Tom and Paula Peden v. South Texas Surveying Associates, Inc., and Fred W. Lawton, Stephen Pohl

• Court: Court of Appeals of Texas
• Decided: September 10, 2009
• Docket: 01-08-00373-CV
• Status: Published

Opinion

Opinion issued September 10, 2009

In The

Court of Appeals

For The

First District of Texas

____________

NO. 01-08-00373-CV

TOM PEDEN AND PAULA PEDEN, Appellants

V.

STEPHEN POHL, FRED W. LAWTON, SOUTH TEXAS SURVEYING ASSOCIATES, INC., GUARANTEE TITLE & TRUST COMPANY D/B/A TEXAS GULF TITLE, Appellees

On Appeal from the 80th District Court

Harris County, Texas

Trial Court Cause No. 2006-02891

MEMORANDUM OPINION

Appellants, Tom and Paula Peden, appeal the trial court's rendering of summary judgment in favor of appellees South Texas Surveying Associates, Inc. ("South Texas"), Fred W. Lawton, Stephen Pohl, and the Guarantee Title & Trust Company d/b/a Texas Gulf Title ("Gulf Title"). The Pedens brought suit against South Texas and Lawton for erroneously identifying an easement as a "utility easement," rather than a "right-of-way easement" on a survey. The Pedens also sued Gulf Title for fraud and negligence in its preparation of title insurance commitments and for its hiring of South Texas and Lawton. The Pedens additionally sued Pohl for defamation based on comments Pohl made concerning the Pedens' building permit application. In their first issue, the Pedens contend the trial court erred by rendering summary judgment in favor of South Texas and Lawton because the Pedens are not estopped by the position they took in earlier litigation against the City of West University Place concerning the easement. In their second issue, the Pedens contend the trial court erred by granting Pohl's motion for summary judgment because a fact issue remains concerning whether Pohl's statement was true or substantially true. In their third issue, the Pedens contend the trial court erred by granting summary judgment in favor of Gulf Title because a fact issue exists concerning whether limitations was tolled by the discovery rule and because the Pedens provided more than a scintilla of evidence on each element of their claims against Gulf Title. We affirm the summary judgment in favor of Pohl because no fact issue exists concerning the truth or substantial truth of Pohl's statement. However, we reverse and remand the claims against South Texas and Lawton because the Pedens are not estopped from asserting their claims against them. We also reverse the judgment in favor of Gulf Title and remand with instructions to the trial court that the Pedens' claims against Gulf Title be dismissed.

Background In July 2000, the Pedens, mortgage brokers with experience in the real estate industry, purchased a lot in the City of West University Place. The Pedens intended to tear down the existing house and build a new one on the lot. The Pedens hired Gulf Title to procure title insurance and to close escrow on the property.

Gulf Title's original title commitment mentioned "an easement for right-of-way purposes 2.5 feet along the entire extreme west property line" and referenced the deed that granted the easement. Gulf Title hired South Texas to prepare a survey of the property. Lawton was the South Texas employee who performed the survey. The survey identified the easement as a utility easement, but referenced the same deed granting the easement that Gulf Title's title commitment referenced. Whether the easement was a utility easement or a right-of-way affected the size of the house the Pedens could build, as well as the "set back" requirements of the location of the house on the property. Gulf Title approved the survey and submitted it to the Pedens at closing. Gulf Title issued a title policy that referred to both a utility easement and a right-of-way easement.

The Pedens began working with an architect to design a home that maximized square footage but also complied with the City's zoning ordinances. The Pedens used the South Texas survey that identified the easement as a utility easement and not a right-of-way. The Pedens applied for a building permit in April 2004. Included with their application for a building permit was a site plan that identified the easement as a utility easement.

City officials, including the Chief Building Officer Dennis Mack, met with the Pedens and their home designer to verify the plans met the City's zoning ordinances. Mack approved the application and the City issued a building permit after the Pedens' designer specified on the plans that the attic ceiling would be lower than seven feet.

The size of the attic was pertinent because the City's ordinances require that an attic have a ceiling less than seven feet in height. Furthermore, attic space does not count against the square footage limits for the house.

