed multiple motions for new trial, all of which were denied.  Eventually, appellant filed a notice of appeal from the summary judgments granted in favor of Manley and Jackson. 

Discussion

I.        Did the trial court err in granting Manley=s Motion for Summary Judgment?

Appellant argues the trial court erred in granting Manley=s hybrid motion for summary judgment.  Appellant=s specific points of error are less than clear; however, he implies  genuine issues of material fact preclude summary judgment. Additionally, he asserts new arguments on appeal, which we need not address.  See San Jacinto River Auth. v. Duke, 783 S.W.2d 209, 209B10 (Tex. 1990) (holding a litigant must present its complaint to the trial court to preserve the argument on appeal).

A.        Standard of Review

We review the trial court=s summary judgment de novo.  Provident Life & Acc. Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003).  When a party moves for summary judgment on both traditional and no-evidence grounds and the trial court does not specify which it granted, we may uphold the summary judgment on either ground.  See Taylor v. Carley, 158 S.W.3d 1, 8 (Tex. App.CHouston [14th Dist.] 2004, pet. denied). 

Under the traditional summary judgment standard of review, a movant has the burden to demonstrate at the trial level that there are no genuine issues of material fact, and he is entitled to judgment as a matter of law.  KPMG Peat Marwick v. Harrison County Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999).  In determining whether there is a genuine fact issue precluding summary judgment, evidence favorable to the non-movant is taken as true and we make all reasonable inferences in his favor.  Id.  A movant is entitled to summary judgment only if he conclusively proves all essential elements of his claim.  Johnston v. Crook, 93 S.W.3d 263, 273 (Tex. App.CHouston [14th Dist.] 2002, pet. denied).

In a no-evidence motion for summary judgment, the movant must specifically state the elements as to which there is no evidence.  Walker v. Thomasson Lumber Co., 203 S.W.3d 470, 473B74 (Tex. App.CHouston [14th Dist.] 2006, no pet.). The trial court must grant the motion unless the respondent produces summary judgment evidence raising a genuine issue of material fact.  Tex. R. Civ. P. 166a(i).  However, the respondent is Anot required to marshal its proof; its response need only point out evidence that raises a fact issue on the challenged elements.@  Hamilton v. Wilson, 249 S.W.3d 425, 426 (Tex. 2008).

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.  Mathis, 231 S.W.3d at 50.  We review the entire record in the light most favorable to the non-movant, indulging every reasonable inference, and resolving any doubts against the motion.  City of Keller, 168 S.W.3d at 824.  We sustain a no-evidence summary judgment if (1) there is a complete absence of proof of a vital fact, (2) rules of law or evidence bar the court from giving weight to the only evidence offered to prove a vital fact, (3) the evidence offered to prove a vital fact is no more than a scintilla, or (4) the evidence conclusively establishes the opposite of a vital fact.  Walker, 203 S.W.3d at 474.  Less than a scintilla of evidence exists when the evidence offered to prove a vital fact is so weak as to do no more than create a mere surmise or suspicion of its existence, and in legal effect is no evidence.  Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex. 2004).  More than a scintilla of evidence exists when the evidence rises to a level that would enable reasonable and fair-minded people to differ in their conclusions as to the existence of the vital fact.  Id. 

B.        Analysis

In appellant=s fifth amended petition he explains what we construe to be the basis of his lawsuit.  The following is quoted from his petition:

. . . James Manley, . . . Don Jackson, all the parties are either directly or indirectly contribute to plaintiff damages, base of there action or intentions.  All this parties that are part of this claim are or have been liable.  Because those parties have perpetrated a fraud and engaged in Civil conspiracy, conspiracy to defraud, conspiracy to conversion, release is fraud, constructive fraud, civil theft or conversion, violation of Bulk Sales Act.  Breached of Contract.  Breach of employment contract by employer, plaintiff was/ is entitled to some benefits from previous employer. . . All the party in this suite intentionally or with reckless abandon caused serves emotional distress to Samson and his family. [sic]

