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Randell v. Galbreath

Court of Appeals of Texas, Eleventh District

June 22, 2017

EARNIE L. RANDELL, Appellant
v.
JEFFERY B. GALBREATH, INDIVIDUALLY AND D/B/A GALBREATH LAW FIRM, AND FREDERICK DUNBAR, Appellees

         On Appeal from the 350th District Court Taylor County, Texas Trial Court Cause No. 10376-D

          Panel consists of: Wright, C.J., Willson, J., and Bailey, J.

          MEMORANDUM OPINION

          MIKE WILLSON JUSTICE

         After 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.

         On 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.

         I. Background Information

         While 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 prejudice.

         Afterward, 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.

         MacPhail 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.

         II. Standard of Review

         The 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.).

         We 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).

         If 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).

         III. Analysis

         Randell 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 ...


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