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At a Glance:
Title:
Almanza v. Transcontinental Ins. Co.
Date:
July 23, 1996
Citation:
05-95-00960-CV
Status:
Unpublished Opinion

Almanza v. Transcontinental Ins. Co.

Court of Appeals of Texas, Dallas.

Dorothy C. ALMANZA, Appellant

v.

TRANSCONTINENTAL INSURANCE COMPANY, Continental Casualty Insurance Company, and CNA Companies, Appellees

No. 05-95-00960-CV

|

July 23, 1996.

On Appeal from the 68th District Court Dallas County, Texas Trial Court Cause No. 91-10157-C

Before Justices JAMES, and STEPHENS1

OPINION

Opinion By Justice STEPHENS

*1 This is an appeal from a summary judgment. In three points of error, appellant Dorothy C. Almanza complains the trial court erred in setting aside the mediated settlement agreement and in granting appellee Transcontinental Insurance Company’s motion for summary judgment. In two cross-points of error, appellees Transcontinental Insurance Company, Continental Casualty Insurance Company, and CNA Companies complain the trial court erred in ordering them to pay Almanza’s expert witness fees and attorney’s fees in connection with the motion to require payment of the expert witness fees. We dismiss Almanza’s first and third points of error. We overrule Almanza’s second point of error and appellees cross-points of error. We affirm the trial court’s judgment.

PROCEDURAL HISTORY

This case arose from a workers’ compensation claim. Transcontinental brought an action to set aside the Texas Industrial Accident Board’s award to Almanza. Almanza counterclaimed for her workers’ compensation benefits. The parties were then realigned. Almanza subsequently amended her petition to allege causes of action against Transcontinental for breach of its duty of good faith and fair dealing and other causes of action regarding the handling of Almanza’s workers’ compensation claim.

Before trial, Almanza and Transcontinental went to mediation and settled the workers’ compensation claim. The handwritten mediated settlement agreement, dated July 18, 1992, states: “No settlement or release of breach of good faith and fair dealing claims or other claims handling practices claims however denominated.” The typewritten version of the mediated settlement agreement, dated August 8, 1992, states: “All parties agree to cooperate fully and to execute any and all supplementary documents and to take all additional action which is consistent with and which may be necessary or appropriate to give full force and effect to the basic terms and intent of this Agreement.” Almanza and her attorney and a representative of Transcontinental signed each of these documents. Additionally, the trial judge signed the typewritten agreement, showing his approval, on September 8, 1992.

Almanza, by virtue of an amended petition, dismissed her workers’ compensation claim against Transcontinental. When Transcontinental would not fund the settlement agreement absent Almanza’s written release of her workers’ compensation claim, Almanza filed a motion to enforce the mediated settlement agreement. Additionally, Almanza amended her petition to allege a cause of action against Transcontinental for breach of its duty of good faith and fair dealing in not funding the settlement agreement. Almanza subsequently amended her petition to add Continental Casualty Insurance Company and CNA Companies as defendants, alleging the same causes of action as alleged against Transcontinental. The amended petition alleged that Transcontinental is a wholly owned subsidiary of these two companies.

*2 On October 16, 1992, the trial court conducted a hearing on Almanza’s motion to enforce the settlement agreement. The trial judge stated “Okay. I’m going to require [Almanza] to sign [the release] before I will sign an order enforcing the settlement. She signs that release, I will enter this order and she’ll get her money forthwith.” Almanza was given until 5:00 p.m. that day to make her decision. On November 13, 1992, the trial court signed an order that stated:

On the 16th day of October, 1992, came on to be heard the above-styled and numbered cause, wherein DOROTHY C. (CHRISTINE) ALMANZA is Plaintiff, and TRANSCONTINENTAL INSURANCE COMPANY is Defendant, and, after argument of counsel, the Court found that the Plaintiff, DOROTHY C. (CHRISTINE) ALMANZA, and her attorney, should execute the settlement papers prepared by the carrier and receive the lump sum settlement proceeds on the workers’ compensation cause of action, or, if the Plaintiff and her attorney chose not to execute the settlement papers, then they would not receive the settlement proceeds; with the Plaintiff making her decision by 5:00 p.m. On October 16, 1992.

IT IS THEREFORE ORDERED, ADJUDGED AND DECREED by the Court that the Plaintiff, DOROTHY C. (CHRISTINE) ALMANZA, and her attorney, should execute the settlement papers prepared by the carrier and receive the lump sum settlement proceeds on the workers’ compensation cause of action, or, if the Plaintiff and her attorney chose not to execute the settlement papers, then they would not receive the settlement proceeds; with the Plaintiff making her decision by 5:00 p.m. on October 16, 1992.

SIGNED this the 13 day of November, 1992.

/s/ Ted M. Akin JUDGE PRESIDING

It is undisputed that Almanza and her attorney did not sign the settlement papers, and the settlement was not funded.

Transcontinental moved for summary judgment on the breach of duty of good faith and fair dealing claim regarding its failure to fund the settlement agreement. The trial court granted the motion by a partial summary judgment signed January 25, 1994. On March 16, 1994, a different judge set aside the November 13, 1992 order that set aside the settlement agreement. On August 31, 1994, the November 13, 1992 order was reinstated by the judge who signed the original order. Through a series of rulings on special exceptions, non-suits, and a severance, the remaining issues in this case were disposed of. Thus, the partial summary judgment became final for purposes of appeal.

SCOPE OF APPEAL

The only issues before this Court raised by Almanza involve the order setting aside the mediated settlement agreement and the summary judgment on Almanza’s claim for breach of duty of good faith and fair dealing in not funding the mediated settlement agreement.2 Also before this Court are appellees’ cross-points involving the trial court’s ordering them to pay Almanza’s expert witness fees and attorney’s fees in connection with the motion to require payment of the expert witness fees.

