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  • Affirmed in Part; Reversed and Remanded in Part; Memorandum Opinion of January 11, 2005, Withdrawn; and Substitute Memorandum Opinion filed February 15, 2005

     

    Affirmed in Part; Reversed and Remanded in Part; Memorandum Opinion of January 11, 2005, Withdrawn; and Substitute Memorandum Opinion filed February 15, 2005.

     

     

    In The

     

    Fourteenth Court of Appeals

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    NO. 14-03-01303-CV

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    PAULA WELCH, INDIVIDUALLY; AS NEXT FRIEND OF J.A.W. (A MINOR CHILD); AND AS EXECUTRIX OF THE ESTATE OF JERRY WELCH, DECEASED, Appellant

     

    V.

     

    WARREN LYNN EDDINGTON, INDIVIDUALLY; EDDINGTON & ASSOCIATES, L.L.P; JOSEPH D. JAMAIL, INDIVIDUALLY; SPIRO GUS KOLIUS, INDIVIDUALLY; JAMAIL & KOLIUS, A PARTNERSHIP; PHILLIPS PETROLEUM COMPANY; PHILLIPS 66 COMPANY; CONOCOPHILLIPS; GARY S. TUCKER, INDIVIDUALLY; AND GARY S. TUCKER AND ASSOCIATES, P.C., Appellees

     

      

     

    On Appeal from the 270th District Court

    Harris County, Texas

    Trial Court Cause No. 02-62929

     

      

     

    S U B S T I T U T E   M E M O R A N D U M   O P I N I O N

    Appellant Paula Welch, individually; as next friend of J.A.W. (a minor); and as executrix of the estate of Jerry Welch (deceased), appeals from the trial court’s October 28, 2003, order granting summary judgment in favor of appellees Warren Lynn Eddington (individually) and Eddington & Associates, L.L.P. (collectively, the “Eddington defendants”); Joseph D. Jamail (individually), Spiro Gus Kolius (individually), and Jamail & Kolius, A Partnership (collectively, the “Jamail defendants”); Phillips Petroleum Company, Phillips 66 Company, and ConocoPhillips (collectively, the “Phillips defendants”); and Gary S. Tucker (individually) and Gary S. Tucker and Associates, P.C. (collectively, the “Tucker defendants”).  This case arises from an October 1989 explosion, which resulted in non-fatal injuries to Jerry Welch (now deceased), at a Phillips Petroleum Company plant in Pasadena, Texas.  We withdraw our opinion of January 11, 2005, and issue this substitute opinion. Because all dispositive issues are clearly settled in law, we issue this memorandum opinion.  See Tex. R. App. P. 47.4.  We affirm the trial court’s summary judgments in favor of the Jamail and Tucker defendants, but reverse the summary judgments on J.A.W.’s claims against the Eddington defendants and on her parental consortium claims against the Phillips defendants.  We remand for further proceedings consistent with this opinion.

    In this appeal, Welch presents two issues for review: (1) whether the trial court abused its discretion in sustaining several objections made by the Jamail defendants to the summary judgment evidence presented by Welch, and (2) whether the trial court erred in granting summary judgment to appellees.  We address these issues below in that order.

    The Evidentiary Rulings

    In her first issue, Welch argues that the trial court abused its discretion in sustaining several objections made by the Jamail defendants to the summary judgment evidence presented by Welch.  Although she attempts to explain the alleged errors the trial court committed in sustaining certain evidentiary objections, Welch fails to explain how these alleged errors probably caused the rendition of an improper judgment and, consequently, require reversal. See Owens-Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (Tex. 1998); Tex. R. App. P. 44.1(a).  Welch’s argument therefore fails for inadequate briefing. See Tex. R. App. P. 38.1(h).  Accordingly, Welch’s first issue is overruled.

    The Propriety of the Summary Judgments

    In her second issue, Welch argues that the trial court erred in granting summary judgment to appellees.  We review de novo the trial court’s grants of summary judgment. Provident Life and Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003).  When reviewing a summary judgment, we take as true all evidence favorable to the nonmovant and indulge every reasonable inference and resolve any doubts in the nonmovant’s favor.  Id.  Under Rule 166a(c) of the Texas Rules of Civil Procedure, a party moving for summary judgment bears the burden of showing that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law.  Tex. R. Civ. P. 166a(c); Knott, 128 S.W.3d at 216.  When a trial court’s order granting summary judgment does not specify the grounds therefor, a reviewing court must affirm a grant of summary judgment if any of the grounds are meritorious.  FM Properties Operating Co. v. City of Austin, 22 S.W.3d 868, 872 (Tex. 2000).  A motion for summary judgment must stand or fall on the grounds expressly presented in the motion. McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 341 (Tex. 1993).

