Opinion issued=20
March 27, 2008
=
&nbs=
p;
In The
Court of Appeals
For The
First District of =
Texas
NO. 01-06-00181-CV
__________
E. =
DEAN LANDERS=20
AND MARGARET LANDERS, Appellants
V.
STATE =
FARM=20
LLOYDS,=20
Appellee
On =
Appeal from=20
the 280th District Court
Harris =
County,=20
Texas
Trial =
Court Cause=20
No. 2005-42628
OPINION ON=20
REHEARING
<=
/SPAN>We withdraw our Opinion and judgment =
rendered=20
February 28, 2008 and
issue the=20
following in its stead. We deny appellants=E2=80=99 motions for =
rehearing and=20
rehearing en banc.
&nbs=
p; In this insurance coverage case, the =
trial court=20
granted State Farm Lloyds=E2=80=99s (=E2=80=9CState Farm=E2=80=9D) =
motion to exclude E. Dean and=20
Margaret F. Landers=E2=80=99 (=E2=80=9Cthe Landerses=E2=80=9D) =
experts and then granted State=20
Farm=E2=80=99s no-evidence motions for summary judgment. On =
appeal, the Landerses=20
contend that the trial court erred (1) in granting the motions for =
summary=20
judgment because there are genuine issues of material fact, (2) in =
allowing State Farm=E2=80=99s expert to give new opinions and =
calculations at the=20
Daubert/Robinson ![3DFootnote](3D"")
hearings that had not been timely =
supplemented and disclosed before the hearings, (3) in striking =
the=20
Landerses=E2=80=99 experts from testifying at trial, and (4) in =
not granting the=20
Landerses=E2=80=99 request for a continuance of the hearing on the =
motions for=20
summary judgment. We affirm.
&nbs=
p; =
; &=
nbsp; Procedural and Factual=20
Background
<=
/SPAN>The=20
Landerses are named insureds under a homeowner=E2=80=99s insurance =
policy issued=20
by State Farm. In August 2001, the Landerses notified State Farm =
that=20
their home had suffered structural and cosmetic damage as a result =
of=20
plumbing leaks. State Farm assigned Reuben Quintero as the =
adjuster for=20
the claim. State Farm also hired a pipe inspection company and an=20
engineering company to inspect the Landerses=E2=80=99 property and =
to provide a=20
report to State Farm regarding the cause of the damage to the =
Landerses=E2=80=99=20
home. Following the completion of its investigation, State Farm =
determined=20
that the damage claimed by the Landerses was not caused by a =
plumbing leak=20
and that State Farm did not have a duty under the =
Landerses=E2=80=99 homeowner=E2=80=99s=20
policy to pay the claim. The Landerses sued State Farm and =
Quintero for=20
breach of State Farm=E2=80=99s obligations under the =
homeowner=E2=80=99s policy, breach of=20
the duty of good faith and fair dealing, fraud, and for violations =
of the=20
Texas Insurance Code and the Texas Deceptive Trade Practice Act =
(=E2=80=9CDTPA=E2=80=9D).=20
<=
/SPAN> State=20
Farm filed a motion to exclude the opinion testimony of Jim =
Linehan and=20
Jeffery Lineberger, the Landerses=E2=80=99 two expert witnesses on =
the issue of=20
causation. After two Daubert/Robinson hearings, the motion =
was=20
granted, and both Linehan and Lineberger were prevented from =
testifying=20
regarding the cause of the damage to the Landerses=E2=80=99 =
home.
<=
/SPAN> Two=20
months later, on November 1, 2005, State Farm filed its =
=E2=80=9CMotion for No=20
Evidence Summary Judgment on All of the Plaintiffs=E2=80=99 Claims =
and Supplement=20
To the Motion for Summary Judgment on Plaintiffs=E2=80=99 =
Extra-Contractual=20
Claims.=E2=80=9D
This motion was set to be =
submitted to the=20
trial court at 8:00 a.m. on November 28, 2005. At 9:20 a.m. on the =
morning=20
of the submission, the district court clerk received the =
Landerses=E2=80=99=20
response to the motion. In addition to complaining of the trial =
court=E2=80=99s=20
striking of their experts, the response also contains a motion =
seeking=20
continuance of the submission of State Farm=E2=80=99s motion for =
summary judgment.=20
The response does not contain a motion for leave to file a tardy=20
response.
