ACCEPTED 13-14-00436-CV FILED THIRTEENTH COURT OF APPEALS IN THE 13TH COURT OF APPEALS CORPUS CHRISTI, TEXAS CORPUS CHRISTI 1/6/2015 4:17:06 PM DORIAN RAMIREZ 01/06/15 CLERK
DORIAN E. RAMIREZ, CLERK NO. 13-14-436-CV BY mquilantan __________________________________________________________________ RECEIVED IN 13th COURT OF APPEALS IN THE COURT OF APPEALS CORPUS CHRISTI/EDINBURG, TEXAS FOR THE THIRTEENTH DISTRICT1/6/2015 4:17:06 PM AT CORPUS CHRISTI, TEXAS DORIAN E. RAMIREZ Clerk
GUADALUPE FLORES, ERNESTO FLORES, BLANCA FLORES, ROSALINDA MAGAÑA, ARTURO FLORES, MARIA FLORES, JUAN FLORES and FERNANDO FLORES AS REPRESENTATIVES OF THE ESTATE OF ELIA G. FLORES Appellant, v. MEDLINE INDUSTRY, INC. Appellee
Original Proceeding Arising Out of the th 197 Judicial District Court, Cameron County, Texas Cause No. 2014-DCL-05722-C Honorable Migdalia Lopez
APPELLANTS’ REPLY BRIEF
JORGE L. GOMEZ STATE BAR NO. 00793825 GOMEZ LAW FIRM 9894 Bissonnet, Suite 905 Houston, Texas 77036 Telephone: (713) 868-5528 Facsimile: (713) 868-4159
ORAL ARGUMENT REQUESTED
1 IDENTITY OF PARTIES AND COUNSEL
Appellants/Plaintiffs
GUADALUPE FLORES ERNESTO FLORES, BLANCA FLORES, ROSALINDA MAGAÑA, ARTURO FLORES, MARIA FLORES, JUAN FLORES and FERNANDO FLORES REPRESENTATIVES OF THE ESTATE OF ELIA G. FLORES
Counsel for Appellants
JORGE L. GOMEZ STATE BAR NO. 00793825 GOMEZ LAW FIRM 9894 Bissonnet, Suite 905 Houston, TX 77036 Telephone: (713) 868-5528 Facsimile: (713) 868-4159
Appellees/Defendants
Medline Industries, Inc.
Counsels for Appellees
Jason Wagner State Bar. No. 00795704 WAGNER, SAENZ, DORITY, L.L.P. 3700 Buffalo Speedway Suite 610 Houston, TX 77098 Telephone: (713) 554-8450 Facsimile: (713) 554-8451
2 TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL ……………………………………...2
TABLE OF CONTENTS ………………………………………………………….3
INDEX OF AUTHORITIES ………………………………………………………4
ARGUMENT ……..………………………………………….…………………….5
A. The Terms Within the Settlement Agreement Pertaining to Future Litigation
have a Plain Meaning ……………………….……………...……….............5
B. Flores’ Filed Motions on the Breach of Contract are Sufficient to Allow this
Court to Review and Render Judgment ……...…..………………………….7
PRAYER FOR RELIEF…………………………..………………………..............9
CERTIFICATE OF SERVICE ………………..………………………………….10
3 INDEX OF AUTHORITIES
CASES
Amedisys, Inc. v. Kingwood Home Health Care, L.L.C., 437 S.W.3d 507 (Tex. 2014)………………………………………………...6
Arkoma Basin Exploration Co. v. FMF Assocs. 1990-A, Ltd., 249 S.W.3d 380, 387 (Tex. 2008)…………………………………………...8
Heritage Resources, Inc. v. Nations Bank, 939 S.W.2d 118, 121 (Tex. 1996)…………………………………………...5
R & P Enterprises v. LaGuarta, Gavrel & Kirk, 596 S.W.2d 517, 518 (Tex. 1980)…………………………………………...5
Phillips v. Inexco Oil Co., 540 S.W.2d 546, 548 (Tex. Civ. App.-Tyler 1976, writ ref’d n.r.e)………...6
Wal-Mart Store, Inc. v. McKenzie, 997 S.W.2d 278 (Tex. 1999)………………………………………………...8
STATUTES
Tex. R. App. P. 33.1…………………………..........................................................7
Tex. Civ. Prac. & Rem. Code Ann. § 38.001(8) (West 2014)...................................9
4 TO THE HONORABLE COURT OF APPEALS:
ARGUMENT
A. The Terms Within the Settlement Agreement Pertaining to Future Litigation have a Plain Meaning
When interpreting contracts, Texas courts have held that “we give terms
their plain, ordinary, and generally accepted meaning unless the instrument shows
that the parties used them in a technical or different sense.” Heritage Resources,
Inc. v. Nations Bank, 939 S.W.2d 118, 121 (Tex. 1996). Also, “we enforce an
unambiguous agreement as written. Id. “Simply put, we cannot change the contract
merely because we or one of the parties comes to dislike its provisions or thinks
that something else is needed in it.” Id.
