Ricardo Diaz v. State & County Mutual Fire Insurance Company--Appeal from County Court at Law No 7 of Bexar County

MEMORANDUM OPINION
No. 04-06-00373-CV
Ricardo DIAZ,
Appellant
v.
STATE & COUNTY MUTUAL FIRE INS. CO.,
Appellee
From the County Court at Law No. 7, Bexar County, Texas
Trial Court No. 302960
Honorable H. Paul Canales, Judge Presiding

Opinion by: Catherine Stone, Justice

 

Sitting: Catherine Stone, Justice

Karen Angelini, Justice

Steven C. Hilbig, Justice

 

Delivered and Filed: May 23, 2007

 

AFFIRMED

 

Ricardo Diaz appeals the trial court's order granting State & County Mutual Fire Insurance Company's ("State & County") motion for partial summary judgment. We affirm the trial court's judgment.

Factual and Procedural Background

Diaz sued George Arce for negligence resulting from an automobile accident that occurred on or about February 14, 2003. Arce's insurance company, State & County, subsequently entered into a settlement agreement with Diaz, through which Diaz would be paid $3,498 in return for his release of all claims related to the automobile accident.

A settlement check was issued by State & County in early April 2005, but the check was lost in the mail. A replacement check was issued on May 2, 2005, but it contained a typographical error. A third check was issued on May 24, 2005, but was not received by Diaz's attorney until May 31, 2005.

One day after the check was issued, but before receipt of the check by Diaz and his attorney, Diaz filed suit for breach of contract against State & County. Following discovery, State & County filed a a traditional and no-evidence motion for partial summary judgment. The trial court granted the motion on several enumerated grounds and the judgment subsequently became a final dispositive summary judgment. The court specifically found that Diaz presented no evidence of breach of contract, damages, or attorney's fees. On appeal, Diaz challenges each of the grounds specified in the court's order. Because we hold the trial court properly granted the no-evidence motion for partial summary judgment, we address only the evidentiary claims.

No Evidence Motion for Summary Judgment

Diaz argues that the court erred in granting the no-evidence summary judgment on the contractual elements of contract formation, breach, damages, and attorney's fees.

 

Standard of Review

In a no-evidence motion for summary judgment, the movant has the burden to present summary judgment evidence raising a genuine issue of material fact. Tex. R. Civ. P. 166a(i); Espalin v. Children's Med. Ctr. of Dallas, 27 S.W.3d 675, 683 (Tex. App.-Dallas 2000, no pet.). A no-evidence summary judgment is improperly granted if the nonmovant presents more than a scintilla of evidence and thereby raises a genuine issue of material fact. Id. More than a scintilla of evidence exists when the evidence "rises to a level that would enable reasonable and fair-minded people to differ in their conclusions." Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997). In determining whether the nonmovant has met his burden, we consider the evidence in the light most favorable to the nonmovant. Gen. Mills Rests. Inc v. Tex. Wings, Inc., 12 S.W.3d 827, 833 (Tex. App.-Dallas 2000, no pet.). We will affirm a trial court's grant of summary judgment if any of the theories presented to the trial court and preserved for appellate review are meritorious. Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 157 (Tex. 2004).

Reasonable Time

Diaz contends the trial court erred in granting summary judgment because State & County breached the settlement agreement when it failed to send him the settlement check within a reasonable amount of time. When a contract does not provide a time for performance, the law will imply that performance must occur within a reasonable time. Cherco Properties, Inc. v. Law,Snakard & Gambill, P.C., 985 S.W.2d 262, 266 (Tex. App.-Fort Worth 1999, no pet.); Pearcy v. Envtl. Conservancy of Austin & Cent. Tex., Inc., 814 S.W.2d 243, 246 (Tex. App.-Austin 1991, pet. denied). What is reasonable depends on the facts and circumstances as they existed when the contract was formed. Cherco, 985 S.W.2d at 266; Pearcy, 814 S.W.2d at 246. In determining what is reasonable, we consider the nature and character of the action and the difficulty of accomplishing it, as well as the purpose of the agreement. Pearcy, 814, S.W.2d at 246. What constitutes a reasonable time is ordinarily a question of fact, but when the facts are undisputed, it becomes a question of law, which we review de novo. Cherco, 985 S.W.2d at 266.

In this case, the parties' written settlement agreement does not state a date by which State & County was required to mail the settlement check to Diaz, nor does the agreement contain any language indicating that time was of the essence in completing the settlement. Diaz signed the settlement agreement on April 14, 2005, and after State & County's two unsuccessful attempts to deliver a check earlier, Diaz received the settlement check on May 31, 2005. Diaz asserts, however, that the check was untimely because the settlement agreement was actually formed in February 2005 through a series of letters between the parties' lawyers. Diaz urges that his signing of the Agreement for Release and Indemnification on April 14, 2005, was merely the performance of an executory obligation. Diaz cites Padilla v. LaFrance for the proposition that the series of letters exchanged between counsel constituted an agreement in writing satisfying Rule 11. See 907 S.W.2d 454, 460 (Tex. 1995). However, the letters to which Diaz refers were in contemplation of the settlement agreement and were the means through which the lawyers determined the terms of the agreement; they were not the final settlement agreement as they did not contain the full text and stipulations of the agreement.

Under the facts of this case, the trial court was entitled to imply a reasonable time for performance and was within reason when he determined as a matter of law that the 47 days which passed between the signing of the agreement and Diaz's receipt of the check was not an untimely performance by State & County.

 

Damages

Even if we were to assume that the settlement agreement was actually reached in February rather than April, summary judgment is still proper because of Diaz's failure to produce any evidence of damages. The elements of a breach of contract claim are: (1) the existence of a valid contract; (2) the plaintiff performed or tendered performance; (3) the defendant breached the contract; and (4) the plaintiff was damaged as a result of the breach. Southwell v. Univ. of the Incarnate Word, 974 S.W.2d 351, 354-55 (Tex. App.-San Antonio 1998, pet. denied). In order to recover compensatory

damages, a breach-of-contract plaintiff must establish that he suffered some pecuniary loss as a result of the breach of contract. Prudential Sec., Inc. v. Haugland, 973 S.W.2d 394, 396 (Tex. App.-El Paso 1998, pet. denied). The evidence must show that the damages were the natural, probable, and foreseeable consequence of the defendant's conduct. Id. at 397.

After reviewing Diaz's summary judgment evidence, we conclude that he failed to present more than a scintilla of evidence to raise a genuine issue of material fact with respect to damages he sustained. Diaz offered no evidence to prove that he was in any way harmed by the delay in receiving the check either three months after the letters between his counsel and State & County, or 47 days after signing the release. Accordingly, we conclude the trial court properly granted summary judgment on this issue.

Conclusion

Based on the foregoing, the judgment of the trial court is affirmed.

Catherine Stone, Justice