    The Jamail and Tucker Defendants

    Welch contends that we are required to reverse the trial court’s grants of summary judgment to both the Jamail and Tucker defendants because the clerk’s record does not contain the motion for summary judgment, together with supporting evidentiary exhibits, that was presented by the Jamail defendants and adopted by the Tucker defendants.  We disagree as a matter of both law and fact.  The burden is on the complaining party to provide a record to the appellate court sufficient to show reversible error.  Hiroms v. Scheffey, 76 S.W.3d 486, 489 (Tex. App.—Houston [14th Dist.] 2002, no pet.). Moreover, while Welch may have been correct in her assertion that the materials identified above were not present at the time she filed her brief with this court, the record now contains such materials for this court’s review; in fact, they were included in a supplemental clerk’s record and referenced in appellees’ briefs.  Because Welch failed to present any further objection to the trial court’s grant of summary judgment as to both the Jamail and Tucker defendants, we find that summary judgment was appropriately granted for those defendants.

    Accordingly, Welch’s second issue is overruled as to both the Jamail and Tucker defendants.

    The Phillips Defendants

    Welch first contends that the trial court erred in granting summary judgment to the Phillips defendants because there exists an issue of material fact concerning whether J.A.W.’s claims for loss of parental consortium were settled prior to the date announced in Reagan v. Vaughn, 804 S.W.2d 463 (Tex. 1990). In Reagan, the Supreme Court of Texas recognized a cause of action for loss of parental consortium but limited its availability to only those actions

    arising on or after December 19, 1990; causes of action for loss of parental consortium pending in the courts on December 19, 1990; and causes of action derived from a parent’s claim so long as the parent’s claim had not been extinguished by settlement, final judgment on appeal, or expiration of the statute of limitations on December 19, 1990.

     

    Id. at 468 (emphasis added).  In their motion for summary judgment, the Phillips defendants argued that J.A.W.’s father, Jerry Welch, settled his claims on or before December 19, 1990.

    In order to create an enforceable settlement agreement relating to a pending cause of action, parties must either file a signed writing with the court or enter an oral agreement on the record.  Tex. R. Civ. P. 11; Padilla v. LaFrance, 907 S.W.2d 454, 461-62 (Tex. 1995); Kennedy v. Hyde, 682 S.W.2d 525, 530 (Tex. 1984); Neasbitt v. Warren, 105 S.W.3d 113, 116-17 (Tex. App.—Fort Worth 2003, no pet.); Rendon v. Avance, 67 S.W.3d 303, 318 (Tex. App.—Fort Worth 2001, pet. granted, remanded w.r.m.).

    The Phillips defendants first assert that letters exchanged between plaintiff and defense counsel on December 19, 1990, constituted a settlement agreement.  They then rely on Padilla for the proposition that this agreement constituted an enforceable Rule 11 agreement. However, in Padilla, the court clearly held that documents passed between counsel in that case constituted a valid Rule 11 agreement because they were filed with the court.  907 S.W.2d at 459-61.  Here, there has been no showing that the letters between counsel were ever filed with the trial court; thus, they cannot have constituted an enforceable Rule 11 agreement.[1]

    The Phillips defendants next point to a motion filed with the trial court in the earlier lawsuit on December 17, 1990, wherein they informed the court that the parties had an “agreement to settle.”[2]  This motion also indicated that the parties had already advised the court of the agreement to settle, but the Phillips defendants cite to no evidence that any written agreement was ever entered into the record or that an oral agreement was read into the record.  The purpose of the Rule 11 requirement that the agreement be in a writing filed with the court is to avoid disputes regarding the terms of the agreement.  Padilla, 907 S.W.2d at 461.  Therefore, merely informing the court of a settlement agreement is not sufficient because it contains no terms.  See id. at 459-61.

    The record also contains a Harris County Chronological Case History Report that indicates on November 14, 1990, a settlement was announced in Bogle v. Phillips Petroleum Co., No. 198946055 (151st Dist. Ct., Harris County, Tex.).  However, this, too, is no evidence that a Rule 11 agreement settling Jerry Welch’s claims against the Phillips defendants was read into the record.[3]

     The Phillips defendants have failed to meet their burden of conclusively showing that J.A.W.’s claims for loss of parental consortium were “extinguished by settlement” on or before December 19, 1990. See Reagan, 804 S.W.2d at 468. Accordingly, the trial court’s grant of summary judgment against the consortium claim must be reversed on this ground.

