In The Court of Appeals Sixth Appellate District of Texas at Texarkana

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No. 06-02-00062-CV ______________________________



ESTATE OF BESSIE MAE BIRDWELL, DECEASED, BY AND THROUGH ITS INDEPENDENT ADMINISTRATOR, DAVID W. BIRDWELL, AND DAVID W. BIRDWELL, INDIVIDUALLY, Appellants

V.

TEXARKANA MEMORIAL HOSPITAL, INC., d/b/a WADLEY REGIONAL MEDICAL CENTER, Appellee

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On Appeal from the 202nd Judicial District Court Bowie County, Texas Trial Court No. 00-C-0917-202

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Before Cornelius, C.J., Grant and Ross, JJ. Opinion by Justice Ross

O P I N I O N

David W. Birdwell, acting individually and in his capacity as independent administrator of the estate of Bessie Mae Birdwell, and Texarkana Memorial Hospital, Inc., d/b/a Wadley Regional Medical Center, have filed a joint motion requesting that we reverse and remand the trial court's judgment. Because a record has not been filed in the case, but the motion is joined by both parties, we vacate the judgment and remand to the trial court for further proceedings. Tex. R. App. P. 42.1(a).

Donald R. Ross

Justice

Date Submitted: May 14, 2002

Date Decided: May 14, 2002

Do Not Publish

inst Red River. Red River nevertheless moved for summary judgment against claims by Wright's of violation of the DTPA and for negligent representation. And although Red River made no mention in its summary judgment motion of Wright's claims based on breach of contract, common-law fraud, or violation of the Insurance Code, the trial court granted summary judgment in its favor against all of Wright's claims including, apparently, the nonexistent DTPA claim.

We recognize that the Insurance Code does include a provision incorporating part of the DTPA by providing a cause of action for "unlawful deceptive trade practices" as defined under the DTPA, Section 17.46. See Tex. Bus. & Com. Code Ann. § 17.46(b) (Vernon Supp. 2002) ("laundry list" of specific acts declared to be unlawful trade practices); Tex. Ins. Code Ann. art. 21.21, § 16(a) (Vernon Supp. 2002). However, Wright's did not sue on the DTPA laundry list provision as incorporated by the Insurance Code; rather, Wright's specifically alleged a separate violation of the Insurance Code. Wright's alleged that Red River and the other two defendants "engaged in unfair or deceptive practices in violation of Tex. Ins. Code Ann. art. 21.21, § 4(1) by making or causing to be made any statement misrepresenting the terms, benefits, or advantages of an insurance policy." ⁽¹⁾ Article 21.21, § 16(a), which is the provision of the Insurance Code that incorporates the DTPA, specifically distinguishes between the Section 4 claim that Wright's brought and claims alleging DTPA violations. ⁽²⁾ Even though it appears from their appellate briefs and Red River's motion for summary judgment that both Red River and Wright's have been under the impression that Wright's had in fact brought a DTPA claim against Red River, Wright's alleged an Article 21.21, § 4, Insurance Code violation against Red River, not a DTPA section 17.46(b) violation, as it did against Allstate. See Tex. Ins. Code Ann. art. 21.21, § 4 (Vernon Supp. 2002). Consequently, the only ground on which Red River properly moved for summary judgment was the negligent misrepresentation claim.

Given this fact and the fact that the trial court made a general grant of summary judgment in favor of Red River against all of Wright's claims, the only proper issues for our review are whether Wright's timely perfected its appeal; whether the trial court properly granted summary judgment against Wright's on its negligent misrepresentation claim; and whether the trial court erred in granting Red River more summary judgment relief than it requested.

In order to perfect an appeal, a notice of appeal must be filed within thirty days after the judgment is signed if no motion for new trial, motion to modify, motion to reinstate, or proper request for findings of fact and conclusions of law is timely filed. See Tex. R. App. P. 26.1. No such motion or request was made in this case. Thus, the notice of appeal must have been filed within thirty days after the judgment was signed in order to be timely. The trial court signed the order granting Red River's summary judgment motion on July 5, 2000. The last remaining defendant was Turner, who was dismissed by an agreed order on April 11, 2001. Wright's filed its notice of appeal on April 27, 2001. Wright's argues that the judgment in favor of Red River became final on April 11 when Turner was dismissed from the suit. Red River argues that, as far as it was concerned, the judgment became final thirty days after July 5, 2000, the date on which the order granting it summary judgment was signed, and thus, Wright's appeal was untimely filed.

