Court of Appeals of Texas, Houston (14th Dist.).

Katherine M. MILLIKEN, Appellant,

v.

William J. SKEPNEK, et al., Appellees.

No. 14-96-01522-CV.

|

July 15, 1999.

Panel consists of Justices ANDERSON, EDELMAN and LEE.¹¹

OPINION

JOHN S. ANDERSON, Justice.

*1 This is an appeal from an order granting summary judgment in favor of William J. Skepnek (Skepnek), individually, the law firm of Stevens, Brand, Golden, Winter & Skepnek (Skepnek’s firm) and Steven M. Smoot (Smoot).¹ Katherine M. Milliken (Milliken) sued the appellees for assault and battery, fraud and contractual damages. Appellees filed a motion for summary judgment, and two supplements to that motion, and the trial court granted judgment for appellees. On appeal, Milliken brings one point of error. She argues the trial court committed error in granting the appellees’ motion for summary judgment. We reverse.

Background

Michael Grigson (Michael) was injured during a chemical plant explosion. He received counseling over a period of approximately thirty months. Milliken was involved in providing counseling services to Michael and his family. Allegedly, Milliken told Michael she would not ask him to pay for her services, but instead would look solely to the insurance companies for payment.

Ronald McDearman was retained to represent the Grigsons in their suit against the chemical plant. Later, McDearman was joined by Smoot, Skepnek, and Skepnek’s firm in representing the family. Eventually Milliken became involved in aiding the lawyers in their representation of the Grigsons.² Milliken also provided counseling services for another individual, Carol Griffin (Griffin), also injured in the chemical plant explosion and represented by McDearman, Skepnek, and Smoot.

Attached to Milliken’s Second Amended Original Petition is a letter signed by McDearman acknowledging the receipt of Milliken’s bill for unpaid services for the Grigsons. The letter states:

We represent Michael and Barbara Grigson in a personal injury matter arising out of the Phillips 66 explosion which occurred in Harris County, Texas. As a primary health care provider of the four individuals referenced, I acknowledge your outstanding bill for services rendered and unpaid and advise that we will protect your interest for the outstanding balance from any award received in the settlement, judgment or compromise of the lawsuit in which we represent these people…..

The letter is signed by McDearman alone and is written on his firm’s letterhead.³

The lawsuit between the Grigsons, Griffin, and the chemical plant eventually settled. Apparently, the settlement amount did not include payment for the full cost of Milliken’s services. Milliken alleges that after the settlement, Skepnek advised her any bill she had for services performed for Michael would be paid by Michael’s workers compensation carrier.

Skepnek and Smoot allege Milliken and McDearman went to the Grigson’s home the day they received their settlement from the chemical plant and demanded $75,000 in settlement of the amount the Grigsons owed Milliken. Allegedly on McDearman’s advice the Grigsons wrote Milliken a check for the demanded amount, but later stopped payment. Nevertheless, the bank paid on the check over the stop payment order. The Grigsons, Milliken and the bank subsequently went to arbitration over the disputed $75,000. The outcome of the arbitration is not clear, but it appears the parties have come to some resolution as to the check payment dispute.

*2 Milliken filed this suit claiming she was owed approximately an additional $224,000. Milliken claims Skepnek and Smoot, along with McDearman, guaranteed she would be compensated for her services.⁴ Additionally, Milliken asserts claims for fraud and assault and battery, asserting Skepnek was present and refused to render aid while McDearman physically assaulted her.