    Welch next contends that the trial court erred in granting summary judgment based on a lack of standing on J.A.W.’s tort and contract claims related to the settlement agreement signed by Jerry Welch.  Specifically, Welch states that the Phillips defendants were incorrect when they claimed the settlement agreement did not mention J.A.W., because the agreement mentions Jerry’s “heirs.”  We need not decide whether this reference confers standing because her argument fails for another reason.  When a movant raises more than one ground against a cause of action and the trial court does not state its reasons for granting summary judgment, the opposing party must negate all grounds on appeal or else the appellate court must affirm. Strather v. Dolgencorp of Tex., Inc., 96 S.W.3d 420, 425-26 (Tex. App.—Texarkana 2002, no pet.); Lewis v. Adams, 979 S.W.2d 831, 833 (Tex. App.—Houston [14th Dist.] 1998, no pet.). Here, the Phillips defendants also asserted that J.A.W. lacked standing in that she was not a party to the settlement agreement and was not a third party beneficiary because the parties did not enter into the agreement for her benefit.  On appeal, Welch offers no responsive argument to these assertions. Accordingly, we must affirm the grant of summary judgment against these claims.

    Welch next contends that the trial court erred in granting summary judgment to the Phillips defendants because the latter’s motion for summary judgment addressed only the claims set forth in Welch’s superceded Second Amended Original Petition; consequently, Welch asserts, the Phillips defendants failed to discharge their burden on summary judgment by addressing Welch’s claim for negligent infliction of emotional distress,[4] which was raised for the first time in Welch’s Third Amended Original Petition.[5]  We disagree. Texas law does not recognize an independent cause of action for negligent infliction of emotional distress.  Boyles v. Kerr, 855 S.W.2d 593, 594 (Tex. 1993).  A claimant may recover damages for such mental anguish only in connection with a defendant’s breach of some other legal duty.  Id.  Therefore, the Phillips defendants’ failure to separately address Welch’s claims for negligent infliction of emotional distress does not require reversal.  See Espeche v. Ritzell, 123 S.W.3d 657, 664 (Tex. App.—Houston [14th Dist.] 2003, pet. denied) (“If a motion for summary judgment is sufficiently broad to encompass later-filed claims, the movant need not amend his motion.”).[6]

    Finally, Welch contends that the trial court erred in granting summary judgment because her remaining causes of action against the Phillips defendants are not barred by the statute of limitations.[7]  We disagree. Welch cites authorities relating to the discovery rule, which she asserts applies to all of her claims in this case.  The discovery rule exception to the statute of limitations defers the accrual of a cause of action until the plaintiff knew or, in the exercise of reasonable diligence, should have known of the facts giving rise to such a claim. Computer Assocs. Int’l, Inc. v. Altai, Inc., 918 S.W.2d 453, 455 (Tex. 1996).  Even assuming that the discovery rule exception applies in the present case, Welch has failed to explain why it would defeat the limitations bar; she neither identifies the date(s) on which she learned of the relevant facts giving rise to her claims nor states how the applicable statute of limitations had not run by the time this suit was commenced. Therefore, we find that Welch has waived this contention due to inadequate briefing.  See Tex. R. App. P. 38.1(h).

    Accordingly, Welch’s second issue as to the trial court’s grant of summary judgment on the parental consortium claims in favor of the Phillips defendants is sustained.

    The Eddington Defendants

    In their motion for summary judgment, the Eddington defendants argued that the applicable statutes of limitations barred all of Welch’s claims brought in her individual capacity and as executor of her husband’s estate.  On appeal, Welch contends that her individual and executor causes of action are not barred by the statute of limitations.  We disagree with Welch’s contention for the reasons stated above in connection with her claims against the Phillips defendants.

    Regarding Welch’s claims brought on behalf of her minor daughter, J.A.W., the Eddington defendants argued that (1) J.A.W. has no claim for parental consortium because her father settled his claims prior to the effective date in Reagan, (2) they had no duty to Welch or J.A.W. because there was no attorney-client relationship between them, and (3) J.A.W. suffered no harm because limitations has not run on any viable claims she may have against the Phillips defendants.  In response to the first argument concerning the consortium claim, Welch contends that the trial court erred in granting summary judgment to the Eddington defendants because there exists an issue of material fact concerning whether J.A.W.’s claims for loss of parental consortium were settled prior to the date announced in Reagan, 804 S.W.2d 463. We agree.  The Eddington defendants suggest that a settlement was reached prior to the relevant date, but, as discussed above in relation to the Phillips defendants, they do not cite any proof that a signed writing was filed with the trial court evidencing the agreement or that the agreement was entered on the record in open court.  See Tex. R. Civ. P. 11; Padilla, 907 S.W.2d at 461-62; Kennedy, 682 S.W.2d at 530; Neasbitt, 105 S.W.3d at; Rendon, 67 S.W.3d at 318. Accordingly, we find that a genuine issue of material fact exists as to whether J.A.W.’s claims for loss of parental consortium were “extinguished by settlement,”on or before December 19, 1990. See Reagan, 804 S.W.2d at 468.

