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Thomas v. Verveba Telecom, LLC

Court of Appeals of Texas, Fifth District, Dallas

March 31, 2017

JEWELL THOMAS, Appellant
v.
VERVEBA TELECOM, LLC, Appellee

         On Appeal from the 44th Judicial District Court Dallas County, Texas Trial Court Cause No. DC-15-01451.

          Before Chief Justice Wright, Justice Lang-Miers, and Justice Myers

          MEMORANDUM OPINION

          ELIZABETH LANG-MIERS JUSTICE

         Jewell Thomas, representing himself, appeals from a summary judgment granted in favor of Verveba Telecom, LLC and dismissing his claims. We affirm the judgment.

         Background

         Thomas worked for Verveba and was sent to North Carolina for a job. When Verveba was ready to wind down that job, it discovered some of its equipment (a cell phone) was missing and told Thomas that it would not arrange for his travel home to Texas until the phone was found. Thomas claimed he did not have the phone and did not have the money to furnish his own transportation home. After a few days, he drove the company's rental car to Mississippi where he had friends. He asked Verveba for an airplane ticket home and Verveba agreed when Thomas turned in the rental car. Travel was not arranged, however, and Thomas remained in Mississippi for an unknown period of time. Meanwhile, Thomas experienced emotional distress that exacerbated a mental condition that had been in remission, and he had to begin taking psychiatric medications again. When Thomas eventually returned to Texas, Verveba deducted from his final paycheck the cost of the phone, gasoline, and the rental car.

         Thomas sued Verveba in small claims court for breach of contract and intentional infliction of emotional distress. The JP court dismissed the emotional distress claim for want of jurisdiction and submitted the breach of contract claim to a jury. A jury found in favor of Thomas and awarded him $983.50 plus interest as damages. Thomas appealed to the county court at law, but the record of that proceeding is not in our appellate record. Eventually Thomas and Verveba settled their dispute and filed a Settlement and Release of Judgment in the JP court proceeding stating that they "desire[d] to settle all claims" and that

each party hereby: (i) releases all claims against the other; (ii) waives his/its right to file a motion for new trial, (iii) waives his/its right to appeal the judgment, and (iv) agrees to keep confidential the terms of the settlement and the facts and circumstances of the engagement of Jewell "Jay" Thomas [unreadable] Verveba Telecom, LLC under the Independent Contractor Agreement. . . .

         Verveba paid Thomas the settlement amount. After negotiating the check, Thomas filed a new lawsuit in district court asserting claims for intentional and negligent infliction of emotional distress, breach of contract, negligence, gross negligence, and civil conspiracy, all arising out of Verveba's failure to arrange transportation for him to return home to Texas. He sought damages for severe emotional distress, lost wages, and exemplary damages.

         Verveba answered and asserted several affirmative defenses as well as a counterclaim for breach of the settlement agreement. Verveba moved for traditional summary judgment on its affirmative defenses and counterclaim. Thomas did not respond directly to the motion, but filed a motion for sanctions asserting that Verveba's counterclaim for breach of the settlement agreement was frivolous. The trial court granted summary judgment on Verveba's counterclaim and two of its affirmative defenses. The order dismissed Thomas's claims with prejudice. Thomas filed a motion for new trial, which the trial court denied. This appeal followed.

         Discussion

         Thomas argues that the trial court erred by granting Verveba's motion for summary judgment because (1) the motion was based on an invalid settlement agreement, (2) Verveba's arguments are barred by res judicata and collateral estoppel, and (3) to the extent summary judgment was based on his failure to respond to Verveba's motion, he was not required to respond.

         We review a trial court's grant of summary judgment de novo. Buck v. Palmer, 381 S.W.3d 525, 527 (Tex. 2012). Because the trial court granted summary judgment on Verveba's counterclaim and affirmative defenses, Verveba had the burden to show there was no genuine issue of material fact and it was entitled to judgment as a matter of law. See Tex. R. Civ. P. 166a(c); M.D. Anderson Hosp. & Tumor Inst. v. Willrich, 28 S.W.3d 22, 23 (Tex. 2000). Thomas, as the nonmovant, had no burden to respond to Verveba's motion unless Verveba conclusively established it was entitled to summary judgment. Willrich, 28 S.W.3d at 23.

         To be entitled to summary judgment on its counterclaim for breach of the settlement agreement, Verveba had to conclusively prove (1) the existence of a contract, (2) Verveba performed or tendered performance, (3) Thomas breached the contract, and (4) damages resulting from the breach. Woodhaven Partners, Ltd. v. Shamoun & Norman, L.L.P., 422 S.W.3d 821, 837 (Tex. App.-Dallas 2014, no pet.). Verveba attached evidence to its motion that it contended established it was entitled to summary judgment on its counterclaim. Thomas's only challenge to Verveba's summary-judgment ...


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