Analysis

In her sole point of error, Milliken asserts that the trial court erred in granting summary judgment for the appellees. When reviewing a summary judgment, we follow these well-established rules: (1) the movant has the burden of showing that there is no genuine issue of material fact and that she is entitled to judgment as a matter of law; (2) in deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the nonmovant will be taken as true; and (3) every reasonable inference must be indulged in favor of the nonmovant and any doubts must be resolved in her favor. See Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex.1985). The movant must establish his entitlement to a summary judgment on the issues expressly presented to the trial court by conclusively proving all essential elements of his cause of action or defense as a matter of law. See City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671, 678 (Tex.1979). The nonmovant must expressly present to the trial court any reason that would defeat the movant’s right to summary judgment by filing a written answer or response to the motion. See McConnell v. Southside Indep. School Dist., 858 S.W.2d 337, 341 (Tex.1993). However, because the summary judgment must stand on its own merits, the nonmovant need not respond to the motion to contend on appeal that the grounds expressly presented to the trial court by the movant’s motion are insufficient as a matter of law to support summary judgment. See Clear Creek, 589 S.W.2d at 678. If the trial court does not specify the basis for granting summary judgment, the appealing party must show it is error to base it on any ground asserted in the motion. See Star-Telegram, Inc. v. Doe, 915 S.W.2d 471, 473 (Tex.1995); see also Carr v. Brasher, 776 S.W.2d 567, 569 (Tex.1989). Additionally, the reviewing court must affirm the summary judgment if any one of the movant’s theories has merit. See Star-Telegram, Inc., 915 S.W.2d at 473.

Breach of Contract

As to her breach of oral contract claim, Milliken asserts that summary judgment was improper because the appellees did not address her breach of oral contract claim in their motion for summary judgment or supplements to the motion for summary judgment. She argues the summary judgment erroneously adjudicates the oral contract claim because it contains Mother Hubbard language granting judgment on all claims.

*3 When a summary judgment order purports to dispose of a case in its entirety through the use of Mother Hubbard language, the judgment should be treated as final for purposes of appeal. See Mafrige v. Ross, 866 S.W.2d 590, 591-92 (Tex.1993). If the motion for summary judgment fails to address all claims, cross-claims, counter-claims, or parties, the appropriate procedure is to address the merits of the summary judgment, affirming the judgment as to the claims properly disposed of in the trial court and reversing the summary judgment as to any issues or parties that were not addressed in the motion. See Bandera Elec. Coop., Inc. v. Gilchrist, 946 S.W.2d 336, 337 (Tex.1997). In this case, appellees’ motion for summary judgment did not address Milliken’s claim for breach of oral contract.

Appellees argue the oral contract claim was not before the trial court because Milliken filed her Third Amended Petition less than seven days before the summary judgment hearing in violation of Texas Rule of Civil Procedure 63. They assert that the hearing on the motion for summary judgment was scheduled for September 6, 1996, but that Milliken did not file her Third Amended Petition until August 30, 1996.

Texas Rule of Civil Procedure 63 states that “any pleadings, responses or pleas offered for filing within seven days of the date of trial or thereafter shall be filed only after leave of the judge is obtained.” A summary judgment proceeding is considered a trial within the meaning of Rule 63. See Goswami v. Metro. Sav. and Loan Ass’n, 751 S.W.2d 487, 490 (Tex.1988). The Texas Supreme Court has specifically stated that Texas Rule of Civil Procedure 4 applies to any period of time prescribed by the rules of procedure. See Sosa v. Cent. Power & Light, 909 S.W.2d 893, 895 (Tex.1995)(citing Lewis v. Blake, 876 S.W.2d 314, 316 (Tex.1994)). Under Rule 4, the day Milliken amended her petition is not counted but the seventh day after it was filed is counted. See Tex.R. Civ. P. 4; See also Sosa, 909 S.W.2d at 895. Furthermore, the last day counted from the date of the filing may be the date of the hearing. See Sosa, 909 S.W.2d at 895.

Here, the summary judgment hearing was held on the seventh day from the date of the filing. Under Sosa, Milliken’s Third Amended Petition was properly before the court. Therefore, the trial court erred in granting summary judgment on a ground not expressly addressed in the appellees’ motion or supplemental motion for summary judgment. See Stiles v. Resolution Trust Corp. 867 S.W.2d 24, 26 (Tex.1993). The summary judgment is reversed as to the breach of oral contract claim and remanded to the trial court for further proceedings.

