Opinion
No. 09-05-524 CV
Submitted on April 13, 2006.
Opinion Delivered May 11, 2006.
On Appeal from the County Court at Law No. 1, Jefferson County, Texas, Trial Cause No. 77841-B.
Affirmed.
Before McKEITHEN, C.J., GAULTNEY and KREGER, JJ.
MEMORANDUM OPINION
Appellant Mary Lou Wilcox appeals from an order granting summary judgment in favor of appellee Peter Wilcox. Finding no error, we affirm.
Background
Mary Lou Wilcox and her brothers, H. Douglas Wilcox ("Doug"), Rex E. Wilcox, and Peter V. Wilcox were named as beneficiaries under the will of their mother, Irma Lou Wilcox. The will named Doug and Rex as independent co-executors and Peter as an alternate co-executor. After the will was admitted to probate, Mary Lou sued Doug, Rex, and Peter, as well as an accountant and his firm. Mary Lou alleged numerous causes of action, including fraud, negligent misrepresentation, civil conspiracy, negligence, professional malpractice, breach of fiduciary duty, conversion, and tortious interference with inheritance rights. Mary Lou also sought a "full, complete, truthful and lawful inventory and accounting of the properties of the Estate."
Peter filed a hybrid motion for summary judgment that asserted he was entitled to judgment as a matter of law on each of Mary Lou's claims because he owed no duty to her and that Mary Lou had no evidence to support any of her causes of action against him. See Tex. R. Civ. P. 166a(c), (i). The trial court entered an order granting summary judgment in favor of Peter, and Mary Lou appealed.
Mary Lou's First Issue
In her first issue, Mary Lou asserts that the trial court erred "when it granted Appellee's amended motion for partial summary judgment on a contested issue of fact regarding the existence of an informal fiduciary relationship between siblings." Mary Lou later restates her first issue as: "[s]ummary judgment should be reversed because Appellee failed to conclusively establish, with summary judgment evidence, that no fiduciary relationship existed between him and his sister, Mary Lou."
We review the trial court's summary judgment order de novo. See Provident Life Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003). With a traditional motion for summary judgment, the movant bears the burden of establishing that there is no genuine issue of material fact and 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 or plead and conclusively establish each element of an affirmative defense. Science Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997). If the moving party produces evidence entitling him to summary judgment, the burden shifts to the nonmovant to present evidence that raises a material fact issue. 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. Nixon v. Mr. Prop. Mgmt. Co., Inc., 690 S.W.2d 546, 548-49 (Tex. 1985). Every reasonable inference must be indulged in favor of the nonmovant and any doubts resolved in his favor. Id. at 549.
We review the trial court's granting of no-evidence motions for partial summary judgment under the standards set forth in Rule 166a(i). See Tex. R. Civ. P. 166a(i). To defeat a no-evidence summary judgment motion, the non-movant must produce summary judgment evidence raising a genuine issue of material fact regarding each element challenged by the movant. Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004). The non-movant raises a genuine issue of material fact by producing "more than a scintilla of evidence" establishing the challenged element's existence. Forbes, Inc. v. Granada Biosciences, Inc., 124 S.W.3d 167, 172 (Tex. 2003). More than a scintilla of evidence exists when the evidence is such that reasonable and fair-minded people can differ in their conclusions. Ridgway, 135 S.W.3d at 601. If "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, the evidence is no more than a scintilla and, in legal effect, is no evidence." Id. (quoting Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983)).
In determining whether the non-movant has produced more than a scintilla of evidence, we view the evidence in the light most favorable to the non-movant and disregard all contrary evidence and inferences. Ridgway, 135 S.W.3d at 601; King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003), cert. denied, 541 U.S. 1030, 124 S.Ct. 2097, 158 L.Ed.2d 711 (2004). When, as in this case, the trial court granted summary judgment without specifying the grounds for doing so, the appellant must show it is error to base the judgment on any ground asserted in the motion for summary judgment. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001).