We construe this to encompass the following causes of action: (1) Fraud, (2) Civil Conspiracy, (3) Theft and Conversion, (4) Violation of the Bulk Sales Act, (5) Breach of Contract, and (6) Intentional Infliction of Emotion Distress.  Manley filed a hybrid motion for summary judgment.  He argues there is no evidence supporting any of appellant=s causes of action and moreover, all appellant=s claims are barred by the two and four year statute of limitations.  Appellant failed to attach any evidence to his response.  We will only address the no-evidence portion of Manley=s motion because it is dispositive of this appeal in regard to appellee Manley.     

1.         Fraud

To recover on an action for fraud, the plaintiff must prove: (1) a material representation was made, (2) the representation was false, (3) when the speaker made the representation, he knew it was false or made it recklessly without knowledge of the truth as a positive assertion, (4) the speaker made it with the intention that it should be acted upon by the party, (5) the party acted in reliance upon it, and (6) the party thereby suffered injury.  Solutioneers Consulting, Ltd. v. Gulf Greyhound Partners, Ltd., 237 S.W.3d 379, 385 (Tex. App.CHouston [14th Dist.] 2007, no pet.).  In his summary judgment motion, Manley argued  there is no evidence to support any of the elements of fraud.

Appellant alleges Manley engaged in fraud, conspiracy to defraud, and constructive fraud.  He claims his signature on the final settlement agreement was procured by fraud because Manley did not explain the settlement agreement to him and he admittedly signed without reading the agreement.  However, appellant fails to point to a specific false representation by Manley.  Mere conclusory statements do not constitute effective summary judgment proof and need not be given the same presumptive force as allegations of fact.  Abbott Laboratories, Inc. v. Segura, 907 S.W.2d 503, 508 (Tex. 1995).  Moreover, appellant attached no evidence to his motion.  See Tex. R. Civ. P. 166a(i) (AThe court must grant the motion unless the respondent produces summary judgment evidence raising a genuine issue of material fact.@).  Appellant=s allegations of fraud amount to conclusory accusations and he presents no evidence raising a genuine issue of material fact on any element of his fraud cause of action.  See Segura, 907 S.W.2d at 508. Specifically, appellant did not point to a single specific misrepresentation upon which he bases his claim.  The trial court did not err in granting summary judgment on this claim. 

2.         Civil Conspiracy

To recover on an action for civil conspiracy, the plaintiff must prove: (1) the defendant and another person acted together, (2) they acted to accomplish an object (an unlawful purpose or a lawful purpose by unlawful means), (3) they had a meeting of the minds on the object or course of action, (4) they committed one or more unlawful acts, and (5) the plaintiff suffered damages as the proximate result of the unlawful acts.  Ins. Co. Of N. Am. v. Morris, 981 S.W.2d 667, 675 (Tex. 1998).  In his motion for summary judgment, Manley argued there is no evidence supporting any of the elements  of conspiracy.

Appellant provided no evidence of conspiracy and merely alleged that Aall@ defendants conspired against him because he is not proficient in English and is a Asimple@ blue collar worker.  One of the essential elements required to establish a civil conspiracy is a meeting of the minds on the object or course of action.  Schlumberger Well Surveying Corp. v. Nortex Oil & Gas Corp., 435 S.W.2d 854, 857 (Tex. 1969).  There is no evidence of a meeting of the minds between the defendants.  Appellant points out no specific facts establishing any of the elements of conspiracy.  Appellant did not attach any evidence of conspiracy to his response as required by rule 166a(i).  See Tex. R. Civ. P. 166a(i).  Specifically, appellant presented no evidence on the third element of conspiracy, a meeting of the minds.  The trial court did not err in granting Manley=s no-evidence motion for summary judgment.