Shortly after the Pedens began construction, Mack received a complaint from Pohl, who wanted Mack and other City officials to revoke the Pedens' permit. Pohl previously served as the Chairman of the City's Zoning and Planning Commission. Pohl knew of the 2.5 foot easement that he believed was a right-of-way easement that violated City ordinances. On February 25, 2005, the City issued a formal decision suspending the building permit. In the decision, the City stated that the Pedens knew of the right-of-way easement, that the Pedens asserted the easement had reverted to the property owner, and that Gulf Title had assured them that the easement was no longer valid. Mack acknowledged that he signed the City's decision, but he claimed he had no personal knowledge of the facts recited in the decision because the City Attorney was the person who wrote the decision.

A few days later, Pohl again complained to City officials that the floor designated as an attic exceeded the size requirements for attics, and that Mack had allowed the violation. The City asked Mack to resign, retire, or face being fired over the attic dispute. On March 3, 2005, the City issued another formal decision suspending the building permit until the Pedens demonstrated to the City that the attic complied with zoning requirements. This decision was also drafted by the City Attorney and signed by Mack. The Pedens met with Mack, providing him with additional proof that the attic met zoning requirements. Mack, however, did not lift the suspension because he felt pressured by the City Attorney. Mack also feared that if he were fired he would lose his retirement benefits.

After the second suspension, Pohl was interviewed by a local television news station concerning the dispute. On March 30, 2005, the television station broadcasted a story concerning the dispute, which included the statement by Pohl, "A number of embellishments and liberties were taken with the application process in order to permit the house."

As part of the ongoing dispute, the Pedens filed suit against the City. In that suit, the Pedens prevailed on their claim that the right-of-way easement did not burden the property and therefore did not reduce the square footage allowed for the Pedens' house. The court, however, also upheld the City's decision to suspend construction because the space the Pedens designated as an attic space exceeded the size allowed for an attic in violation of City ordinances. The Pedens appealed, but reached a settlement with the City. The Pedens and the City filed a joint motion for this Court to reverse and render judgment to effectuate the settlement agreement. This Court did so. See Peden v. City of W. Univ. Place, No. 01-07-00576-CV, 2008 WL 659480, at *1 (Tex. App.--Houston [1st Dist.] Mar. 13, 2008, no pet.).

Standard of Review

We review summary judgments de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). When a summary judgment does not specify the grounds on which it was granted, we will affirm the judgment if any one of the theories advanced in the motion is meritorious. Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 157 (Tex. 2004).

Summary judgment under rule 166a(c) is proper only when the movant establishes that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c). In reviewing a summary judgment under rule 166a(c), we must indulge every reasonable inference in favor of the nonmovant, take all evidence favorable to the nonmovant as true, and resolve any doubts in favor of the nonmovant. Valence, 164 S.W.3d at 661. A defendant who moves for summary judgment on the plaintiff's claim under rule 166a(c) must conclusively disprove at least one element of the plaintiff's cause of action. Little v. Tex. Dep't of Criminal Justice, 148 S.W.3d 374, 381 (Tex. 2004).

Summary Judgment for South Texas and Lawton

In their first issue, the Pedens contend the trial court erred by rendering summary judgment for South Texas and Lawton.

A. Estoppel

South Texas and Lawton moved for summary judgment on the grounds of collateral estoppel, judicial estoppel, and quasi-estoppel. Specifically, South Texas and Lawton contend the Pedens, in their earlier lawsuit against the City, took the unequivocal position that the right-of-way-easement did not burden their property because it had reverted in 1949. South Texas and Lawton contend the Pedens are estopped from bringing an action against them based on the allegation that they failed to disclose an easement. The Pedens respond that (1) the prior judgment cannot have a preclusive affect on the instant suit because the judgment was vacated and replaced with an agreed judgment and (2) their damages in this case were caused by the failure of South Texas and Lawton to properly survey the property and identify the easement, regardless of whether the easement reverted in 1949, as alleged in the Pedens' prior suit.

1. Collateral Estoppel

The elements of collateral estoppel are: (1) the facts sought to be litigated in the second action were fully and fairly litigated in the first action, (2) those facts were essential to the judgment in the first action, and (3) the parties were cast as adversaries in the first action. Case Funding Network, L.P. v. Anglo-Dutch Petroleum Int'l, Inc., 264 S.W.3d 38, 52 (Tex. App.--Houston [1st Dist.] 2007, pet. denied) (citing Tex. Dep't of Pub. Safety v. Petta, 44 S.W.3d 575, 579 (Tex. 2001)). It is undisputed that the Pedens were not "cast as adversaries" against South Texas and Lawton in the earlier suit. Therefore, collateral estoppel does not apply. The trial court erred if it granted summary judgment on this ground.

