Court of Appeals of Texas, Dallas.
Bernard J. DOLENZ, Appellant
v.
OLD REPUBLIC INSURANCE COMPANY, Appellee
No. 05-94-00681-CV
|
April 25, 1995
Before BAKER, KINKEADE and MORRIS, JJ.
KINKEADE, J.
OPINION
*1 Bernard J. Dolenz appeals a summary judgment granted in favor of Old Republic Insurance Company (“Old Republic”) in his suit to recover medical fees. In one point of error containing fourteen subpoints, Dolenz contends the trial court erred in granting summary judgment for Old Republic. Because we conclude that genuine issues of material fact exist as to Dolenz’s breach of contract cause of action against Old Republic, we reverse the portion of the trial court’s judgment granting summary judgment on the breach of contract claim and remand the cause for further proceedings. In all other respects, we affirm the trial court’s judgment.
FACTUAL AND PROCEDURAL HISTORY
Dolenz, a physician, treated Corrine Thomas for injuries she sustained while employed by ARA Services and for accompanying depression. At the time of the injury, ARA Services was a subscriber of workers’ compensation insurance issued by Old Republic. Dolenz sought payment of Thomas’s medical bills from Old Republic. Old Republic refused to pay some disputed charges.
On September 13, 1990, Thomas and a representative of Old Republic signed a compromise settlement agreement (“CSA”) covering Thomas’s disputed medical expenses. Under the terms of the CSA, Old Republic agreed to pay Thomas $13,500. Old Republic further agreed that it would pay or had paid all past reasonable and necessary medical bills resulting from Thomas’s injury. Finally, Old Republic agreed to pay all future reasonable and necessary medical bills resulting from Thomas’s injury rendered by or at the direction of Dolenz until August 28, 1991.
Later, Dolenz filed a claim with the Commission regarding payments not made under the CSA. The record does not reflect what date Dolenz filed this claim. After a hearing, the Commission awarded Dolenz a portion of the disputed charges. The Commission ordered Old Republic to pay Dolenz $8000 and denied Dolenz’s remaining charges. Old Republic paid Dolenz the awarded amount.
Dolenz filed suit, appealing the Commission award, to recover the remainder of the disputed charges. Dolenz alleged causes of action for suit on a sworn account, breach of contract, negligent breach of contract, tortious interference, quantum meruit, fraud, breach of the duty of good faith and fair dealing, and constitutional violations. Old Republic filed a motion for summary judgment which was granted by the trial court.
IMPROPER BRIEFING
Dolenz asserts one point of error: “The trial court erred in granting summary judgment on all of the causes of action pled for [sic] as there are genuine issues of material fact, and that [sic] the carrier is not entitled to judgment as a matter of law.” Dolenz then sets out fourteen alleged material fact questions, labelling them “a” through “n”. For several of the alleged material fact questions, Dolenz completely fails to cite to the record where we can find support for his arguments. Where he does cite to the record, he makes general references to pages without specifying the evidence he relies on. In one section, Dolenz does not cite to any authority. In some instances, on its face, the authority cited does not appear to be related to the alleged fact issue. For alleged fact issues “a” through “c” and “f” through “n”, Dolenz fails to include any discussion applying authority to the facts of this case.
*2 Rule 74(f) of the Texas Rules of Appellate Procedure requires each party’s brief to contain argument including: “(1) a fair, condensed statement of the facts pertinent to such points, with reference to the pages in the record where the same may be found; and (2) such discussion of the facts and the authorities relied upon as may be requisite to maintain the point at issue.” Tex. R. App. P. 74(f). Where the appellant does not comply with rule 74(f) and fails to include these required elements in his brief, the appellant waives any alleged error. Smith v. Valdez, 764 S.W.2d 26, 27 (Tex. App.-San Antonio 1989, writ denied); Shenandoah Assocs. v. J & K Properties, Inc., 741 S.W.2d 470, 492 (Tex. App.-Dallas 1987, writ denied)(op. on reh’g). Failure of the appellant to cite to the record constitutes waiver. Smith, 764 S.W.2d at 27. Additionally, merely citing to authority is insufficient. The appellant must support each point with argument or explanation. Wiley v. Browning, 670 S.W.2d 729, 732 (Tex. App.-Tyler 1984, no writ); Bartlett v. American Republic Ins. Co., 845 S.W.2d 342, 348 (Tex. App.-Dallas 1992, no writ); Champion v. Wright, 740 S.W.2d 848, 852 (Tex. App.-San Antonio 1987, writ denied).
