Alfred Martinez v. Wilson Plaza Associates, L.P. and Allied Waste Systems, Inc.

NUMBER 13-02-697-CV COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG ALFRED MARTINEZ, Appellant, v. WILSON PLAZA ASSOCIATES, L.P. AND ALLIED WASTE SYSTEMS, INC., Appellees. On appeal from the 117th District Court of Nueces County, Texas. OPINION ON REHEARING Before Chief Justice Valdez and Justices Rodriguez and Garza Opinion on Rehearing by Justice Garza Alfred Martinez appeals from a summary judgment declaring that he take nothing in his cause of action against Allied Waste Systems, Inc. On August 31, 2004, this Court reversed and remanded the decision of the trial court. Martinez v. Wilson Plaza Associates, No. 13-02-697-CV, 2004 Tex. App. LEXIS 7982 (Corpus Christi Aug. 31, 2004, no pet. h.) (mem. op.). Allied subsequently filed a motion for rehearing. We grant Allied’s motion for rehearing, and withdraw our previous opinion in this case. This opinion, reversing and remanding the decision of the trial court, is issued in its place. In four issues, Martinez contends that the district court erred in granting Allied’s motion for summary judgment. Martinez also has filed a motion to determine appellate jurisdiction. We conclude that we do have jurisdiction over this appeal and that the trial court erred in denying Martinez’s special exceptions. We reverse and remand. Factual and Procedural Background Martinez was injured by an allegedly defective latch handle on a garbage dumpster owned by his employer, USA Waste of Texas, Inc. The dumpster was being leased by Wilson Plaza Associates, L.P. Martinez initially sued Wilson Plaza for negligence and strict liability, later adding Allied, a previous owner of the dumpster, as a defendant. Allied had sold the dumpster to USA Waste two years earlier as part of a bulk sale of all its assets in Nueces County. Allied acquired the dumpster when it purchased another waste company, Laidlaw Waste Systems, Inc., and had then leased the dumpster to Wilson Plaza as part of its waste collection and disposal service before selling it to USA Waste. After Martinez filed his suit, both Wilson Plaza and Allied filed motions for summary judgment. Reliance National Insurance Company, Martinez’s workers’ compensation provider, then filed a plea in intervention. It sought reimbursement out of any recovery by Martinez against Wilson Plaza or Allied for medical and indemnity benefits it paid to Martinez. Martinez then filed his third amended petition, in which he continued to assert his original claims of negligence and strict liability, and added claims regarding Allied’s relationship with Laidlaw. Specifically, Martinez asserted that Allied was liable for the tortious acts of Laidlaw as its successor and that Laidlaw’s name change to Allied was merely a sham to perpetrate a fraud, such that Allied should be liable as the alter ego of Laidlaw. This had the effect of adding four new claims against Allied: (1) Allied is liable for the negligence of Laidlaw as its successor; (2) Allied is strictly liable for the acts of Laidlaw as its successor; (3) Allied is liable for Laidlaw’s negligence because Allied is the alter ego of Laidlaw; and (4) Allied faces strict liability for the acts of Laidlaw because Allied is the alter ego of Laidlaw. The trial court granted Wilson Plaza’s summary judgment motion and severed Wilson Plaza’s claims. The court then ordered Martinez take nothing against Allied, granting its motion for summary judgment. Martinez filed a motion to determine appellate jurisdiction and an appeal of the trial court’s judgment in four issues. Appellate Jurisdiction We first address Martinez’s motion to determine appellate jurisdiction, in which he asserts that the take-nothing judgment is not a final appealable order as it does not dispose of all parties and claims, making it interlocutory. Unless otherwise statutorily authorized, an appeal may be made only from a final judgment. See Tex. Civ. Prac. & Rem. Code Ann. §§ 51.012, 51.014 (Vernon 1997 & Supp. 2004). A judgment is final for purposes of appeal if it disposes of all pending parties and claims in the record, except as necessary to carry out the decree. