Court of Appeals of Texas, Second District, Fort Worth
COUNTY COURT AT LAW NO. 2 OF DENTON COUNTY TRIAL COURT NO.
SUDDERTH, C.J.; GABRIEL and KERR, JJ.
MEMORANDUM OPINION 
SUDDERTH CHIEF JUSTICE
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.
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."
Rule 91a Motions to Dismiss
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.
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.
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
trial court granted the motions after a hearing.
Nunc pro Tunc
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.
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 ...