Ceva Logistics United States, Inc. v. Acme Truck Line, Inc.

CEVA LOGISTICS U.S., INC. AND CEVA FREIGHT, LLC, Appellants v. ACME TRUCK LINE, INC., Appellee

NO. 01-16-00482-CV

Court of Appeals For The First District of Texas

December 20, 2018

On Appeal from the 129th District Court Harris County, Texas

Trial Court Case No. 2010-39403

MEMORANDUM OPINION

Appellants, CEVA Logistics, U.S., Inc. and CEVA Freight, LLC (collectively "CEVA"), challenge the trial court's rendition of summary judgment in favor of appellee, Acme Truck Line, Inc. ("Acme"), in CEVA's cross-claim against Acme for "recovery of monetary damages, pursuant to (and in the alternative) contract, statute, and common law for monies paid" by CEVA in settlement of an underlying action for theft of a shipment of cellular telephones. In one issue, CEVA contends that the trial court erred in granting Acme summary judgment.

We reverse and remand.

Background

In its original petition, Cello Partnership, doing business as Verizon Wireless ("Verizon"), alleged that "[o]n or about June 19 and 20, 2009, a shipment of over 34,000 cellular telephones and related products . . . was delivered" in Fort Worth, Texas to CEVA, Acme, and American Eagle Transport Inc., formerly known as New Horizon Transportation Inc. ("American Eagle") (collectively CEVA, Acme, and American Eagle are referred to as the "defendants"). The defendants were then to deliver the shipment to Memphis, Tennessee on or about "June 20 to June 23, 2009, by motor carriage, for an agreed compensation." However, the shipment "was lost, stolen, and/or converted by the defendants or by others for whose conduct the defendants [were] responsible." And the defendants "failed to deliver" the shipment "as required under the relevant contracts of carriage and applicable law." As a result of its loss, Verizon suffered damages in the amount of $6,114,563.00.¹

Verizon sought to recover from CEVA, Acme, and American Eagle its damages resulting from the lost or stolen cellular telephones. CEVA answered Verizon's suit and asserted cross-claims against Acme, the company that CEVA had hired to deliver the cellular telephones, and American Eagle, the company to which Acme had subcontracted the delivery, for contribution and indemnification in the event it was found liable to Verizon for damages related to the stolen goods. Acme then asserted a cross-claim for contribution and indemnity against American Eagle, which, in turn, asserted cross-claims against CEVA and Acme for contribution and indemnity. Verizon settled with CEVA and Acme and assigned its claims against American Eagle to CEVA. Acme and CEVA then filed cross motions for summary judgment on CEVA's cross-claim against Acme.

In its First Amended Motion for Summary Judgment against CEVA, Acme argued that it was entitled to summary judgment on CEVA's cross-claim against it because it, as a matter of law, established (1) CEVA's settlement with Verizon rendered its claims for contribution and indemnity against Acme void; (2) CEVA's theories of recovery based on state law, including negligence, breach of contract, breach of warranty, contribution, and indemnity, are pre-empted by the Carmack Amendment²; (3) Acme's liability, under the Carmack Amendment, is limited to $1 million, which it satisfied by paying this amount in settlement with Verizon; (4) CEVA has no valid claim for indemnity under the Carmack Amendment; (5) the Agent Carrier Agreement relied upon by CEVA is inapplicable to and unenforceable in this case; (6) even if the Agent Carrier Agreement applies, any inconsistency between that agreement and the Bill of Lading should be resolved in favor of the Bill of Lading under federal law; (7) CEVA's claim for contractual indemnity pursuant to the Agent Carrier Agreement is invalid under state law because it violates the express negligence doctrine; and (8) the indemnity clause in the Agent Carrier Agreement violates the Texas Transportation Code.³ Acme attached to its motion the Bill of Lading, the Agent Carrier Agreement, the settlement agreement between Acme and Verizon (and Verizon's insurance carrier Allianz), and select pages from the depositions of certain representatives of CEVA and Acme.

In response to Acme's First Amended Motion for Summary Judgment, CEVA argued that Acme was not entitled to summary judgment because: (1) Acme's payment to Verizon did not extinguish its liability to CEVA pursuant to the terms of the Bill of Lading and Agent Carrier Agreement; (2) the express negligence doctrine does not apply because there has been no negligence finding against CEVA; (3) CEVA prevails regardless of whether the Carmack Amendment applies; (4) CEVA is entitled to indemnity pursuant to the Carmack Amendment; (5) the Agent Carrier Agreement governs Acme's liability to CEVA, not the Bill of Lading and the $1 million limitation of liability therein; and (6) Acme is judicially estopped from denying application of the Agent Carrier Agreement because it has taken the position that it does apply in a separate federal court case. CEVA attached to its response Acme's pleadings in its suits against the insurance company and attorney that represented Acme's interest in its settlement with Verizon, the Agent Carrier Agreement, the Bill of Lading, the Affidavit of Matt Wetzig, Vice President of Operations for CEVA, and CEVA's Terms and Conditions of Service.⁴

