Opinion
14-23-00660-CV
12-17-2024
MARGARET MITCHELL, Appellant v. STATE FARM LLOYDS, PAUL SUMMER, CAROL TURNER, ALDEN ROOFING AND RENOVATIONS, L.P., AL ELLIS D/B/A ART SCAPES & CRAFTERS, AND MARTHA ALDEN, Appellees
On Appeal from the 125th District Court Harris County, Texas Trial Court Cause No. 2010-45271
Panel consists of Christopher Chief Justice and Wise and Hassan Justices.
MEMORANDUM OPINION
Meagan Hassan, Justice.
Appellant Margaret Mitchell sued appellees State Farm Lloyds, Paul Summer, Carol Turner, Alden Roofing and Renovations, L.P., Al Ellis d/b/a Art Scapes & Crafters, and Martha Alden, asserting claims stemming from damage to her home caused by Hurricane Ike. The trial court signed a summary judgment in favor of State Farm, Summer, Turner, and Alden Roofing, dismissing Mitchell's claims against these parties with prejudice. After calling the case to trial, the trial court entered a default judgment against Al Ellis d/b/a Art Scapes & Crafters ("Art Scapes") and Martha Alden.
For the reasons below, we modify the trial court's March 4, 2013 summary judgment order and affirm as modified.
Background
Hurricane Ike made landfall in September 2008, causing extensive damage along Texas's Gulf Coast. Mitchell's Meyerland home was damaged during the storm.
Mitchell submitted a claim to State Farm under her homeowner's insurance policy. State Farm assigned insurance adjusters Summer and Turner to investigate the damage. Mitchell also contracted with Alden Roofing and Art Scapes to undertake the necessary repairs.
Mitchell retained counsel and filed an original petition in July 2010, alleging that (1) State Farm, Summer, and Turner (collectively, the "State Farm Defendants") wrongfully denied Mitchell's claim and failed to compensate her for necessary property repairs, and (2) Alden Roofing and Art Scapes negligently and improperly performed the repairs to her home. Mitchell asserted ten causes of action against these defendants, including claims for violations of the Texas Insurance Code, violations of the Texas Deceptive Trade Practices Act, breach of contract, fraud, and negligence.
Mitchell's case was transferred to Houston's 11th District Court pursuant to a standing pretrial order pertaining to residential Hurricane Ike cases. In accordance with the standing pretrial order, mediation was scheduled and the parties agreed to a mediator. The half-day mediation was conducted on May 26, 2011. At the conclusion of mediation, the mediator circulated a document memorializing the parties' agreement which, in its entirety, states as follows:
Cause No. 2010-45271 Margaret Mitchell v. State Farm Lloyds, et al The Plaintiff and Defendants agree to settle this case between them, on the following terms:
1) The Plaintiff agrees to accept $34,000 in full and complete satisfaction of all claims against the Defendants State Farm, Paul Summer and Carol Turner, which were or could have been made in this suit, including, but not limited to the Hurricane Ike claim, subsequent water damage claim, [and] depreciation and theft claim.
2) The Defendants State Farm, Paul Summer and Carol Turner agree to pay the sum of $34,000 to settle this case. Alden Roofing and Renovations agrees to pay the sum of $4,000 to settle this case.
3) The Plaintiff agrees to sign a release prepared by the attorney for each Defendant releasing all claims which were, or could have been brought. The Plaintiff also agrees to dismiss the case with prejudice.
4) All costs will be borne by the party incurring the same.
The mediated settlement agreement was signed by Mitchell, Mitchell's attorney, and the attorneys for State Farm and Alden Roofing.
Five days later, Mitchell (acting pro se) filed in the trial court a "Verified Motion to Withdraw Consent, to Void the False Settlement or to Delay Consideration of the False Settlement until Plaintiff has had a reasonable opportunity to hire new Counsel." Mitchell alleged that her attorney encouraged the mediator to "aggressively berate" Mitchell during the mediation, which aggravated her melancholic depression and caused her to experience suicidal ideation. Mitchell asserted that she lacked capacity to bind herself to the mediated settlement agreement and that her signature thus was obtained "as a result of violations of" the Americans with Disabilities Act ("ADA"). Mitchell's attorney filed a motion to withdraw the following day, which the trial court granted.
Mitchell filed an amended petition three weeks later, adding 28 defendants. The State Farm Defendants filed a "Motion to Maintain Status Quo," asserting that Mitchell added the new parties "primarily for purposes of harassment." The trial court signed an order granting the State Farm Defendants' motion and abating Mitchell's case "with the exception of any issues related to the settlement reached at Mediation."