When the trial court entered its summary judgment order, Mary Lou's live pleading was her third amended petition. Mary Lou's third amended petition did not allege that an informal fiduciary relationship existed between her and Peter by virtue of their status as siblings. In that petition, Mary Lou asserted the following as to Peter: "Peter has at times purported to exercise the powers and duties of a Co-Executor of the Estate. In addition, Peter is joined in this action as a necessary party interested in the Estate." Mary Lou did not allege that her status as Peter's sibling gave rise to an "informal fiduciary relationship" until her fourth amended petition, which was not filed until after the trial court had entered summary judgment in favor of Peter.
Mary Lou's fourth amended petition asserted: "Peter also has a relationship of trust and confidence with Mary Lou as her brother. . . . Peter violated this relationship of trust by assisting Rex and Doug in the unfair handling and distribution of estate assets and records."
The trial court must decide motions for summary judgment based on the pleadings, discovery, and evidence on file at the time of the hearing. See Tex. R. Civ. P. 166a(c). Once the hearing date for a motion for summary judgment has passed, a party may only file an amended pleading if the trial court has not signed a judgment and the party secures a written order granting leave to do so. See id.; Tex. R. Civ. P. 63; Cherry v. McCall, 138 S.W.3d 35, 43 (Tex.App.-San Antonio 2004, pet. denied); Hussong v. Schwan's Sales Enters., Inc., 896 S.W.2d 320, 323 (Tex.App.-Houston [1st] 1995, no writ). Mary Lou did not amend her petition until after the trial court had already signed its summary judgment order, and the record reflects she did not secure a written order granting her leave to amend. Therefore, despite the filing of Mary Lou's fourth amended petition, the trial court did not err by granting summary judgment in favor of Peter.
Mary Lou also argues that because Peter's hybrid motion was entitled "Amended Motion for Partial Summary Judgment Pursuant to T.R.C.P. 166a(c); and Amended No-Evidence Motion for Partial Summary Judgment Pursuant to 166a(i)," and the trial court's order was entitled "Order on Defendant's Amended Motion for Partial Summary Judgment," the trial court granted summary judgment on traditional, not no-evidence, grounds. We disagree. The trial court's order simply recites that the court was granting "partial judgment." The order did not specify whether the court was granting traditional summary judgment under Tex. R. Civ. P. 166a(c) or 166a(i). Therefore, we conclude the trial court's order may have been based on either traditional or no-evidence grounds. Because Mary Lou challenges only Peter's proof as to lack of an "informal fiduciary relationship" on traditional summary judgment grounds, we do not consider the propriety of the summary judgment in favor of Peter as to any other grounds, including "no evidence." See Tex.R.App.P. 38.1(h); Malooly Bros., Inc. v. Napier, 461 S.W.2d 119, 121 (Tex. 1970); Dow Chem. Co., 46 S.W.3d at 242. Issue one is overruled.
Mary Lou contends that "the order, on its face, is not silent as to the reasons for granting the motion; it specifically states that the amended motion for partial summary judgment is granted — no other motion is listed as being granted and no mention of the no-evidence motion is included."
Peter asserted Mary Lou had no evidence supporting her claims of fiduciary duty, action for accounting, fraud, negligent misrepresentation, civil conspiracy, negligence, professional malpractice, conversion, or tortious interference as to him.
Mary Lou's Second Issue
In her second issue, Mary Lou argues that the trial court erred when it entered a final summary judgment "because it failed to dispose of all of Mary Lou's claims and retroactively granted final summary judgment on a pleading that had been superseded by amendment." The summary judgment order itself does not contain language of finality. However,
[a] judgment that finally disposes of all remaining parties and claims, based on the record in the case, is final, regardless of its language. A judgment that actually disposes of every remaining issue in a case is not interlocutory merely because it recites that it is partial or refers to only some of the parties or claims.