On March 2015, the trial court granted Acme's first amended motion for summary judgment on CEVA's cross-claim, denied CEVA's amended motion for summary judgment on that same cross-claim, and ordered that CEVA take nothing on its cross-claim against Acme. CEVA appealed, and we dismissed that appeal for want of jurisdiction because it was not made from a final order.⁵

On October 5, 2015, the trial court granted Acme's motion for summary judgment on its cross-claim against American Eagle.⁶ Then, on May 20, 2016, the trial court entered an "[a]greed [o]rder" granting CEVA's motion for summary judgment against American Eagle and "[f]inal [j]udgment."⁷ CEVA filed a notice of appeal on June 16, 2016, again challenging the trial court's March 2015 summary judgment dismissing its cross-claim against Acme.

Jurisdiction

In its brief, Acme argues that we lack jurisdiction over this appeal because CEVA untimely filed its notice of appeal.

"[C]ourts always have jurisdiction to determine their own jurisdiction." Heckman v. Williamson Cty., 369 S.W.3d 137, 146 n.14 (Tex. 2012) (internal quotations omitted). Whether we have jurisdiction is a question of law, which we review de novo. See Tex. A & M Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 840 (Tex. 2007). Generally, appeals may be taken only from final judgments. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001). To invoke an appellate court's jurisdiction over an appealable order, a timely notice of appeal must be filed. See TEX. R. APP. P. 25.1, 26.1; Penny v. Shell Oil Prods. Co., 363 S.W.3d 694, 697 (Tex. App.—Houston [1st Dist.] 2011, no pet.) ("This Court lacks jurisdiction over an appeal when the notice of appeal is not timely filed."). With certain exceptions, none of which apply here, a notice of appeal must be filed within thirty days after the judgment is signed. TEX. R. APP. P. 26.1.

A judgment issued without a conventional trial is final for purposes of appeal if it either (1) actually disposes of all claims and parties then before the court, regardless of its language, or (2) states with "unmistakable clarity" that it is a final judgment as to all claims and all parties. Lehmann, 39 S.W.3d at 192-93; see also Farm Bureau Cty. Mut. Ins. Co. v. Rogers, 455 S.W.3d 161, 163 (Tex. 2015). Because the law does not require a final judgment to be in any particular form, whether a judicial decree is a final judgment is determined by looking at the language of the decree and the record in the case. Lehmann, 39 S.W.3d at 195; Tex-Fin, Inc. v. Ducharne, 492 S.W.3d 430, 436 (Tex. App.— Houston [14th Dist.] 2016, no pet.).

Notably, a judgment that actually disposes of every issue and party in a case is not interlocutory merely because it states that it is partial or refers to only some of the parties or claims. Lehmann, 39 S.W.3d at 200. In other words, "[t]he language of an order or judgment cannot make it interlocutory when, in fact, on the record, it is a final disposition of the case." Id. A judgment that finally disposes of all remaining parties and claims, based on the record in the case, is final, regardless of its language. Id.; see also Jones v. Ill. Emp'rs Ins. of Wausau, 136 S.W.3d 728, 743 (Tex. App.—Texarkana 2004, no pet.).

Acme argues that CEVA's appeal is untimely because it was not filed within thirty days of an October 5, 2015 order in which the trial court allegedly disposed of all claims and parties. CEVA asserts that the October 2015 order did not dispose of all parties and claims and the thirty-day deadline for its appeal did not begin to run until the trial court granted CEVA summary judgment against American Eagle on May 20, 2016.

The record shows that the October 2015 order disposed of all claims pending in regard to Acme. However, CEVA and American Eagle still had cross-claims pending against one another at that time. And there is no language in the October 2015 order indicating with "unmistakable clarity" that the trial court intended it to be a final judgment as to all claims and parties. See Lehmann, 39 S.W.3d at 200 ("The intent to finally dispose of the case must be unequivocally expressed in the words of the order itself."); Am. Heritage Capital, LP v. Gonzalez, 436 S.W.3d 865, 869-72 (Tex. App.—Dallas 2014, no pet.) (order did not contain clear indication trial court intended to dispose of entire case, and intent to dispose of whole case not unequivocally expressed in words of order itself where word "final" did not appear and order did not contain statement "that it finally dispose[d] of all claims and all parties" (internal quotations omitted)), disapproved of on other grounds by Hersch v. Tatum, ...