In the Settlement Agreement, the parties agree to “settle all claims and
causes of action…which the parties have or may have arising out of the transaction
or occurrence which is the subject of this litigation.” Courts have stated that “The
primary concern of a court interpreting a contract is to ascertain and give effect to
the intentions of the parties as expressed in the instrument.” R & P Enterprises v.
LaGuarta, Gavrel & Kirk, 596 S.W.2d 517, 518 (Tex. 1980). “The objective, not
subjective, intent of the parties controls the construction of their agreement.”
5 Phillips v. Inexco Oil Co., 540 S.W.2d 546, 548 (Tex. Civ. App.-Tyler 1976, writ
ref’d n.r.e).
When reading this statement plainly, and objectively analyzing the parties’
intents, it appears that the parties are trying to settle and end the possibility of any
and all litigation that could arise. This includes any post judgment litigation or
appeals that Flores may have had. If Medline meant, or understood, these terms to
mean anything else, they offered no objective manifestations of such.
In attempting to argue the materiality of the granting of their Motion for
Summary Judgment on the products liability cause of action (hereinafter “Products
MSJ”) , Medline argues against what is obviously the plain meaning of the
aforementioned terms. They cite to Amedisys, Inc. v. Kingwood Home Health
Care, L.L.C., 437 S.W.3d 507 (Tex. 2014), and state that the Texas Supreme
Court has stated that this language pertains specifically to future litigation relating
to additional claims that could have been- but were not –brought by a party as a
result of the underlying injury. (Appellee Br. at 7). Despite the fact that Medline is
grossly misapplying the Texas Supreme Court’s ruling, requesting the court to
apply this interpretation to unambiguous terms within the settlement undermines
the very purpose of the agreement.
6 Furthermore, in an effort to uphold their end of the agreement as it pertained
to ending all litigation, Flores did not file any motion for reconsideration, motion
for new trial, or notice of appeal. In fact, the only litigation that has ensued since
the settlement has been as a result of Medline’s failure to uphold their end of the s
agreement. As for Medline’s assertion that Flores has not triggered Medline’s
obligations because they have not provided the necessary paperwork, in light of
Medline’s immediate attempt to rescind, that is a moot argument.
B.
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ACCEPTED 13-14-00436-CV FILED THIRTEENTH COURT OF APPEALS IN THE 13TH COURT OF APPEALS CORPUS CHRISTI, TEXAS CORPUS CHRISTI 1/6/2015 4:17:06 PM DORIAN RAMIREZ 01/06/15 CLERK
DORIAN E. RAMIREZ, CLERK NO. 13-14-436-CV BY mquilantan __________________________________________________________________ RECEIVED IN 13th COURT OF APPEALS IN THE COURT OF APPEALS CORPUS CHRISTI/EDINBURG, TEXAS FOR THE THIRTEENTH DISTRICT1/6/2015 4:17:06 PM AT CORPUS CHRISTI, TEXAS DORIAN E. RAMIREZ Clerk
GUADALUPE FLORES, ERNESTO FLORES, BLANCA FLORES, ROSALINDA MAGAÑA, ARTURO FLORES, MARIA FLORES, JUAN FLORES and FERNANDO FLORES AS REPRESENTATIVES OF THE ESTATE OF ELIA G. FLORES Appellant, v. MEDLINE INDUSTRY, INC. Appellee
Original Proceeding Arising Out of the th 197 Judicial District Court, Cameron County, Texas Cause No. 2014-DCL-05722-C Honorable Migdalia Lopez
APPELLANTS’ REPLY BRIEF
JORGE L. GOMEZ STATE BAR NO. 00793825 GOMEZ LAW FIRM 9894 Bissonnet, Suite 905 Houston, Texas 77036 Telephone: (713) 868-5528 Facsimile: (713) 868-4159
ORAL ARGUMENT REQUESTED
1 IDENTITY OF PARTIES AND COUNSEL
Appellants/Plaintiffs
GUADALUPE FLORES ERNESTO FLORES, BLANCA FLORES, ROSALINDA MAGAÑA, ARTURO FLORES, MARIA FLORES, JUAN FLORES and FERNANDO FLORES REPRESENTATIVES OF THE ESTATE OF ELIA G. FLORES
Counsel for Appellants
JORGE L. GOMEZ STATE BAR NO. 00793825 GOMEZ LAW FIRM 9894 Bissonnet, Suite 905 Houston, TX 77036 Telephone: (713) 868-5528 Facsimile: (713) 868-4159
Appellees/Defendants
Medline Industries, Inc.