*4 Next we address Milliken’s guarantee claim. In her Third Amended Petition, Milliken claims damages under the guarantee agreement against Skepnek, Skepnek’s firm and Smoot based not only on oral assurances but also on the theory that the lawyers were bound by or ratified McDearman’s express letter of guarantee. In the appellees’ motion for summary judgment, Skepnek, Skepnek’s firm, and Smoot argue they are not bound by McDearman’s express letter of guarantee because McDearman had no authority to bind them. They assert that they were not partners or joint venturers. The also assert they had no prior knowledge of the letters and therefore did not ratify McDearman’s letter of guarantee. They also contend that Milliken already settled her claim against the Grigsons and therefore can not proceed against them.⁵

We hold summary judgment was improper as to the express guarantee claim. Appellees’ summary judgment evidence, as to the express guarantee claim, is based solely on the conclusory affidavit statements of Skepnek and Smoot. Both Skepnek and Smoot unequivocally state they were not in a partnership or joint venture with McDearman. They do not, however, attempt to disprove any one element of a partnership or joint venture. They simply assert that they are not bound by McDearman’s actions because there was no partnership or joint venture agreement between the parties. Testimony comprised only of legal conclusions is insufficient to support summary judgment as a matter of law. See Anderson v. Snider, 808 S.W.2d 54, 55 (Tex.1991); see also Hidalgo v. Surety Savings & Loan Ass’n, 487 S.W.2d 702, 703 (Tex.1972) (per curiam). This evidence alone is simply not enough to establish a right to summary judgment as a matter of law.

Appellees also argue that even assuming they guaranteed to pay Milliken for the services she rendered to the Grigsons and Griffin, she is not entitled to recover from them as guarantors because she already settled her claim against the Grigsons. Appellees do not discuss this argument with respect to Griffin. Therefore, summary judgment on this theory would be improper as to the amount allegedly owed for services performed for Griffin. The only evidence indicating the Grigsons already settled any claim Milliken had against them comes from Smoot’s affidavit. He states he was told by counsel for First Interstate Bank that Milliken and the Grigsons entered into a settlement.⁶ Milliken, however, in her affidavit expressly denies settling any claims with the Grigsons. Therefore, regardless of the appellees’ summary judgment proof, because we must take the summary judgment proof submitted by Milliken’s as true in determining whether a disputed material fact issue exists, we hold Milliken’s affidavit creates a genuine issue of material fact precluding summary judgment on this issue. See Nixon, 690 S.W.2d at 548-49.

*5 Because we hold the appellees are not entitled to summary judgment on Milliken’s partnership or joint venture theory of recovery under the express guarantee claim or on the theory that Milliken already settled her claims with the Grigsons, we need not address ratification.⁷ Even if we concluded the appellees proved they did not ratify McDearman’s letter of guarantee as a matter of law, it would not be dispositive because there would still be a fact issue as to the appellees’ liability under the express guarantee by means of partnership or joint venture liability. Therefore, we will reverse the summary judgment as to the express guarantee claim and remand to the trial court for further proceedings.

Fraud

Milliken also sued the appellees for fraud. In the appellees’ motion for summary judgment, they do not expressly discuss Milliken’s claim for fraud. Likewise, none of the evidence appears to concern her claim for fraud. In the appellees’ second supplement to their motion for summary judgment, they argue Milliken’s fraud claim was not pleaded with specificity. There is no indication, however, that the appellees filed any special exceptions to Milliken’s petition. In their supplemental motion for summary judgment the appellees assert Milliken has the burden on summary judgment to come forward with proof on each of the elements of her fraud claim. They argue that because she did not meet her burden, summary judgment was proper on this claim. We disagree.

In order to uphold a summary judgment on fraud, the appellees had the burden of disproving at least one element of Milliken’s fraud claim. See American Tobacco Co., Inc. v. Grinnell, 951 S.W.2d 420, 425 (Tex.21997) (reiterating that summary judgment is proper if the defendant disproves at least one element of each of the plaintiff’s claims). The elements of actionable fraud are (1) that a material misrepresentation was made, (2) that it was false, (3) that, when the speaker made it, he knew it was false or made it recklessly without any knowledge of its truth and as a positive assertion, (4) that the representation was made with the intention that it should be acted upon by the party, (5) that the party acted in reliance on it, and (6) that the party thereby suffered injury. See Trenholm v. Ratcliff, 646 S.W.2d 927, 930 (Tex.1983).