Alden Roofing filed its answer and asserted a counterclaim against Mitchell for breach of contract, alleging that Mitchell breached the parties' mediated settlement agreement by refusing to execute the subsequently-prepared release. The State Farm Defendants asserted a counterclaim against Mitchell based on the same allegations. Mitchell filed a second amended petition and added a declaratory judgment claim seeking "[j]udgment that she is not in breach of the Settlement."
Alden Roofing filed a summary judgment motion, seeking judgment in its favor on its breach of contract claim and a judgment against Mitchell on her request for a declaratory judgment. The State Farm Defendants filed a separate summary judgment motion seeking judgment on their breach of contract claim. Mitchell responded to the summary judgment motions and also sought summary judgment on her declaratory judgment claim.
On March 4, 2013, the trial court signed an order granting the defendants' summary judgment motions "so as to enforce the terms of the settlement of the named parties." The trial court also denied Mitchell's summary judgment motion. The trial court ordered the defendants to "issue payments for the amounts agreed to at mediation" and deposit approximately $5,500 from these proceeds in the court's registry for payment to Mitchell's former attorney. Mitchell's former attorney filed a motion for release of the funds, which the trial court granted.
The ten years intervening between the summary judgment and this appeal saw sporadic activity. The case was dismissed for want of prosecution in September 2015 and reinstated two months later. Mitchell filed a 450-page motion for default judgment in June 2016; her case was dismissed for want of prosecution in October 2019. The record shows that the case was reinstated in December 2019 and again in January 2022.
The trial court signed a final judgment in Mitchell's favor on July 26, 2023, rendering a default judgment against Art Scapes and Martha Alden and awarding Mitchell $210,000 in damages. Mitchell filed this appeal.
Analysis
Mitchell continues to represent herself pro se on appeal. Although we construe pro se briefs liberally, pro se appellants nonetheless are held to the same standards as licensed attorneys and must comply with all applicable rules of procedure. Harrison v. Reiner, 607 S.W.3d 450, 457 (Tex. App.-Houston [14th Dist.] 2020, pet. denied).
Liberally read, Mitchell's brief appears to raise 11 issues challenging the trial court's March 4, 2013 order that (1) granted the defendants' summary judgment motions, (2) denied her summary judgment motion, and (3) enforced the terms of the parties' mediated settlement agreement. We group these issues accordingly:
1. Mitchell's treatment during the 2011 mediation violated her rights under the ADA and she therefore is entitled to injunctive relief with respect to the mediated settlement agreement;
2. the releases prepared by the State Farm Defendants and Alden Roofing did not conform to the terms of the mediated settlement agreement;
3. there was a failure of consideration; and 4. the defendants repudiated the mediated settlement agreement. None of the defendants filed a responsive appellee's brief. We consider Mitchell's issues below.
I. Standard of Review
When, as here, the parties file cross-motions for summary judgment on overlapping issues, and the trial court grants one motion and denies the other, we review the summary judgment evidence presented by each party, determine all questions presented, and "render the judgment that the trial court should have rendered." FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 872 (Tex. 2000); City of Houston v. Houston Firefighters' Relief & Ret. Fund, 502 S.W.3d 469, 473 (Tex. App.-Houston [14th Dist.] 2016, no pet.).
We review de novo the grant of a traditional motion for summary judgment. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005); Seber v. Union Pac. R.R. Co., 350 S.W.3d 640, 645 (Tex. App.-Houston [14th Dist.] 2011, no pet.). The trial court properly grants a traditional motion for summary judgment when the motion and evidence show there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Tex.R.Civ.P. 166a(c). In determining whether a material fact issue exists to preclude summary judgment, we take as true all evidence favorable to the non-movant, indulge every reasonable inference in favor of the non-movant, and resolve any doubts in the non-movant's favor. Walker v. Harris, 924 S.W.2d 375, 377 (Tex. 1996); Seber, 350 S.W.3d at 645-46.
II. Americans With Disabilities Act
In the trial court and on appeal, Mitchell asserted that the mediated settlement agreement should not be enforced because her rights under the ADA were violated during the 2011 mediation. See 42 U.S.C.A §§ 12101-12213. To support this argument, Mitchell attached her affidavit to her summary judgment motion and attested as follows:
• When the mediation occurred, she was diagnosed as depressed and had been prescribed medication. She previously had been hospitalized for suicide attempts. Mitchell informed her attorney and the mediator of these issues.