ORDER SETTING ASIDE MEDIATED SETTLEMENT AGREEMENT

*3 In her first point of error, Almanza complains the trial court erred in setting aside the mediated settlement agreement by its November 13, 1992 order. In her third point of error, Almanza contends the trial court erred in reinstating the November 13, 1992 order that set aside the mediated settlement agreement.

Almanza voluntarily dismissed her workers’ compensation claim by omitting it from her amended petition. See Webb v. Jorns, 488 S.W.2d 407, 409 (Tex.1972) (omitting defendant from amended petition operates as voluntary dismissal of party). The mediated settlement agreement related solely to Almanza’s workers’ compensation claim. The order setting aside the mediated settlement agreement, therefore, also related to the workers’ compensation claim. Due to its dismissal, the workers’ compensation claim was not part of the summary judgment proceedings, and is not part of this appeal.3

We conclude there is nothing before us to review regarding the correctness of the orders setting aside the mediated settlement agreement. We dismiss Almanza’s first and third points of error.

SUMMARY JUDGMENT

In her second point of error, Almanza asserts the trial court erred in granting Transcontinental’s motion for summary judgment. Almanza asserts there were genuine issues of material fact as to her cause of action.

A. Standard of Review

The standard of review for summary judgment is well established. Gulbenkian v. Penn, 151 Tex. 412, 416, 252 S.W.2d 929, 931 (1952). The purpose of the summary judgment rule is to eliminate patently unmeritorious claims or untenable defenses. Id. The trial court’s duty is to determine if there are any material fact issues to try, not to weigh the evidence or determine its credibility and try the case on affidavits. Id.

A movant must show its entitlement to summary judgment on the issues expressly presented to the trial court by conclusively proving all essential elements of its cause of action or defense as a matter of law. Rogers v. Ricane Enters, Inc., 772 S.W.2d 76, 79 (Tex.1989).

B. Analysis

*4 With regard to Almanza’s claim for breach of the duty of good faith and fair dealing in not funding the settlement agreement, Transcontinental moved for summary judgment on two grounds. One of the grounds on which Transcontinental moved for summary judgment was that the trial court had ordered that the payments not be made.

The elements of a claim for breach of duty of good faith and fair dealing against an insurer are: (1) the absence of a reasonable basis for denying payment; and (2) the insurer knew or should have known that no reasonable basis existed for not making payment. Williams v. Crum & Forster Commercial Ins., 915 S.W.2d 39, 43 (Tex.App.-Dallas 1995, writ pending). It is undisputed that the trial court ordered the settlement agreement be set aside and no payments be made if Almanza did not sign the release. It is also undisputed that Almanza did not sign the release. Almanza asserts that the trial court’s order setting aside the mediated settlement agreement was invalid; therefore, Transcontinental could not rely on it as the basis for not funding the settlement agreement. We disagree.

Generally, parties must obey even an invalid order until it is overturned on appeal. Tex.R.App. P. 60 (dismissal of appeal for failure to comply with order of appellate court). It would lead to an absurd result if we sanctioned parties for failing to comply with a court order, but allowed them to be subject to a bad faith claim for actions taken in reliance on or in accordance with a court order.

We hold as a matter of law that a party does not act in bad faith when it acts, or fails to act, in reliance on or in accordance with a court order. Cf. Tex. Lab.Code Ann. § 416.001 (Vernon Supp. Pamp.1996) (action taken by insurance carrier under order of commission or recommendation of benefit review officer may not be basis for cause of action for breach of duty of good faith and fair dealing). We conclude the trial court properly granted Transcontinental’s motion for summary judgment on Almanza’s claim that it breached its duty of good faith and fair dealing in not funding the settlement agreement. We overrule Almanza’s second point of error.

TRANSCONTINENTAL’S CROSS-POINTS

In their first cross-point of error, appellees complain that the trial court erred in ordering them to pay Almanza’s expert witness fees. In their second cross-point of error, appellees assert the trial court erred in ordering them to pay Almanza’s attorney’s fees arising out of her motion to require payment of the expert witness fees.

*5 The rules of appellate procedure provide that the brief of argument shall contain “such discussion of the facts and the authorities relied upon as may be requisite to maintain the point at issue.” rule 74(f). We overrule appellees’ two cross-points of error.

CONCLUSION

We affirm the trial court’s judgment. We order that each party bear its own costs of this appeal. Because Almanza’s claim is essentially one in tort, we conclude that Almanza is not precluded from bearing her own costs of this appeal.

Footnotes

1

The Honorable Bill J. Stephens, Justice, Court of Appeals, Fifth District of Texas at Dallas, Retired, sitting by assignment.

2

The severance order specified that “all causes of action relating to events occurring on or after July 18, 1992, shall be tried separately from all other claims.” Transcontinental moved for summary judgment and the trial court granted summary judgment against Almanza on some of her claims that arose prior to July 18, 1992. Based on the wording of the severance order, we conclude the summary judgment as to those claims did not remain with that portion of the summary judgment dealing with Almanza’s post-settlement claims currently before us.

3

To the extent Almanza attempts to appeal the trial court’s order on the mediated settlement agreement independent of the summary judgment, we conclude the two orders were not final appealable orders. To be appealable, an order must be a final judgment; an interlocutory order is not appealable unless specifically made so by statute. See Starnes v. Holloway, 779 S.W.2d 86, 93 (Tex.App.-Dallas 1989, writ denied). An order which does not finally preclude further court proceedings is not a final appealable judgment. Id. The two orders of which Almanza complains did not adjudicate the merits of the underlying dispute, nor did they preclude further court proceedings. They merely returned the parties to the positions they held prior to mediation.

End of Document
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