Appellees bore the burden to disprove one element of Milliken’s fraud claim, but failed to meet their burden. Milliken’s Third Amended Petition claimed that the appellees committed fraud by making material misrepresentations as to their intent to pay her for her services. Moreover, in her affidavit attached to her response the defendants motion for summary judgment, she asserted Skepnek and Smoot told her they would pay her the amount she was owed for treating the Grigsons. Appellees elected not to present summary judgment proof disproving at least one element of her claim. We hold Milliken’s affidavit raises a genuine issue of material fact regarding the statements made by Smoot and Skepnek regarding payment of her fees. Accordingly, summary judgment as to Milliken’s fraud claim was improper.

*6 Next we review the summary judgment with respect to Milliken’s claim based on quantum meruit. To establish a claim for quantum meruit, a complainant must show that (1) valuable materials and services were furnished, (2) for the person or entity sought to be charged, (3) these services were accepted, used, and enjoyed by the person or entity sought to be charged, (4) under such circumstances as to reasonably have notified the person or entity sought to be charged that the claimant, in furnishing properties or performing services, was expecting to be paid by the person sought to be charged. See Vorrtt Exploration Co. v. Chevron U.S.A., Inc., 787 S.W.2d 942, 944 (Tex.1990); See also Economy Forms v. Williams Bros. Consto. Co., Inc., 754 S.W.2d 451, 458 (Tex.App.-Houston [14 ^th Dist.] 1988, no writ) (citations omitted). Generally, a party who seeks to recover the reasonable value of services rendered can recover in quantum meruit only when there is no contract covering those services or materials. See id.

We hold summary judgment was also improper as to Milliken’s claim for quantum meruit. Appellees’ motion for summary judgment altogether fails to address Milliken’s quantum meruit claim. However, in appellees’ second supplement to their motion for summary judgment they assert Milliken is not entitled to quantum merit damages because they are not the person or entity for which valuable services were rendered. They also argue the claim is barred because an express contract exists between Milliken and the Grigsons and Griffin barring her recovery under this theory.⁸ Milliken, however, appears to assert claims not only for the work she performed for the Grigsons and Griffin, but also for the work she did for the appellees. In her affidavit attached to her response to the appellees’ motions for summary judgment, she lists a wide variety of tasks which she performed for the attorneys in relation to their preparation for the lawsuit against the chemical plant. Furthermore, the appellees’ motion contains no proof showing any contract between the Grigsons or Griffin and Milliken which would affect Milliken’s standing to bring her quantum meruit claim. The burden is on the movant to show entitlement to summary judgment as a matter of law and that there is no genuine issue as to any material fact. See Tex.R. Civ. P. 166a(c). Because the movants here failed to satisfy their summary judgment burden, we reverse the summary judgment as to this claim as well and remand this issue to the trial court for further proceedings.

Finally, we address Milliken’s claim against Skepnek and Skepnek’s firm for assault and battery.⁹ Where one person assists another in making an assault, both are principals and liable in damages for any injury inflicted. See Stein v. Meachum, 748 S.W.2d 516, 518-19 (Tex.App.-Dallas 1988, no writ); See also Francis v. Kane, 246 S.W.2d 279, 281 (Tex.App.-Amarillo 1951, no writ). Anyone who commands, directs, advises, encourages, procures, controls, aids, or abets a wrongful act by another, is just as responsible for the wrongful act as the one who actually committed it. See Stein, 748 S.W.2d at 518-19.

*7 The appellees’ motion for summary judgment has, as an attachment, portions of the deposition of Skepnek. At one point in the deposition, he stated “I never witnessed either one of them [McDearman or Milliken] ever strike the other, nor did I ever see any evidence of that ever having happened.” Later, in that same deposition, Skepnek was asked what his response would have been if he had known of any physical abuse between McDearman and Milliken and been present during the alleged attack. He responded that he would not abide a woman being struck in his presence, “period.”