• The mediator "acted cruelly, yelling at [Mitchell], belittling [her], mocking [her], and laughing at [her]." The mediator "continually expressed anger at [Mitchell] for 'wasting' his and everybody else's time." The mediator told Mitchell that "if [she] didn't settle immediately that [her attorney] would withdraw from [her] case and [her] case would be worth zero."
• Because of the mediator's "abuse," Mitchell "experienced feelings of disassociation" and suicidal ideation. Mitchell "cried continuously for more than two hours," "hyperventilated," and "sobbed, gasping for breath."
• Mitchell's attorney "thought [her] reaction was funny and he and the mediator laughed at [Mitchell's] tears in front of [her] face."
• The mediator "pressured" Mitchell by stating that her case would be worth nothing and that "no attorney would take [her] case once [her attorney] resigned."
Mitchell asserts that, because of these alleged violations, she is entitled to injunctive relief to prevent enforcement of the mediated settlement agreement.
As this summary shows, Mitchell's alleged ADA violations are premised on what transpired during the May 26, 2011 mediation. The purpose of mediation is to permit parties to come to the table knowing they can speak freely about their dispute and be confident that what occurs during the proceeding will be kept confidential. Hydroscience Techs., Inc. v. Hydroscience, Inc., 401 S.W.3d 783, 796 (Tex. App.-Dallas 2013, pet. denied); see also Allison v. Fire Ins. Exch., 98 S.W.3d 227, 260 (Tex. App.-Austin 2002, pet. granted, judgm't vacated w.r.m.) ("a 'cloak of confidentiality' surrounds mediation, and the cloak should be breached only sparingly"). Codifying this principle, the disclosure of what occurs during mediation is governed by Texas Civil Practice and Remedies Code section 154.053, which states:
Unless the parties agree otherwise, all matters, including the conduct and demeanor of the parties and their counsel during the settlement process, are confidential and may never be disclosed to anyone, including the appointing court.Tex. Civ. Prac. & Rem. Code Ann. § 154.053(c). This section prohibits parties from relying on what occurred during mediation to support their claims to the court. See, e.g., Lyon v. Bldg. Galveston, Inc., No. 01-19-00571-CV, 2020 WL 7391705, at *6 (Tex. App.-Houston [1st Dist.] Dec. 17, 2020, pet. denied) (mem. op.) (section 154.053(c) prohibited the appellee from using a document it presented and statements made by another party during mediation to support its claim for attorney's fees).
Mitchell's ADA allegations and the supporting statements in her affidavit fall squarely within the type of information described by section 154.053(c). See Tex. Civ. Prac. & Rem. Code Ann. § 154.053(c). Mitchell does not assert - and the record does not show - that the parties agreed to waive this information's confidentiality. Likewise, Mitchell does not cite any authority to show that the confidentiality privilege should not apply here. Therefore, the trial court did not err by failing to sustain Mitchell's alleged ADA violations.
We overrule Mitchell's issues on appeal predicated on the alleged ADA violations.
III. Releases Do Not Conform to Mediated Settlement Agreement
Within the arguments on this point, Mitchell appears to assert that the defendants' tendered releases did not conform to the mediated settlement agreement with respect to (1) the parties included, (2) the indemnity provisions, and (3) the distribution of the settlement funds.
Mitchell did not cite to, and our review of the summary judgment record did not find, the release tendered by Alden Roofing pursuant to the mediated settlement agreement. Therefore, we consider these arguments only with respect to the release tendered by the State Farm Defendants.
As discussed above, the parties signed a mediated settlement agreement in which Mitchell agreed to "sign a release" with respect to her Hurricane Ike claims against the State Farm Defendants. Agreements to enter into future contracts are enforceable if they contain all material terms. McCalla v. Baker's Campground, Inc., 416 S.W.3d 416, 418 (Tex. 2013) (per curiam); MKM Eng'rs, Inc. v. Guzder, 476 S.W.3d 770, 778 (Tex. App.-Houston [14th Dist.] 2015, no pet.). Therefore, a binding contract may exist when parties agree upon some terms, understand them to be an agreement, and leave other terms to be made later. MKM Eng'rs, Inc., 476 S.W.3d at 778. However, a court cannot create a contract where none exists and generally may not add, alter, or eliminate essential terms. Id. "[T]he materiality of a contract term is determined on a contract-by-contract basis, in light of the circumstances of the contract." Id.
With respect to the first alleged nonconformity, Mitchell asserts that, "[a]lthough State Farm, Alden Roofing, Paul Summer and Carol Turner are included in the Settlement, others in the tendered Releases are not." However, the State Farm Defendants' release only refers to State Farm, Summer, and Turner. It does not include within its scope any other parties that are outside the mediated settlement agreement. Therefore, we overrule Mitchell's contention that the release includes parties outside the mediated settlement agreement.