3.         Civil Theft and Conversion

To establish a claim for conversion, a plaintiff must prove: (1) title, (2) right to possession, and (3) a demand for the return of the property unless the possessor=s acts manifest a clear repudiation of the plaintiff=s rights.  El Paso Prod. Co. v. Valence Operating Co., 112 S.W.3d 616, 625 (Tex. App.CHouston [1st Dist.] 2003, pet. denied).  In his motion for summary judgment Manley argued there is no evidence supporting any of the elements of conversion.

Appellant presented no evidence proving he had title to a specific piece of property.  Further, he only states a claim for Aconversion@ or Acivil theft@ without providing reference to any specific facts.  Therefore, he has presented no evidence as to the first element required to establish a claim for conversion.  Summary judgment was not granted in error on this claim.

4.         Violation of the Bulk Sales Act

 Although appellant includes an allegation concerning the Bulk Sales Act, it   was repealed in 1993 and is inapplicable to the facts of this case.  Bulk sales are governed by the provisions of Chapter 6 of the Business and Commerce Code, commonly referred to as the Bulk Transfer Act.  Rome Indus., Inc. v. Intsel Sw., 683 S.W.2d 777, 779 (Tex. App.CHouston [14th Dist.] 1984, writ ref=d n.r.e.).  A bulk transfer is defined as Aany transfer in bulk and not in the ordinary course of the transferor=s business of a major part of the materials, supplies, merchandise or other inventory of an enterprise subject to this chapter.@  Id.; Act 1965, 59th Leg., vol. 2, p. 109, ch. 721, '' 6-101 to 6-111 and Acts 1967, 60th Leg., p. 2343, ch. 785, ' 1, repealed by Acts 1993, 73rd Leg., ch. 570, ' 16, eff. Sept. 1, 1993.  Even assuming the Bulk Sales Act had not been repealed in 1993, appellant still presented no evidence on any of the required elements.  Particularly, appellant provided no evidence of a Atransfer in bulk@ as required by the statute. Therefore, we conclude the trial court did not err in granting summary judgment on this claim.

5.         Breach of Contract

To recover on an action for breach of contract, a plaintiff must prove: (1) the existence of a valid contract, (2) performance or tendered performance by the plaintiff, (3) breach of the contract by the defendant, and (4) damages sustained by the plaintiff as a result of the breach.  Aguiar v. Segal, 167 S.W.3d 443, 450 (Tex. App.CHouston [14th Dist.] 2005, pet. denied).  In his motion for summary judgment, Manley argues there is no evidence demonstrating Manley breached the employment contract between appellant and the law firm of Manley & Alter. 

In his response to Manley=s motion for summary judgment, appellant argues there was no valid contract with the law firm of Manley & Alter.  We find this statement dispositive of appellant=s breach of contract claim.  In making this statement, appellant explicitly states there is no evidence on the first required element of a breach of contract claim.  The trial court did not err in granting summary judgment on this claim.

6.         Intentional Infliction of Emotional Distress

To recover on an action for intentional infliction of emotional distress, a party must prove: (1) the defendant acted intentionally or recklessly, (2) the defendant=s conduct was extreme and outrageous, (3) the defendant=s actions caused the plaintiff emotional distress, and (4) the resulting emotional distress was severe.  Hoffman-La Roche Inc. v. Zeltwanger, 144 S.W.3d 438, 445 (Tex. 2004).  Manley argues appellant has not produced any  evidence in support of any element on his intentional infliction of emotions distress claim.  We agree.

Extreme and outrageous conduct is conduct A>so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.=@  Id. (quoting Twyman v. Twyman, 855 S.W.2d 619, 621(Tex. 1993)).  Appellant has not alleged any conduct rising to the level of extreme or outrageous conduct.  The basis for this cause of action appears to be that appellant contends Manley took advantage of appellant because appellant does not speak English well and is not well-educated.  Appellant=s allegations are conclusory and he raises no genuine issues of material fact on any of the elements of intentional infliction of emotional distress.  Therefore, the trial court did not err in granting summary judgment on this claim.

