Landers v. State Farm Lloyds

• Decision Date: 27 March 2008
• Docket Number: No. 01-06-00181-CV.,01-06-00181-CV.
• Citation: 257 S.W.3d 740
• Parties: E. Dean LANDERS and Margaret Landers, Appellants, v. STATE FARM LLOYDS, Appellee.
• Court: Texas Court of Appeals

257 S.W.3d 740

E. Dean LANDERS and Margaret Landers, Appellants, v. STATE FARM LLOYDS, Appellee.

No. 01-06-00181-CV.

Court of Appeals of Texas, Houston (1st Dist.).

March 27, 2008.

Edwin T. Lipscomb, Robert W. Loree, Loree, Hernandez & Lipscomb, PLLC, San Antonio, TX, for Appellants.

Joseph F. Nistico, Jr., Nistico & Crouch, P.C., Houston, TX, Scott Rothenberg, Law Offices of Scott Rothenberg, Bellaire, TX, for Appellee.

Panel consists of Justices TAFT, HANKS, and HIGLEY.

OPINION ON REHEARING

GEORGE C. HANKS, JR., Justice.

We withdraw our Opinion and judgment rendered February 28, 2008 and issue the following in its stead. We deny appellants' motions for rehearing and rehearing en banc.

In this insurance coverage case, the trial court granted State Farm Lloyds's ("State Farm") motion to exclude E. Dean and Margaret F. Landers' ("the Landerses") experts and then granted State Farm's no-evidence motions for summary judgment. On appeal, the Landerses contend that the trial court erred (1) in granting the motions for summary judgment because there are genuine issues of material fact, (2) in allowing State Farm's expert to give new opinions and calculations at the Daubert/Robinson¹ hearings that had not been timely supplemented and disclosed before the hearings, (3) in striking the Landerses' experts from testifying at trial, and (4) in not granting the Landerses' request for a continuance of the hearing on the motions for summary judgment. We affirm.

Procedural and Factual Background

The Landerses are named insureds under a homeowner's insurance policy issued by State Farm. In August 2001, the Landerses notified State Farm that their home had suffered structural and cosmetic damage as a result of plumbing leaks. State Farm assigned Reuben Quintero as the adjuster for the claim. State Farm also hired a pipe inspection company and an engineering company to inspect the Landerses' property and to provide a report to State Farm regarding the cause of the damage to the Landerses' home. Following the completion of its investigation, State Farm determined that the damage claimed by the Landerses was not caused by a plumbing leak and that State Farm did not have a duty under the Landerses' homeowner's policy to pay the claim. The Landerses sued State Farm and Quintero for breach of State Farm's obligations under the homeowner's policy, breach of the duty of good faith and fair dealing, fraud, and for violations of the Texas Insurance Code and the Texas Deceptive Trade Practice Act ("DTPA").

State Farm filed a motion to exclude the opinion testimony of Jim Linehan and Jeffery Lineberger, the Landerses' two expert witnesses on the issue of causation. After two Daubert/Robinson hearings, the motion was granted, and both Linehan and Lineberger were prevented from testifying regarding the cause of the damage to the Landerses' home.

Two months later, on November 1, 2005, State Farm filed its "Motion for No Evidence Summary Judgment on All of the Plaintiffs' Claims and Supplement To the Motion for Summary Judgment on Plaintiffs' Extra-Contractual Claims."² This motion was set to be submitted to the trial court at 8:00 a.m. on November 28, 2005. At 9:20 a.m. on the morning of the submission, the district court clerk received the Landerses' response to the motion. In addition to complaining of the trial court's striking of their experts, the response also contains a motion seeking continuance of the submission of State Farm's motion for summary judgment. The response does not contain a motion for leave to file a tardy response.

The next day, the trial court, noting that it had found no response to the motions for summary judgment or motions to be considered by the court, granted State Farm's motions for summary judgment and dismissed the Landerses' claims against Quintero. A copy of this order was faxed to the Landerses' counsel.

Eight days later, on December 7, 2005, the Landerses sent a letter to the trial court advising it that it was in error when it stated in the order that they did not file a response to the motions for summary judgment. They stated that a response was timely filed by certified mail, return receipt requested on November 21, 2005. They also stated that a motion for continuance of the hearing on State Farm's motion for summary judgment was contained in the response.³ The letter to the trial court did not include a certified mail receipt demonstrating a timely post mark or an affidavit verifying the facts alleged in his letter regarding the timeliness of the filing of the response.