The general rule, with a few mostly statutory exceptions, is that an appeal may be taken only from a final judgment. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001). Where there has not been a conventional trial on the merits, such as when summary judgment has been granted, an order or judgment is not final for purposes of appeal unless it actually disposes of every pending claim and party, or unless it clearly and unequivocally states that it finally disposes of all claims and all parties. Id. at 205. As stated by the Texas Supreme Court, "[l]anguage that 'plaintiff take nothing by his claims against X' when there is more than one defendant or other parties in the case does not indicate finality." Id. Thus, in the instant case, the order granting summary judgment in favor of Red River did not become final until Turner, the last defendant, was dismissed from the suit. Because Wright's filed its notice of appeal within thirty days of the date of Turner's dismissal, its notice of appeal was timely.

The next issue is whether the trial court properly granted summary judgment against Wright's on its negligent misrepresentation claim. The propriety of summary judgment is a question of law. We review the trial court's summary judgment decision de novo. Natividad v. Alexsis, Inc., 875 S.W.2d 695, 699 (Tex. 1994); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985). With a traditional motion for summary judgment, the movant bears the burden of establishing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c); Randall's Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex. 1995). A defendant moving for summary judgment must negate at least one element of each of the plaintiff's theories of recovery, Gibbs v. Gen. Motors Corp., 450 S.W.2d 827, 828 (Tex. 1970), or must plead and conclusively establish each element of an affirmative defense. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979). If the moving party does not meet its burden of proof, the nonmovant has no burden and the motion must fail. See id. However, if the moving party produces evidence entitling it to summary judgment, the burden shifts to the nonmovant to present evidence that raises a material fact issue. Phan Son Van v. Pena, 990 S.W.2d 751, 752 (Tex. 1999); Walker v. Harris, 924 S.W.2d 375, 377 (Tex. 1996). In deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the nonmovant will be taken as true; every reasonable inference must be indulged in favor of the nonmovant and any doubts resolved in its favor. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d at 548-49.

The elements of negligent misrepresentation are: (1) the defendant made a representation in the course of business or a transaction in which the defendant had a pecuniary interest; (2) the defendant supplied false information for the guidance of others in their business; (3) the defendant did not exercise reasonable care or competence in obtaining or communicating the information; and (4) the plaintiff suffered pecuniary loss by justifiably relying on the representation. Fed. Land Bank Ass'n of Tyler v. Sloane, 825 S.W.2d 439, 442 (Tex. 1991); Facciolla v. Linbeck Constr. Corp., 968 S.W.2d 435, 442 (Tex. App.-Texarkana 1998, no pet.). In this case, the party liable for the wreck was insured by Allstate and Red River had a lien on the wrecked vehicle to recover its financing. In its first amended petition, Wright's alleged that Red River made misrepresentations to Allstate for the purpose of securing monies from Allstate and avoiding rightful payment to Wright's. Red River satisfied its initial summary judgment burden of proof by submitting along with its motion an affidavit from its collection manager stating that no Red River personnel had knowledge that the vehicle had been repaired until after the repairs had been completed, and that no Red River personnel made any representation to Wright's concerning the vehicle.

As evidence of negligent misrepresentation, Wright's points to statements made in a letter sent by a representative of Red River to Allstate. In the letter, the representative explained that Red River had a security interest in the vehicle and he "would appreciate [Allstate] re-opening this claim to insure that [Red River's] interest is protected and that the repair shop is paid in order that [Red River] might take possession of the vehicle." The letter was written in December of 1998. It references the fact that Wright's had levied a daily storage fee that had been accruing since mid-August. It is clear from the contents of the letter that Wright's had completed the repair work approximately four months before the letter was even written. Wright's, therefore, could not have done the repairs to the vehicle in reliance on any representation made in the letter from Red River to Allstate. The element of justifiable reliance has essentially been negated by the only evidence that Wright's proffered. Summary judgment in favor of Red River was therefore proper as to this claim.

