Daniel v. Morris

1

DAVID PATRICK DANIEL, JR., Appellant v. JENNIFER LEIGH MORRIS, PHILIP PLACZEK, AND PLACZEK LAW, PLLC, Appellees

No. 01-22-00319-CV

Court of Appeals of Texas, First District

February 22, 2024

On Appeal from the 61st District Court Harris County, Texas Trial Court Case No. 2019-78634

Panel consists of Goodman, Countiss, and Farris Justices.

MEMORANDUM OPINION

Gordon Goodman, Justice.

This appeal arises from a lawsuit between former spouses concerning whether the ex-wife violated the confidentiality provisions of a settlement agreement they executed to resolve custody and defamation lawsuits between them. Also ensnarled in the current lawsuit is the mediator who facilitated their settlement agreement.

The trial court granted summary judgment in favor of the ex-wife and mediator, entering a final take-nothing judgment on all the ex-husband's claims. The ex-husband appeals. Based on the summary-judgment record, we conclude that the trial court properly dismissed some claims but not others. Accordingly we affirm the trial court's judgment in part, reverse the trial court's judgment in part, and remand this cause to that court for further proceedings consistent with our opinion.

BACKGROUND

David Patrick Daniel, Jr. and his ex-wife, Jennifer Leigh Morris became embroiled in litigation after their divorce. Daniel sued Morris for defamation, and Morris filed suit to modify the custodial arrangements concerning their child. They mediated these suits and resolved them in a single settlement agreement. Or so it briefly seemed. Daniel now sues Morris as well as the mediator and his law firm, alleging that they violated the settlement agreement's confidentiality provisions.

In relevant part, the settlement agreement identifies the parties entering into it as Daniel and Morris (who is identified by her maiden name Garrett). They agreed that the agreement is irrevocable and that either party is entitled to a judgment based on the agreement. The agreement spells out the custody arrangements of their child and the parties' child-support obligations. Under the agreement, the parties were obliged to dismiss their respective lawsuits, and Daniel was to pay Morris $155,000.

The settlement agreement also had several confidentiality provisions. First, the agreement provided that the parties would enter into a confidentiality agreement about the claims and allegations they made and seal certain court-filed documents. Second, the agreement prohibited the parties and their spouses from disclosing or distributing in any manner information or documents relating to the two lawsuits. Third the agreement prohibited Morris and her new husband from contacting the lawyers, their agents, or anyone affiliated with a family-law proceeding in Wisconsin to which Daniel's new wife was a party. In the event that Daniel sued Morris or her husband, the confidentiality provisions of the suit would be waived.

The settlement agreement also provided that a violation of its terms would render the agreement null and void. In this event, Daniel was entitled to the return of all consideration he paid within 24 hours of him giving notice of the violation.

The mediator, Philip Placzek, was not a party to the settlement agreement. But along with Daniel and Morris, he signed it under a signature block indicating that the signatories both approved and agreed to the terms of the settlement agreement.

In his live pleading, Daniel asserts a claim for breach of contract against Morris, Placzek, and Placzek's firm for breaching the settlement agreement's confidentiality provisions. On the same basis, he seeks a declaration that the settlement agreement is null and void, as well as rescission, including the return of consideration he paid. Finally, Daniel asserts a malpractice claim against Placzek and his firm on the ground that Placzek violated his duty of confidentiality in his capacity as mediator.

Daniel alleges several particular breaches of confidentiality, including:

• on June 18, 2019, Morris, Placzek, and his firm filed an unsealed and unredacted copy of the settlement agreement in the custody suit;

• on August 6, 2019, Morris filed an unsealed and unredacted proposed order containing the settlement agreement's terms; and

• on August 9, 2019, Morris filed an unsealed and unredacted motion seeking entry of the proposed order containing the agreement's terms.

Morris moved for traditional and no-evidence summary judgment. She asserted that there is no evidence she breached the confidentiality provisions of the settlement agreement. Morris also argued that the summary-judgment evidence- including her own affidavit and the affidavit of a third party associated with her and Daniel's child's school-showed she did not breach the confidentiality provisions.

