Appeal from the 61st District Court Harris County, Texas
Trial Court Cause No. 2013-58328
consists of Justices Boyce, Donovan, and Jewell.
Jon Jessen, who had established trusts to purchase life
insurance policies, brought an action against insurance agent
John P. Duvall and Bluewater Financial Services for fraud,
aiding and abetting and conspiracy to breach a fiduciary
duty, Texas Insurance Code violations, unjust enrichment and
money had and received. The trial court granted summary
judgment against Jessen. We affirm.
was told by his long-time tax attorney and financial advisor,
Joseph Bond, that insurance investments on Jessen's life
would provide specified tax benefits and estate planning
protections in the event of Jessen's premature death.
Jessen maintains that Bond told him the investments were a
safe place to deposit substantial sums for a few years and
that the policies could be sold, allegedly for a
"considerable profit, " on a secondary or
established and funded several life insurance
trusts that purchased $70, 000, 000 worth of life
insurance policies between May 2008 and September 2008. Two
life insurance agents, appellee Duvall and Ladd Tanner, were
involved in procuring the life policies for
Jessen. Tanner communicated with Jessen directly.
Duvall, on the other hand, did not have oral or written
communications with Jessen.
the trusts purchased the life insurance policies, Duvall
received commissions paid by the life insurance companies in
the amount of 40% of the first year premiums. Also, after the
policies were purchased, Duvall paid a referral fee to
Bond's son, Bond, Jr., a licensed insurance agent.
financial markets collapsed in September 2008.
trusts resold the policies in 2010 and 2011. Jessen did not
make a return on his investment. Rather, Jessen lost more
than $3, 200, 000 by the time the last policy was sold in
asserts that in 2012 he realized that he had been taken
advantage of. Jessen filed suit on September 30, 2013,
against Bond and his law firm, every insurance company that
sold the policies, as well as Tanner and Duvall, claiming a
conspiracy was involved. In his sixth amended petition,
Jessen asserted the following claims against Duvall: fraud,
fraudulent inducement, and fraudulent concealment (Count I);
aiding and abetting and conspiracy to breach fiduciary duty
(Count II); violation of Texas Insurance Code (Count III);
and equitable theories of unjust enrichment and money had and
received (Count IV).
February 26, 2015, Duvall filed a traditional and no-evidence
motion for summary judgment, which was granted by order of
the trial court on July 10, 2015. The trial court did not
state the grounds on which it relied. At the time, the trial
court's order granting summary judgment to Duvall was
interlocutory. On May 26, 2016, Jessen filed a motion for
rehearing of the earlier ruling, which was denied by the
trial court by Order dated August 18, 2016.
only remaining claims in the case against other defendants
were dismissed with prejudice by Orders dated September 23,
2016, making the trial court's July 10, 2015 Order with
respect to Duvall and Bluewater Financial Services, LLP,
final summary judgment. Jessen timely filed this notice of
claims the trial court erred in granting Duvall's motion
for summary judgment. Jessen argues that the trial court
erred because none of his claims require direct communication
between Duvall and Jessen. He further argues that Duvall did not
conclusively establish any right to judgment based on the
statutes of limitation, arguing that the applicable statutes
of limitation did not expire.
Standard of Review
review de novo the trial court's order granting summary
judgment. Ferguson v. Bldg. Materials Corp. of Am.,
295 S.W.3d 642, 644 (Tex. 2009) (per curiam); Wyly v.
Integrity Ins. Sols., 502 S.W.3d 901, 904 (Tex. App.
(Tex. App.- Houston [14th Dist.] 2016, no pet.). Where a
trial court's order granting summary judgment does not
specify the grounds relied upon, summary judgment will be
affirmed if any of the grounds are meritorious. FM Props.
Operating Co., v. City of Austin, 22 S.W.3d 868, 872
consider the evidence in the light most favorable to the
non-movant, and indulge reasonable inferences and resolve all
doubts in its favor. See City of Keller v. Wilson,
168 S.W.3d 802, 824 (Tex. 2005); Wyly, 502 S.W.3d at
904. "We credit evidence favorable to the non-movant if
reasonable fact finders could and disregard contrary evidence
unless reasonable fact finders could not."
Wyly, 502 S.W.3d at 904.
both no-evidence and traditional grounds for summary judgment
are asserted, we first review the trial court's order
under the no-evidence standard. PAS, Inc. v. Engel,
350 S.W.3d 602, 607 (Tex. App.-Houston [14th Dist.] 2011, no
pet.). To prevail on a no-evidence summary judgment, the
movant must allege that no evidence exists to support one or
more essential elements of a claim for which the non-movant
bears the burden of proof at trial. Tex.R.Civ.P. 166a(i);
Kane v. Cameron Int'l Corp., 331 S.W.3d 145, 147
(Tex. App.-Houston [14th Dist.] 2011, no pet.). A no-evidence
motion may not be conclusory, but must instead give fair
notice to the non-movant as to the specific element of the
non-movant's claim that is being challenged. See
Timpte Indus., Inc. v. Gish, 286 S.W.3d 306, 310-11
(Tex. 2009). The non-movant must then present evidence
raising a genuine issue of material fact on the challenged
elements. Kane, 331 S.W.3d at 147. A fact issue
exists where there is more than a scintilla of probative
evidence. See Buck v. Palmer, 381 S.W.3d 525, 527
(Tex. 2012) (per curiam). More than a scintilla of evidence
exists if the evidence rises to a level that would allow
reasonable and fair-minded people to differ in their
conclusions as to the existence of a vital fact.
the traditional summary-judgment standard, the movant has the
initial burden of conclusively negating at least one
essential element of a claim or defense on which the
non-movant has the burden of proof or conclusively
establishing each element of a claim or defense on which the
movants have the burden of proof. See Tex. R. Civ.
P. 166a(c); Science Spectrum, Inc. v. Martinez, 941
S.W.2d 910, 911 (Tex. 1997). Once the movant has done so, and
only if it does, the burden shifts to the non-movant to
produce evidence creating a genuine issue of material fact as
to the challenged element or elements in order to defeat the
summary judgment. See Walker v. Harris, 924 S.W.2d
375, 377 (Tex. 1996).
standing is a component of the court's subject matter
jurisdiction, we will review Jessen's standing
first-i.e., whether summary judgment was proper
because Jessen lacked standing to bring this suit. Duvall
maintains that the trusts purchased, owned and later sold the
policies; hence, only the trustees are authorized to bring
claims affecting the trusts' property. Duvall further
contends that Jessen's lack of standing was not rectified
by the trustees' assignment of any legal claims of the
trusts to Jessen.
matter jurisdiction can be raised at any time, including for
the first time on appeal. See Tex. Ass'n of Bus. v.
Tex. Air Control Bd., 852 S.W.2d 440, 445 (Tex. 1993). A
party's standing is determined at the time suit is filed.
Id. at 446. Whether subject matter jurisdiction
exists is a question of law subject to de novo review.
Tex. Dep't of Parks & Wildlife v. Miranda,
133 S.W.3d 217, 226 (Tex. 2004).
standing a party must have a "sufficient relationship
with the lawsuit so as to have a justiciable interest in its
outcome." Austin Nursing Ctr. v. Lovato, 171
S.W.3d 845, 848 (Tex. 2005) (quotation omitted). A plaintiff
must affirmatively show, through pleadings and other evidence
pertinent to the jurisdictional inquiry, a distinct interest
in the asserted conflict, such that the defendant's
actions have caused the plaintiff some particular ...