Court of Appeals of Texas, Fifth District, Dallas
Appeal from the 44th Judicial District Court Dallas County,
Texas Trial Court Cause No. DC-15-01451.
Chief Justice Wright, Justice Lang-Miers, and Justice Myers
ELIZABETH LANG-MIERS JUSTICE
Thomas, representing himself, appeals from a summary judgment
granted in favor of Verveba Telecom, LLC and dismissing his
claims. We affirm the judgment.
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.
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. . . .
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.
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.
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.
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.
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