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Seim v. Lloyds

Court of Appeals of Texas, Second District, Fort Worth

May 4, 2017

RICHARD SEIM AND LINDA SEIM APPELLANTS
v.
ALLSTATE TEXAS LLOYDS AND LISA SCOTT APPELLEES

         FROM THE 141ST DISTRICT COURT OF TARRANT COUNTY TRIAL COURT NO. 141-270531-14

          MEMORANDUM OPINION ON EN BANC RECONSIDERATION [1]

          SUE WALKER, JUSTICE

         Appellants 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.

         I. Introduction

         Appellants 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.

         II. Factual and Procedural Background

         Allstate 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.[2] 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."[3] Allstate denied the Seims' claim on September 10, 2013.

         On 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.[4] 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.[5]

         On 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).[6] 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 2011).

         Appellees 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.[7] 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.

         The 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.[8] 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.").

         The 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.

         III. Did the Trial Court Err in Granting Summary Judgment?

         When a 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.

         A. Standard of Review

         After 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).

         When 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 ...


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