With respect to the second alleged nonconformity, Mitchell asserts that the State Farm Defendants' release includes an indemnity clause that was outside the scope of the mediated settlement agreement. This indemnity clause states:
MARGARET MITCHELL AGREES TO INDEMNIFY AND HOLD FOREVER HARMLESS AND DEFEND STATE FARM LLOYDS, PAUL SUMMER AND CAROL TURNER FROM ANY AND ALL DEMANDS, CAUSES OF ACTION, SUITS, CLAIMS AND ADDITIONAL PAYMENTS FOR ANY DAMAGES AND ALL JUDGMENTS WHICH MAY HEREAFTER BE ASSERTED 'BY AND THROUGH, ON BEHALF OF OR UNDER THE NAME OR IDENTITY OF' MARGARET MITCHELL AGAINST STATE FARM LLOYDS, PAUL SUMMER AND CAROL TURNER AND ARISING OUT OF THE CLAIM, THE LAWSUIT OR THIS AGREEMENT, SPECIFICALLY INCLUDING ANY DEMANDS, CAUSES OF ACTION, SUITS OR CLAIMS ASSERTED BY ANY ASSIGNEE, SUBROGREE, MORTGAGEE OR LIENHOLDER OF MARGARET MITCHELL. PROVIDED, HOWEVER, THAT WITH RESPECT TO ANY MORTGAGEE, MARGARET MITCHELL'S DEFENSE AND INDEMNITY OBLIGATION UNDER THIS PARAGRAPH IS SPECIFICALLY LIMITED TO MARGARET MITCHELL'S NET SETTLEMENT PROCEEDS.
We agree with Mitchell that the indemnity provision is outside the scope of the parties' mediated settlement agreement. In the mediated settlement agreement, Mitchell agreed to "sign a release prepared by the attorney for each Defendant releasing all claims which were, or could have been brought." The mediated settlement agreement did not contain any provisions regarding Mitchell's future indemnity obligations. Therefore, the indemnity provision in the State Farm Defendants' release is outside the scope of the parties' previous agreement. See MKM Eng'rs, Inc., 476 S.W.3d at 778.
However, this does not render a fatal blow to the State Farm Defendants' tendered release. The release includes a provision stating as follows:
In the event that any provision of this Release, Indemnity and Settlement Agreement is held void, voidable, or unenforceable, the remaining portions shall remain in full force and effect, and a court of competent jurisdiction shall be entitled to reform the void, voidable, or unenforceable provision to the extent necessary to make it valid and enforceable and consistent with the overall intent of this Agreement.
Therefore, we will modify the trial court's judgment to strike from the State Farm Defendants' tendered release the provision addressing Mitchell's indemnity obligations. The remainder of the release will remain enforceable according to its terms.
With respect to the third alleged nonconformity, Mitchell asserts the State Farm Defendants' release improperly includes her attorney and Chase Bank as payees for the agreed settlement amount. Specifically, the release states as follows:
5. Claimant acknowledges that the consideration described in Paragraph 1 will be made payable as follows:
a. Draft in the amount of THIRTY-FOUR THOUSAND and No/100 Dollars ($34,000.00) made payable to MARGARET MITCHELL & DOYLE RAIZNER and J.P. Morgan Chase Bank.
Addressing this complaint in their summary judgment response, the State Farm Defendants asserted that Chase Bank was listed as a payee in accordance with the terms of Mitchell's homeowner's insurance policy issued by State Farm. The State Farm Defendants filed the homeowner's insurance policy as an exhibit but this exhibit was not included with the appellate record.
With respect to the release's inclusion of Mitchell's attorney as a payee, the State Farm Defendants pointed to the attorney's previously-filed motion to withdraw. In this motion, Doyle Raizner asserted that his firm retains "an interest, and lien, for expenses incurred during Ms. Mitchell's representation." The trial court granted Raizner's motion. In its subsequent order granting the defendants' summary judgment motions, the trial court ordered that $5,594.08 of the settlement proceeds payable to Mitchell be deposited in the court's registry as "the legal expenses Ms. Mitchell's former attorney has claimed to have incurred while representing Ms. Mitchell in this lawsuit."
Raizner subsequently filed a "Motion for the Release of Funds on Deposit in the Registry of the Court to Doyle Raizner LLP." With his motion, Raizner filed as evidence his affidavit and the associated billing records; however, the billing records were not included in the appellate record.