<=
/SPAN>The=20
next day, the trial court, noting that it had found no response to =
the=20
motions for summary judgment or motions to be considered by the =
court,=20
granted State Farm=E2=80=99s motions for summary judgment and =
dismissed the=20
Landerses=E2=80=99 claims against Quintero. A=20
copy of this order was faxed to the Landerses=E2=80=99 counsel. =
<=
/SPAN>Eight=20
days later, on December 7, 2005, the Landerses sent a letter to =
the trial=20
court advising it that it was in error when it stated in the order =
that=20
they did not file a response to the motions for summary judgment. =
They=20
stated that a response was timely filed by certified mail, return =
receipt=20
requested on November 21, 2005. They also stated that a motion for =
continuance of the hearing on State Farm=E2=80=99s motion for =
summary judgment was=20
contained in the response.
The letter to the trial court did =
not=20
include a certified mail receipt demonstrating a timely post mark =
or an=20
affidavit verifying the facts alleged in his letter regarding the=20
timeliness of the filing of the response.
The=20
Landerses filed a motion for new trial. Although the motion =
asserts that=20
the Landerses=E2=80=99 response and motion for continuance were =
timely filed on=20
November 23, 2005, again, there was no copy of a certified mail =
receipt=20
demonstrating a timely post mark of the United States Postal =
Service or an=20
affidavit verifying the facts alleged in the motion regarding the=20
timeliness of the filing of the response. The motion was overruled =
by=20
operation of law, and this appeal followed.
Summary=20
Judgment
<=
/SPAN>In=20
their first and second issues, the Landerses argue that the trial =
court=20
erred in granting State Farms=E2=80=99s motions for summary =
judgment because there=20
was summary judgment evidence creating fact issues with respect to =
all of=20
the Landerses=E2=80=99 causes of action. We disagree.
Standard of=20
Review
=
We=20
review summary judgments de novo. Valence Operating Co. v. =
Dorsett,=20
164 S.W.3d 656, 661 (Tex. 2005). A no-evidence motion for summary =
judgment=20
must be granted if, after adequate time for discovery, the moving =
party=20
asserts that there is no evidence of one or more specified =
elements of a=20
claim or defense on which the adverse party would have the burden =
of proof=20
at trial and the respondent produces no summary judgment evidence =
raising=20
a genuine issue of material fact on those elements. Tex. R. Civ. P. =
166(a)(i); LMB,=20
Ltd. v Moreno, 201 S.W.3d 686, =
688 (Tex.=20
2006).
=
A=20
party who files a no-evidence summary judgment motion pursuant to =
rule=20
166a(i) has essentially requested a pretrial directed verdict. =
Mack=20
Trucks, Inc. v. Tamez, 206 S.W.3d 572, 581 (Tex. 2006). When =
the=20
movant files its motion in proper form, the burden shifts to the =
nonmovant=20
to defeat the motion by presenting evidence that raises an issue =
of=20
material fact regarding the elements challenged by the motion. =
Id.=20
at 582; Weaver v. Highlands Ins. Co., 4 S.W.3d 826, 829 =
(Tex.=20
App.=E2=80=94Houston [1st Dist.] 1999, no pet.).
Timeliness of the=20
Landerses=E2=80=99 Response
<=
/SPAN>In=20
one pleading, State Farm filed two no-evidence motions for summary =
judgment. In the motions, State Farm asserts that it is entitled =
to=20
summary judgment on the Landerses=E2=80=99 breach of contract =
claim=20
because:
(1) The Landerses have no evidence that =
any peril=20
or event covered under their policy with State Farm Lloyds was a =
producing=20
cause of a loss.
(2)The Landerses have no evidence that =
any peril=20
or event covered under their policy with State Farm Lloyds was a =
proximate=20
cause of a loss.
(3)The Landerses have no evidence that =
State Farm=20
Lloyds failed to comply with any of its duties under the =
homeowner=E2=80=99s=20
policy.
(4)The Landerses have no evidence that =
any failure=20
by State Farm Lloyds to comply with any of its duties under its =
contract=20
with the Plaintiffs was a producing cause of damages.
(5)The Landerses have no evidence that =
any failure=20
by State Farm Lloyds to comply with any of its duties under the=20
homeowner=E2=80=99s policy was a proximate cause of the =
Landerses=E2=80=99 damages.=20
State Farm also asserts that, because =
there was no=20
evidence of causation and no evidence of breach of contract, it =
had no=20
liability under the Texas Insurance Code.
<=
/SPAN>State=20
Farm also supplemented a previously-filed traditional motion for =
summary=20
judgment regarding the Landerses=E2=80=99 extra-contractual claims =
with a no=20
evidence motion on these claims. In the supplement, State Farm =
asserts=20
that it is entitled to summary judgment on the extra-contractual =
claims=20
because there cannot be liability under extra-contractual causes =
of action=20
if, as here, there is no evidence of a breach of the =
homeowner=E2=80=99s policy by=20
State Farm. In addition, State Farm argues that there is no =
evidence that=20
the conduct that State Farm allegedly engaged in was extreme or =
that it=20
produced damages unrelated to or independent of the policy=20
claim.
