Court of Appeals of Texas, Second District, Fort Worth
THE 141ST DISTRICT COURT OF TARRANT COUNTY TRIAL COURT NO.
MEMORANDUM OPINION ON EN BANC
Richard and Linda Seim filed a motion for en banc
reconsideration of our opinion dated February 9, 2017. We
deny the motion, withdraw our February 9, 2017 opinion and
judgment, and substitute the following.
Richard and Linda Seim sued Appellees Allstate Texas Lloyds
and its adjuster, Lisa Scott, following Allstate's denial
of a claim under the Seims' homeowners' policy.
Appellees moved for summary judgment on the Seims'
claims, asserting limitations and that the Seims had no
evidence to support certain elements of their claims. The
trial court granted summary judgment in Appellees' favor
without specifying the grounds on which the judgment was
based. In two issues, the Seims argue that summary judgment
was improper because their claims are not barred by
limitations and because they presented a genuine issue of
material fact on each of the challenged elements of their
claims. We will affirm.
Factual and Procedural Background
provided the Seims with a homeowners' policy covering
their property in Bedford, Texas. The policy period began on
April 27, 2013, and ended on April 27, 2014. On August 28,
2013, the Seims notified Allstate that their home had been
damaged by a storm that occurred earlier in August. Scott, an
adjuster for Allstate, inspected the Seims' property on
or about September 10, 2013. Scott testified at her deposition
that the Seims' property had some interior water damage,
but the roof did not have any wind or hail damage. Scott
further testified that in order for the interior water damage
to be covered under the Seims' policy, "there ha[d]
to be an opening in the roof [caused] by wind or hail . . .
and [the Seims] did not have that." Allstate denied
the Seims' claim on September 10, 2013.
February 11, 2014, the Seims brought suit against Allstate
alleging certain causes of action arising from Allstate's
denial of their homeowners' claim. In their original
petition, the Seims claimed that the damage to their property
resulted from the August 2013 storm. On April 15, 2014, the
Seims amended their petition. In their first amended
petition, the Seims removed all references to the August 2013
storm and asserted that the damage to their property stemmed
from an April 2007 storm. On May 6, 2014, the Seims amended their
petition again. In their second amended petition, the Seims
added Scott as a defendant and asserted that the damage to
their property stemmed from storms occurring in April 2007,
April 2008, and May 2012.
October 28, 2015, the Seims amended their petition one last
time. In their third amended petition, the Seims removed
references to the April 2007, April 2008, and May 2012
storms, and once again asserted that the damage to their
property stemmed from an August 2013 storm. The Seims alleged
the following claims in their third amended petition: (1)
breach of contract; (2) breach of the duty of good faith and
fair dealing; (3) unfair settlement practices in violation of
the Texas Insurance Code; (4) violation of the prompt-payment
provisions of the Texas Insurance Code; and (5) violation of
the Texas Deceptive Trade Practices Act (DTPA). See Tex.
Ins. Code Ann. §§ 541.060 (unfair settlement
practices), 542.060 (prompt payment of claims) (West 2009);
Tex. Bus. & Com. Code Ann. § 17.41 et seq. (West
moved for summary judgment on both traditional and
no-evidence grounds. Appellees argued that the Seims'
claims were barred by limitations, asserting that the October
28, 2015 filing date of the third amended petition, rather
than the February 11, 2014 filing date of the original
petition, should be considered the date in which the
Seims' claims were filed. Appellees also argued that the
Seims had no evidence to support their claims. Amongst other
challenges, Appellees asserted that the Seims could not prove
that they sustained a loss that fell within the coverage
afforded by the policy and, therefore, summary judgment was
proper on all of the Seims' claims.
Seims filed their response to Appellees' motion for
summary judgment seven days prior to the summary judgment
hearing. Due to what the Seims describe as a "technical
failure, " their response did not include any attached
summary judgment evidence. On the day of the summary judgment
hearing, the Seims filed a response that included attached
summary judgment evidence. Six days after the hearing, the
Seims once again filed their response with attached summary
judgment evidence. A week later, the Seims filed a
supplemental response to Appellees' motion for summary
judgment that included additional summary judgment evidence.
A week after that, the Seims filed an amended supplemental
response to Appellees' motion for summary judgment that
included more summary judgment evidence. The Seims did not
ask for leave to file any of the responses that were filed
later than seven days prior to the summary judgment hearing.
See Tex. R. Civ. P. 166a(c) ("Except on leave
of court, the adverse party, not later than seven days prior
to the day of hearing may file and serve opposing affidavits
or other written response.").
trial court ultimately granted Appellees' no-evidence and
traditional motion for summary judgment. The summary judgment
order reflected that the trial court had considered "all
responses [and] all competent summary judgment
evidence." The order did not specify the grounds on
which the judgment was based. This appeal ensued following
the entry of the summary judgment order.
Did the Trial Court Err in Granting Summary
party seeks both a traditional and no-evidence summary
judgment on the nonmovant's claims, we first review the
trial court's summary judgment under the no-evidence
standard of Texas Rule of Civil Procedure 166a(i). Ford
Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004).
Thus, we will first address the Seims' second
issue-whether they presented a genuine issue of material fact
on each the challenged elements of their claims.
Standard of Review
an adequate time for discovery, the party without the burden
of proof may, without presenting evidence, move for summary
judgment on the ground that there is no evidence to support
an essential element of the nonmovant's claim or defense.
Tex.R.Civ.P. 166a(i). The motion must specifically state the
elements for which there is no evidence. Id.;
Timpte Indus., Inc. v. Gish, 286 S.W.3d 306, 310
(Tex. 2009). The trial court must grant the motion unless the
nonmovant produces summary judgment evidence that raises a
genuine issue of material fact. See Tex. R. Civ. P.
166a(i) & cmt.; Hamilton v. Wilson, 249 S.W.3d
425, 426 (Tex. 2008).
reviewing a no-evidence summary judgment, we examine the
entire record in the light most favorable to the nonmovant,
indulging every reasonable inference and resolving any doubts
against the motion. Sudan v. Sudan, 199 S.W.3d 291,
292 (Tex. 2006). We review a no-evidence summary judgment for
evidence that would enable reasonable and fair-minded jurors
to differ in their conclusions. Hamilton, 249 S.W.3d
at 426 (citing City of Keller v. Wilson, 168 S.W.3d
802, 822 (Tex. 2005)). We credit evidence favorable to the
nonmovant if reasonable jurors could, and we disregard
evidence contrary to the nonmovant unless reasonable jurors
could not. Timpte Indus., 286 S.W.3d at 310 (quoting
Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582
(Tex. 2006)). If the nonmovant brings forward more than a
scintilla of probative evidence that raises a genuine issue