7.         Summary Judgment was properly granted for James Manley

Appellant presented no evidence to support any of his causes of action.  Accordingly, the trial court did not err in granting summary judgment on all of appellant=s causes of action.

II.        Did the trial court err in granting Jackson=s Motion for Summary Judgment?

Appellant pleaded the same causes of action against Jackson as he did against Manley, which we construe as: (1) Fraud, (2) Civil Conspiracy, (3) Theft and Conversion, (4) Violation of the Bulk Sales Act, (5) Breach of Contract, and (6) Intentional Infliction of Emotion Distress.  Jackson filed a hybrid motion for summary judgment arguing, (1) as appellant=s opposing counsel in the settlement agreement Jackson did not owe appellant a duty, (2) Jackson has qualified immunity for all actions taken in the course of litigation, (3) appellant has presented no evidence supporting any of his causes of action, (4) to the extent any cause of action does exist, it is barred by the statute of limitations.

Appellant responded, claiming: (1) Don Jackson had a public duty to protect the public interest from any wrongdoing by any party involved in that case or any other case, (2) Don Jackson had a public obligation to ask any attorney representing appellant to recuse him or herself if Don Jackson had knowledge such attorney previously represented Highlands Insurance Company, (3) Don Jackson engaged in conspiracy with James Manley and Claude Masters to defraud appellant, (4) the court must reset the summary judgment hearing because appellant did not have adequate time to conduct discovery.  Appellant did not present any evidence precluding the trial court=s granting Jackson=s no-evidence summary judgment motion.  Because we find Jackson=s no-evidence portion of his motion dispositive of this appeal, it is only necessary to address that portion of his motion.   

A.        Standard of Review

The standard of review used to evaluate a mixed motion for summary judgment is set out above in section I. A.

B.        Analysis

Appellee Jackson filed no-evidence motions as to all of appellant=s alleged causes of action.  As discussed below, appellant fails to present competent summary judgment evidence on any of his causes of action.

1.         Fraud

To recover on an action for fraud, the plaintiff must prove: (1) a material representation was made, (2) the representation was false, (3) when the speaker made the representation, he knew it was false or made it recklessly without knowledge of the truth as a positive assertion, (4) the speaker made it with the intention that it should be acted upon by the party, (5) the party acted in reliance upon it, and (6) the party thereby suffered injury.  Solutioneers Consulting, Ltd., 237 S.W.3d at 385.  Jackson asserts appellant cannot produce a scintilla of competent summary judgment evidence to support any of the elements of his claims for fraud, conspiracy to defraud, or constructive fraud. 

Appellant responds by claiming, ADon Jackson with James Manley, Claude Masters to have been guilty to such conspiracy to defraud plaintiff Fred Samson and takes advantage of his illness and not much knowledge of medical or legal issues[sic].@  Appellant=s argument is conclusory and raises no evidence as to any of the elements of fraud.  Summary judgment evidence is considered conclusory if it does not provide the underlying facts to support the conclusion.  Dolcefino v. Randolph, 19 S.W.3d 906, 930 (Tex. App.CHouston [14th Dist.] 2000, pet. denied).  Appellant points to no underlying facts supporting his contention of fraud.  Appellant has failed to present competent evidence of a single element of fraud.  The trial court did not err in granting Jackson=s no-evidence summary judgment motion on the issue of fraud.

2.         Intentional Infliction of Emotional Distress

To recover on an action for intentional infliction of emotional distress, a party must prove: (1) the defendant acted intentionally or recklessly, (2) the defendant=s conduct was extreme and outrageous, (3) the defendant=s actions caused the plaintiff emotional distress, and (4) the resulting emotional distress was severe.  Hoffman-La Roche Inc., 144 S.W.3d at 445.  Jackson asserts appellant cannot produce a scintilla of competent summary judgment evidence to support his claim for intentional infliction of emotional distress.

Appellant does not present any evidence or make any argument regarding his intentional infliction of emotional distress claim.  The trial court did not err in granting Jackson=s summary judgment motion on this claim.