<=
/SPAN>Pursuant=20
to Texas Rule of Civil Procedure 166a(c), the Landerses had until =
November=20
21, 2005, seven days before the hearing on the motions for summary =
judgment to file either (1) a response to these motions or (2) a =
motion=20
for leave to file the response out of time. Tex. R. Civ. P. 166a(c). =
Rule=20
166a(c) provides, in pertinent part, that, =E2=80=9Cexcept on =
leave of court, the=20
adverse party, not later than seven days prior to the date of the =
hearing=20
may file and serve opposing affidavits or other written =
responses.=E2=80=9D Tex. R. Civ. P.=20
166a(c).
<=
/SPAN>The=20
=E2=80=9C mail box=E2=80=9D rule of Texas Rule of Civil Procedure =
5, applies to responses=20
to motions for summary judgment. Pursuant to this rule, a =
response, sent=20
to the clerk by first class United States mail on the seventh day =
prior to=20
the hearing, is deemed timely filed if received by the clerk not =
more than=20
10 days after its due date. Tex. R. Civ. P. 5.=20
This rule further states that =E2=80=9Ca legible post =
mark affixed by=20
the United States Postal Service shall be prima facie evidence of =
the date=20
of mailing.=E2=80=9D Id. In addition, Texas courts have =
held that, =E2=80=9Cin the=20
absence of a proper postmark or certificate of mailing, an =
attorney=E2=80=99s=20
un-controverted affidavit may be evidence of the date of =
mailing.=E2=80=9D=20
Lofton v. Allstate Ins., =
895=20
S.W.2d 693, 694 (Tex. 1998).
&nbs=
p;Here,=20
the Landerses=E2=80=99 response to the no-evidence motions for =
summary judgment=20
was untimely filed. The Landerses did not present the trial court =
with=20
proof of =E2=80=9Ca legible postmark affixed by the United States =
Postal Service=E2=80=9D=20
or an affidavit establishing that the Landerses=E2=80=99 response =
to State Farms=E2=80=99s=20
motion for summary judgment was timely mailed.
Furthermore, the Landerses did =
not file a=20
motion for leave to file their untimely response. Under these=20
circumstances, we conclude that the Landerses=E2=80=99 response =
was filed on the=20
date of the court clerk=E2=80=99s file stamp, November 28, 2005, =
and the=20
Landerses=E2=80=99 allegations that their response was timely =
filed are=20
unsupported in the record.
Accordingly, the trial court did =
not err in=20
granting the pending motions for summary judgment without =
considering the=20
untimely response. See Atchely v. NCNB Tex. Nat=E2=80=99l =
Bank, 795,=20
S.W.2d, 336, 337 (Tex.=20
App.=E2=80=94Beaumont, 1990, pet. denied) =
(=E2=80=9CUntimely responses to motions=20
for summary judgments are not properly before a trial court at a =
hearing=20
on such motions.=E2=80=9D)
Effect of Untimely=20
Response
<=
/SPAN>The=20
Landerses argue that, even without their response, State =
Farms=E2=80=99s motions=20
for summary judgment still should have been denied. The Landerses =
contend=20
that State Farms attached the report of one of their experts, =
Taylor=20
Sealy, to its earlier-filed =
traditional motion for partial summary judgment, and =
Sealy=E2=80=99s report=20
creates a fact issue sufficient to defeat both subsequently-filed=20
no-evidence motions for summary judgment.
We disagree.
<=
/SPAN>Absent=20
a timely response, a trial court must grant a no-evidence motion =
for=20
summary judgment that meets the requirements of Rule 166a(i). =
Tex. R. Civ. P. 166a(i). =
If a=20
nonmovant wishes to assert that, based on the evidence in the =
record=20
, a fact issue exists to =
defeat a=20
no-evidence motion for summary judgment, he must timely file a =
response to=20
the motion raising this issue before the trial court.=20
Id. Before the =
advent of rule=20
166a(i), it was well settled that summary judgment could not be =
rendered=20
based on the default of the opposing party. McConnell v. =
Southside Sch.=20
Dist., 858 S.W.2d 337, 343 (Tex. 1993); Rizkallah v. Conner, 952 S.W.2d =
580, 582=E2=80=9383=20
(Tex. App.=E2=80=94Houston [1st Dist.] 1997, no pet.). The nonmovant was not required to file =
a response=20
to defeat the motion for summary judgment because deficiencies in =
the=20
movant=E2=80=99s own proof or legal theories might defeat the =
movant=E2=80=99s right to=20
judgment as a matter of law. See City of Houston v. Clear Creek =
Basin=20
Authority, 589 =
S.W.2d 671,=20
678 ( Tex. 1979). However, as Texas courts have repeatedly held,=20
the traditional =
prohibition=20
against summary judgment by default is inapplicable to motions =
filed under=20
Rule 166a(i). Roventini v. Ocular Scis., Inc., 111 S.W.3d =
719,=20
723 (Tex. App.=E2=80=94Houston [1st Dist.] =
2003, no=20
pet.). As the court held in =
Jackson v.=20
Fiesta Mart Inc.,
On =
appeal,=20
[nonmovant] argues that the trial court may not grant a summary =
judgment=20
by default for lack of an answer or response when the =
movant=E2=80=99s summary=20
judgment proof is legally insufficient. [Nonmovant=E2=80=99s] =
argument is=20
technically correct when applied to a motion for summary judgment =
filed=20
under Rule 166a(c). [Movant=E2=80=99s] motion, however, was =
clearly a no-evidence=20
motion for summary judgment filed under Rule 166a(i), which shifts =
the=20
burden of raising a genuine issue of material fact to the=20
nonmovant.