The briefing on alleged fact issues “a” through “c” and “f” through “n” falls below the minimum requirements of rule 74. See Tex. R. App. P. 74(f). We conclude Dolenz waived any error alleged in sections “a” through “c” and “f” through “n” of his sole point of error. We overrule those sections.
STANDARD OF REVIEW OF SUMMARY JUDGMENT
The trial court may render summary judgment only if the pleadings, depositions, admissions, and affidavits show that: (1) there is no genuine issue of material fact, and (2) the moving party is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c); Rodriguez v. Naylor Indus., Inc., 763 S.W.2d 411, 413 (Tex. 1989). A summary judgment seeks to eliminate patently unmeritorious claims and untenable defenses, not to deny a party its right to a full hearing on the merits of any material fact issue. Gulbenkian v. Penn, 151 Tex. 412, 416, 252 S.W.2d 929, 931 (1952). In a summary judgment proceeding, the defendant, as movant, must either: (1) disprove at least one element of each of the plaintiff’s theories of recovery, or (2) plead and conclusively establish each essential element of an affirmative defense, thereby rebutting the plaintiff’s cause of action. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979). A summary judgment for the defendant disposing of the entire case is proper only if, as a matter of law, viewing the evidence in the light most favorable to the plaintiff, the plaintiff could not succeed upon any theory pleaded. Delgado v. Burns, 656 S.W.2d 428, 429 (Tex. 1983). Once the defendant produces sufficient evidence to establish the right to summary judgment, the burden shifts to the nonmovant to produce controverting evidence raising a fact issue. Torres v. Western Cas. & Sur. Co., 457 S.W.2d 50, 52 (Tex. 1970).
*3 In deciding whether a material fact issue exists, we accept as true, evidence favorable to the nonmovant. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex. 1985). We indulge every reasonable inference and resolve any doubts in the nonmovant’s favor. Id. at 549. In granting a summary judgment, the trial court is confined to the specific grounds set forth in the motion. See Clear Creek Basin Auth., 589 S.W.2d at 677. Likewise, issues not expressly presented to the trial court in writing shall not be considered on appeal as grounds for reversal. Id. at 676. When the trial court’s order granting summary judgment does not specify the grounds upon which it rests, this Court may affirm the trial court’s judgment if any ground raised in the motion is meritorious. Carr v. Brasher, 776 S.W.2d 567, 569 (Tex. 1989). We will reverse and remand the cause for trial on the merits if the trial court improperly granted summary judgment. Tobin v. Garcia, 159 Tex. 58, 63- 64, 316 S.W.2d 396, 400 (1958).
TORTIOUS INTERFERENCE
Under section “e” of his sole point of error, Dolenz asserts there is a fact question as to whether Old Republic tortiously interfered with the contract between Dolenz and Thomas. Dolenz argues that Old Republic: (1) encouraged Thomas to see another physician; (2) refused to fill prescriptions; and (3) refused to pay fully for Thomas’s treatment. Old Republic responds that its summary judgment evidence established that Old Republic: (1) did not interfere with any contract between Dolenz and Thomas; and (2) its actions were privileged as a matter of law.
Under the Workers’ Compensation Act, an insurance carrier has the right to challenge the reasonableness and necessity of medical bills submitted to it on behalf of a claimant. The Act requires the Commission to review the charges and make a finding as to the amount that is fair and reasonable. See Act approved June 19, 1983, 68th Leg., R.S., ch. 483, § 6, 1983 Tex. Gen. Laws 2822, repealed by Act approved December 13, 1989, 71st Leg., 2d C.S., ch. 1, § 16.01(7), 1989 Tex. Gen. Laws 114 (current version at Tex. Lab. Code Ann. § 408.027 (Vernon Pamph. 1995)). The Act further provides an appeals process including judicial review. See Act approved June 15, 1977, 65th Leg., R.S., ch. 412, § 1, 1977 Tex. Gen. Laws 1113, repealed by Act approved December 13, 1989, 71st Leg., 2d C.S., ch. 1, § 16.01(10), 1989 Tex. Gen. Laws 114 (current version at Tex. Lab. Code Ann. § 410.251 (Vernon Pamph. 1995)).