3.         Breach of Contract

To recover on an action for breach of contract, a plaintiff must prove: (1) the existence of a valid contract, (2) performance or tendered performance by the plaintiff, (3) breach of the contract by the defendant, and (4) damages sustained by the plaintiff as a result of the breach.  Aguiar, 167 S.W.3d at 450.  Jackson asserts appellant cannot prove a scintilla of competent summary judgment evidence to support a single element of breach of contract or breach of employment contract. 

Appellant presents no evidence as to a single element of his claim for breach of contract.  Furthermore, appellant makes no argument regarding his breach of contract claim.  The trial court did not err in granting Jackson=s motion for summary judgment on this claim.

4.         Civil Conspiracy

To recover on an action for civil conspiracy, the plaintiff must prove: (1) the defendant and another person acted together, (2) they acted to accomplish an object (an unlawful purpose or a lawful purpose by unlawful means), (3) they had a meeting of the minds on the object or course of action, (4) they committed one or more unlawful acts, and (5) the plaintiff suffered damages as the proximate result of the unlawful acts.  Ins. Co. Of N. Am., 981 S.W.2d at 675.  Jackson asserts appellant cannot produce a scintilla of competent summary judgment evidence to support a single element of his claim for conspiracy. 

Appellant merely alleges Jackson engaged in conspiracy with Fred Samson and the other defendants to take advantage of the appellant=s lack of legal training, lack of education, and poor health.  Appellant presents no evidence, other than conclusory allegations.  Mere conclusory statements do not constitute effective summary judgment proof and need not be given the same presumptive force as allegations of fact.  Segura, 907 S.W.2d at 508.  The trial court did not err in granting Jackson=s no-evidence motion for summary judgment on this claim. 

5.         Conversion and Civil Theft

To establish a claim for conversion, a plaintiff must prove: (1) title, (2) right to possession, and (3) a demand for the return of the property unless the possessor=s acts manifest a clear repudiation of the plaintiff=s rights.  El Paso Prod. Co., 112 S.W.3d at 625.  Jackson asserts appellant cannot produce a scintilla of competent summary judgment evidence to support a single element of his claims for conversion and/or civil theft. 

Appellant presents no evidence nor makes an argument regarding his claim for conversion.  His claim for conversion and/or civil theft is wholly unsupported.  The trial court did not err in granting Jackson=s no-evidence motion for summary judgment on this claim.  

6.         Violation of Bulk Sales Act

For the same reasons we held the Bulk Sales Act did not apply to appellee Manley, we hold it does not apply to appellee Jackson. Furthermore, even assuming the Act had not been repealed, appellant presented no evidence of a transfer in bulk as required by the act.  The trial court did not err in granting Jackson=s no-evidence motion for summary judgment on this claim. 

7.         Summary Judgment was properly granted for Don Jackson

Appellant did not present even a scintilla of evidence on any of his causes of action.  Therefore, the trial court did not err in granting Jackson=s no-evidence motion for summary judgment as to each cause of action alleged by appellant. 

Conclusion

We affirm the judgments of the trial court granting both Manley=s and Jackson=s motions for summary judgment on all causes of action. 

/s/                                                          /s/      John S. Anderson

Justice

Panel consists of Justices Anderson, Guzman, and Boyce.

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^[1]  The factual recitation is stated in the light most favorable to the non-movant, indulging every reasonable inference, and resolving any doubts against the motion.  City of Keller v. Wilson, 168 S.W.3d 802, 824 (Tex. 2005); Mathis v. Restoration Builders, Inc., 231 S.W.3d 47, 50 (Tex. App.CHouston [14th Dist.] 2007, no pet.).

^[2]  In his brief, appellant claims he never saw or knew about the award of the Industrial Accident Board.

^[3]  Appellant was represented by attorney Howard Thompson during proceedings with the Industrial Accident Board and when he filed suit to set aside his award. 

^[4] Appellant is not proficient in his use of the English language, as his native language appears to be Polish.