Condit, Bradford v. Smith, Kevin Graeme, on Behalf of Certain Underwriters at Lloyds, London, and Michael Hull

• Court: Court of Appeals of Texas
• Decided: March 9, 2000
• Docket: 13-98-00569-CV
• Status: Published

Opinion

NUMBER 13-98-569-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

___________________________________________________________________

BRADFORD CONDIT, Appellant,

v.

KEVIN GRAEME SMITH, ON BEHALF

OF CERTAIN UNDERWRITERS AT

LLOYDS, LONDON, AND MICHAEL HULL, Appellees.

___________________________________________________________________

On appeal from the 28th District Court

of Nueces County, Texas.

___________________________________________________________________

O P I N I O N

Before Chief Justice Seerden and Yañez and Chavez

Opinion by Chief Justice Seerden

This is an appeal from the trial court's grant of summary judgment in favor of Kevin Graeme Smith, on behalf of certain Underwriters at Lloyds, London ("Lloyds") and Michael Hull ("Hull"), appellees. By one issue, Bradford Condit, appellant, contends the trial court erred in granting the motion for summary judgment. We affirm.

Condit represented Charles and Suzanne Cotton in a lawsuit against Lloyds. On December 8, 1997, Condit, the Cottons, Lloyds, and Hull executed an agreement to settle their lawsuit. Pursuant to this agreement, the trial court signed an order dismissing the case with prejudice on December 11, 1997. On December 22, 1997, the parties, but not Condit, entered into a final settlement agreement.

Prior to the dismissal, but after the agreement to settle was executed, Condit filed a petition for writ of mandamus in this Court to unseal certain records which had been sealed by the trial court. This Court requested and received a response from Lloyds, which detailed the agreement to settle and the dismissal. At the same time, Lloyds moved for sanctions. Condit's petition was denied and the Court ordered him to show cause why he should not be sanctioned.

This Court found that Condit had not advised us that the suit underlying the petition for writ of mandamus had been settled and dismissed with prejudice. In re Cotton, 972 S.W.2d 768, 769 (Tex. App.--Corpus Christi 1998, orig. proceeding). After reviewing Condit's actions and omissions regarding the petition for writ of mandamus, we concluded that the mandamus action was frivolous, that Condit's conduct was sanctionable, and assessed a sanction of $5000, payable to Lloyds. Id. Subsequently, Condit filed his original petition in this cause seeking attorney's fees and damages for breach of the December 22 agreement and various acts of misfeasance related to the execution of that agreement. Condit contends that the settlement agreement was breached when appellees filed their motion for sanctions.

Appellees moved for summary judgment, contending, inter alia, that no action taken by them constituted a breach of the settlement agreement. They also asserted that the motion for sanctions was not related to the Cotton v. Smith litigation. In response, Condit claimed the defendants' suggestion that their claim for attorney's fees did not arise out of the Cotton v. Smith litigation was untenable because the intent of the settlement agreement was to prevent these claims.

The trial court granted summary judgment for appellees on October 13, 1998. By his issue, Condit contends that the trial court erred in granting the motion.

Appellees proceed here under Rule 166a(c), rather than the no-evidence summary judgment rule. "When considering the appeal of a summary judgment, this court must determine whether the proof establishes, as a matter of law, that no genuine issue of material fact exists." Rodriguez v. Naylor Indus., Inc., 763 S.W.2d 411, 413 (Tex. 1989). The movant for summary judgment bears that burden. Tex. R. Civ. P. 166a(c); Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex. 1985). We construe all evidence favorable to the nonmovant as true. Id. Every reasonable inference is indulged in favor of the nonmovant and doubts are resolved in the nonmovant's favor. Id. A "defendant who conclusively negates at least one of the essential elements of each of the plaintiff's causes of action or conclusively establishes all of the elements of an affirmative defense is entitled to summary judgment." Cathey v. Booth, 900 S.W.2d 339, 341 (Tex. 1995) (emphasis supplied).

The Cotton v. Smith lawsuit was settled and dismissed with prejudice pursuant to the December 8, 1997 agreement. The mandamus action filed by Condit was separate and distinct from the dismissed lawsuit. We stated "the agreement mooted the relators' need for the records at issue because there was no longer any controversy." In re Cotton, 972 S.W.2d at 769. The motion for sanctions, which forms the basis of this lawsuit, was thus made in a mandamus proceeding separate from the original lawsuit involving the Cottons. The settlement agreement is irrelevant in this context.

Appellees have proven their affirmative defense as a matter of law. Moreover, as appellees needed only to prove all essential elements of their defense, it is irrelevant that they have not refuted any elements of Condit's causes of action. See Cathey, 900 S.W.2d at 341. Accordingly, we hold that the trial court did not err in granting appellees' motion for summary judgment. Because our resolution of this contention is dispositive of the appeal, we need not consider Condit's remaining contentions. See Tex. R. App. P. 47.1. Condit's issue is overruled.

The judgment of the trial court is AFFIRMED.

_________________________________

ROBERT J. SEERDEN, Chief Justice

Do not publish.

Tex. R. App. P. 47.3.

Opinion delivered and filed

this 9th day of March, 2000.