Chris Mallios v. Standard Insurance Company ( 2007 )

Affirmed and Majority and Concurring and Dissenting Opinions filed August 30, 2007

Affirmed and Majority and Concurring and Dissenting Opinions filed August 30, 2007.

In The

Fourteenth Court of Appeals

___________

NO. 14-06-00294-CV

____________

CHRIS MALLIOS, Appellant

V.

STANDARD INSURANCE COMPANY, FIRST FINANCIAL BENEFITS, INC., NULL LAIRSON, P.C., JIM YARBROUGH, EDDIE BARR, EDDIE JANEK, STEPHEN HOLMES, KEN CLARK, AND PHILLIP LOHEC, Appellees

On Appeal from the 122nd District Court

Galveston County, Texas

Trial Court Cause No. 04CV1063

M A J O R I T Y   O P I N I O N

Appellant Chris Mallios appeals the trial court=s grant of summary judgments in favor of appellees, contending that various appellees (1) failed to establish as a matter of law the affirmative defenses of limitations, res judicata, and collateral estoppel, (2) provided insufficient affidavits in support of no-evidence motions for summary judgment, and (3) failed to establish official immunity.  Mallios also contends the trial court erred in denying his motion for summary judgment.  We affirm.

Factual and Procedural Background

Our recitation of the factual background of the case is somewhat limited, because Mallios=s record on appeal does not include (1) the appellees= motions for summary judgment and the supporting evidence, (2) Mallios=s responses to the motions for summary judgment and any supporting evidence, or (3) any motion for summary judgment filed by Mallios.^[1] However, we draw the following from Mallios=s pleadings.

Mallios filed suit against Standard Insurance Company (AStandard@), First Financial Benefits, Inc. (AFirst Financial@), Null Lairson, P.C. (ALairson@), members of the Galveston County Commissioner=s Court Jim Yarbrough, Eddie Barr, Eddie Janek, Stephen Holmes, and Ken Clark (collectively, AMembers@), and Phillip Lohec (ALohec@), on behalf of himself and as a class representative, for alleged wrongdoing in connection with the group life insurance provided to Galveston County employees.  In his petition, Mallios claimed that premium payments for the employees= term life insurance coverage were wrongly used to purchase a Amembership interest@ with the right to vote in Standard.  Then, in 1999, Standard conveyed that interest back to the County for approximately $2.4 million, and the County allegedly used the money to pay a county liability instead of distributing it to the employees= retirement annuity accounts.  Mallios claimed violations of Texas Insurance Code articles 3.50 and 21.21, violations of the Deceptive Trade PracticesCConsumer Protection Act, and conspiracy. 

Each of the defendants answered and asserted various defenses.  Relevant here, Standard asserted numerous affirmative defenses, including the applicable statute of limitations, collateral estoppel, and res judicata, Mallios=s lack of standing as a consumer, and defenses specific to Mallios=s alleged Insurance Code violations.  First Financial=s answer raised similar defenses, including the affirmative defenses of the statute of limitations, res judicata, and collateral estoppel.  Lairson asserted several affirmative defenses, including the statute of limitations, and also sought special exceptions, which were denied.  Members asserted, among other things, official immunity from suit, the applicable statute of limitations, res judicata, and collateral estoppel. Lohec also asserted official immunity, the statute of limitations, and other defenses.^[2]

Standard, First Financial, Lairson, the Members, and Lohec all moved for summary judgment, which the trial court granted.  Mallios moved for reconsideration, but the trial court denied the motion.  This appeal followed.

I.        Analysis of Mallios=s Appeal

On appeal, Mallios contends the trial court erred in granting appellees= motions for summary judgment, denying his motion for summary judgment.  Mallios=s complaints are presented in four categories.  In the first category, Mallios contends the appellees failed to establish as a matter of law the affirmative defenses of limitations, res judicata, and collateral estoppel.  In the second category, Mallios contends that affidavits supporting Lairson=s and First Financial=s no-evidence motions for summary judgment were nonspecific, conclusory, and contained admissions that supported Mallios=s claims.  In the third category, Mallios contends that Lohec failed to produce any summary judgment evidence to support his claim of official immunity.  Finally, Mallios contends the trial court erred in denying his motion for summary judgment because, although the Members answered Mallios=s original petition and filed amended answers to the original petition, their amended answers did not deny the allegations in Mallios=s amended petition.  Consequently, Mallios contends, the Members admitted all the essential elements of his claims and he was therefore entitled to summary judgment against Members.

In response, all of the appellees contend that the trial court=s judgment must be affirmed because Mallios did not provide this Court with a complete record on appeal, and therefore we must presume the omitted documents support the trial court=s orders granting summary judgment.

A.      Mallios=s Record on Appeal

1.       The Record Before Us

The clerk=s record contains Mallios=s amended original petition, answers of each of the appellees, Null Lairson=s special exceptions and the order denying them, five separate orders granting the motions for summary judgment of Standard, First Financial, Lairson, the Members, and Lohec,^[3] Mallios=s motion to reconsider appellees= motions for summary judgment with exhibits, the order denying Mallios=s motion to reconsider, Mallios=s notice of appeal, Mallios=s designation of the record, and a few other documents not relevant here.

