Warren Spiwak v. Harris County, Texas

Opinion

Opinion issued March 29, 2012.

In The

Court of Appeals

For The

First District of Texas

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NO. 01-11-00177-CV

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Warren Spiwak, Appellant

V.

Harris County, Texas, Appellee

On Appeal from the County Civil Court at Law No. 1

Harris County, Texas

Trial Court Case No. 970,217

MEMORANDUM OPINION

          In this appeal from a summary judgment in favor of appellee Harris County, Texas, to recover unpaid tolls due to the Harris County Toll Road Authority, we consider whether (1) a question of fact precludes summary judgment, and (2) appellant’s motion for new trial was properly overruled by operation of law.  We affirm.

BACKGROUND

In April 2009, before the underlying suit was filed, appellant Warren D. Spiwak appeared at an administrative hearing regarding allegations that he had operated his vehicle on a county toll road without paying the require tolls.  After the administrative hearing, Spiwak and Harris County entered into an Agreed Settlement, which provided in relevant part:

HARRIS COUNTY, TEXAS, and WARREN D. SPIWAK, hereby announce they have agreed to a settlement of the matter involving failure of vehicle license plate number BDI-D027 to remit payment for required tolls. As a result of said default IT IS THEREFORE SETTLED AND AGREED:

1.  That WARREN D. SPIWAK is indebted to HARRIS COUNTY and that the agreement of the parties as reflected herein is fair, reasonable and just.

2.  That WARREN D. SPIWAK agrees to pay HARRIS COUNTY $1,874.30 to be remitted as follows:

One $374.86 payment due on or before AUGUST 1, 2010 payable to the Harris County Toll Road Authority,

Payment of $125.00 each, beginning on SEPTEMBER 1, 2010, and continuing monthly, becoming due on or before the 1^st day of each month, until the full balance of $1,874.30 is paid in full.

3.  That if WARREN D. SPIWAK fails to make timely installment payments as agreed herein, time being of the essence hereof, the full outstanding balance according to Harris County records as of the date of this document being $1,874.30, plus attorneys fees and court costs accumulated in collecting the amount due, minus any payments remitted pursuant to this Settlement, shall immediately become due.

 * * * *

7. That the parties have agreed and stipulated that so long as the installment payments due hereunder to HARRIS COUNTY, are paid according to the above installment payment plan, HARRIS COUNTY shall not file a cause of action against WARREN D. SPIWAK in an effort to enforce this agreement.  In the event WARREN D. SPIWAK, fails to meet the agreed obligations by not timely making any of the requisite installment payments, HARRIS COUNTY, may take any of the above mentioned actions.

8.  that, if a cause of action must be filed to enforce this agreement, all costs of Court be and hereby are taxed against WARREN D. SPIWAK.

9. that this Agreement is the full, complete and final agreement of the parties and supercedes any prior agreements, written or oral.

10. Agreed Amount will settle all violations that have occurred to date.

          In August 2010, Harris County filed suit against appellant Warren Spiwak, alleging that it had a statutory cause of action under section 284.070(a) of the Texas Transportation Code to collect for unpaid tolls and administrative costs if a person operates a vehicle on a County road and fails or refuses to pay the assessed toll.  The County’s petition further alleged that Spiwak was the registered owner of a vehicle with the license plate number BD1-D027, and that such vehicle was operated on a county toll road without paying the required tolls.  The County’s pleading did not reference a cause of action for breach of the settlement agreement.

          In October 2010, Harris County filed a motion for summary judgment contending that Spiwack had (1) had violated section 284.070(a) of the Texas Transportation Code, and (2) defaulted on the Settlement Agreement by failing to make timely payments.  Harris County sought attorneys’ fees and $1,836.80 in damages.

          Spiwak responded to the motion for summary judgment, attaching evidence that he contended proved that the tolls incurred were not valid because he had an “active EZ tag” and “the violations were directly due to the negligence of HCTRA both administratively and technologically.”  Spiwak’s response did not dispute the fact that he signed the Settlement Agreement.

          On December 2, 2010, the trial court granted Harris County’s motion for summary judgment, awarding it $1,836.80 in damages, plus attorney’s fees and costs.  The summary judgment does not specify the grounds upon which it was granted.

          On January 3, 2011, Spiwak filed a motion for new trial, again alleging that “there is insufficient evidence to support the validity and accuracy of the toll fines charged by Plaintiff to Defendant.”  Specifically, Spiwak alleged that “numerous errors and other technical problems are the likely cause of the erroneous toll violations charged to Defendant.”  Spiwak’s motion for new trial did not challenge the validity of the Settlement Agreement.  Spiwak did not obtain a ruling on his motion for new trial, and on March 3, 2011, he filed a notice of appeal in this Court.

PROPRIETY OF SUMMARY JUDGMENT

          In his first issue on appeal, Spiwak contends the trial court erred by granting Harris County’s motion for summary judgment.  He argues that fact issues exist regarding the validity of the toll violations assessed by Harris County.