2. Judicial Estoppel

Judicial estoppel generally prevents a party who has succeeded in maintaining a certain position in a proceeding from assuming a contrary position "simply because his interests have changed." New Hampshire v. Maine, 532 U.S. 742, 749, 121 S. Ct. 1808, 1814 (2001) (quoting Davis v. Wakelee, 156 U.S. 680, 689, 15 S. Ct. 555 (1895)). The purpose of judicial estoppel is "to protect the integrity of the judicial process." Id., 121 S. Ct. at 1814. Judicial estoppel is an equitable doctrine, and as such, all the circumstances of the case may be relevant. See id. at 750, 121 S. Ct. at 1815. The factors that "typically inform the decision whether to apply the doctrine" are: (1) a party's position must be "clearly inconsistent" with its earlier positions, (2) whether the parties urging of inconsistent positions threatens judicial integrity by creating a "risk of inconsistent court determinations," and (3) whether the party seeking to assert an inconsistent position would gain an unfair advantage or impose an unfair detriment on the opposing party. Id. at 750-51, 121 S. Ct. at 1815.

Judicial estoppel does not apply to the Pedens in this case. First, the Pedens' position in this lawsuit is not "clearly inconsistent" with their earlier position. In the earlier suit against the City, the Pedens contended that the right-of-way easement, granted in a 1948 deed, had reverted in 1949 under the terms of the deed. Essentially, South Texas and Lawton contend that because the Pedens successfully maintained that the easement did not exist, it is not equitable to allow the Pedens to seek damages for "failing to disclose an existing right of way easement." However, the Pedens' live petition in this case demonstrates that their position is not that South Texas and Lawton failed to disclose an existing right-of-way easement, but that South Texas and Lawton negligently identified the easement as a utility easement, which would affect whether the plans complied with City ordinances. The Pedens assert that if the easement had been properly identified, they could have avoided the suspension of their building permits and the ensuing litigation and avoided incurring hundreds of thousands of dollars in legal fees. Because the Pedens' positions in the two proceedings are not "clearly inconsistent," this factor weighs against applying judicial estoppel. See New Hampshire, 532 U.S. at 750-51, 121 S. Ct. at 1815.

The second factor also weighs against applying judicial estoppel. In the suit against the City, the trial court declared that the easement did not encumber the Pedens' property. In the instant action, if the Pedens prevail, the trial court will find that South Texas and Lawton were negligent in preparing a survey. The two judgments are not inconsistent. See id. The final factor also weighs against applying the doctrine of judicial estoppel, because the Pedens are not gaining an unfair advantage over or imposing an unfair detriment on South Texas or Lawton. See id. In considering the three factors, the reasons for applying the doctrine are not present in this case. We therefore hold the Pedens are not judicially estopped from bringing their claims against South Texas and Lawton.

3. Quasi-Estoppel

"Quasi-estoppel precludes a party from asserting, to another's disadvantage, a right inconsistent with a position previously taken." Lopez v. Munoz, Hockema & Reed, L.L.P., 22 S.W.3d 857, 864 (Tex. 2000) "The doctrine applies when it would be unconscionable to allow a person to maintain a position inconsistent with one to which he acquiesced, or from which he accepted a benefit." Id.

Quasi-estoppel does not apply to the Pedens in this case because, as explained in more detail under the section concerning judicial estoppel, the Pedens' position in this lawsuit is not "clearly inconsistent" with their earlier position. Moreover, in the suit against the City the trial court declared that the easement did not encumber the Pedens' property, as compared to the instant action that asks the court to determine that South Texas and Lawton were negligent in preparing a survey. We conclude that it is not unconscionable to allow the Pedens to adopt their position in the instant suit. Therefore, quasi-estoppel does not apply.

B. Proximate Cause

In their appellees' brief, South Texas and Lawton also contend that they are entitled to summary judgment on the element of proximate cause, stating the evidence "conclusively negated both foreseeability and cause-in-fact." This ground for summary judgment was not raised in the motion for summary judgment filed jointly by South Texas and Lawton.