An appellant bears the burden of bringing forth a record sufficient to show that the trial court erred. Christiansen v. Prezelski, 782 S.W.2d 843, 843 (Tex. 1990) (per curiam); Opoku-Pong v. Boahemaa, No. 14-19-00070-CV, 2020 WL 3240742, at *2 (Tex. App.-Houston [14th Dist.] June 16, 2020, no pet.) (mem. op.). This precept also applies in the summary judgment context and "the burden is on the appellant, or other party seeking review, to see that a sufficient record is presented to show error requiring reversal." Wingate v. Aetna Cas. & Sur. Co., No. A14-92-00748-CV, 1993 WL 8640, at *1 (Tex. App.-Houston [14th Dist.] Jan. 21, 1993, no writ) (citing Escontrias v. Apodaca, 629 S.W.2d 697, 699 (Tex. 1982)). "Absent a complete record of the summary judgment evidence, an appellate court must assume that the omitted documents support the judgment of the trial court." Id.; see also Enter. Leasing Co. v. Barrios, 156 S.W.3d 547, 550 (Tex. 2004) (per curiam) ("[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").
Here, Mitchell did not include with the appellate record the evidence necessary to evaluate her contention that the State Farm Defendants' release included improper payees. Therefore, we assume that the omitted evidence supported the trial court's judgment to enforce the mediated settlement agreement, the release, and the release's disbursement of the settlement funds. See Enter. Leasing Co., 156 S.W.3d at 550; Wingate, 1993 WL 8640, at *1. We overrule Mitchell's contention that the release's disbursement of funds does not conform to the mediated settlement agreement.
IV. Failure of Consideration
In this portion of her appellate brief, Mitchell only recites the law governing the affirmative defense of failure of consideration. Mitchell does not discuss how this argument applies to the facts of this case nor does she cite to any portions of the record.
Because Mitchell failed to provide any substantive legal analysis or include proper citations to the record, we conclude she failed to adequately brief any argument in support of this issue and so has waived the complaint. Tex.R.App.P. 38.1(i); see, e.g., Guajardo v. Hitt, 562 S.W.3d 768, 781 (Tex. App.-Houston [14th Dist.] 2018, pet. denied).
IV. Repudiation
Within this issue, Mitchell asserts that the State Farm Defendants repudiated the mediated settlement agreement by "insisting that new terms be added." We addressed above Mitchell's contentions regarding the alleged nonconformities between the defendants' releases and the mediated settlement agreement.
Conclusion
As discussed above, we conclude the indemnity provision in the release tendered by the State Farm Defendants exceeds the scope of the parties' mediated settlement agreement. Therefore, we modify the trial court's March 4, 2013 order to read as follows with respect to its provision granting the State Farm Defendants' summary judgment motion:
2. State Farm Lloyds, Paul Summer and Carol Tanner's Motion for Summary Judgment is granted, so as to enforce the terms of the settlement of the named parties. Because the parties' mediated settlement agreement did not include any terms addressing indemnity, the indemnity provision in the State Farm Defendants' tendered release is stricken. The remainder of the release remains enforceable according to its terms.
In its entirety, this provision states:
MARGARET MITCHELL AGREES TO INDEMNIFY AND HOLD FOREVER HARMLESS AND DEFEND STATE FARM LLOYDS, PAUL SUMMER AND CAROL TURNER FROM ANY AND ALL DEMANDS, CAUSES OF ACTION, SUITS, CLAIMS AND ADDITIONAL PAYMENTS FOR ANY DAMAGES AND ALL JUDGMENTS WHICH MAY HEREAFTER BE ASSERTED 'BY AND THROUGH, ON BEHALF OF OR UNDER THE NAME OR IDENTITY OF' MARGARET MITCHELL AGAINST STATE FARM LLOYDS, PAUL SUMMER AND CAROL TURNER AND ARISING OUT OF THE CLAIM, THE LAWSUIT OR THIS AGREEMENT, SPECIFICALLY INCLUDING ANY DEMANDS, CAUSES OF ACTION, SUITS OR CLAIMS ASSERTED BY ANY ASSIGNEE, SUBROGREE, MORTGAGEE OR LIENHOLDER OF MARGARET MITCHELL. PROVIDED, HOWEVER, THAT WITH RESPECT TO ANY MORTGAGEE, MARGARET MITCHELL'S DEFENSE AND INDEMNITY OBLIGATION UNDER THIS PARAGRAPH IS SPECIFICALLY LIMITED TO MARGARET MITCHELL'S NET SETTLEMENT PROCEEDS.
We overrule Mitchell's other arguments on appeal and affirm the remainder of the trial court's March 4, 2013 summary judgment order and July 26, 2023 final judgment.