EARNIE L. RANDELL, Appellant
JEFFERY B. GALBREATH, INDIVIDUALLY AND D/B/A GALBREATH LAW FIRM, AND FREDERICK DUNBAR, Appellees
Appeal from the 350th District Court Taylor County, Texas
Trial Court Cause No. 10376-D
consists of: Wright, C.J., Willson, J., and Bailey, J.
Earnie L. Randell became dissatisfied with the legal services
provided by his former lawyers, including Jeffery B.
Galbreath and Frederick Dunbar, he sued them for breach of
contract, negligence, and other causes of action. Galbreath
and Dunbar answered and moved for summary judgment on
traditional grounds on their affirmative defenses of release
and actual or apparent authority. They asserted that Randell
had authorized another lawyer, Donald MacPhail, to settle
Randell's claims with them and to sign a Release and
Compromise Agreement (the Release) on Randell's behalf.
After a hearing, the trial court granted Galbreath and
Dunbar's traditional motion for summary judgment and
later severed Randell's claims against Galbreath and
Dunbar from the original cause.
appeal, Randell asserts that the trial court erred when it
granted summary judgment in Galbreath's and Dunbar's
favor for two reasons. First, he claims that he had raised
genuine issues of material fact on whether he signed the
Release. Second, he argues that the trial court could not
rule on a ground that was not advanced in the summary
judgment motion. We affirm.
on the job in December 2005, Randell suffered injuries when
his vehicle was struck by a bus, and he incurred significant
medical expenses from two surgeries. He retained Galbreath
and Dunbar to represent him in a personal injury lawsuit
against the driver and the owner of the bus. Galbreath and
Dunbar negotiated a proposed settlement of Randell's suit
for $700, 000 and sought his permission to settle the suit.
Randell's contract with his lawyers provided that their
contingency fee was forty percent of the "amount
recovered" and that Randell had to pay all incurred
expenses from his share of the recovery. Randell authorized
the settlement, agreed to and signed the disbursement
agreement on September 15, 2009, and received $198, 817.30;
he also agreed to dismiss his personal injury lawsuit with
Randell spoke to another lawyer, Donald MacPhail, about his
case. Randell thought he was owed more money from Galbreath.
Randell thought that the settlement had adversely affected
his workers' compensation benefits and claimed that he
was owed more money because he had a verbal agreement with
Galbreath, prior to September 15, 2009, to pay him an
additional $100, 000. Randell acknowledged that he had hired
MacPhail "to get more money" from the Galbreath Law
Firm. MacPhail testified that Randell had retained him to
negotiate Randell's claims, but Randell later claimed
that MacPhail was only his workers' compensation lawyer.
spoke and corresponded with Galbreath and Dunbar, both of
whom provided him with settlement offers in writing. Later,
MacPhail and Randell met at Galbreath's office where
MacPhail signed the Release, and Randell received $8, 500 in
checks from Galbreath and Dunbar. MacPhail testified at his
deposition that he saw Randell sign the Release and that he
gave Randell a copy of the signed Release, but Randell has
denied that he signed the Release and denied that he received
a copy of it. Afterward, Randell spoke to another lawyer,
Burt Burnett, who then filed the instant suit against
Galbreath and Dunbar.
Standard of Review
movant for traditional summary judgment must show that there
is no genuine issue of material fact and that it is entitled
to judgment as a matter of law. See Tex. R. Civ. P.
166a(c); Mann Frankfort Stein & Lipp Advisors, Inc.
v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). A
defendant who moves for traditional summary judgment must
either negate at least one essential element of the
nonmovant's cause of action or prove all essential
elements of an affirmative defense. Randall's Food
Mkts., Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex. 1995).
Once the defendant establishes a right to summary judgment as
a matter of law, the burden shifts to the plaintiff to
present evidence raising a genuine issue of material fact.
City of Houston v. Clear Creek Basin Auth., 589
S.W.2d 671, 678-79 (Tex. 1979); Plunkett v. Conn. Gen.
Life Ins. Co., No. 11-13-00129-CV, 2015 WL 3484985, at
*4 (Tex. App.-Eastland May 29, 2015, pet. denied) (mem. op.).
review summary judgment motions with a well-settled,
multifaceted standard of review. Kemp v. Jensen, 329
S.W.3d 866, 868 (Tex. App.-Eastland 2010, pet. denied).
Summary judgments are reviewed de novo. Travelers Ins.
Co. v. Joachim, 315 S.W.3d 860, 862 (Tex. 2010). To
determine if a fact question exists, we must consider whether
reasonable and fair-minded jurors could differ in their
conclusions in light of all the evidence presented.
Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d
754, 755 (Tex. 2007); City of Keller v. Wilson, 168
S.W.3d 802, 827 (Tex. 2005). We view evidence in a light most
favorable to the nonmovant and resolve doubts in its favor,
crediting evidence favorable to that party if reasonable
jurors could and disregarding contrary evidence unless
reasonable jurors could not. Mayes, 236 S.W.3d at
756; Nixon v. Mr. Prop. Mgmt.Co., 690 S.W.2d 546,
548-49 (Tex. 1985).
differing inferences may reasonably be drawn from the summary
judgment evidence, a summary judgment should not be granted.
Nixon, 690 S.W.2d at 549. The movant's own
evidence may establish the existence of a genuine issue of
material fact on the plaintiff's claim. Johnston v.
Vilardi, 817 S.W.2d 794, 796-97 (Tex. App.-Houston [1st
Dist.] 1991, writ denied). In addition, issues that an
appellate court may review are those the movant actually
presented to the trial court. Travis v. City of
Mesquite, 830 S.W.2d 94, 100 (Tex. 1992). When the trial
court's judgment does not specify the grounds upon which
it relied for its ruling, the judgment must be affirmed if
any of the theories advanced are meritorious. Dow Chem.
Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001); Carr
v. Brasher, 776 S.W.2d 567, 569 (Tex. 1989).
asserts that, because he presented evidence that he did not
sign the Release, he raised a question of material fact on
whether he had released his claims. He also asserts that the
trial court could not have granted summary judgment on the
ground that he gave MacPhail actual or apparent authority to
sign the Release because Galbreath and Dunbar did not advance
that ground in their motion and ...