The Landerses filed a motion for new trial. Although the motion asserts that the Landerses' response and motion for continuance were timely filed on November 23, 2005, again, there was no copy of a certified mail receipt demonstrating a timely post mark of the United States Postal Service or an affidavit verifying the facts alleged in the motion regarding the timeliness of the filing of the response. The motion was overruled by operation of law, and this appeal followed.⁴

Summary Judgment

In their first and second issues, the Landerses argue that the trial court erred in granting State Farms's motions for summary judgment because there was summary judgment evidence creating fact issues with respect to all of the Landerses' causes of action. We disagree.

Standard of Review

We review summary judgments de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex.2005). A no-evidence motion for summary judgment must be granted if, after adequate time for discovery, the moving party asserts that there is no evidence of one or more specified elements of a claim or defense on which the adverse party would have the burden of proof at trial and the respondent produces no summary judgment evidence raising a genuine issue of material fact on those elements. TEX.R. CIV. P. 166(a)(i); LMB, Ltd. v. Moreno, 201 S.W.3d 686, 688 (Tex. 2006).

A party who files a no-evidence summary judgment motion pursuant to rule 166a(i) has essentially requested a pretrial directed verdict. Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 581 (Tex.2006). When the movant files its motion in proper form, the burden shifts to the nonmovant to defeat the motion by presenting evidence that raises an issue of material fact regarding the elements challenged by the motion. Id. at 582; Weaver v. Highlands Ins. Co., 4 S.W.3d 826, 829 (Tex.App.-Houston [1st Dist.] 1999, no pet.).

Timeliness of the Landerses' Response

In one pleading, State Farm filed two no-evidence motions for summary judgment. In the motions, State Farm asserts that it is entitled to summary judgment on the Landerses' breach of contract claim because:

(1) The Landerses have no evidence that any peril or event covered under their policy with State Farm Lloyds was a producing cause of a loss.

(2) The Landerses have no evidence that any peril or event covered under their policy with State Farm Lloyds was a proximate cause of a loss.

(3) The Landerses have no evidence that State Farm Lloyds failed to comply with any of its duties under the homeowner's policy.

(4) The Landerses have no evidence that any failure by State Farm Lloyds to comply with any of its duties under its contract with the Plaintiffs was a producing cause of damages.

(5) The Landerses have no evidence that any failure by State Farm Lloyds to comply with any of its duties under the homeowner's policy was a proximate cause of the Landerses' damages.

State Farm also asserts that, because there was no evidence of causation and no evidence of breach of contract, it had no liability under the Texas Insurance Code.

State Farm also supplemented a previously-filed traditional motion for summary judgment regarding the Landerses' extra-contractual claims with a no evidence motion on these claims. In the supplement, State Farm asserts that it is entitled to summary judgment on the extra-contractual claims because there cannot be liability under extra-contractual causes of action if, as here, there is no evidence of a breach of the homeowner's policy by State Farm. In addition, State Farm argues that there is no evidence that the conduct that State Farm allegedly engaged in was extreme or that it produced damages unrelated to or independent of the policy claim.

Pursuant to Texas Rule of Civil Procedure 166a(c), the Landerses had until November 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 for leave to file the response out of time. TEX.R. CIV. P. 166a(c). Rule 166a(c) provides, in pertinent part, that, "except on leave of court, the adverse party, not later than seven days prior to the date of the hearing may file and serve opposing affidavits or other written responses." TEX.R. CIV. P. 166a(c).

The "mail box" rule of Texas Rule of Civil Procedure 5, applies to responses to motions for summary judgment. Pursuant to this rule, a response, sent to the clerk by first class United States mail on the seventh day prior to the hearing, is deemed timely filed if received by the clerk not more than 10 days after its due date. TEX.R. CIV. P. 5. This rule further states that "a legible post mark affixed by the United States Postal Service shall be prima facie evidence of the date of mailing." Id. In addition, Texas courts have held that, "in the absence of a proper postmark or certificate of mailing, an attorney's un-controverted affidavit may be evidence of the date of mailing." Lofton v. Allstate Ins., 895 S.W.2d 693, 694 (Tex. 1995).

Here, the Landerses' response to the no-evidence motions for summary judgment was untimely filed. The Landerses did not present the trial court with proof of "a legible postmark affixed by the United States Postal Service" or an affidavit establishing that the Landerses' response to State Farms's motion for summary judgment was timely mailed.⁵ Furthermore, the Landerses did not file a motion for leave to...