979 =
S.W.2d 68, 71=20
(Tex. =
App.=E2=80=94Austin, 1998, no=20
pet.). Accordingly, =
where as=20
here, the movant has filed a motion that identifies the elements =
as to=20
which there is no evidence, and in a form that is neither =
conclusory nor a=20
general no-evidence challenge, summary judgment must be rendered =
absent a=20
timely and legally adequate response by the nonmovant. See=20
Roventini, 111 S.W.3d at 722. In this case, =
because=20
the Landerses did not file a timely response to the =
motion, we hold that the trial court did not =
err in=20
granting the no-evidence motions for summary =
judgment.
<=
/SPAN>We=20
overrule issues one and two.
Motion for =
Continuance
<=
/SPAN>In=20
issue five, the Landerses assert that the trial court erred in =
denying=20
their motion for continuance of the hearing on motions for summary =
judgment. We disagree. Standard of Review
=
We review the =
grant or=20
denial of a motion for continuance for an abuse of discretion. =
Villegas=20
v. Carter, 711 S.W.2d 624, 626 (Tex. 1986). We will not =
overrule the=20
trial court=E2=80=99s decision unless the trial court acted =
unreasonably or in an=20
arbitrary manner =E2=80=9Cwithout reference to any guiding rules =
and principles.=E2=80=9D=20
Beaumont Bank, N.A. v. Buller, 806 S.W.2d 223, 226 (Tex. =
1991)=20
(quoting Downer v. Aquamarine Operators, Inc., 701 S.W.2d =
238,=20
241=E2=80=9342 (Tex. 1985)). =20
=
The=20
trial court may grant a continuance to a party opposing a motion =
for=20
summary judgment to permit further discovery if the nonmovant can =
show the=20
need for such discovery to oppose the motion. Tex. R. Civ. P. 166a(g). =
A motion=20
for continuance seeking time for discovery must be supported by an =
affidavit that describes the evidence sought, explains its =
materiality,=20
and shows that the party requesting the continuance has used =
due=20
diligence to timely obtain the evidence. Tex. R. Civ. P. 251, =
252;=20
see Hatteberg v. Hatteberg, 933 S.W.2d 522, 527 =
(Tex.=20
App.=E2=80=94Houston [1st Dist.] 1994, no writ). The affidavit of =
diligence must=20
state with particularity what diligence was used; conclusory =
allegations=20
of diligence are not sufficient. Gregg v. Cecil, 844 S.W.2d =
851,=20
853 (Tex. App.=E2=80=94Beaumont 1992, no writ). A party who fails =
to diligently=20
use the rules of discovery is not entitled to a continuance. =
State v.=20
Wood Oil Distrib., Inc., 751 S.W.2d 863, 865 (Tex.=20
1988).
=
As discussed =
above, the=20
Landerses did not file their motion for continuance until =
after the=20
deadline had passed for their response. Furthermore, neither the =
motion=20
nor the affidavit verifying the contents of the motion set forth =
any facts=20
regarding the Landerses=E2=80=99 diligence in attempting to secure =
additional=20
expert testimony prior to the deadline to respond to the motion =
for=20
summary judgment.
Under these =
circumstances,=20
we hold that the trial court did not abuse its discretion in =
denying the=20
motion for continuance. We overrule issue =
five.
=
Because we affirm =
the trial=20
court=E2=80=99s granting of the two motions for summary judgment, =
we need not=20
reach the remaining issues.
Conclusion
=
We=20
affirm the trial court=E2=80=99s judgment.
=
&=
nbsp; &n=
bsp; &nb=
sp; &nbs=
p; =
; George=20
C. Hanks, Jr.
=
&=
nbsp; &n=
bsp; &nb=
sp; &nbs=
p; =
; Justice
Panel consists of =
Justices=20
Taft, Hanks, and Higley
|