United States District Court, N.D. Texas
LEONA G. CARSWELL,
STATE FARM LLOYDS, Defendant.
MEMORANDUM OPINION AND ORDER
MCBRYDE UNITED STATE DISTRICT JUDGE
for consideration the motion of defendant, State Farm Lloyds,
for summary judgment. The court, having considered the
motion, the response of plaintiff, Leona G. Carswell, the
reply, the record, the summary judgment evidence, and
applicable authorities, finds that the motion should be
granted in part.
operative pleading is her amended complaint filed April 13,
2017. Doc. 15. Plaintiff alleges: Plaintiff purchased
a rental dwelling policy from defendant providing coverage
for property located in Fort Worth, Texas. Plaintiff's
property was damaged in a fire caused by a gas explosion on
or about March 19, 2010. Plaintiff used a contractor
recommended by defendant, but the contractor failed to
satisfactorily complete repairs. Plaintiff then undertook to
complete the repairs herself as a general contractor, but
defendant failed to pay her expenses incurred to repair or
replace damaged property.
asserts four "claims for relief." First, she sues
under the Texas Deceptive Trade Practices-Consumer Protection
Act, Tex. Bus. & Com. Code §§ 17.41-.63
(X, DTPA") . Second, she sues under the Texas
Insurance Code § 541.060. Third, she sues for breach of
duty of good faith and fair dealing. And, fourth, she sues
for breach of contract.
Grounds of the Motion
the court can tell, defendant contends that plaintiff cannot
prevail on any of her claims. None of the grounds is set forth
with clarity and the argument follows a stream of
consciousness style, which is difficult to follow. That
plaintiff's amended complaint is extremely poorly drafted
is not an excuse.
Summary Judgment Principles
56(a) of the Federal Rules of Civil Procedure provides that
the court shall grant summary judgment on a claim or defense
if there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.
Fed.R.Civ.P. 56(a); Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 247 (1986), The movant bears the initial burden
of pointing out to the court that there is no genuine dispute
as to any material fact. Celotex Corp. v. Catrett,
477 U.S. 317, 323, 325 (1986). The movant can discharge this
burden by pointing out the absence of evidence supporting one
or more essential elements of the nonmoving party's
claim, "since a complete failure of proof concerning an
essential element of the nonmoving party's case
necessarily renders all other facts immaterial."
Id. at 323. Once the movant has carried its burden
under Rule 56(a), the nonmoving party must identify evidence
in the record that creates a genuine dispute as to each of
the challenged elements of its case. Id. at 324;
see also Fed.R.Civ.P. 56(c) ("A party asserting
that a fact . ., .is genuinely disputed must support the
assertion by . . . citing to particular parts of materials in
the record ....") If the evidence identified could not
lead a rational trier of fact to find in favor of the
nonmoving party as to each essential element of the nonmoving
party's case, there is no genuine dispute for trial and
summary judgment is appropriate. Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 597
(1986). In Mississippi Prot. & Advocacy
Sys., Inc. y. Cotten, the Fifth Circuit explained:
Where the record, including affidavits, interrogatories,
admissions, and depositions could not, as a whole, lead a
rational trier of fact to find for the nonmoving party, there
is no issue for trial.
929 F.2d 1054, 1058 (5th Cir. 1991).
standard for granting a motion for summary judgment is the
same as the standard for rendering judgment as a matter of
Celotex Corp.,, 477 U.S. at 323. If the record taken as a
whole could not lead a rational trier of fact to find for the
non-moving party, there is no genuine issue for trial.
Matsushita, 475 U.S. at 597; see also
Mississippi Prot. & Advocacy Sys., 929 F.2d at 1058.
Breach of Contract
initially argued that plaintiff's breach of contract
claim (her fourth claim for relief) is barred by limitations.
Having considered plaintiff's ...