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001). Language that the plaintiff take nothing by his claims in the case shows finality if there are no other claims by other parties. Id. at 205; see also Ritzell v. Espeche, 87 S.W.3d 536, 538 (Tex. 2002) (per curiam). A judgment that grants more relief than a party is entitled to is subject to reversal, but it is not, for that reason alone, interlocutory. Lehmann, 39 S.W.3d at 200; see also Continental Airlines, Inc. v. Kiefer, 920 S.W.2d 274, 276-77 (Tex. 1996). Specifically, an order granting a motion for summary judgment that addresses all of the plaintiff’s claims when it was filed but does not address claims timely added by amendment after the motion was filed may state unequivocally that final judgment is rendered that the plaintiff take nothing by his suit. Lehmann, 39 S.W.3d at 204. Martinez claims that the judgment of the court is incomplete because it did not dispose of Reliance National and because Allied’s motion for summary judgment did not address the claims of successor liability and alter ego that Martinez added to his amended petition after Allied’s motion was filed. The trial court’s order read, “[I]t is accordingly ordered that the Motion for Summary Judgment of Allied Waste Systems, Inc. should be, and it is hereby, granted, and Plaintiff, Alfred Martinez, shall take nothing against Defendant Allied Waste Systems, Inc., and costs are taxed against Plaintiff.” While this judgment did not mention Reliance National’s claim, it did moot this claim, as Reliance National made no unique allegations against Allied but rather expressly adopted and incorporated Martinez’s allegations. See Franks v. Sematech, Inc., 936 S.W.2d 959, 960 (Tex. 1997) (“There is but one cause of action for an employee’s injuries, and it belongs to the employee . . . . [An insurance] carrier who asserts a subrogation claim asserts a claim that belongs to the employee.”) (citations omitted). Once Martinez’s claim was dismissed, Reliance National had no further claim to pursue. Also, the fact that the trial court rendered judgment on more claims than were actually requested by Allied, as the order incorporated Martinez’s new successor liability and alter ego claims into the judgment, does not detract from the finality of the judgment. See Lehmann, 39 S.W.3d at 204. We therefore deny Martinez’s motion contesting appellate jurisdiction and conclude that the trial court’s order provided a final judgment appealable to this Court, as it conclusively dismissed all of Martinez’s claims against Allied and mooted the claim of Reliance National. II. Special Exceptions By his first issue on appeal, Martinez complains that he did not have fair notice of the nature of the motion for summary judgment. He claims that Allied’s motion did not clearly specify whether it was a no-evidence or traditional motion for summary judgment. See Tex. R. App. P. 166a(a), (i). Martinez filed special exceptions with the trial court, arguing that the motion was vague and unclear. The trial court did not explicitly rule on the special exceptions prior to granting Allied’s summary judgment. Now on appeal, Martinez argues that because the trial court did not rule on his special exceptions, the vagueness of Allied’s motion forced him to respond without fair notice of his burdens, and that he was unfairly forced to marshal his proof on all elements of his cause of action. We interpret Martinez’s argument as a complaint that the trial court erred by refusing to rule on his special exceptions. When a court does not rule specifically on special exceptions to a motion for summary judgment but does grant the summary judgment motion, the special exceptions are treated as having been effectively overruled. See Alejandro v. Bell, 84 S.W.3d 383, 389 (Tex. App.–Corpus Christi 2002, no pet.). The trial court has broad discretion in ruling on special exceptions, and its ruling will not be disturbed absent an abuse of discretion. Id. In summary judgment proceedings, special exceptions are intended to ensure that the parties and the court are focused on the same grounds. See McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 342-43 (Tex. 1993). Martinez’s special exceptions were intended to clarify the burden he had to face as the non-movant in a summary judgment proceeding, as Allied’s motion was ambiguous as to whether it was intended as a no-evidence or traditional summary judgment motion. The distinction between a traditional and no-evidence summary judgment is critical, as the failure to clarify between the two types of motions has the potential to improperly shift the burden of proof or greatly increase the burden on the responding party. See Hamlett v. Holcomb, 69 S.W.3d 813, 819 (Tex. App.–Corpus Christi 2002, no pet.); Michael v. Dyke, 41 S.W.3d 746, 750 (Tex. App.–Corpus Christi 2001, no pet.). In a traditional summary judgment, the burden of proof falls on the movant, who must establish as a matter of law that there is no genuine issue of material fact as to one or more of the essential elements of the non-movant’s cause of action. Pech v. Estate of Tavarez, 112 S.W.3d 282, 285 (Tex. App.