Placzek and his firm likewise moved for traditional and no-evidence summary judgment but on different grounds. With respect to breach of contract, they asserted that there is no evidence they were parties to the settlement agreement or that they received any consideration binding them to this agreement. Regarding rescission, they asserted that there is no evidence Daniel offered to restore any consideration or benefit he received, which they posited to be a requisite for rescission. As to Daniel's malpractice claim, they asserted entitlement to traditional summary judgment on the basis that Daniel's pleading shows this claim is barred by the statute of limitations.

Daniel opposed both summary-judgment motions. With regard to Morris's motion, Daniel submitted evidence that he argued supported each of the breaches of confidentiality identified in his live pleading. He also identified two more breaches:

• on June 18, 2019, Morris's husband contacted a lawyer in the Wisconsin family-law suit and disclosed the terms of the settlement agreement; and

• on August 20, 2019, Morris sent a letter that disclosed the terms of the settlement agreement to the school her and Daniel's child attends.

As to Placzek's motion, Daniel argued that the mediator's signature approving and agreeing to the settlement agreement made him a party to the agreement. Daniel did not address Placzek's arguments regarding lack of consideration and limitations.

The trial court granted both summary-judgment motions, and the trial court entered a judgment that Daniel take nothing on his claims. Daniel now appeals.

DISCUSSION

Standard of Review

We review summary judgments de novo. Dillard v. SNC-Lavalin Eng'rs & Constructors, 629 S.W.3d 692, 696 (Tex App.-Houston [1st Dist.] 2021, no pet.).

After adequate time for discovery, a party may move for summary judgment on the basis that there is no evidence to support one or more essential elements of the nonmovant's claim. Tex.R.Civ.P. 166a(i); Dillard, 629 S.W.3d at 696. The trial court must grant no-evidence summary judgment unless the nonmovant responds by producing competent evidence raising a genuine issue of material fact as to each challenged element. Tex.R.Civ.P. 166a(i); Dillard, 629 S.W.3d at 696.

The no-evidence summary-judgment standard of review mirrors legal-sufficiency review. Dillard, 629 S.W.3d at 696. Thus, we will affirm a no-evidence summary judgment when there is a complete absence of evidence of a vital fact, the court is barred by rules of law or evidence from giving weight to the sole evidence offered to prove a vital fact, the evidence offered to prove a vital fact is no more than a mere scintilla, or the evidence conclusively shows the opposite of a vital fact. Id. We consider the evidence in the light most favorable to the nonmovant. Id.

To obtain traditional summary judgment, a party must show that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law. Tex.R.Civ.P. 166a(c). Thus, when a defendant moves for summary judgment, it must either conclusively disprove at least one essential element of a challenged claim or conclusively prove the elements of an affirmative defense. Blair v. Fritsch, 608 S.W.3d 407, 412-13 (Tex. App.-Houston [1st Dist.] 2020, pet. stricken).

If a defendant establishes its entitlement to traditional summary judgment, the burden shifts to the nonmovant to raise a genuine issue of material fact. Id. at 413. A genuine issue of material fact exists when the summary-judgment evidence would allow reasonable and fair-minded people to differ in their conclusions. Id. Once again, we review the summary-judgment evidence in the light most favorable to the nonmovant, crediting evidence that favors the nonmovant if reasonable jurors could, disregarding contrary evidence unless reasonable jurors could not, and indulging all reasonable inferences and resolving any doubts in the nonmovant's favor. Id.

We cannot affirm a summary judgment on a ground that the movant did not raise in its summary-judgment motion in the trial court. Garrett Operators v. City of Houston, 461 S.W.3d 585, 591 (Tex. App.-Houston [1st Dist.] 2015, no pet.); see also Mott v. Red's Safe & Lock Servs., 249 S.W.3d 90, 98 (Tex. App.-Houston [1st Dist.] 2007, no pet.) (stating that no-evidence motion that fails to specifically identify challenged elements is defective and cannot support summary judgment).

I. Summary Judgment in Morris's Favor

Daniel's claims against Morris are all premised on her breach of the settlement agreement's confidentiality provisions. Morris successfully moved for summary judgment on the ground that there either was no evidence of breach or that the evidence conclusively disproves breach. We address each alleged breach in turn.

A. June Contacts with Wisconsin Lawyer

In support of his allegation that Morris's husband disclosed the terms of the settlement agreement or other confidential...