Returning briefly to the issue of whether Wright's raised a DTPA claim against Red River, we note that a party must recover in the right on which he sues, and by proof of the facts stated in the pleadings, and cannot recover through a right not asserted. See Huddleston v. Pace, 790 S.W.2d 47, 50 (Tex. App.-San Antonio 1990, pet. denied). This principle requires that a party's pleadings give fair notice of the basis of a claim for affirmative relief. Tex. R. Civ. P. 45, 47. The opening sentence of Wright's amended petition against the three different defendants reads, "COMES NOW, Plaintiff, Wright's, and files this its Original Petition pursuant to the Texas Bus. and Com. Code 17.51 et seq ⁽³⁾ (DTPA) and the Texas Insurance Code §21.21 and breach of contract." Thereafter, Wright's refers to either "Defendants" generally, or to a particular defendant by name, and specifies which particular claims it is bringing against which defendants. Given this specificity, it would be highly misleading, to say the least, to read the petition's first sentence as applying to all three defendants. We therefore conclude that Wright's did not plead a DTPA cause of action against Red River.

Finally, we consider whether the trial court erred in granting Red River more summary judgment relief than it requested. As previously stated, in addition to its negligent misrepresentation claims against Red River, Wright's alleged breach of contract, common law fraud, and a violation of the Insurance Code. Although Red River made no mention in its summary judgment motion of these three other claims, the trial court nevertheless granted summary judgment against "all claims" brought by Wright's against Red River. A summary judgment movant may not be granted judgment on a claim or cause of action not addressed in its motion. Black v. Victoria Lloyds Ins. Co., 797 S.W.2d 20, 27 (Tex. 1990); see also Chessher v. Southwestern Bell Tel. Co., 658 S.W.2d 563, 564 (Tex. 1983) (per curiam) ("It is axiomatic that one may not be granted judgment as a matter of law on a cause of action not addressed in a summary judgment proceeding."). Whatever may be the underlying facts, summary judgment granting more relief than requested is erroneous.

We affirm the summary judgment insofar as it pertains to Wright's negligent misrepresentation  claim.  The  judgment  so  far   as  it  pertains  to  Wright's  other  claims  against

Red River is reversed, and those claims are severed from the negligent misrepresentation claim and remanded to the trial court for further proceedings.

William J. Cornelius

Chief Justice

Date Submitted: March 12, 2002

Date Decided: March 27, 2002

Publish

1. Article 21, § 4, reads:

The following are hereby defined as unfair methods of competition and unfair and deceptive acts or practices in the business of insurance:

(1) Misrepresentations and False Advertising of Policy Contracts. Making, issuing, circulating, or causing to be made, issued or circulated, any estimate, illustration, circular or statement misrepresenting the terms of any policy issued or to be issued or the benefits or advantages promised thereby or the dividends or share of the surplus to be received thereon, or making any false or misleading statements as to the dividends or share of surplus previously paid on similar policies, or making any misleading representation or any misrepresentation as to the financial condition of any insurer, or as to the legal reserve system upon which any life insurer operates, or using any name or title of any policy or class of policies misrepresenting the true nature thereof, or making any misrepresentation to any policyholder insured in any company for the purpose of inducing or tending to induce such policyholder to lapse, forfeit, or surrender his insurance.

Tex. Ins. Code Ann. art. 21.21, § 4(1) (Vernon Supp. 2002).

2. It reads in pertinent part:

Any person who has sustained actual damages caused by another's engaging in an act or practice declared in Section 4 of this Article to be unfair methods of competition or unfair or deceptive acts or practices in the business of insurance or in any practice specifically enumerated in a subdivision of Section 17.46(b), Business & Commerce Code, as an unlawful deceptive trade practice may maintain an action against the person or persons engaging in such acts or practices.

Tex. Ins. Code Ann. art. 21.21, § 16(a) (Vernon Supp. 2002) (emphasis added)..

3. The particular section to which Wright's cites was repealed in 1977. See Act of May 10, 1977, 65th Leg., R.S., ch. 216, §§ 10-13, 1977 Tex. Gen. Laws 600, 605.