JOHN H. CARNEY & ASSOCIATES, Appellant v. SCOTTSDALE INSURANCE COMPANY, Appellee

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State: Texas

Court: Texas Northern District Court

Docket No: 05-05-01027-CV

Case Date: 05/08/2007

Plaintiff: JOHN H. CARNEY & ASSOCIATES, Appellant

Defendant: SCOTTSDALE INSURANCE COMPANY, Appellee

Preview:JOHN H. CARNEY & ASSOCIATES, Appellant v. SCOTTSDALE INSURANCE COMPANY, Appellee
Affirmed; Opinion Filed May 7, 2007.

In The Court of Appeals Fifth District of Texas at Dallas ............................ No. 05-05-01027-CV ............................ JOHN H. CARNEY & ASSOCIATES, Appellant V. SCOTTSDALE INSURANCE COMPANY, Appellee ............................................................. On Appeal from the 193rd Judicial District Court Dallas County, Texas Trial Court Cause No. 05-00682-L ............................................................. MEMORANDUM OPINION Before Justices Moseley, Francis, and Mazzant Opinion By Justice Francis John H. Carney & Associates appeals the trial court's summary judgment in favor of Scottsdale Insurance Company. In three points of error, appellant contends summary judgment was improper because material fact questions exist precluding summary judgment. The factual background and procedural history of this case are well known to the parties; thus, we do not recite them here in detail. Because all dispositive issues are settled in law, we issue this memorandum opinion. See Tex. R. App. P. 47.4. We affirm. Marilyn Anderson hired Carney to represent her in a dispute with her insurance company, Scottsdale, and signed a contingency fee agreement. Attorney David Gibson, an employee of Carney's, worked on the case. When Gibson left the Carney firm, Anderson terminated her agreement with Carney and instructed Carney to deliver her files to Gibson. Ultimately, Gibson settled the lawsuit, but Carney did not receive any of the settlement proceeds. Carney then sued Scottsdale alleging it had a lien interest and was entitled to recover forty percent of the settlement amount from Scottsdale. Scottsdale filed a motion for summary judgment on both traditional and no-evidence grounds. In particular, Scottsdale asserted there was no evidence (1) as to the existence of a lien or (2) that Scottsdale had notice of any lien. The trial court granted summary judgment without specifying a basis. Where, as here, a trial court does not specify the grounds upon which summary judgment is based, an appellant must specifically challenge every possible ground for rendition of summary judgment. See Malooly Bros., Inc. v. Napier, 461 S.W.2d 119, 121 (Tex. 1970); Jones v. Hyman, 107 S.W.3d 830, 832 (Tex. App.-Dallas 2003, no pet.); Cullen Frost Bank v. Commonwealth Lloyd's Ins. Co., 852 S.W.2d 252, 256 (Tex. App.-Dallas 1993), writ denied per curiam, 889 S.W.2d 266 (Tex. 1994). If the appellant does not challenge one of the grounds for summary judgment, the judgment may be affirmed on that ground alone. Jones, 107 S.W.3d at 832; Cullen Frost Bank, 852 S.W.2d at 256. In its brief on appeal, Carney did not challenge the propriety of the summary judgment on the ground there is no evidence of the existence of a lien; rather, all three of Carney's issues are related to notice of the lien. In fact, Carney's brief asserted that "[t]he validity and amount of the attorney lien claim were not at issue." It was only after appellee raised the issue of the lien's existence in its responsive brief that Carney belatedly addressed the lien's existence in its
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reply brief. The Texas Rules of Appellate Procedure do not allow an appellant to include in a reply brief a new issue in response to some matter pointed out in the appellee's brief but not raised by the appellant's original brief. Dallas Co. v. Gonzalez, 183 S.W.3d 94, 104 (Tex. App.-Dallas 2006, pet. denied ). Because Carney did not address the issue of the lien's existence in its original brief and could not raise a new issue in its reply brief, we conclude Carney has waived any complaint on the existence of the lien. See Morriss v. Enron Oil & Gas Co., 948 S.W.2d 858, 871 (Tex. App.-San Antonio 1997, no writ) (explaining that failure to take advantage of opportunity to present argument on alternative ground results in waiver). Because summary judgment may have been granted, properly or improperly, on a ground not properly challenged by Carney, we affirm the summary judgment. See Holloway v. Starnes, 840 S.W.2d 14, 23 (Tex. App.-Dallas 1992, writ denied).

MOLLY FRANCIS JUSTICE 051027f.p05

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