Lehmann v. Har-Con Corp., 39 S.W.3d 191, 200 (Tex. 2001) (footnote omitted).
After entering summary judgment in favor of Peter, the trial court entered an order severing Mary Lou's claims against Peter. The severance order recited as follows:
[U]pon the Court's signing of this Order, the Order Granting Partial Summary Judgment in favor of Peter V. Wilcox dated August 24, 2005 will become the final order in the Severed Cause. The Court finds that, because of the severance ordered herein, all issues and matters between Peter V. Wilcox and Mary Lou Wilcox have been decided, and that this Order constitutes a final judgment in the Severed Cause.
We find the severance order unequivocally makes the partial summary judgment order final. See id. Mary Lou contends that the trial court's summary judgment order purported to grant the motion solely on traditional grounds, leaving her other claims unadjudicated. We rejected this argument under issue one, and we again do so here. Because the trial court's order did not recite whether it was based on traditional or no-evidence grounds, the order could have been based upon either.
Mary Lou also argues that the trial court erred in "retroactively" making the previous summary judgment final after an amended petition had been filed. As we explained above, the trial court properly entered summary judgment based upon the pleadings, discovery, and evidence before it. See Tex. R. Civ. P. 166a(c); Cherry, 138 S.W.3d at 43; Hussong, 896 S.W.2d at 323. Contrary to Mary Lou's assertion, the trial court's subsequent severance order did not "retroactively" finalize the summary judgment because Mary Lou did not properly amend her petition before the trial court signed its summary judgment order. The trial court's order simply severed the already-adjudicated claims between Peter and Mary Lou and placed them in a separate cause.
We also reject Mary Lou's contention that the summary judgment is interlocutory because it does not expressly dispose of Peter's counterclaim. Because the trial court's severance order contains unmistakable language of finality and recites that the summary judgment disposes of all parties and claims in the severed cause, we hold the summary judgment order became final upon entry of the severance order. See Lehmann, 39 S.W.3d at 205 (When there has not been a conventional trial on the merits, an order or judgment is final for purposes of appeal if it actually disposes of every pending claim and party or clearly and unequivocally states that it finally disposes of all claims and all parties.); Harris County Flood Control Dist. v. Adam, 988 S.W.2d 423, 426 (Tex.App.-Houston [1st] 1999), pet. denied, 66 S.W.3d 265 (Tex. 2001) (per curiam) (A partial summary judgment becomes final and appealable upon severance of the parties and claims disposed of by the partial judgment.). Issue two is overruled.
Mary Lou's Third Issue
In her third issue, Mary Lou argues that "the trial court abused its discretion in severing the claims against Appellee that involve the same facts and issues against the other defendants, who would be jointly and severally liable with Appellee for an indivisible injury." We review the trial court's decision to grant a severance under an abuse of discretion standard. Guaranty Fed. Sav. Bank v. Horseshoe Operating Co., 793 S.W.2d 652, 658 (Tex. 1990).
Rule 41 of the Texas Rules of Civil Procedure provides that "[a]ny claim against a party may be severed and proceeded with separately." Tex. R. Civ. P. 41.
A claim is properly severable if (1) the controversy involves more than one cause of action, (2) the severed claim is one that would be the proper subject of a lawsuit if independently asserted, and (3) the severed claim is not so interwoven with the remaining action that they involve the same facts and issues.
Guaranty Fed. Sav. Bank, 793 S.W.2d at 658. The trial court has broad discretion in determining whether to sever an interlocutory summary judgment. Arredondo v. City of Dallas, 79 S.W.3d 657, 665 (Tex.App.-Dallas 2002, pet. denied). Mary Lou's argument regarding joint and several liability assumes that Peter is liable. However, the trial court's summary judgment constitutes a determination that Peter is not liable to Mary Lou, either "jointly" or "severally." Therefore, the trial court did not abuse its discretion by severing Mary Lou's claims against Peter into a separate cause. Issue three is overruled, and the summary judgment is affirmed.