As summary judgment evidence, Old Republic presented the affidavit of Felicia Yates, a claims supervisor, who stated that Thomas’s employer subscribed to workers’ compensation insurance written by Old Republic. As the workers’ compensation insurance carrier, Old Republic had the right to dispute submitted medical charges. See Pacific Indem. Ins. Co. v. Liberty Mut. Ins. Co., 834 S.W.2d 91, 93 (Tex. App.-Austin 1992, no writ). The legislature created a statutory scheme for resolving such disputes. We conclude that the acts Dolenz characterizes as tortious interference constitute a statutorily permitted contest to the reasonable and necessary nature of the medical expenses. Dolenz submitted no summary judgment evidence to show that Old Republic committed the alleged tortious interference through acts other than those permitted by statute. Therefore, Dolenz failed to raise a genuine issue of material as to this claim. We conclude the trial court properly granted summary judgment in favor of Old Republic on Dolenz’s tortious interference claim. We overrule section “e” of Dolenz’s point of error.
COMPROMISE SETTLEMENT AGREEMENT
*4 In section “d” of his point of error, Dolenz contends there is a fact question as to whether Old Republic breached the CSA between Thomas and Old Republic by not paying Dolenz, a third-party beneficiary of the contract, the full amount billed. Dolenz argues that the breach constitutes both a breach of contract and negligent breach of contract, entitling him to recover tort damages as well as contract damages. We shall consider each alleged cause of action separately.
Negligent Breach of Contract
Dolenz argues that accompanying every contract is a common law duty to perform the contract with care, skill, reasonable expedience, and faithfulness and that some contracts involve special relationships that may give rise to duties enforceable under tort law. In support of his argument, Dolenz cites to the Texas Supreme Court cases of Montgomery Ward & Co. v. Scharrenbeck, 146 Tex. 153, 204 S.W.2d 508 (1947) and Southwestern Bell Telephone Co. v. DeLanney, 809 S.W.2d 493 (Tex. 1991). Dolenz alleges that Old Republic breached its common law duty of care by not promptly paying Dolenz under the CSA and that such breach is a tort entitling him, as a third-party beneficiary of the contract, to punitive damages.
Both Scharrenbeck and DeLanney address negligence in connection with breach of contract. In Scharrenbeck, the court held that, “where there is a general duty even though it arises from the relation created by, or from the terms of a contract, and that duty is violated, either by negligent performance or negligent nonperformance, the breach of the duty may constitute actionable negligence.” Scharrenbeck, 204 S.W.2d at 510. However, in DeLanney, the court explained that the Scharrenbeck defendants breached both the contract and a separate common law duty recoverable in tort. See DeLanney, 809 S.W.2d at 494. The court held in DeLanney, that if the defendant’s conduct gives rise to liability independent of the contract, the plaintiff’s claim may sound in tort as well as in contract. Id. If the defendant’s conduct gives rise to liability only because it breached the contract between the parties, the plaintiff’s claim ordinarily sounds in contract only. Id. When the only loss or damage is to the subject matter of the contract, the plaintiff’s action is ordinarily on the contract. Id.
Dolenz contends Old Republic breached a duty of care by not promptly paying all of the medical expenses as promised in the settlement agreement between Thomas and Old Republic. Dolenz’s damages arise solely from the alleged nonperformance of the CSA. Old Republic did not breach a duty separate from that owed under that contract. Thus, if Dolenz has a cause of action, it is only for breach of contract. He cannot create liability in tort by merely alleging tort damages. Because Old Republic did not breach a common law duty independent of the contract, the trial court did not err in granting summary judgment in favor of Old Republic on Dolenz’s negligent breach of contract claim. See DeLanney, 809 S.W.2d at 495; Janicek v. KIKK, Inc., 853 S.W.2d 780, 782 (Tex. App.-Houston [14th Dist.] 1993, writ denied). We overrule that portion of section “d” of Dolenz’s point of error complaining of summary judgment on the negligent breach of contract claim.
