Affirmed as Modified and Memorandum =
Opinion filed=20
October 30, 2007.
In The
Fourteenth=20
Court of Appeals
_______________
NO. 14-06-00305-CV
_______________
LUCY TELLEZ, Appellant
V.
ALLSTATE TEXAS =
LLOYDS,=20
Appellee
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On Appeal from the 152nd District=20
Court
Harris County, Texas
Trial Court Cause No.=20
04-08852
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M E M O R A N D U M O P I N =
I O=20
N
In this insurance =
coverage=20
dispute, Lucy Tellez appeals a no-evidence summary judgment =
entered in=20
favor of Allstate Texas Lloyds=3Ds (AAllstate@) on the grounds =
that: (1)=20
Tellez=3Ds insurance policy =
(the=20
Apolicy@) with Allstate =
covered the=20
loss she claimed to her home; (2) a fact issue exists as to =
whether=20
Allstate breached the policy; and (3) the trial court improperly =
dismissed=20
Tellez=3Ds extra-contractual=20
claims. We affirm as modified.
Background
Tellez purchased a =
homeowners=20
Form HO-B insurance policy from Allstate. In 2001, the roof =
of=20
Tellez=3Ds home sustained =
damage, Tellez=20
submitted a claim to Allstate, and Allstate paid for roof =
repairs. =20
In 2002, Tellez discovered mold, water damage, and a leaking =
shower pan in=20
her home. Tellez submitted another claim to Allstate, and =
Allstate=20
made a payment on the claim, but Tellez sued Allstate for =
additional=20
amounts. Allstate filed a no-evidence motion for summary =
judgment=20
(the Amotion@), which the trial =
court=20
granted.
Standard=20
of Review
A no‑evidence =
motion for=20
summary judgment must be granted if: (1) the moving party asserts =
that=20
there is no evidence of one or more specified elements of a claim =
or=20
defense on which the adverse party would have the burden of proof =
at=20
trial; and (2) the respondent produces no summary judgment =
evidence=20
raising a genuine issue of material fact on those elements. =20
See Tex. R. Civ. P. 166a(i). To defeat a no-evidence =
motion=20
for summary judgment, a respondent is not required to marshal its =
proof,=20
but only to point out evidence that raises a fact issue on the =
challenged=20
elements. Id., cmt (1997).
In reviewing a =
no‑evidence=20
summary judgment, we ascertain whether the nonmovant pointed out =
summary=20
judgment evidence of probative force to raise a genuine issue of =
fact as=20
to the essential elements attacked in the no‑evidence =
motion. =20
Johnson v. Brewer & Pritchard, P.C., 73 S.W.3d =
193,=20
206B08 (Tex. 2002). =
We take=20
as true all evidence favorable to the nonmovant and indulge every=20
reasonable inference, and resolve any doubts, in the =
nonmovant=3Ds favor. =
Sudan v.=20
Sudan, 199 S.W.3d 291, 292 (Tex. 2006). Where, as here, =
the=20
trial court does not specify its grounds for granting a movant's =
motion=20
for summary judgment, we may affirm the judgment if any of the =
grounds=20
advanced within the motion are meritorious. See W. Invs, =
Inc. v.=20
Urena,162 S.W.3d 547, 550 (Tex. 2005).
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Contract Claims
On appeal, Tellez =
contends that=20
she produced evidence to raise a fact issue on each of the =
elements of her=20
contractual claims against Allstate. Allstate counters, =
however,=20
that Tellez produced no evidence that she suffered any damages =
caused by=20
Allstate=3Ds conduct or a peril =
covered by=20
the policy, and particularly that there was no expert evidence =
linking any=20
mold in her home to a peril and loss covered by the =
policy.
To prevail on an =
insurance=20
claim, an insured must produce evidence that affords a reasonable =
basis=20
for estimating the amount of damage or proportionate part of the =
damage=20
that was caused by the covered risk. Travelers Indem. Co. =
v.=20
McKillip, 469 S.W.2d 160, 163 (Tex. 1971). In this case, =
Tellez=3Ds claimed damages =
include=20
repairs to her home for water damage and mold and for living =
expenses=20
while repairs were being made. With regard to the evidence =
of=20
covered water damage to her home, Tellez=3Ds brief =
states:
[I]ndependent =
investigators=20
have determined that the damage to the home is due to covered =
perils,=20
including the shower pan leakage . . . . The estimated =
cost of=20
the repairs is over $59,000.