Standard of Review

We review de novo the trial court’s grant of a motion for summary judgment. Provident Life & Accid. Ins. Co. v. Knott, 128 S.W.3d 211, 215–16 (Tex. 2003). To be successful, a motion under Texas Rule of Civil Procedure 166a(c) must establish that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c). When a plaintiff moves for summary judgment on its own claim, the plaintiff must conclusively prove all essential elements of its cause of action as a matter of law. Rhône–Poulenc, Inc. v. Steel, 997 S.W.2d 217, 223 (Tex. 1999); City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979).  If the movant conclusively establishes its cause of action, the burden shifts to the nonmovant to respond with evidence raising a genuine issue of material fact that would preclude summary judgment. Rhône–Poulenc, 997 S.W.2d at 222–23. In deciding whether a disputed material fact precludes summary judgment, we take as true evidence favorable to the nonmovant and indulge every reasonable inference in the nonmovant’s favor. Knott, 128 S.W.3d at 215.

Analysis

Harris County argues that there is no fact question because it proved it was entitled to recover under the Settlement Agreement as a matter of law.  A settlement agreement is a contract between parties, a breach of which gives rise to a cause of action for breach of contract. See Padilla v. LaFrance, 907 S.W.2d 454, 461–62 (Tex. 1995). To be entitled to summary judgment on this claim, Harris County was required to prove, as a matter of law, the following essential elements: (1) the existence of a valid contract; (2) performance or tendered performance by the plaintiff; (3) breach of the contract by the defendant; and (4) damages sustained as a result of the breach. See B & W Supply, Inc. v. Beckman, 305 S.W.3d 10, 16 (Tex. App.—Houston [1st Dist.] 2009, pet. denied).

Here, Harris County met this burden by introducing the Settlement Agreement, which provided that, in return for monthly payments by Spiwak, Harris County would agree not to file suit for the disputed tolls.  Harris County also introduced evidence that Spiwak had not made monthly payments, and that, as a result, Harris County sustained damages in the amount of $1,836.80.  Spiwak’s response to summary judgment did not challenge the validity of the Settlement Agreement.

On appeal, Spiwak argues that the trial court erred in granting summary judgment based on the Settlement Agreement because Harris County’s pleadings do not allege a breach of contract cause of action.  We agree that Rule 301 of the Texas Rules of Civil Procedure provides that “[t]he judgment of the court shall conform to the pleadings[.]” Tex. R. Civ. P. 301.

However, unpleaded claims or defenses that are tried by express or implied consent are treated as if they had been raised by the pleadings, and any complaint about variances between a party’s pleadings and summary-judgment briefing cannot be raised for the first time on appeal. See Roark v. Stallworth Oil & Gas, Inc., 813 S.W.2d 492, 495 (Tex. 1991).

Here, Spiwak never complained to the trial court about the lack of a pleading supporting Harris County’s breach of contract claim.  Thus, he cannot raise this issue for the first time on appeal.  See id.

Further, we note that, although an amended pleading is one method of raising a claim that a settlement agreement should be enforced as a contract, courts have held that a motion seeking enforcement of the settlement agreement is a sufficient pleading to allow a trial court to render judgment enforcing the settlement because such a motion gives the alleged breaching party an opportunity to defend itself.  Bayway Servs., Inc. v. Ameri–Build Constr., L.C., 106 S.W.3d 156, 160 (Tex. App.—Houston [1st Dist.] 2003, no pet.) (holding motion to enforce settlement agreement was sufficient to give fair notice of the contract claim, and as such, satisfied pleading requirements); Neasbitt v. Warren, 105 S.W.3d 113, 117 (Tex. App.—Fort Worth 2003, no pet.) (same). If the motion satisfies the general purposes of pleadings, which is to give the other party fair notice of the claim and the relief sought, it is sufficient to allow the trial court to render judgment enforcing the settlement.  Neasbitt, 105 S.W.3d at 117; Bayway Servs., 106 S.W.3d at 160.

In this case, Harris County’s motion for summary judgment was sufficient to give Spiwak fair notice that it was seeking judgment based on the Settlement Agreement, thus satisfying the pleading requirement.

Because Harris County’s motion proved that it was entitled to judgment as a matter of law based on the Settlement Agreement, the trial court did not err in granting its motion for summary judgment.  We overrule issue one.

MOTION FOR NEW TRIAL

          In his second issue, Spiwak contends the “trial court abused its discretion by not granting Appellant’s motion for new trial.”  However, Spiwak’s motion for new trial claimed only that there were fact issues precluding summary judgment and that “numerous errors and other technical problems are the likely cause of the erroneous toll violations charged to Defendant.”  Spiwak’s motion for new trial did not address the issue of the Settlement Agreement, which we have already held supported the trial court’s judgment.  Therefore, the trial court did not err by permitting Spiwak’s motion to be overruled by operation of law.

CONCLUSION

          We affirm the trial court’s judgment.

                                                                   Sherry Radack

                                                                   Chief Justice

Panel consists of Chief Justice Radack and Justices Higley and Brown.