Opinion
No. 05-10-00255-CV
Opinion Filed April 11, 2011.
On Appeal from the County Court at Law No. 2, Dallas County, Texas, Trial Court Cause No. CC-07-14928-B.
Before Justices O'NEILL, FITZGERALD, and LANG.
MEMORANDUM OPINION
This appeal arises from claims involving multiple parties based on a flood in the Waterfall Crossing condominiums. The trial court granted summary judgment in favor of appellee Waterfall Crossing Condominium Association, Inc. on February 5, 2010.
On appeal, appellant Al Benser argues the trial court erred by granting Waterfall's motion for summary judgment because (1) fact issues exist; (2) it is based on an ambiguous settlement agreement; and (3) Waterfall repudiated the settlement agreement. In his last issue, he claims the court-ordered mediation was not conducted in accordance with Texas Civil Practice and Remedies Code chapter 154. We affirm the trial court's judgment.
Background
Elizabeth Baker lived in a Waterfall condominium and shared a common wall with Benser. On February 17, 2007 and July 21, 2007, Baker's residence suffered extensive damage from floods caused by a busted water pipe. Baker filed suit against Benser and Apex Financial Corporation. Apex owned Benser's condominium and Benser was the president of Apex. Benser answered the suit and claimed he had no personal liability in the case because he individually did not own the subject property and any actions by him were performed as an officer of Apex.
Apex filed a counterclaim against Baker for failing to mitigate her damages. Apex also filed a third-party petition against Waterfall asserting it hired a contractor, who negligently performed foundation work, which contributed to Baker's damages. Waterfall filed a cross-claim against Apex and Benser seeking contribution for any liability to Baker and Travelers Lloyd's of Texas Insurance Company, which intervened as a real party in interest and subrogee of Baker.
On July 15, 2009, all parties participated in a mediation. The mediation ended in a signed agreement settling all issues between Benser/Apex and Baker/Travelers as well as issues between Waterfall and Baker/Travelers.
The question arose as to whether the release in the settlement agreement barred any remaining claims by Benser and Apex against Waterfall. Waterfall filed a motion asserting it was entitled to summary judgment based on the affirmative defense of release. Apex filed a response. The court granted Waterfall's motion on February 5, 2010.
Benser, appearing pro se, filed a motion to reconsider; however, the trial court denied his motion on March 4, 2010. Benser, individually, filed a notice of appeal challenging the trial court's February 5, 2010 summary judgment order.
Discussion
Benser argues the trial court erred in granting Waterfall's motion for summary judgment and challenges the mediation procedures. However, we need not address any of his arguments.
The record is clear Benser is an individual while Apex is a corporation. Benser, individually, has not raised any claims against Waterfall in the trial court. Apex, as a corporation, filed the third-party petition against Waterfall. After Waterfall moved for summary judgment, Apex filed a response. The only pleading Benser filed against Waterfall in the trial court was a motion to reconsider the summary judgment. The trial court denied his motion to reconsider; however, that is not the order he is appealing from. His notice of appeal specifically states ". . . AL BENSER, files this Notice of Appeal appealing the Summary Judgment entered on February 5, 2010. . . ." However, Benser was not a party to the petition forming the basis of the February 5, 2010 summary judgment order. He may not now assert claims against Waterfall for the first time on appeal. "Issues a nonmovant contends avoid summary judgment that are not expressly presented to the trial court by written answer or other written response to the summary judgment motion are waived on appeal." See Baxter v. Gardere Wynne Sewell LLP, 182 S.W.3d 460, 465 (Tex. App.-Dallas 2006, pet. denied); Tex. R. App. P. 33.1. Accordingly, Benser has presented nothing for this Court to review, and we overrule his four issues.
Conclusion
Having overruled appellant's issues, we affirm the trial court's judgment.