    Next, the Eddington defendants argued that J.A.W. has no claim against them because there was no attorney-client relationship between them.  See Vinson & Elkins v. Moran, 946 S.W.2d 381, 401 (Tex. App.­—Houston [14th Dist.] 1997, writ dism’d) (discussing privity requirement in suits against attorneys).  They point primarily to the deposition testimony of Warren Eddington in which he stated that he didn’t think he sued on behalf of any of the wives or children of victims in the Phillips cases, unless the victim died or was rendered quadriplegic or paraplegic.  While summary judgment may be based on testimony from an interested witness, that testimony must be uncontroverted, clear, positive, direct, free from contradiction and inconsistency, and readily capable of being controverted.  Eddington’s testimony is not conclusive on the question of representation for several reasons.  First, Eddington says only that he doesn’t think that he filed suit on behalf of wives and children.  This falls short of being clear, positive, and direct testimony.  Second, at no point does he say he didn’t represent wives and children; he only says that he doesn’t think he filed suit on their behalf.  Indeed, Welch’s basic claim against the Eddington defendants is that they represented Welch and her daughter but failed to prosecute their causes of action.  Third, Eddington’s statements do not refute the possibility that another attorney associated with the Eddington defendants represented J.A.W.  Thus, this testimony was not sufficient to sustain summary judgment against J.A.W.’s parental consortium claim.[8]

    The Eddington defendants next argued that they conclusively proved that Welch (and J.A.W.) never had an attorney-client relationship with them because:  (1) Warren Eddington testified that he referred all of the Phillips cases he had to Jamail & Kolius and (2) Welch testified that she was never represented by Jamail & Koilus.  This argument ignores two possibilities.  First, Welch and J.A.W. could have been represented by someone else associated with the Eddington defendants.  Second, even if Eddington had referred all of the cases to Jamail & Kolius, this does not necessarily mean that Jamail & Kolius agreed to represent or did represent all of the plaintiffs in these cases.  In other words, the claims of the mother and daughter may simply have fallen through the cracks.  Welch pled and testified that she was represented by the Eddington defendants, but she did not plead or testify that she was represented by Jamail & Kolius.  Eddington’s testimony regarding his referral of cases to Jamail & Kolius does not conclusively prove that there was no attorney-client agreement between Welch and the Eddington defendants.[9]

    Lastly, the Eddington defendants suggested that J.A.W. cannot prove any damages based on the following argument:  her claims are not barred by limitations because she can sue until her 20th birthday on February 12, 2006.  See Tex. Civ. Prac. & Rem. Code Ann. § 16.001 (Vernon 2002).  To begin with, this argument assumes that J.A.W.’s only claim against the Eddington defendants is that they let her claims against the Phillips defendants be extinguished by limitations.  This is not the case; the petition alleges various causes of action related to the improper prosecution and settlement of the claims, as well as for the failure to file suit or apprise her of any deadlines.[10]  Additionally, to the extent this argument raises a no-evidence issue (i.e., that J.A.W. cannot produce any evidence of damages), the Eddington defendants did not file a no-evidence motion for summary judgment.[11]

    Accordingly, Welch’s second issue as to the trial court’s grant of summary judgment in favor of the Eddington defendants is sustained as to the claims on behalf of J.A.W.

    Conclusion

    The judgments of the trial court in favor of the Jamail and Tucker defendants are affirmed.  The judgment of the trial court concerning the claims on behalf of J.A.W. against the Eddington defendants and for parental consortium against the Phillips defendants are reversed and remanded for further proceedings consistent with this opinion.  The remainder of the judgments favoring the Eddington and Phillips defendants are affirmed.

     

     

     

     

    /s/      Adele Hedges

    Chief Justice

     

     

     

     

    Judgment rendered and Substitute Memorandum Opinion filed February 15, 2005.

    Panel consists of Chief Justice Hedges and Justices Fowler and Seymore.


