Texas Judiciary Online - HTML Opinion

^{^[1]} =20 In the trial court, Criaco=3Ds position on this issue was not clear; = however,=20 on appeal Criaco has not contradicted the statement of this fact = in=20 Sompo=3Ds appellate brief. See = Tex. R. App. P. = 38.1(f). In=20 addition, Criaco has affirmatively stated this fact in its=20 brief.

^{^[2]} =20 The agreement also states that defendants Anthony Jewkes and Terry = Flynn=20 are parties; however, this is not material to the issues in this=20 appeal.

^{^[3]} =20 Cunningham was not a party to any of these = lawsuits.

^{^[4]} =20 Our dissenting colleague cites several cases that do not involve = any =20 issue as to whether an entity can enforce a contract. See = Sierra=20 Club v. Morton, 405 U.S. 727, 729B40 (1972) (holding Sierra Club lacked = standing=20 under Administrative Procedure Act to seek declaratory judgment = and=20 injunction based on its claims that development plan = violated=20 federal laws and regulations); Austin Nursing Center, Inc. v.=20 Lovato, 171 S.W.3d 845, 849B50 (Tex. 2005) (holding that = decedent=3Ds estate had standing to pursue survival = claim);=20 Brown v. Todd, 53 S.W.3d 297, 306 (Tex. 2001) (involving = issue of=20 standing to challenge mayor=3Ds executive order); Douglas v. = Delp, 987=20 S.W.2d 879, 882 (Tex. 1999) (holding that plaintiff who had filed=20 bankruptcy petition had no standing to assert malpractice claims = in state=20 court); Texas Ass=3Dn of Business v. Texas Air Control=20 Bd., 852 S.W.2d 440,=20 443B48 (Tex. 1993) (holding that party had = standing to=20 seek declaration that statutes violated various provisions of = Texas=20 Constitution); Gleason v. Taub, 180 S.W.3d 711, = 712B15 (Tex. App.CFort Worth 2005, pet. denied) (holding = property=20 owners had standing to assert claims for injury to real property = and=20 trespass). In addition, our dissenting colleague cites the=20 West case, which supports the majority opinion rather than = the=20 dissenting opinion in this case. See West v. Brenntag = Southwest,=20 Inc., 168 S.W.3d 327, 330B39 (Tex. App.CTexarkana 2005, pet. denied) (reversing = and=20 rendering a judgment of dismissal as to negligence and nuisance = claims as=20 to which landowner lacked standing and reversing and rendering a=20 take-nothing judgment on the merits as to the = landowner=3Ds contract claim because the landowner = was not a=20 party to the contract upon which it sued).

^{^[5]} =20 Criaco also argued in the trial court that Cunningham agreed that = Criaco=20 would secure payment of the Lien for Cunningham and therefore be = entitled=20 to attorney=3Ds fees for obtaining this recovery. = However,=20 Criaco=3Ds summary-judgment evidence does not = prove such an=20 agreement. Criaco relies on correspondence with Cunningham; = however,=20 the letters sent by Cunningham to Criaco before the execution of = the=20 Settlement Agreement state only (1) that Cunningham handles the=20 workers=3D compensation adjusting and that Terry = Flynn=20 handles the UIM adjusting, and (2) the total amount of the = Lien. =20 Criaco also relies on a letter sent by Cunningham to Criaco about = four=20 months after execution of the Settlement Agreement. Criaco = claims=20 that Cunningham admitted that it was statutorily obligated to pay = $27,000=20 in attorney=3Ds fees in this letter. Because of = the timing=20 of this letter, it cannot constitute part of any alleged agreement = regarding the settlement. Further, to the extent Criaco = sought to=20 use this letter as an admission by Sompo, Criaco did not plead and = conclusively prove that Cunningham=3Ds statement was binding on Sompo under = agency=20 principles. Even if Sompo had stated that it was obligated = to pay=20 these fees four months after the Settlement Agreement, that = statement=20 would not be a judicial admission and would not prevent Sompo from = changing its position based on the unambiguous language of the = Settlement=20 Agreement.

^{^[6]} =20 Criaco did not expressly address section 417.003 of the Texas = Labor Code=20 as a basis for recovery in its motion for summary judgment, but = even if it=20 had, this statute would have afforded no relief. Sompo = correctly=20 asserts that Criaco cannot recover under this statute because, = among other=20 things, Sompo was not A[a]n insurance carrier whose interest = [was] not=20 actively represented by an attorney,@ given that Sompo was represented by = counsel other=20 than Criaco in the UIM Coverage action. See Tex. Lab. Code Ann. = ' 417.003.=20