Counsels for Appellees
Jason Wagner State Bar. No. 00795704 WAGNER, SAENZ, DORITY, L.L.P. 3700 Buffalo Speedway Suite 610 Houston, TX 77098 Telephone: (713) 554-8450 Facsimile: (713) 554-8451
2 TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL ……………………………………...2
TABLE OF CONTENTS ………………………………………………………….3
INDEX OF AUTHORITIES ………………………………………………………4
ARGUMENT ……..………………………………………….…………………….5
A. The Terms Within the Settlement Agreement Pertaining to Future Litigation
have a Plain Meaning ……………………….……………...……….............5
B. Flores’ Filed Motions on the Breach of Contract are Sufficient to Allow this
Court to Review and Render Judgment ……...…..………………………….7
PRAYER FOR RELIEF…………………………..………………………..............9
CERTIFICATE OF SERVICE ………………..………………………………….10
3 INDEX OF AUTHORITIES
CASES
Amedisys, Inc. v. Kingwood Home Health Care, L.L.C., 437 S.W.3d 507 (Tex. 2014)………………………………………………...6
Arkoma Basin Exploration Co. v. FMF Assocs. 1990-A, Ltd., 249 S.W.3d 380, 387 (Tex. 2008)…………………………………………...8
Heritage Resources, Inc. v. Nations Bank, 939 S.W.2d 118, 121 (Tex. 1996)…………………………………………...5
R & P Enterprises v. LaGuarta, Gavrel & Kirk, 596 S.W.2d 517, 518 (Tex. 1980)…………………………………………...5
Phillips v. Inexco Oil Co., 540 S.W.2d 546, 548 (Tex. Civ. App.-Tyler 1976, writ ref’d n.r.e)………...6
Wal-Mart Store, Inc. v. McKenzie, 997 S.W.2d 278 (Tex. 1999)………………………………………………...8
STATUTES
Tex. R. App. P. 33.1…………………………..........................................................7
Tex. Civ. Prac. & Rem. Code Ann. § 38.001(8) (West 2014)...................................9
4 TO THE HONORABLE COURT OF APPEALS:
ARGUMENT
A. The Terms Within the Settlement Agreement Pertaining to Future Litigation have a Plain Meaning
When interpreting contracts, Texas courts have held that “we give terms
their plain, ordinary, and generally accepted meaning unless the instrument shows
that the parties used them in a technical or different sense.” Heritage Resources,
Inc. v. Nations Bank, 939 S.W.2d 118, 121 (Tex. 1996). Also, “we enforce an
unambiguous agreement as written. Id. “Simply put, we cannot change the contract
merely because we or one of the parties comes to dislike its provisions or thinks
that something else is needed in it.” Id.
In the Settlement Agreement, the parties agree to “settle all claims and
causes of action…which the parties have or may have arising out of the transaction
or occurrence which is the subject of this litigation.” Courts have stated that “The
primary concern of a court interpreting a contract is to ascertain and give effect to
the intentions of the parties as expressed in the instrument.” R & P Enterprises v.
LaGuarta, Gavrel & Kirk, 596 S.W.2d 517, 518 (Tex. 1980). “The objective, not
subjective, intent of the parties controls the construction of their agreement.”
5 Phillips v. Inexco Oil Co., 540 S.W.2d 546, 548 (Tex. Civ. App.-Tyler 1976, writ
ref’d n.r.e).
When reading this statement plainly, and objectively analyzing the parties’
intents, it appears that the parties are trying to settle and end the possibility of any
and all litigation that could arise. This includes any post judgment litigation or
appeals that Flores may have had. If Medline meant, or understood, these terms to
mean anything else, they offered no objective manifestations of such.