–Corpus Christi 2003, no pet.). The non-movant’s failure to answer or respond does not by default supply the summary judgment proof necessary to establish the movant’s claim. McConnell, 858 S.W.2d at 343. However, in a no-evidence summary judgment motion, the non-movant is required to produce evidence sufficient to raise a genuine issue of material fact. See Tex. R. Civ. P. 166a(i). The non-movant’s failure to respond to a no-evidence motion is fatal. See Michael, 41 S.W.3d at 751. In either case, the purpose of summary judgments is not to unfairly deprive a party of his right to trial by jury, but only to eliminate patently unmeritorious claims and untenable defenses. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 n.5 (Tex. 1979); Taub v. Aquila Southwest Pipeline Corp., 93 S.W.3d 451, 462 (Tex. App.–Houston[14th Dist.] 2002, no pet.). The record establishes that Allied’s motion for summary judgment was ambiguous as to whether it was a traditional or no-evidence motion. While it claimed that there was “no evidence” in support of Martinez’s negligence claim, it did not otherwise appear to comply with rule 166a(i). Allied also attached evidence to its motion. Although a trial court is supposed to treat ambiguous motions under the traditional summary judgment standard when it is not readily apparent that a no-evidence ruling is sought, see Hamlett, 69 S.W.3d at 819, parties cannot now safely assume that attaching evidence to a summary judgment motion guarantees its treatment as a traditional motion. See Binur v. Jacobo, 135 S.W.3d 646, 651 (Tex. 2004) (“We disapprove of decisions that hold or imply that, if a party attaches evidence to a motion for summary judgment, any request for summary judgment under rule 166a(i) will be disregarded.”). Martinez attempted to clarify his burden by raising special exceptions in his response to Allied’s motion for summary judgment. At the summary judgment hearing, the judge indicated that he had not read this response: “I’ll tell you that I see the new judges coming along and the younger ones can handle this stuff, but I can’t keep up with it, and so I couldn’t find the motion, that’s the upshot.” Following the hearing, counsel for Martinez sent several letters to the court urging it to read and rule on the special exceptions, and Martinez filed an objection to the proposed granting of the motion for summary judgment and a request for rulings on his special exceptions. The trial court failed to respond and ultimately granted Allied’s motion without specifying the grounds on which it relied. Because the trial court did not grant Martinez’s special exceptions, he was forced to respond to the vague motion for summary judgment without fair notice of his burdens. He did not know which standard was to be used for each claim, and therefore he was unable to present an adequate defense of the claims in the summary judgment motion, as he could not anticipate in advance the burden of proof he would be facing. Allied assures us that Martinez was not in fact injured by this confusion, as he was able to participate in the summary judgment hearing and file both a response and an appeal. However, we disagree with Allied’s assertion. Martinez clearly indicated to the trial court that he did not understand his burdens based on Allied’s motion, and he repeatedly requested clarification. We will not assume that Martinez was able to effectively defend against the motion because he filed a substantial response. Had the trial court acted as it should have, there would be no doubt. We conclude that the trial court abused its discretion in implicitly denying Martinez’s special exceptions by refusing to rule on them. See Alejandro, 84 S.W.3d at 389. In doing so, we note that we take summary judgment practice very seriously. When a party files a motion that has the potential to dispose of a case in part or in its entirety, we expect that the pleading will be prepared with the utmost consideration as to clarity and professionalism so as to give the parties every opportunity to defend against the motion. Otherwise, the purpose of summary judgment practice may be thwarted by unfairly depriving a party of his right to trial by jury. Because we find that, in this case, the trial court’s error probably caused the rendition of an improper judgment, we reverse the judgment of the trial court and remand for proceedings consistent with this opinion. Tex. R. App. P. 44.1(a). _______________________ DORI CONTRERAS GARZA, Justice Opinion delivered and filed this the 4th day of November, 2004.