Summary
denying request for sanctions even though appellant waived appeal by failing to challenge all possible grounds for summary judgment
Summary of this case from Interest of L.V., 05-10-00687-CVOpinion
No. 05-08-01166-CV
Opinion issued November 17, 2009.
On Appeal from the 134th Judicial District Court Dallas County, Texas, Trial Court Cause No. 06-12834-G.
Before Justices O'NEILL, FRANCIS, and LANG.
MEMORANDUM OPINION
Clement McCarty Talkington appeals the trial court's summary judgment in favor of Carl Michael McCurley and McCurley, Orsinger, McCurley, Nelson Downing, L.L.P. (collectively "McCurley"). In a single issue, Talkington claims the trial court erred in striking his affidavits and in granting summary judgment in favor of McCurley. We affirm.
Talkington's wife filed for divorce in January 2002. After their attempts to resolve their issues through the collaborative process failed, Talkington hired McCurley to represent him in the divorce. The case was set for trial on October 24, 2005. That morning, Talkington's wife presented a final settlement offer which Talkington ultimately elected to accept. During his eighteen months of representing Talkington, McCurley charged over $1.1 million in legal fees.
Talkington then sued McCurley alleging claims for negligence and breach of fiduciary duty. After filing an answer, McCurley filed a traditional and no evidence motion for summary judgment. McCurley subsequently filed counterclaims for breach of contract and a sworn account. Talkington filed his response to the motion for summary judgment and, several weeks later, two affidavits in support of his response. McCurley filed objections to the affidavits. The trial court struck Talkington's affidavits and granted summary judgment in favor of McCurley. The parties then entered into an agreed judgment on McCurley's counterclaims. This appeal followed.
In his sole issue, Talkington claims the trial court erred in granting McCurley's motion for a no evidence summary judgment and in striking his affidavits.
When the trial court does not specify the grounds on which the summary judgment was granted, we must affirm if any of the grounds specified in the motion have merit. Malooly Bros., Inc. v. Napier, 461 S.W.2d 119, 120-21 (Tex. 1970); Preston Gate, L.P. v. Bukaty, 248 S.W.3d 892, 895 (Tex. App.-Dallas 2008, no pet.) (citing Provident Life Acc. Ins. Co. v. Knott, 128 S.W.3d 211, 216 (Tex. 2003)). Likewise, when a party moves for summary judgment on both traditional and no evidence grounds and the trial court does specify which it granted, we can uphold the summary judgment on either ground. Grand Champion Film Prod., L.L.C. v. Cinemark USA, Inc., 257 S.W.3d 478, 481 (Tex. App.-Dallas 2008, no pet.). Therefore, to prevail, an appellant is required to challenge both the traditional and the no evidence grounds upon which the summary judgment could have been granted. Leffler v. JP Morgan Chase Bank, N.A., 290 S.W.3d 384, 387 (Tex. App.-El Paso 2009, no pet.). By failing to brief one of the grounds for summary judgment, an appellant waives any error as to the granting of that ground for summary judgment. In re Estate of Bendtsen, 230 S.W.3d 823, 826 (Tex. App.-Dallas 2007, pet. denied); Smith v. Tilton, 3 S.W.3d 77, 83, 87 (Tex. App.-Dallas 1999, no pet.); see Malooly Bros., Inc., 461 S.W.2d at 120-21.
In this case, McCurley filed both a traditional and a no evidence motion for summary judgment. The trial court's order stated "the Court determines that the Defendants' motion for summary judgment should be GRANTED." Talkington challenges only the granting of the no-evidence summary judgment; he does not challenge the granting of the traditional summary judgment. Nor does he direct this Court to any evidence raising a fact issue. Because Talkington did not challenge each possible ground on which summary judgment could have been granted, we must affirm the summary judgment on the unchallenged ground, in this case, the traditional summary judgment. See Adams v. First Nat'l Bank of Bells/Savoy, 154 S.W.3d 859, 875 (Tex. App.-Dallas 2005, no pet.) (reviewing court will affirm summary judgment as to particular claim if appellant does not present argument challenging all grounds on which summary judgment could have been granted.). We overrule Talkington's sole issue.
In the first of two crosspoints, McCurley claims this Court should sanction Talkington for refusing to participate in court-ordered mediation during the appellate process. Relying on two sections of the government code, McCurley argues this Court has the power to sanction Talkington or hold him in contempt for his failure to attend mediation.
Under rule 42.3 of the Texas Rules of Appellate Procedure, this Court may dismiss the appeal or affirm the trial court's judgment when the "appellant has failed to comply with . . . a court order. . . ." Tex. R. App. P. 42.3. Because we are overruling Talkington's sole issue and affirming the trial court's judgment, McCurley will receive all the relief to which he is entitled under rule 42.3. Accordingly, we overrule his first crosspoint.
Under his second crosspoint, McCurley claims Talkington's appeal is frivolous and requests "just damages." Whether to grant sanctions for a frivolous appeal is a matter of discretion that an appellate court must exercise with prudence and caution and only after careful deliberation in truly egregious circumstances. See Goss v. Houston Cmty. Newspapers, 252 S.W.3d 652, 657 (Tex. App.-Houston [14th Dist.] 2008, no pet.). We consider whether the appellant had a reasonable expectation of success and whether he pursued the appeal in bad faith; in other words, recovery is authorized if an appeal is objectively frivolous and injures an appellee. Keith v. Solls, 256 S.W.3d 912, 919 (Tex. App.-Dallas 2008, no pet.). Although Talkington failed to challenge the traditional summary judgment on appeal, the record does not reveal Talkington brought the appeal in bad faith or that McCurley was injured. Under these facts and circumstances, we cannot conclude sanctions are appropriate. We overrule McCurley's second crosspoint.
We affirm the trial court's judgment.