Stanley G. Miller, D/B/A Mold Eliminators v. Newton B. Swartz, Sr.

Reversed and Remanded and Memorandum Opinion filed April 5, 2005 Reversed and Remanded and Memorandum Opinion filed April 5, 2005. In The Fourteenth Court of Appeals ____________ NO. 14-04-00352-CV ____________ STANLEY G. MILLER, D/B/A MOLD ELIMINATORS, Appellant V. NEWTON B. SCHWARTZ, SR., Appellee On Appeal from the County Court At Law No. 2 Galveston County, Texas Trial Court Cause No. 49,611 M E M O R A N D U M   O P I N I O N Stanley G. Miller, d/b/a Mold Eliminators, appeals from the trial court’s order of December 10, 2003 granting summary judgment in favor of appellee Newton B. Schwartz. This case arises from an action filed by appellant seeking a declaration of rights to a check written out to appellant, appellee, and Paula Harris by Harris’s insurance company. Harris and her insurance company are no longer parties to this suit. We reverse the summary judgment against appellant and remand the case to the trial court for further proceedings consistent with this opinion. Background At some time prior to 2001, Harris’s property was allegedly damaged by seismic testing done near her home in Galveston County. In January 2001, Harris contracted with appellee for legal representation in connection with the damages she (and her husband) allegedly sustained, signing a document entitled “Power of Attorney in Damage Suit.” No suit was ever filed, nor was any legal action taken by appellee in connection with Harris’s claim. In March of 2002, Harris contracted with appellant for mold-related remediation and reconstruction of her home. Allegations made over the course of this case differ as to whether the mold remediation was related to the seismic testing damage. As a result of Harris’s insurance claim for the mold remediation, in July 2002, her insurance company issued a check in the amount of $18,099.67 made out to Harris, appellant, and appellee. It is unclear how appellee’s name came to be on the check; Harris alleges in an affidavit that an individual at appellee’s office called the insurance company, and without Harris’s knowledge or consent, requested that appellee’s name be included on the check. Harris endorsed the check to appellant; appellee, however, refused to sign the check over to appellant. Appellant then filed this declaratory judgment action, asking the court to adjudicate each party’s rights to the check. Appellee sought a no‑evidence summary judgment on the ground that there was no evidence of a contract between appellant and appellee or between appellant and Harris. The trial court granted appellee’s motion without specifying the grounds for its ruling. In four issues, appellant claims that the trial court erred in granting the summary judgment motion because an adequate time for discovery had not passed; evidence offered raised a genuine issue of material fact; appellee argued incorrect grounds in his summary judgment motion; and appellee failed to state the elements of the case in his summary judgment motion. We reverse. Analysis After sufficient time for discovery has passed, a defendant may file a no‑evidence motion for summary judgment if there is no evidence of one or more essential elements of a claim or defense on which an adverse party would have the burden of proof at trial. See Tex. R. Civ. P. 166a(i). In reviewing a no-evidence summary judgment, we review the evidence in the light most favorable to the non‑movant and disregard all evidence and inferences to the contrary. Coastal Conduit & Ditching, Inc. v. Noram Energy Corp., 29 S.W.3d 282, 284 (Tex. App.—Houston [14th Dist.] 2000, no pet.). If the trial court does not specify the grounds for its ruling, we will affirm its ruling if any of the grounds advanced in the motion has merit. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001). Since the trial court did not specify its grounds for granting appellee’s motion, we will now consider whether any of the grounds asserted by appellee support the trial court’s granting of summary judgment in his favor. Contract Between Appellant and Appellee In his fourth issue, appellant argues that the trial court erred in granting the summary judgment since, pursuant to his declaratory judgment pleading, he was not required to prove the existence of a contract between appellant and appellee. We agree. In his motion for summary judgment, appellee argued: Miller does not and never has had a contract with Schwartz, Miller does not and never has had standing to bring a lawsuit against Schwartz based on a Power of Attorney in Damage Suit which by and between Schwartz and . . . Harris, and Miller did not and can not [SIC] dispute the evidence provided by Schwartz, therefore as a matter of law, Schwartz is entitled to summary judgment on all issues[.] We suspect that appellee’s argument regarding standing relies on Texas law which holds that a person who is neither a signatory to nor an intended third-party beneficiary of a contract has no standing to sue for breach of that contract, Holloway v. Atlantic Richfield Co., 970 S.W.2d 641, 644 (Tex. App.—Tyler 1998, no writ); however, appellant did not file his suit claiming proceeds of the contract between appellee and Harris, or claiming that any contract between any of the parties was breached. Appellee’s argument that appellant lacks standing is therefore inapplicable. Appellant filed suit seeking a declaration of rights to a check for $18,099.67, written to Harris by her insurance company for work done by appellant. See Tex. Civ. Prac. & Rem. Code Ann. § 37.002–004 (Vernon 2003). He claims ownership interest in the check by virtue of his contractual relationship with Harris, not appellee. Therefore, appellant was not required to prove that a contract existed between him and appellee in order to obtain declaratory judgment relief. Appellee attacked appellant’s cause of action on grounds other than those stated in appellant’s pleadings; therefore, he is not entitled to summary judgment relief for appellant’s alleged failure to prove a contract between appellant and appellee. Contract Between Appellant and Harris In his amended no-evidence motion for summary judgment, appellee also alleged that the contract between appellant and Paula Harris failed for lack of consideration. A no-evidence motion for summary judgment must be granted if the non-movant does not respond with competent summary judgment evidence that raises a genuine issue of material fact. Dolcefino v. Randolph, 19 S.W.3d 906, 916–17 (Tex. App.—Houston [14th Dist.] 2000, pet. denied). If the non‑movant presents more than a scintilla of evidence on the disputed element, the granting of a no‑evidence summary judgment is improper. Id. More than a scintilla of evidence exists when the evidence rises to the level at which it enables reasonable and fair-minded people to differ in their conclusions. Id. at 917. In his response to appellee’s motion, appellant attached the affidavit of Paula Harris as evidence of the existence of contracts between Harris and appellant and Harris and appellee. In the affidavit, Harris stated that a contract existed between her and appellant; copies of both contracts were attached to the affidavit. We find that this evidence constitutes more than a scintilla of evidence for summary judgment purposes. Appellant’s fourth issue is sustained. Because of our disposition, we need not discuss appellant’s other issues. We reverse the judgment of the trial court and remand the case for further proceedings consistent with this opinion. /s/ Adele Hedges Chief Justice Judgment rendered and Memorandum Opinion filed April 5, 2005. Panel consists of Chief Justice Hedges and Justices Fowler and Frost.