Law Offices of Lin and Associates v. Chin-San Ho, Chiun-Hsiung Huang AKA Jim Huang and Horng Chien Inc. ( 2002 )

Affirmed and Opinion filed October 17, 2002

Affirmed and Opinion filed October 17, 2002.

In The

Fourteenth Court of Appeals

____________

NO. 14-01-01265-CV

____________

LAW OFFICES OF LIN & ASSOCIATES, Appellant

V.

CHIN-SAN HO, CHIUN-HSIUNG HUANG A/K/A JIM HUANG, AND

HORNG CHIEN, INC., Appellees

On Appeal from the 333rd District Court

Harris County, Texas

Trial Court Cause No. 01-04791

O P I N I O N

The Law Offices of Lin & Associates appeals from a summary judgment granted to defendants Chin-San Ho, Chiun-Hsiung Huang, and Horng Chien, Inc.  On appeal, Lin contends the trial court erred in granting the motions for summary judgment and in granting a discovery protective order requested by Ho.  We affirm.

BACKGROUND

Lin and Ho entered into a contingency fee contract for Lin to represent Ho in a personal injury lawsuit against Ho=s former employer, Horng Chien.  Several months later, Ho sent a letter to Lin requesting that she dismiss the lawsuit.  Lin subsequently filed the present action, alleging that an Aunder the table@ settlement occurred between Ho and Huang, who is a principle of Horng Chien.  Lin=s lawsuit sought the payment of a contingency fee based on the alleged settlement of the personal injury claim.  Lin alleged promissory estoppel, breach of contract, fraud, and conspiracy against Ho and tortious interference and conspiracy against Horng Chien and Huang.  Ho counterclaimed, seeking a declaration of the rights and duties of the parties under the contingency fee contract.

Ho moved for summary judgment based on his declaratory judgment action and on a no-evidence ground.  Huang and Horng Chien also filed a no-evidence motion for summary judgment. The trial court granted both motions.

HO=S SUMMARY JUDGMENT

In her first issue, Lin contends the trial court erred in granting Ho=s motion for summary judgment. Specifically, Lin=s only argument is that Ho=s motion was improper because it sought judgment on his declaratory action, which presented no issues not already raised by Lin=s pleadings, citing BHP Petrol. Co. v. Millard, 800 S.W.2d 838, 841 (Tex. 1990) (stating that declaratory actions are Anot available to settle disputes already pending before a court@).  However, in his motion for summary judgment, Ho raised both traditional grounds based on his declaratory judgment action and no-evidence grounds, under Tex. R. Civ. P. 166a(I), against Lin=s claims.^[1]  On appeal, Lin offers no argument concerning the no-evidence grounds.  Where, as here, a trial court grants summary judgment without specifying the grounds on which it is based, the party appealing the judgment must present argument challenging each ground on which judgment could have been granted or the judgment will be summarily affirmed.  See City of Glenn Heights v. Sheffield Dev. Co., 55 S.W.3d 158, 163 (Tex. App.CDallas 2001, pet. denied); Malone v. E.I. du Pont de Nemours & Co., 8 S.W.3d 710, 716B17 (Tex. App.CFort Worth 1999, pet. denied); Smith v. Tilton, 3 S.W.3d 77, 83 (Tex. App.CDallas 1999, no pet.).  Because Lin has failed to address Ho=s no-evidence ground for summary judgment, we need not address the substance of the argument she does present. Lin=s first issue is overruled.

HUANG AND HORNG CHIEN SUMMARY JUDGMENT

In her second issue, Lin contends the trial court erred in granting summary judgment for Huang and Horng Chien on their joint no-evidence motion for summary judgment filed pursuant to Tex. R. Civ. P. 166a(I).  Lin contends that Horn Chien=s and Huang= motion was not sufficiently specific in its assertion that there was a lack of evidence on an essential element or elements of each of her causes of action.

Rule 166a(i) requires a motion to Abe specific in challenging the evidentiary support for an element of a claim.@  Lampasas v. Spring Ctr., Inc., 988 S.W.2d 428, 436 (Tex. App.CHouston [14th Dist.] 1999, no pet.) (quoting Tex. R. Civ. P. 166a(I) cmt.).  In their motion, Huang and Horng Chien begin by citing Rule 166a(i) and setting forth brief background facts. Next, they identify the elements necessary for proving each of Lin=s causes of action against them, i.e., tortious interference and conspiracy.  Huang and Horng Chien also assert that both causes of action were based on the allegation that Ho settled his claims in the underlying lawsuit without providing his counsel, Lin, with her contingency fee.  This presentation of the basis for Lin=s claims is fully supported by her live pleading at the time, APlaintiff=s Second Amended Petition,@ and it was not refuted by Lin in her response to the motion for summary judgment.  Huang and Horn Chien then aver that there was no settlement and that A[t]here has been no evidence brought forward by the Plaintiff to establish the existence of a settlement.@

In sum, Huang and Horng Chien=s motion identifies the factual allegations at the core of Lin=s causes of action and asserts that she has provided no-evidence to support those allegations.  On that basis, we find that the motion is sufficiently specific in challenging the evidentiary support for at least one element of each of her claims. See Lampasas, 988 S.W.2d at 436B37.  Accordingly, Lin=s second issue is overruled.

