On Appeal from the 269th District Court Harris County, Texas Trial Court Cause No. 2008-36847A
The opinion of the court was delivered by: Kem Thompson Frost Justice
Reversed and Rendered and Opinion filed April 18, 2013.
In The Fourteenth Court of Appeals
A real estate developer sued two individuals and a limited partnership alleging various claims. The defendants filed third-party claims against various third-party defendants seeking defense and indemnity based upon an agreement to which the third-party plaintiffs and the third-party defendants are parties. The trial court granted summary judgment in favor of the third-party plaintiffs and denied in part the summary-judgment motion filed by the third-party defendants. The trial court concluded that most of the claims asserted by the real estate developer against the defendants were within the scope of the indemnity provision. After severing the third-party claims from the rest of the lawsuit, the trial court conducted a bench trial on damages and attorney's fees and rendered a money judgment in favor of the third-party plaintiffs. On appeal, we conclude as a matter of law that the claims asserted against the third-party plaintiffs do not fall within the scope of the indemnity provision under the agreement's unambiguous language. Accordingly, we reverse the trial court's judgment and render judgment that the third-party plaintiffs take nothing against the third-party defendants.
I.FACTUAL AND PROCEDURAL BACKGROUND
On March 17, 2008, appellees/third-party plaintiffs National Property Holdings, L.P., Michael Plank, and Russell Plank (collectively, the "Plank Parties"), appellants/third-party defendants Frontier Logistics, L.P., FLPCW, L.P., George Cook, Glenn Wiseman, James Madler, and Christy Fulton (collectively, the "Frontier Parties"), and others entered into a Settlement Agreement and Release ("Settlement Agreement"). Gordon Westergren was not a party to the Settlement Agreement. In the Settlement Agreement, the Frontier Parties promised to indemnify, defend, and hold harmless National Property Holdings, L.P. ("National Property") and other entities from and against certain claims and other matters.*fn1
Three months after the execution of the Settlement Agreement, Gordon Westergren filed a lawsuit against the Plank Parties, asserting various claims for breach of contract and torts and seeking a money judgment. The Plank Parties demanded defense and indemnity from the Frontier Parties. After the Frontier Parties refused this demand, the Plank Parties asserted third-party claims for defense and indemnity against the Frontier Parties based only upon the indemnity provision of the Settlement Agreement. The Plank Parties alleged that they are indemnitees under this provision and that the claims asserted by Westergren against them fall within the scope of this indemnity provision. The Plank Parties sought indemnity for any sums that they might be compelled to pay Westergren based on his claims, as well as the costs of defending against Westergren's claims and attorney's fees and costs for the prosecution of the third-party claims.
The Frontier Parties filed a motion for summary judgment seeking a judgment that the Plank Parties take nothing on their third-party claims. The Frontier Parties asserted that, under the unambiguous language of the Settlement Agreement, Westergren's claims do not fall within the scope of that agreement's indemnity provision. The trial court granted this motion in part, ruling that the Plank Parties are not entitled to defense and indemnity as to Westergren's claim against the Plank Parties based upon their failure to pay $1 million, but the trial court denied the motion as to all of Westergren's other claims.
The Plank Parties moved for summary judgment that, under the unambiguous language of the Settlement Agreement, the Frontier Parties owe the Plank Parties a defense and indemnity as to all of Westergren's claims except his claim against the Plank Parties based upon their failure to pay $1 million. The trial court granted this summary-judgment motion.
A jury trial on the claims between Westergren and the Plank Parties began on September 13, 2010. Effective that same day and pursuant to an agreement between the Plank Parties and the Frontier Parties, the trial court severed the third-party claims into a separate case. In December 2010, the trial court rendered judgment in the unsevered case that Westergren take nothing against the Plank Parties and that the Plank Parties take nothing against Westergren.*fn2
On March 24, 2011, the trial court conducted a bench trial in the severed case regarding the Plank Parties' damages. The trial court rendered judgment that the Plank Parties recover the following amounts from the Frontier Parties: (1) $925,076 for reasonable attorney's fees, expert-witness fees, and expenses relating to the Plank Parties' defense of Westergren's claims; (2) $364,351 for reasonable attorney's fees and costs for the prosecution of the third-party claims by the Plank Parties, (3) conditional awards of appellate attorney's fees, and (4) prejudgment and postjudgment interest. The Frontier Parties have appealed. The Plank Parties have not appealed.
In a traditional motion for summary judgment, if the movant's motion and summary-judgment evidence facially establish its right to judgment as a matter of law, the burden shifts to the non-movant to raise a genuine, material fact issue sufficient to defeat summary judgment. M.D. Anderson Hosp. & Tumor Inst. v. Willrich, 28 S.W.3d 22, 23 (Tex. 2000). In our de novo review of a trial court's summary judgment, we consider all the evidence in the light most favorable to the non-movant, crediting evidence favorable to the non-movant if reasonable jurors could, and disregarding contrary evidence unless reasonable jurors could not. Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006). The evidence raises a genuine issue of fact if ...