In attempting to argue the materiality of the granting of their Motion for
Summary Judgment on the products liability cause of action (hereinafter “Products
MSJ”) , Medline argues against what is obviously the plain meaning of the
aforementioned terms. They cite to Amedisys, Inc. v. Kingwood Home Health
Care, L.L.C., 437 S.W.3d 507 (Tex. 2014), and state that the Texas Supreme
Court has stated that this language pertains specifically to future litigation relating
to additional claims that could have been- but were not –brought by a party as a
result of the underlying injury. (Appellee Br. at 7). Despite the fact that Medline is
grossly misapplying the Texas Supreme Court’s ruling, requesting the court to
apply this interpretation to unambiguous terms within the settlement undermines
the very purpose of the agreement.
6 Furthermore, in an effort to uphold their end of the agreement as it pertained
to ending all litigation, Flores did not file any motion for reconsideration, motion
for new trial, or notice of appeal. In fact, the only litigation that has ensued since
the settlement has been as a result of Medline’s failure to uphold their end of the s
agreement. As for Medline’s assertion that Flores has not triggered Medline’s
obligations because they have not provided the necessary paperwork, in light of
Medline’s immediate attempt to rescind, that is a moot argument.
B. Flores’ Filed Motions on the Breach of Contract Issue Are Sufficient to Allow this Court to Review and Render Judgment
In order to preserve a complaint for review on appeal, the record must show
that the complaint was made to the trial court by a timely request, objection, or
motion that: (A) stated the grounds for the ruling that the complaining party sought
from the trial court with sufficient specificity to make the trial court aware of the
complaint, unless the specific grounds were apparent from the context; and (2) in
compliance with the Texas Rules of Civil Procedure. Tex. R. App. P. 33.1. The
complaining party must then show that the trial court ruled on the request,
objection, or motion “either expressly or impliedly.” Tex. R. App. P. 33.1
(a)(2)(A).
Medline argues based on this statute that because Appellant never made any
motion for summary judgment at the trial level to prevail on their breach of 7 contract cause of action, the breach of contract complaint should not be considered
by this Court. This, however, is an incorrect assertion.
In analyzing other court cases addressing this particular statute, it is clear
that a motion for summary judgment is not the only means of preserving a
complaint for review on appeal. In Wal-Mart Store, Inc. v. McKenzie, 997 S.W.2d
278 (Tex. 1999), the court questioned whether the defendants, Wal-Mart, waived
their complaint that only equitable remedies are available by not objecting to the
submission of jury issues on compensatory and punitive damages. Following the
trial and the jury’s ruling, the plaintiff, McKenzie, moved for judgment on the
verdict, and Wal-Mart responded. The Court found that Wal-Mart’s response was
timely and sufficiently specific enough to give the trial court an opportunity to
resolve the legal issue before rendering. The Court has further explained that “an
objection must be clear enough to give the trial court an opportunity to correct the
asserted error.” Arkoma Basin Exploration Co. v. FMF Assocs. 1990-A, Ltd., 249
S.W.3d 380, 387 (Tex. 2008). Beginning with the amended petition, Flores’
complaint and argument concerning breach of contract was very clearly presented
to the trial court. (C.R. at 37). It was clear that Flores is, and was, objecting to
Medline’s attempt to rescind the settlement agreement, and arguing that it was a
breach of contract to do so. This assertion was further reiterated in Flores’ Motion
8 to Enforce Settlement and Response to Medline’s Motion to Rescind. (Supp. C.R.
at 4). The trial court clearly ruled on the objection/ motion by granting Medline’s
Motion for Summary Judgment against the breach of contract issue, and by
allowing them to rescind the settlement agreement. As such, the breach of contract
was preserved for appellate review.
PRAYER FOR RELIEF
WHEREFORE, PREMISES CONSIDERED, Flores respectfully prays that
the orders granting Medline’s Motion for Summary Judgment and denying Flores’
Motion for Reconsideration of Its Motion to Enforce Settlement be reversed and
the court render judgment, in whole or in part, in favor of Flores’ claims to enforce
settlement against Medline. Flores further prays that this court award reasonable
and necessary attorney’s fees pursuant to Texas Civil Practice and Remedies Code
§ 38.001(8), and for such other and further relief to which it may be entitled.