Milliken, in her response the defendants’ summary judgment motions, stated in her affidavit that she was assaulted by McDearman during a dispute about her fees. She asked for help from Skepnek who was standing nearby, and Skepnek refused to help, thereby encouraging McDearman to continue the assault.

This court’s duty in reviewing a summary judgment and determining whether a fact issue is present, is to take the evidence favorable to the nonmovant as true. See Nixon, 690 S.W.2d at 548. Thus, we accept Milliken’s affidavit asserting that Skepnek was present and passive during the assault as factually accurate, and because it refutes the assertions of Skepnek in his deposition, Skepnek has failed to meet his Rule 166a(c) summary judgment burden to establish that he is entitled to summary judgment as a matter of law and, most importantly, that there are no genuine issues of material fact. Accordingly, we hold that Milliken’s affidavit created a genuine issue of material fact as to her assault and battery claim against Skepnek and his firm.¹⁰ Therefore, summary judgment was improper as to this claim as well.

Because we sustain Milliken’s sole point of error, we reverse the judgment in its entirety and remand her claims to the trial court for further proceedings consistent with this opinion.

	Footnotes
11		Senior Justice Norman R. Lee sitting by assignment.
1		Milliken also filed suit against Ronald G. McDearman, individually, and the law firm of Ronald G. McDearman & Associates. She secured a no answer default judgment against both and neither are a party to this appeal.
2		The record is not entirely clear on the exact role Milliken played in assisting the lawyers in trial preparation. Nevertheless, Milliken lived in an apartment with the attorneys while they prepared for trial. Apparently, Milliken and McDearman became involved in a personal relationship.
3		Milliken’s Second Amended Original Petition also contains an identical letter concerning services provided to Griffin whom McDearman, Skepnek and Smoot also represented. The letter is also signed by McDearman alone on his firm’s letterhead.
4		Milliken’s Third Amended Petition simply contains a claim for debt. She seeks damages, however, for breach of an oral agreement and/or breach of the guarantee agreement, and she asserts in the petition that Smoot, Skepnek, and the Skepnek firm directly contracted with her to pay her for the psychological services which she had provided.
5		Attached to the motion are the affidavits of Skepnek and Smoot along with excerpts from their depositions. The attached affidavit evidence basically reiterates their summary judgment arguments. Both deny expressly guaranteeing payment for her services and assert that no basis exists for binding them through McDearman.
6		This evidence is problematic for several reasons. First, Smoot’s affidavit contains hearsay statements. Second, there is no clear evidence showing any settlement concerning the wrongly paid $75,000 would include settlement for the claims Milliken has against the Grigsons. The settlement could concern only the issue of whether the check was wrongly paid over a stop payment order. The appellees do not attach any document expressly showing Milliken and the Grigsons reached a settlement concerning Milliken’s claim for payment for services rendered.
7		The appellees filed a post submission supplemental brief arguing a lawyer’s letter of protection or other promise to pay or guarantee client funds to a third party is void and unenforceable. We can not consider this argument, however, because it was never presented to the trial court in the appellees’ motion for summary judgment or supplemental motion for summary judgment. See McConnell, 858 S.W.2d at 340-41.
8		They also assert Milliken’s petition is not specific as to her claim for quantum meruit damages. Here again, the appellees failed to specially except to any portion of Milliken’s petition.
9		Milliken alleges Skepnek watched as McDearman assaulted her and refused to render aid, thereby encouraging McDearman’s assault. In her Third Amended Petition, Milliken alleges the assault took place while they were discussing the guarantee of her services. Additionally, in her response to the appellees’ motions for summary judgment, Milliken argues Skepnek’s firm is liable because he was acting in the course and scope of his employment.
10		Skepnek made no separate argument concerning the liability of his firm as to the assault claim. Therefore, summary judgment for Skepnek’s firm is also improper.