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Phillips v. Dow Chemical Co.11/30/2005
trial court severed all claims against Dow into a separate cause, from which all plaintiffs perfected an appeal, in Cause No. 01-03-00107-CV, to challenge the summary judgment rendered in favor of Dow on the issue of its lack of retained or exercised control. The trial court granted an additional severance for the claims resolved by the second series of summary judgments, rendered on the issue of Phillips's standing, from which Phillips perfected an appeal in Cause No. 01-03-00451-CV. The trial court's orders specify that all claims asserted by the estate in the main cause were not severed and remain to be tried in the main case, pending appointment of a representative who would replace Phillips.
Standard of Review
We review summary judgments de novo, under well-settled standards that require the movant to prove that no material issues of fact remain and that the movant was entitled to judgment as a matter of law. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). A defendant may prevail on a traditional motion for summary judgment by conclusively proving that no genuine issue of material fact exists as to any element of a defendant's affirmative defense, and that the defendant is therefore entitled to prevail as a matter of law. Science Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997). A "no evidence" motion for summary judgment is proper if, after adequate time for discovery, the movant shows that the non-movant has produced no evidence on at least one essential element of the non-movant's theory of recovery. See Tex. R. Civ. P. 166a(i); Flameout Design & Fabrication, Inc. v. Pennzoil Caspian Corp., 994 S.W.2d 830, 834 (Tex. App.---Houston [1st Dist.] 1999, no pet.). In conducting our review, we resolve all doubts in favor of the non-movant. See Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003).
We may affirm the trial court's summary judgment if any of the theories presented to the trial court are meritorious, preserved for appellate review, and necessary for final disposition of the appeal, in addition to other grounds preserved for review on which the trial court did not rule. See Provident Life & Accident, 128 S.W.3d at 216; see also Cincinnati Life Ins. Co. v. Cates, 927 S.W.2d 623, 626 (Tex. 1996).
Phillips's Void Marriage
Phillips's single issue in Cause No. 01-03-00451-CV and appellants' second, third, and fourth issues in Cause No. 01-03-00107-CV challenge rendition of summary judgment in favor of appellees on the grounds that Phillips lacked standing under the wrongful death and survival statutes because he was not Stewart's surviving spouse as a matter of law. A surviving spouse has standing to pursue a survival action and a wrongful-death claim. Tex. Civ. Prac. & Rem. Code Ann.§§ 71.0001--.0021 (Vernon 1997). Standing is a prerequisite to the trial court's exercise of subject-matter jurisdiction. Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443 (Tex. 1993). A challenge to standing presents a question of law, Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998), and is therefore appropriate for resolution by summary judgment. Appellees' motions for summary judgment challenged the standing of Phillips as a surviving spouse under section 6.202(a) of the Family Code. Section 6.202(a) states that " marriage is void if entered into when either party has an existing marriage to another person that has not been dissolved by legal action or terminated by the death of the other spouse." Tex. Fam Code Ann. § 6.202(a) (Vernon 1998). Thus, a marriage entered into while one party is married to another person is void from the outset as a matter of law. Dodd v. Dodd,
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