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Thomas v. Logic Underwriters, Inc.

Court of Appeals of Texas, Second District, Fort Worth

November 16, 2017

KELLY THOMAS APPELLANT
v.
LOGIC UNDERWRITERS, INC. AND JOY YVONNE SMITH APPELLEES

         FROM COUNTY COURT AT LAW NO. 2 OF DENTON COUNTY TRIAL COURT NO. CV-2016-02299

          PANEL SUDDERTH, C.J.; GABRIEL and KERR, JJ.

          MEMORANDUM OPINION [1]

          BONNIE SUDDERTH CHIEF JUSTICE

         I. Introduction

         Appellee Logic Underwriters, Inc., via Appellee Joy Yvonne Smith, an independent insurance agent, assisted in the sale of a Standard Casualty Company insurance policy to pro se Appellant Kelly Thomas. Thomas subsequently sued Standard, Standard's claims manager and adjusters, an independent claims investigation firm and adjusters used by Standard, and the engineering firm and engineer used by Standard, in addition to Logic Underwriters and Smith. Logic Underwriters and Smith moved to dismiss the claims against them under rule of civil procedure 91a. The trial court granted their motions. This appeal, in which Thomas brings seven issues, followed. We affirm.

         II. Background

         As to Logic Underwriters and Smith, Thomas complained in her second amended petition-the live pleading at the time of Logic Underwriters's and Smith's rule 91a motions to dismiss-that she had been "knowingly, willingly, and intentionally deceived" when they "did not perform duties required by law, caused confusion, did not report losses accurately, and attempted to profit of[f] the losses incurred for their own gain."[2]

         A. Rule 91a Motions to Dismiss

         Logic Underwriters and Smith each moved to dismiss under rule of civil procedure 91a. Logic Underwriters argued that Thomas's suit had no basis in fact because it had "merely assisted in the sale of a Standard Casualty Company insurance policy to [her] and has had no involvement whatsoever in the adjustment and payment of any insurance claim made by [Thomas]" and that in her second amended petition, Thomas made "absolutely no reference, argument, or evidence as to how [Logic Underwriters] has had any involvement whatsoever in the adjustment and payment of any claim made by [Thomas]." Logic Underwriters supported its request for $1, 815 in attorney's fees with an affidavit by its attorney.

         Smith likewise argued that Thomas had alleged too few facts to demonstrate a viable, legally cognizable right to relief against her and that she had "merely assisted in the sale of a Standard Casualty Company insurance policy to [Thomas] and has had no involvement whatsoever in the adjustment and payment of any insurance claim made by [Thomas]" and that Thomas's second amended petition provided "absolutely no reference, argument, or evidence as to how [Smith] has had any involvement whatsoever in the adjustment and payment of any claim made by [Thomas]." Smith supported her request for $1, 072.50 in attorney's fees with an affidavit by her attorney.

         Thomas objected to the rule 91a motions, complaining that Logic Underwriters's motion was premature because citation had not been issued although she had "allowed the defendants to have a copy of the petition filed in order to notify them personally" in her attempt to act "in full openness and compliance." She complained that Logic Underwriters had failed in its responsibilities by hanging up on her, ignoring her calls and emails, and by not answering her questions when she tried to understand the policy terms. Thomas objected to Smith's motion because Smith's lawyer "did not give [Thomas] statutory notice of motion prior to filing this motion" and did not adhere to the court's local rules, and she accused Smith of ethics violations and violations of insurance regulations. Thomas subsequently filed supplemental objections to the motions to dismiss, alleging that Logic Underwriters had contradicted reports by the insurance company (and vice versa) and that Smith did nothing instead of mediating or acting within her licensing requirements.

         The trial court granted the motions after a hearing.

         B. Nunc pro Tunc

         During the hearing on the rule 91a motions, Logic Underwriters and Smith's attorney informed the trial court that he had requested attorney's fees for Logic Underwriters in the amount of $1, 815 and for Smith in the amount of $1, 072.50. The trial judge stated, "I will grant your Motion[s] to Dismiss, as well as granting the requested attorney's fees." However, in the order granting Logic Underwriters's motion, the trial court awarded $1, 815 in attorney's fees to Smith, while also awarding $1, 072.50 to Smith in the order granting Smith's motion.

         Logic Underwriters subsequently filed a motion for judgment nunc pro tunc to correct the attorney's fee error. The trial court held a hearing on the motion on June 28, 2017. Thomas objected, explaining at the hearing on the motion that she did not agree that it was a clerical error because "[t]he clerks didn't err in writing or recording the documents." At the hearing, the trial court admitted as an exhibit the reporter's record from the hearing on the rule 91a motions ...


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