A movant's "motion for summary judgment shall state the specific grounds therefor." Tex. R. App. P. 166a(c). The motion "must itself expressly present the grounds upon which it is made, and must stand or fall on these grounds alone." Sci. Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 912 (Tex. 1997) (citing McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 341 (Tex. 1993)). Here, South Texas and Lawton filed a "Plea of Collateral Estoppel and Motion for Summary Judgment." In the summary of the argument, South Texas and Lawton assert that the Pedens obtained a judgment that the right-of-way easement no longer existed on their property because it reverted in 1949, and "[a]s a result of this estoppel any representation by South Texas regarding the absence of a right-of-way could not proximately cause the Pedens' damages as a matter of law." Within the "Authority" section of their motion for summary judgment, South Texas and Lawton had four sub-headings--one for the summary judgment standard and then three entitled "Collateral Estoppel," "Judicial Estoppel," and "Quasi Estoppel." South Texas and Lawton did not list "Proximate Cause" nor did they cite any legal authority concerning proximate cause. In the argument section of the motion, the fourth subheading states, "South Texas's Representations Did Not Proximately Cause the Peden's Damages." In its entirety, the subsection states,

An essential element of both negligence and negligent misrepresentation is proximate cause. In this case, the Pedens allege that South Texas "misrepresented" the character of the easement as a utility easement when in fact it was a right-of-way. However, as determined by the 127th [District Court], the easement [w]as not a right-of-way, and the Pedens['] lot was in fact 50' wide. [South Texas] therefore did not make a misrepresentation that proximately caused damages.

We conclude the motion did not raise proximate cause as a ground for summary judgment because the only grounds expressly presented were collateral estoppel, judicial estoppel, and quasi-estoppel. See Tex. R. App. P. 166a(c); Sci. Spectrum, 941 S.W.2d at 912.

We sustain the Pedens' first issue.

Summary Judgment for Pohl

In their second issue, the Pedens assert that summary judgment was improper because a fact issue exists regarding their claim for defamation against Pohl. The statement the Pedens contend is defamatory occurred during a television interview concerning the zoning controversy with the Pedens' home, when Pohl remarked, "A number of embellishments and liberties were taken with this application process in order to permit the house."

A. Law Concerning Defamation

The elements of the Pedens' defamation claim are that: (1) Pohl published a statement, (2) the statement was defamatory concerning the Pedens, and (3) Pohl acted with negligence regarding the truth of the statement. See WFAA-TV, Inc. v. McLemore, 978 S.W.2d 568, 571 (Tex. 1998). A statement is defamatory if the words tend to injure a person's reputation, exposing the person to public hatred, contempt, ridicule, or financial injury. Colson v. Grohman, 24 S.W.3d 414, 421 (Tex. App.--Houston [1st Dist.] 2000, pet. denied).

Truth is an affirmative defense to a claim for defamation. See Associated Press v. Cook, 17 S.W.3d 447, 452 (Tex. App.--Houston [1st Dist.] 2000, no pet.). Similarly, a showing of substantial truth in a summary judgment case will defeat a defamation claim. McIlvain v. Jacobs, 794 S.W.2d 14, 15-16 (Tex. 1990). To determine substantial truth, we consider whether the defamatory statement was more damaging to the plaintiff in the mind of the average reader than a true statement would have been. McIlvain, 794 S.W.2d at 16; Barbouti v. Hearst Corp., 927 S.W.2d 37, 65 (Tex. App.--Houston [1st Dist.] 1996, writ denied). This evaluation involves looking at the "gist" of the statement. McIlvain, 794 S.W.2d at 16; KTRK Television v. Felder, 950 S.W.2d 100, 105 (Tex. App.--Houston [14th Dist.] 1997, no writ). If the underlying facts as to the gist of the libelous charge are undisputed, then we can disregard any variance with respect to items of secondary importance and determine substantial truth as a matter of law. McIlvain, 794 S.W.2d at 16; KTRK Television, 950 S.W.2d at 105-06.

As stated previously, the truth of a statement is an absolute defense to a claim for defamation. See Hurlbut v. Gulf Atl. Life Ins. Co., 749 S.W.2d 762, 766 (Tex. 1987). The defense of truth does not require proof that the alleged defamatory statement is literally true in every detail; substantial truth is sufficient. Howell v. Hecht, 821 S.W.2d 627, 631-32 (Tex. App.--Dallas 1991, writ denied). If Pohl established, as a matter of law, the substantial truth of the statements about which the Pedens complain, he is entitled to summary judgment. McIlvain, 794 S.W.2d at 15; Gustafson v. City of Austin, 110 S.W.3d 652, 656 (Tex. App.--Austin 2003, pet. denied).