Significantly, although Mallios=s designation of the record lists eighteen requested documents, Mallios did not request any of the summary judgment motions he challenges on appeal, nor did he request his responses to the motions or any supporting evidence.  And, even though Mallios contends on appeal that the trial court erred in not granting his motion for summary judgment, he did not request this document be included in the record, either.

2.       The Parties= Arguments Concerning the Record

As noted above, each of the appellees argue that, because Mallios brought forward an incomplete and inadequate record, he cannot prevail on appeal because we must presume the omitted documents support the trial court=s grants of summary judgment.^[4] Appellees contend this outcome is mandated by Enterprise Leasing Co. v. Barrios, 156 S.W.3d 547, 549B50 (Tex. 2004) (per curiam), in which our Supreme Court affirmed a partial summary judgment on liability in favor of Enterprise in part because Barrios failed to provide the appellate court with a complete record to review.  The Supreme Court explained that, A[a]lthough Enterprise bears the burden to prove its summary judgment as a matter of law, on appeal Barrios bears the burden to bring forward the record of the summary judgment evidence to provide appellate courts with a basis to review his claim of harmful error.@  Id. at 549 (citing DeSantis v. Wackenhut Corp., 793 S.W.2d 670, 689 (Tex. 1990); Escontrias v. Apodaca, 629 S.W.2d 697, 699 (Tex. 1982)).  The Court then instructed that A[i]f the pertinent summary judgment evidence considered by the trial court is not included in the appellate record, an appellate court must presume that the omitted evidence supports the trial court=s judgment.@  Id. at 550 (citing DeSantis, 793 S.W.2d at 689).  Applying this instruction, the Court thus presumed Barrios=s answers to requests for admissions, which Enterprise relied on in part to support its motion, but which Barrios did not include in the appellate record, supported the trial court=s partial summary judgment in favor of Enterprise.  Id.

In his reply brief responding to the appellees= assertion that Enterprise is fatal to Mallios=s appeal, Mallios first argues that his record is sufficient because Texas Rules of Appellate Procedure 34.1 and 34.5 specify the contents of an appellate record, and motions for summary judgment and attached appendices or exhibits are not mentioned in the rules.  Mallios also claims that Enterprise does not hold that the Aactual motions for summary judgment@ and attached appendices or exhibits must be included in the record; it only requires that an appellate record contain the Apertinent summary judgment evidence considered by the trial judge.@  Mallios contends the appellate record he presented contains all the pertinent summary judgment evidence required.

Additionally, Mallios objects to portions of the appellees= briefing.  The appellees, in addition to complaining about the insufficiency of the appellate record, raise several substantive arguments to Mallios=s appeal.  The appellees contend, among other things, that Mallios failed to appeal all the grounds raised in support of their summary judgments.  To support their contention, appellees include with their briefing appendices containing copies of their motions for summary judgment and other documents they assert are relevant to their arguments on the merits of the trial court=s grants of summary judgment in their favor.^[5] Mallios objects to the appendices containing motions for summary judgment and other documents as being outside of the appellate record, citing Davis v. Huey, 571 S.W.2d 859, 862 n.2 (Tex. 1978).

B.      Our Resolution of the Parties= Arguments

Enterprise does not support Mallios=s conclusion that only the Apertinent evidence@Cnot the motion for summary judgment or its attachmentsCis needed in the appellate record.^[6] If anything, Enterprise illustrates how important it is for an appellant challenging a grant of summary judgment to include the complete summary judgment record considered by the trial court in ruling on the motion for summary judgment; otherwise, the appellate court may apply the presumption that the omitted documents support the trial court=s judgment and affirm the grant of summary judgment on that basis.  See 156 S.W.3d at 549B50; see also Aguirre v. Vasquez, 225 S.W.3d 744, 752 (Tex. App.CHouston [14th Dist.] 2007, no pet.).  Further, Enterprise places the burden squarely on the party challenging the grant of summary judgment to ensure that all documents needed for this court to fully review the correctness of the summary judgment are in the record.  See Enterprise, 156 S.W.3d at 549.

We also reject Mallios=s argument that he need not include the motions for summary judgment and exhibits in the appellate record because the Rules of Appellate Procedure do not require them to be included.  Rule 34.1 does not aid Mallios because it merely provides that A[t]he appellate record consists of the clerk=s record and, if necessary to the appeal, the reporter=s record,@ and specifies that there should only be one appellate record in a case.  See Tex. R. App. P. 34.1.  Rule 34.5, which lists the documents the trial court clerk must include in the clerk=s record in the absence of a party=s designation, does not specifically include motions for summary judgment.  See Tex. R. App. P. 34.5(a); see also Tex. R. App. P. 35.3(a) (stating that it is the trial court clerk=s responsibility to prepare, certify, and timely file the clerk=s record).  But, Rule 34.5 does not limit a party to those documents; rather, it permits any party to designate additional items to be included in the record.  See Tex. R. App. P. 34.5(b).  Thus, although the trial court clerk is required to include at least the documents listed in Rule 34.5, per Enterprise, if a party wishes to successfully appeal a grant of summary judgment, he must include more than those documents the court clerk is required to includeChe must include all Apertinent@ documents the trial court considered in granting the motion.  Otherwise, on appeal, the appellant would be unable to demonstrate that a genuine issue of material fact existed that precluded summary judgment in favor of the movant.