Breach of Contract
*5 Generally, only parties to a contract have the right to complain of its breach. Temple Eastex, Inc. v. Old Orchard Creek Partners, Ltd., 848 S.W.2d 724, 730 (Tex. App.-Dallas 1992, writ denied)(op. on reh’g). However, one who is a third-party beneficiary of a contract is entitled to bring an action on the contract. Id. To establish intended third-party beneficiary status, one must prove that the contracting parties had the intent to create a third-party beneficiary and that the intent is clearly and fully spelled out in the terms of the contract. Benefit Trust Life Ins. Co. v. Littles, 869 S.W.2d 453, 463 (Tex. App.-San Antonio 1993, no writ). The essential elements of a suit for breach of contract are: (1) the existence of a valid contract; (2) the plaintiff’s performance or tendered performance; (3) the defendant’s breach of the agreement; and (4) the plaintiff’s resulting damages. Landrum v. Devenport, 616 S.W.2d 359, 361 (Tex. Civ. App.-Texarkana 1981, no writ). A party breaches a contract when the party fails or refuses to perform an act that it expressly promised to perform. Methodist Hospitals v. Corporate Communications, Inc., 806 S.W.2d 879, 882 (Tex. App.-Dallas 1991, writ denied).
Dolenz alleges that Old Republic has a contractual duty to pay Dolenz the fair and reasonable costs of medical treatment he administered to Thomas. Dolenz further alleges that Old Republic failed to pay him reasonable and customary charges in the amount of $19,992.23.
As movant, Old Republic had to disprove at least one element of Dolenz’s cause of action for breach of contract or plead and conclusively establish each element of an affirmative defense. The Yates Affidavit submitted as summary judgment evidence by Old Republic states that Old Republic paid the $8,000 Commission award, but refused to pay the full amount of the claim. Yates further states that Old Republic made no representation or promise to Dolenz other than payment of the Commission award. Old Republic argues that the Yates Affidavit conclusively proved there is no contract between Dolenz and Old Republic and Dolenz cannot recover for breach of a nonexistent contract.
However, Dolenz did not allege, in either his petition or his response to Old Republic’s motion for summary judgment, that he and Old Republic had entered into a contract. Rather, Dolenz alleged he was the third-party beneficiary of the CSA between Old Republic and Thomas. Dolenz submitted as summary judgment evidence the CSA which, on its face, benefits Dolenz. The burden on Old Republic was to negate the elements of breach in connection with the contract between Old Republic and Thomas. Old Republic offered no summary judgment evidence to negate such a breach.
Old Republic contends Dolenz raised his third-party beneficiary argument for the first time on appeal. Old Republic further contends that Dolenz’s summary judgment evidence was not properly authenticated and that Old Republic’s objection to Dolenz’s summary judgment evidence was sustained by the trial court. We disagree with both contentions.
*6 First, the record shows that Dolenz alleged in both his petition and his response to Old Republic’s motion for summary judgment that Old Republic is liable to him pursuant to his status as a third-party beneficiary of the CSA. Second, Old Republic’s claim that its objection to Dolenz’s summary judgment evidence was sustained, thereby invalidating that evidence, is not supported by the record. To be effective, an order of a trial court sustaining an objection to summary judgment evidence must be reduced to writing, signed by the trial court, and entered of record. Utilities Pipeline Co. v. American Petrofina Mktg., 760 S.W.2d 719, 723 (Tex. App.-Dallas 1988, no writ). Old Republic does not point to the place in the record where such an order can be found and our search of the record reveals no such order. We conclude, therefore, that we can consider Dolenz’s summary judgment evidence, including the settlement agreement.
By its summary judgment evidence Old Republic did not conclusively establish that there is no material fact question concerning Dolenz’s breach of contract cause of action. Indulging every reasonable inference in Dolenz’s favor, we conclude that summary judgment in favor of Old Republic on Dolenz’s breach of contract claim was improper. We sustain that portion of Dolenz’s point of error complaining, under section “d”, of judgment on the breach of contract claim.
CONCLUSION
Because Old Republic did not establish its right to summary judgment on Dolenz’s breach of contract claim, the trial court improperly granted summary judgment for Old Republic on that claim. Consequently, we reverse that portion of the trial court’s judgment granting summary judgment in favor of Old Republic on Dolenz’s breach of contract claim and remand this cause for further proceedings consistent with this opinion. In all other respects, we affirm the trial court’s judgment.