B. Summary Judgment Motion, Response, and Evidence

Pohl moved for summary judgment on the basis of the affirmative defense of truth or substantial truth. Specifically, Pohl contended that his statement is supported by the City's orders suspending the Pedens' building permit. Pohl also asserted that the final judgment in the 127th District Court found the space designated as an "attic" was not an attic. Therefore, Pohl argues, "embellishments and liberties" had to have been made in the application. As evidence in support of his summary judgment motion, Pohl provided copies of the City's orders suspending the Pedens' building permit, his affidavit, and the judgment from the 127th District Court.

The City's February 25, 2005 order states, in pertinent part, "During the investigation, staff contacted the construction contractor and the owner, who admitted that they knew about the easement, but they asserted that the easement had reverted to the property owner." The City's March 3, 2005 order states, that "[City officials] observed a large area on the third floor shown on the plans as an attic. That area is not being constructed as an attic." Further, the order states, "As the third floor is being constructed, it violates [City ordinances]." In his affidavit, Pohl averred that his "statement regarding liberties and embellishments . . . was made, and aired, following the suspension of the Pedens' construction permit . . . ."

The judgment from the 127th District Court provides,

[T]he area designated on the excerpt from the plans (Exhibit "7") as an "attic" is not an attic, so that the square footage of that space must be included in the total square footage of the structure. With that additional square footage, the structure violates the "framed area ratio" requirements in the City's Zoning Ordinances.

In their response to the motion for summary judgment, the Pedens contended that the "import" of Pohl's statement is that "the Pedens engaged in misleading conduct or that they falsified documents relating to the application for a building permit." To refute the truth of Pohl's allegedly defamatory statement, the Pedens submitted their own affidavits as well as an affidavit from Mack. In their affidavits, the Pedens stated they did not know of the right-of-way issue until informed of it in February 2005. They both also averred that they did not "make any embellishments and/or take any liberties with the application process in order to receive a permit to build the house."

In his affidavit, Mack stated,

I determined that the attic was being built consistently with the plans and City ordinances, that the Pedens did not make any embellishments or take any liberties with their application as it related to the attic, and that the suspension [of the Pedens' permit based on the attic issue] should have been lifted on March 4, 2005, the day after I issued it.

Mack also averred,

Concerning the suspension based on the right-of-way easement, "I never told any person that I believed the Pedens had taken any 'liberties' or made any 'embellishments' with the application process. I would not have made those statements because they are not true, and they wrongly suggest that the Pedens engaged in misleading conduct or that they falsified documents."

Finally, Mack also stated that after Pohl complained at a public city council meeting that Mack had allowed the Pedens to construct the attic space in violation of zoning ordinances, the City Manager and Director of Public Works told Mack that he had 90 days to either resign, retire, or be terminated over the attic issue.

C. Analysis of Substantial Truth

Pohl contends he was entitled to summary judgment on the ground of "substantial truth." In order to determine substantial truth, we must determine the gist of the allegedly defamatory statement. Here, Pohl stated, "A number of embellishments and liberties were taken with this application process in order to permit the house." "Embellish," as used in this context, means to "make (a statement or story) more interesting or entertaining by adding extra details, esp. ones that are not true." The New Oxford American Dictionary, at 554 (Oxford University Press 2001). To "take liberties" means to "treat something freely, without strict faithfulness to the facts or to an original." Id. at 983.

Pohl did not identify the Pedens as the people that took liberties or made embellishments on the application; Pohl did not specifically point to anyone or any entity. At the time Pohl made the statement, the City had issued two formal decisions stating the Pedens' building plans did not comply with City ordinances. Also, Mack was accused of and asked to retire over his allowing a permit on the Pedens' house. In light of the City's decisions that the house did not comply with their ordinances and the criticism of Mack's decision to permit the house, Pohl's statement that "[a] number of embellishments and liberties were taken with this application process in order to permit the house" is substantially true. Moreover, Pohl's statement is not more harmful to the Pedens than a true statement concerning the City's formal decisions and Mack's reprimand would be. See McIlvain, 794 S.W.2d at 16; Barbouti, 927 S.W.2d at 65.