* =20
* =20
* =
*
There is evidence =
that Allstate=20
did not pay a sufficient amount for water damage to the =
home. There=20
is evidence that Allstate did not pay sufficient amounts for =
contents=20
cleaning.
Tellez=3Ds brief makes =
reference to=20
various possible sources of the water that caused the damage and =
mold,=20
including damage to her roof, faulty repair of her roof, a shower =
pan=20
leak, an air conditioning leak, poor circulation, and the=20
contractor=3Ds negligence in doing =
destructive testing without repairing the holes. However, =
rather=20
than explaining how her summary judgment evidence indicated that =
the water=20
damage and mold for which she claimed coverage were attributable =
to any of=20
these causes and otherwise covered by the policy, her brief (like =
her=20
summary judgment response) merely refers to roughly 172 pages of =
the=20
clerk=3Ds record (pages =
288-332,=20
334-460, 462).
This does not provide =
a clear=20
and concise argument for the contentions made with =
appropriate=20
citations to the record. See Tex. R. App. P. 38.1. In=20
order for this court to sustain Tellez=3Ds contention that her =
summary=20
judgment evidence was sufficient to raise a fact issue on =
the=20
elements of causation and damage, we would have to analyze the =
lengthy=20
portions of the record she has cited to determine whether and how =
any of=20
the factual information contained there constitutes evidence of =
damage and=20
causation, apply the applicable law to those facts, and then =
explain the=20
resulting reasoning in our opinion. Not only is this not our =
obligation, it would require us to abandon our role of =
impartiality in=20
order to provide reasoning for Tellez=3Ds position that she =
has not=20
advocated for herself. Under these circumstances, because=20
Tellez=3Ds brief affords us no =
basis to=20
conclude that the trial court would have erred in granting the =
no-evidence=20
summary judgment on the lack of damage and causation evidence, we =
overrule=20
her challenge to the summary judgment against her breach of =
contract=20
claims.
Extra-Contractual=20
Claims
Tellez=3Ds third issue =
contends that her=20
extra-contractual issues were improperly dismissed in the trial=20
court=3Ds judgment, even =
though they=20
had been severed by the court before Allstate filed the =
motion. =20
Tellez argues that the trial court cannot grant relief that is not =
supported by the pleadings.
As relevant to this =
issue,=20
Allstate filed a motion on July 13, 2005 to sever and abate=20
Tellez=3Ds extra-contractual=20
claims. The trial court granted the motion to sever on =
August 26,=20
2005 and assigned the extra-contractual claims a separate cause=20
number. However, the March 3, 2006 order, granting=20
Allstate=3Ds motion for summary =
judgment=20
in this case, purports to grant judgment against the severed=20
extra-contractual claims:
1. Judgment is =
granted=20
for Allstate Texas Lloyd=3Ds. All of the=20
plaintiff=3Ds claims against =
Allstate Texas=20
Lloyd=3Ds for breach of =
contract in=20
this case and any related claims, including claims for breach of =
the duty=20
of good faith and fair dealing, breach of the Texas Insurance =
Code,=20
including under section 21.55 and 21.21, and breach of the Texas =
Deceptive=20
Trade Practices Act.
2. Tellez shall take =
nothing by=20
way of all of the claims she has asserted or could have asserted =
in this=20
case against Allstate Texas Lloyd=3Ds . . . .
Because the judgment =
does not=20
conform to the pleading in this respect, it cannot be affirmed as =
to the=20
severed claims. Therefore, Tellez=3Ds third issue is =
sustained, the=20
judgment of the trial court is modified to apply only to=20
Tellez=3Ds contract claims, =
and, as so=20
modified, it is affirmed.
/s/ =20
Richard H. Edelman
Senior Justice
Judgment rendered and =
Memorandum Opinion filed October 30, 2007.
Panel consists of =
Justices=20
Yates, Seymore, and Edelman.
=20
See, e.g., Lundstrom v. United Servs. Auto. =
Ass'n‑CIC, 192=20
S.W.3d 78, 98 (Tex. App.CHouston [14th Dist.] 2006, pet.=20
denied).
=20
See Tex. R. Civ. P. 301. Contrary to =
Allstate=3Ds contentions, this complaint was =
expressly made=20
in Tellez=3Ds summary judgment =
response.
=20
Senior Justice Richard H. Edelman sitting by=20
=
assignment. |