Based on the record before us, not only are we unable to review the evidence the appellees presented in support of their motions for summary judgment, but because we do not have the motions, we do not know what arguments appellees made that the evidence was intended to support.  We do not know if the motions were traditional or no-evidence motions, so that we may review them appropriately.  We do not have Mallios=s responses to the motions for summary judgment (if any), so we cannot determine whether Mallios presented evidence that would have demonstrated that appellees were not entitled to summary judgments in their favor.  We do not have Mallios=s motion for summary judgment.  We also cannot discern whether any party is attempting to raise on appeal an issue not expressly presented to the trial court.  See Tex. R. Civ. P. 166a(c) (AIssues not expressly presented to the trial court by written motion, answer or other response shall not be considered on appeal as grounds for reversal.@).  Finally, we cannot determine whether appellees correctly contend that Mallios did not address all possible grounds for summary judgment in this appeal.

This is not a case in which the appellant mistakenly failed to designate a document or did not immediately realize an important document was missing from the record.  Mallios designated a record that omitted all of the summary judgment briefing and attached evidence.  He has continued to take the position the documents were unnecessary even after all of the appellees argued in their responsive briefs that the omissions were fatal to his appeal. Mallios has not made any request to supplement the record.

Based on the state of the record before us, we overrule all of Mallios=s issues and affirm the trial court=s judgment.

II.       Appellees= Requests for Sanctions

Appellees contend that Mallios should be subject to sanctions for bringing a frivolous appeal.  See Tex. R. App. P. 45.  However, the fact that Mallios did not file a sufficient record for us to address his issues does not, alone, render his appeal frivolous.  See Sam Houston Hotel, L.P. v. Mockingbird Restaurant, Inc., 191 S.W.3d 720, 721 (Tex. App.CHouston [14th Dist.] 2006, no pet.).  We note that Mallios=s brief contains issues presented, record references, and legal authorities.  Further, he filed a reply brief in response to appellees= briefs that included requests for sanctions.  We decline to impose sanctions against Mallios.

III.      Conclusion

We affirm the trial court=s judgment.

/s/      Margaret Garner Mirabal

Senior Justice

Judgment rendered and Majority Opinion and Concurring and Dissenting Opinion filed August 30, 2007.

Panel consists of Justices Anderson, Frost, and Senior Justice Mirabal.^[7] (Mirabal, J. Majority; Frost, J. Concurring and Dissenting).

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^[1]  The record does include Mallios=s AMotion to Reconsider Grants of Defendants= Motions for summary Judgment@ with exhibits.  The exhibits purport to include affidavits filed in support of some of the motions for summary judgment.

^[2]  On appeal, appellees contend their affirmative defenses of res judicata and collateral estoppel are supported by a previous lawsuit filed by Mallios=s lawyer, Gerald Burks against the Members and Lohec. Mr. Burks sued in his capacity as Galveston County Treasurer and later, when he lost re-election, as an individual, in part complaining of the Commissioners Court=s handling of the insurance money it received.  See Burks v. Yarbrough, 157 S.W.3d 876, 881B82 (Tex. App.CHouston [14th Dist.] 2005, no pet.).  This Court affirmed the summary judgments granted in favor of the appellees.  See id. at 884.

^[3]  The trial court=s orders granting summary judgment did not specify the grounds on which summary judgment was granted.

^[4]  Standard contends that its motions and supporting evidence exceed 500 pages.  Similarly, First Financial contends it filed approximately 550 pages of evidence and numerous affidavits.  Lairson states that it filed affidavits and hundreds of pages of evidence supporting its motion for summary judgment.

^[5]  Additionally, Lairson=s appendix includes amended and supplemental answers he contends were filed after the answer Mallios included in the record on appeal. 

^[6]  Moreover, courts, including this one, have held that when an appellant contends the trial court erred in granting summary judgment, the complete summary judgment record, including the motion for summary judgment, must be included in the appellate record to overcome the presumption that the omitted evidence supports the trial court=s judgment when the appellee objects to the omission. See Atchison v. Weingarten Realty Mgmt., 916 S.W.2d 74, 76B77 (Tex. App.CHouston [1st Dist.] 1996, no pet.); Chapman v. City of Houston, 839 S.W.2d 95, 100B101 (Tex. App.CHouston [14th Dist.] 1992, writ denied).

^[7]  Senior Justice Margaret G. Mirabal sitting by assignment.