    [1]  Courts of appeals, including the Fourteenth, have held that in certain situations principles of equity may permit a trial court to enforce a settlement agreement that is not in technical compliance with Rule 11.  See, e.g., Cantu v. Moore, 90 S.W.3d 821, 825 (Tex. App.—San Antonio 2002, pet. denied); Massey v. Galvan, 822 S.W.2d 309, 318 (Tex. App.—Houston [14th Dist.] 1992, writ denied).  The Phillips defendants do not argue, and we do not find, that such equitable principles apply to the current situation.

    [2]  The motion itself was simply a request to withdraw from the plaintiff’s committee in the multiparty litigation.

    [3]  Welch cites to additional summary judgment proof that she contends proves Jerry did not settle his claims until December 20, 1990.  That proof includes (1) a document entitled, “Confidential Settlement Release and Indemnity Agreement,” which purports to fully settle any claims Jerry Welch, as well as any of his heirs, assigns, executors, etc., may have had against the Phillips defendants arising from the October 1989 explosion, and which was executed on December 20, 1990; and (2) a December 13, 1990, letter that Jerry received from the Eddington defendants and that notified him that his case was “scheduled to be closed on Thursday, December 20, 1990.”

    [4]  We note that the cases cited by Welch, McGovern v. Williams, 741 S.W.2d 373 (Tex. 1987), and Moore v. Lillebo, 722 S.W.2d 683 (Tex. 1986), do not stand for the proposition that negligent infliction of emotional distress constitutes an independent cause of action; rather, those cases concern whether a claim for mental anguish damages properly constitutes a component of the plaintiff’s recovery based on claims such as loss of consortium and wrongful death, respectively.  We therefore interpret the claim for negligent infliction of emotional distress in Welch’s Third Amended Original Petition not as an assertion of an independent cause of action, but as an additional claim for damages under her cause of action for negligence.

    [5]  Welch’s Second Amended Original Petition was filed April 23, 2003.  The Phillips defendants filed their Motion for Summary Judgment in response to that petition on July 8, 2003.  Welch filed her Third Amended Original Petition, which contained no material changes save for the addition of a claim for negligent infliction of emotional distress, on July 26, 2003.  The Phillips defendants have thus met Welch’s case as pleaded. See SmithKline Beecham Corp. v. Doe, 903 S.W.2d 347, 355 (Tex. 1995).

    [6]  We likewise reject Welch’s argument that Phillips’ motion for summary judgment is legally insufficient merely because it was made in response to the superceded Second Amended Original Petition.  See Espeche, 123 S.W.3d at 664.

    [7]  The Phillips defendants concede that the statute of limitations does not bar J.A.W.’s claims for loss of parental consortium because those claims do not expire until she reaches her twentieth birthday on February 12, 2006.  See Weiner v. Wasson, 900 S.W.2d 316, 321 (Tex. 1995).

    [8]  It is uncontested that the Eddington defendants represented Jerry Welch.  In her deposition, Paula Welch testified that Warren Eddington himself told her that he was also representing her and her child.  Further, Welch alleged that a member of Eddington’s staff told her that the firm would take care of her and her daughter.  Thus, even if Eddington’s testimony was sufficient to show the lack of an attorney-client relationship; Welch’s summary judgment evidence controverted that testimony.  See Parker v. Carnahan, 772 S.W.2d 151, 156 (Tex. App.—Texarkana 1989, writ denied).

    [9]  In their appellate brief, the Eddington defendants repeatedly suggest that Welch has failed to present any evidence of the existence of an attorney-client relationship.  However, the Eddington defendants filed only a traditional motion for summary judgment in the trial court; thus, Welch did not need to produce evidence of such a relationship unless the Eddington defendants proved that no such relationship existed.  See infra n.9.

    [10]  Granted, Plaintiff’s Third Amended Original Petition is something of a confusing document; however, in the absence of special exceptions, we construe a petition liberally in favor of the pleader.  Prudential Ins. Co. of Am. v. Fin. Review Servs., Inc., 29 S.W.3d 74, 81 (Tex. 2000).  Although there is a suggestion in the record that the Eddington defendants filed special exceptions to Plaintiff’s Original Petition, the document itself does not appear in the record, and there is no indication that special exceptions were filed against any of the subsequent, amended petitions.

    [11]  In Binur v. Jacobo, the Texas Supreme Court held that, when a party moves for summary judgment under both Texas Rules of Civil Procedure 166a(b) (traditional grounds) and 166a(i) (no-evidence grounds), the party need not file two separate motions or even supply clear headings to differentiate between the two types of grounds so long as the motion clearly sets forth its grounds.  135 S.W.3d 646, 651 (Tex. 2004).  The Eddington defendants, however, expressly moved only under the rules governing traditional motions.  Thus, Welch was not required to present any evidence in order to defeat the motion.  See Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995).