Citizens National Bank of Texas v. Dallas ATM Management Services, Inc., D/B/A Cash Carriers USA

NO. 07-08-0011-CV IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL D JULY 15, 2009 ______________________________ CITIZENS NATIONAL BANK OF TEXAS, APPELLANT V. DALLAS ATM MANAGEMENT SERVICES, INC., DBA CASH CARRIERS USA, APPELLEE _________________________________ FROM THE 40TH DISTRICT COURT OF ELLIS COUNTY; NO. 71,516; HONORABLE GENE KNIZE, JUDGE _______________________________ Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ. MEMORANDUM OPINION Through one issue, appellant Citizens National Bank of Texas appeals from the trial court’s denial of its no-evidence motion for summary judgment filed against appellee Dallas ATM Management Services, Inc. d/b/a Cash Carriers USA (“Cash Carriers”). We will dismiss the appeal. Background Cash Carriers sued Citizens, alleging breach of a contract between them. After discovery, including several depositions, Citizens filed a no-evidence motion for summary judgment, through which it asserted Cash Carriers had no evidence of its damages. The trial court heard argument at a hearing and denied Citizens’ motion. The case was tried to a jury, which returned a verdict in favor of Cash Carriers. The trial court entered judgment accordingly. On appeal, Citizens presents argument based on the summary judgment record, and contends the trial court erred by denying its no-evidence motion for summary judgment. AnalysisWe must consider our jurisdiction over an appeal, sua sponte if necessary. See Buffalo Royalty Corp. v. Enron Corp., 906 S.W.2d 275, 277 (Tex.App.–Amarillo 1995, no writ) (noting our obligation to consider jurisdiction sua sponte). As a general rule, appellate courts do not have jurisdiction to review on appeal the denial of summary judgment. Ackermann v. Vordenbaum, 403 S.W.2d 362, 365 (Tex. 1966); Hines v. Comm’n for Lawyer Discipline, 28 S.W.3d 697, 700 (Tex.App.–Corpus Christi 2000, no pet.). Specifically, when a motion for summary judgment is denied by the trial court and the case is thereafter tried on its merits, the order denying the motion for summary judgment is not reviewable on appeal. Ackermann, 403 S.W.2d at 365; Tricon Tool & Supply, Inc., v. Thumann, 226 S.W.3d 494, 509 (Tex.App.–Houston [1st Dist.] 2006, pet. denied); Horton v. Horton, 965 S.W.2d 78, 88 (Tex.App.–Fort Worth 1998, no pet.). The rule is the same for no-evidence motions for summary judgment as for traditional motions, as the comment to Rule 166(a)(i) makes clear. Tex. R. Civ. P. 166(a)(i), cmt. (stating the denial of a no-evidence motion for summary judgment is no more reviewable by appeal or mandamus than the denial of a traditional motion for summary judgment); In re R.W., 129 S.W.3d 732, 744 (Tex.App.–Fort Worth 2004, pet. denied); Hines, 28 S.W.3d at 700. In the instant case, a final judgment was rendered after a jury trial. Thus, the issues in this case were tried on the merits and any order denying Citizens’ motion for summary judgment is not subject to review on appeal. Ackermann, 403 S.W.2d at 364-65; Carr v. Weiss, 984 S.W.2d 753, 760 (Tex.App.–Amarillo 1999, pet. denied). Accordingly, we dismiss the appeal. James T. Campbell Justice Republic Ins. Co., 383 F.3d at 346; Central Nat. Ins. Co. of Omaha v. Lerner, 856 S.W.2d 492, 494 (Tex.App.-Houston [1st Dist.] 1993) (orig. proceeding). The delay involved here, even measured from the filing of Cahill's amended pleadings in May 2004 and WTP's reassertion of its motion to compel arbitration in the spring of 2005, is not insubstantial. The trial court could have considered WTP's shifting positions on the issue substantially contributed to the delay in addressing it. (9) Moreover, much activity occurred in the trial court during those months, cf. EZ Pawn, 934 S.W.2d at 90 ("very little activity" in case before arbitration demand). As WTP points out, most of the activity resulted from Cahill's discovery and WTP's resistance to it, but the record also shows WTP sought resolution by summary judgment of one of the core issues in the litigation. Cf. GeoSurveys, Inc. v. State Nat'l Bank, 143 S.W.3d 220, 224 (Tex.App.- Eastland 2004, no pet.) ($9700 in discovery expenses insufficient to show prejudice where movant did not seek disposition by court). As further evidence of prejudice, Cahill presented an affidavit of her attorney that she had incurred $20,289.15 in legal fees and expenses. We conclude the cumulative effect of the evidence of delay, expense and WTP's pursuit of a dispositive motion is sufficient to demonstrate prejudice from WTP's invocation of the judicial process. Cf. Pennzoil Co. v. Arnold Oil Co., Inc., 30 S.W.3d 494, 499 (Tex.App.-San Antonio 2000, orig. proceeding) ("generalized protestations" about costs of delay insufficient). See also Walker v. J. C. Bradford & Co., 938 F.2d 575, 577-78 (5th Cir. 1991) (distinguishing Tenneco, 770 F.2d 416, from Price, 791 F.2d 1156). We overrule WTP's sole issue on appeal and affirm the order of the trial court. James T. Campbell Justice 1. Tex. Civ. Prac. & Rem. Code Ann. ǧ171.001 - .098 (Vernon 2005). 2. 9 U.S.C. ǧ 1-16. 3. The letter summarized events of November 2003, and concluded: Accordingly, since [Cahill] is no longer a partner in [WTP], has not been a partner since November 2003 and therefore has no partnership interest in [WTP], the provisions of the [WTP] partnership are inapplicable to her and unenforceable by her. Therefore, [Cahill] has no right to request mediation or arbitration under the partnership agreement. 4. The partnership also asserted counterclaims for breach of fiduciary duty and misappropriation of trade secrets, and to recover defense costs. 5. The court advised WTP the failure to meet this deadline would result in imposition of monetary sanctions and the striking of defense pleadings. 6. The detailed arbitration paragraph does provide that, unless expressly prohibited by the rules of the American Arbitration Association, at the arbitration hearing the Texas Rules of Evidence control the admissibility of evidence. 7. See Allied-Bruce Terminix Co. v. Dobson, 513 U.S. 265, 115 S.Ct. 834, 130 L.Ed.2d 753 (1995) (FAA "pre-empts conflicting state law"); Volt Information Sciences, Inc. v. Board of Trustees of Leland Stanford Junior Univ., 489 U.S. 468, 474, 103 L.Ed.2d 488, 109 S.Ct. 1248 (1989) (FAA preempts state statutes to extent inconsistent); Jack B. Anglin Co., 842 S.W.2d at 271 (same). The opinion in In re L & L Kempwood Assoc., 9 S.W.3d 125, 126 (Tex. 1999), cited by Cahill, notes a distinction found by the court of appeals in the manner in which the primary issue in the case would be resolved under the state and federal statutes. The court also was there applying contract language which it construed to invoke both statutes. Id. at 127-28. 8. Tex. R. Civ. P. 166a(c), (i). 9. We cannot agree with WTP that the record shows it consistently sought arbitration.