We overrule the Pedens' second issue.

Summary Judgment for Gulf Title

While this appeal was pending, Gulf Title was placed into court-ordered rehabilitation in Ohio due to its financial condition. A receiver was appointed and the Ohio court later ordered the receiver to liquidate Gulf Title. Pursuant to Ohio law, the Ohio court issued an order enjoining all persons from instituting or maintaining any claim against Gulf Title. Under the Texas Insurance Code, "The statutory provisions of another state and all orders entered by courts of competent jurisdiction in relation to the appointment of a domiciliary receiver of an insurer and any related proceedings in another state must be given full faith and credit in this state." Tex. Ins. Code Ann. § 443.402(a) (Vernon 2009). The Ohio injunction against suits in other states that may interfere with the receivership process is entitled to full faith and credit in Texas. Bard v. Charles R. Myers Ins. Agency, Inc., 839 S.W.2d 791, 795 (Tex. 1992).

The Pedens agree that the Ohio order enjoins them from maintaining this appeal against Gulf Title. As stated in the Pedens' brief concerning the Gulf Title liquidation, "the Pedens ask this Court to remand the claim to the district court so they will have the option of proceeding with their claim in the Ohio liquidation proceeding." Gulf Title did not file an appellee's brief in this appeal. Gulf Title filed a notice that it was in rehabilitation in Ohio and, later, in liquidation. Within the notice that it was in rehabilitation, Gulf Title requested that this Court "stay" the Pedens' appeal against Gulf Title "in the same manner as a bankruptcy petition would stay proceedings under Tex[as] R[ule of] App[ellate Procedure] 8." ⁽¹⁾ In response, the Pedens raise concerns that the summary judgment in favor of Gulf Title might be given preclusive effect if this Court grants a stay. See J.J. Gregory Gourmet Servs., Inc. v. Antone's Imp. Co., 927 S.W.2d 31, 33 (Tex. App.--Houston [1st Dist.] 1995, no writ) (noting final judgment is given preclusive effect even if appeal is pending) (citing Scurlock Oil Co. v. Smithwick, 724 S.W.2d 1, 6 (Tex. 1986)).

In Bard, a Vermont insurance company was placed in receivership and then in liquidation. Bard, 839 S.W.2d at 792-93. The Vermont court enjoined any litigation against the insurance company and required all claims to be submitted in the Vermont proceeding. Id. at 793. The liquidator, Bard, sued a Texas resident, Myers, and his company in Texas, for the recovery of assets allegedly owed to the insurance company. Id. Myers and his company asserted a compulsory counterclaim. Id. Bard moved for summary judgment based on the Vermont court's injunction. Id. at 794. The Texas Supreme Court determined that Myers's suit should be dismissed because the Vermont order placing the insurance company in liquidation and enjoining suits against the company was entitled to full faith and credit. Id. at 797. However, the supreme court, in order to preserve Myers's rights, reversed the judgment and remanded the case to the trial court with instructions to dismiss Myers's counterclaims without prejudice to his rights in Vermont. Id.

Like Myers, the Pedens are enjoined from pursuing their claims against Gulf Title pursuant to the Ohio court's order, which is entitled to full faith and credit. Therefore, as the supreme court did in Bard, we reverse the summary judgment against the Pedens and remand this cause to the trial court with orders to dismiss the Pedens' claims against Gulf Title without prejudice to their rights in Ohio. See id.

Conclusion

We reverse that portion of the trial court's judgment granting summary judgment in favor of appellees Fred W. Lawton and South Texas Surveying Associates, Inc. and remand to the trial court for further proceedings. We affirm that portion of the trial court's judgment granting summary judgment in favor of appellee Stephen Pohl. We reverse the judgment against the Pedens and in favor of the Guarantee Title & Trust Company d/b/a Texas Gulf Title and remand this cause to the trial court with instructions to dismiss the Pedens' claims against the Guarantee Title & Trust Company d/b/a Texas Gulf Title without prejudice to the Pedens' rights in Ohio.

Elsa Alcala

Justice

Panel consists of Justices Jennings, Alcala, and Higley.

1. See Tex. R. App. P. 8.2 ("A bankruptcy suspends the appeal and all periods in these rules from the date when the bankruptcy petition is filed until the appellate court reinstates or severs the appeal in accordance with federal law.").