THE PROTECTIVE ORDER

In her third issue, Lin contends that the trial court erred in granting a protective order limiting the type and time-frame of the evidence she could obtain regarding Ho=s finances.  The record reflects that Ho filed a motion for a protective order in response to certain of Lin=s requests for discovery on June 13, 2001. The record however, does not contain anything to indicate Lin filed a timely response to this motion, nor does the record contain a transcript of any hearing on the motion.  The trial court entered a protective order on August 17, 2001.   Lin filed a AMotion to Reconsider Protective Order@ on November 19, 2001, three months after the order was entered and within a month of each defendant=s having filed for summary judgment.  The record does not contain any order on the motion to reconsider, nor does it reflect any request or objection by Lin regarding the trial court=s failure to rule on the motion.

To preserve an issue for appellate review, a party must make a sufficiently specific and timely motion, request, or objection.  Tex. R. App. P. 33.1; City of Houston v. Precast Structures, Inc., 60 S.W.3d 331, 335 (Tex. App.CHouston [14th Dist.] 2001, pet. denied).  On appeal, a party is restricted to making arguments actually raised in the trial court.  Stolz v. Honeycutt, 42 S.W.3d 305, 315 (Tex. App.CHouston [14th Dist.] 2001, no pet.); Daughety v. Nat=l Ass=n of Homebuilders of United States, 970 S.W.2d 178, 182 (Tex. App.CDallas 1998, no pet.).  Because the record does not demonstrate that Lin responded to the motion for protective order before the order was entered, she has not preserved error. Similarly, as the record is bare of any trial court ruling on the motion to reconsider or of Lin bringing such failure to rule to the trial court=s attention or otherwise objected to the failure to rule, she has therefore not preserved any error for our review.  See Tex. R. App. P. 33.1 (to preserve error, party must obtain either an express or implicit ruling or, if the court refuses to rule, must object to the failure to rule); Rush v. Barrios, 56 S.W.3d 88, 106 (Tex. App.CHouston [14th Dist.] 2001, pet. denied) (holding that party failed to preserve any complainants regarding special appearance by not obtaining a ruling); Pace v. Jordan, 999 S.W.2d 615, 622 (Tex. App.CHouston [1st Dist.] 1999, pet. denied) (explaining that in response to motion for protective order, party should have filed a motion to compel and obtained a ruling or objected if the trial court refused to rule). Accordingly, Lin=s third issue is overruled.

The judgment of the trial court is affirmed.

/s/        Eva M. Guzman

Justice

Judgment rendered and Opinion filed October 17, 2002.

Panel consists of Justices Edelman, Seymore, and Guzman.

Do Not Publish C Tex. R. App. P. 47.3(b).

---

^[1]  As this court observed all too recently, litigants filing motions for summary judgment under both the traditional rule and the no-evidence rule should clearly delineate and separate the arguments and authorities meant for each type.  See Russo v. Smith Int=l, Inc., No. 14‑01‑00203‑CV, 2002 WL 31235494, *1 n.4 (Tex. App.CHouston [14th Dist.] Oct. 3, 2002, no pet. h.) (citing Waldmiller v. Cont=l Express, Inc., 74 S.W.3d 116, 122‑23 (Tex. App.CTexarkana 2002, no pet. h.).  In the present case, although the AIntroduction@ section of Ho=s motion mentions only that the motion is being filed pursuant to the Declaratory Judgments Act, the no-evidence portion of the motion speaks directly to plaintiff=s pleadings and claims and specifically discusses the evidence in a no-evidence context.  Lin does not specifically argue that Ho failed to properly raise a no-evidence ground, despite the fact that Ho raised Lin=s failure to address the no-evidence claim in his brief.  Additionally, the trial court struck out the language in the proposed order regarding the declaratory judgment action and the possible awarding of attorney=s fees under that action.  The trial court may have intended to grant summary judgment based only on the no-evidence grounds, although the court did not actually specify the basis of its order.