Marshall Howard D/B/A Four Seasons Auto. v. the Burlington Ins. Co.

• Decision Date: 10 June 2011
• Docket Number: No. 05–09–01324–CV.,05–09–01324–CV.
• Citation: 347 S.W.3d 783
• Parties: Marshall HOWARD d/b/a Four Seasons Automotive, Appellant,v.The BURLINGTON INSURANCE COMPANY and McClelland & Hine, Inc., Appellees.
• Court: Texas Court of Appeals

347 S.W.3d 783

Marshall HOWARD d/b/a Four Seasons Automotive, Appellant,

v.The BURLINGTON INSURANCE COMPANY and McClelland & Hine, Inc., Appellees.

No. 05–09–01324–CV.

Court of Appeals of Texas, Dallas.

June 10, 2011.

Jack B. Peacock, Jr., D.G. Gagnon, Cynthia Kay Shanklin, Gagnon, Peacock, & Shanklin, P.C., Dallas, for Appellant.Leslie Dean Pickett, Galloway, Johnson, Tompkins, Burr & Smith, James Bailey, Houston, Wm. Lance Lewis, Marcie L. Schout, Tammy Lynn Clary, Quilling, Selander, Lownds, Winslett & Moser, P.C., Dallas, for Appellees.Before Justices MARTIN RICHTER, LANG, and MYERS.

OPINION

Opinion by Justice MARTIN RICHTER.

Appellant, Marshall Howard d/b/a Four Seasons Automotive, appeals from trial court judgments in favor of appellees, The Burlington Insurance Company (TBIC) and McClelland & Hine, Inc. (MHI). In two issues, Howard contends the trial court erred in granting the no-evidence and traditional motions for summary judgment filed by TBIC and MHI. We affirm the judgments of the trial court.

I. FACTUAL AND PROCEDURAL BACKGROUND

Howard obtained insurance coverage for his auto repair business from John Crist (Crist), an independent insurance broker doing business as A–Lo Insurance Agency. Crist obtained quotes for garage liability insurance from two different insurance companies and forwarded them to Howard. Upon Howard's selection of the quote provided by MHI, Crist completed an insurance application for Howard and submitted it to MHI. In item 15 of the coverage section of the application form, Crist specifically declined building and personal property coverage. The application form contained Howard's signature, as witnessed by Crist; however, Howard contends he neither saw nor signed the application form. Upon receipt of Howard's signed and completed application from Crist, MHI provided Crist with an insurance binder confirmation of the coverage selected and premium quoted, and transmitted the application to TBIC. TBIC then issued Garage Policy No. 211B000392 (the TBIC policy), effective from December 13, 2004 to December 13, 2005, which provided the coverage requested in the application. Upon receipt of the TBIC policy, Howard looked at it but did not read the entire policy. Howard did not attempt to verify whether the TBIC policy provided the coverage he asked Crist to obtain.

On September 3, 2005, a fire occurred at Howard's business. The fire damaged the building, equipment and personal effects as well as several vehicles owned by Howard's clients. Howard submitted a claim to TBIC for which partial payment was made. TBIC paid third-party liability claims covered under the policy. TBIC denied coverage for Howard's equipment and personal property.

Howard sued TBIC and MHI for false advertising, misrepresentation, negligent misrepresentation, breach of fiduciary duty, fraud and fraudulent inducement, and negligence. Howard asserted additional claims against TBIC for breach of good faith and fair dealing, breach of contract, violation of the unfair claims settlement practices act, violation of the prompt payment of claims act, promissory and equitable estoppel, and for selling insurance without a license. TBIC filed a counterclaim asserting Howard breached the insurance contract by failing to reimburse TBIC for policy deductibles on the third-party claims paid by TBIC. TBIC also filed an unopposed motion to designate Crist and A–Lo Insurance Agency as responsible third parties, which was granted by the trial court. MHI filed a motion for sanctions contending Howard's claims were groundless.

TBIC and MHI both filed traditional and no-evidence motions for summary judgment, arguing there was no evidence that: (i) the garage liability policy, a third-party liability policy, provided coverage for first-party property damage, and (ii) an agency relationship existed between Crist and TBIC and/or MHI such that alleged misrepresentations by Crist could be imputed to TBIC or MHI. Howard responded, arguing the quote, binder, and policy indicated he had coverage for his equipment and property. He also asserted that TBIC and MHI were liable for the mistakes and misrepresentations of Crist.

Howard amended his original petition four times—amending claims, adding claims, and adding Crist as a defendant. Howard also filed a counterclaim against TBIC contending it violated the Deceptive Trade Practices Act (DTPA) and committed fraud by placing a $500 deductible in the policy after allegedly representing during the procurement process that the policy would have a $250 deductible. After Howard filed his second amended petition, TBIC and MHI filed their first amended motions for summary judgment to address Howard's additional claims. TBIC and MHI then filed supplemental motions for summary judgment to address the new claims alleged in Howard's third amended petition. Howard's fourth amended petition added Crist as a defendant and restated Howard's previous claims as to TBIC and MHI. TBIC and MHI did not further amend or supplement their motions for summary judgment in response to Howard's fourth amended petition.

On March 18, 2008, the trial court granted TBIC's first amended and supplemental motions for summary judgment. On March 20, 2008, the trial court granted MHI's first amended and supplemental motions for summary judgment. TBIC and MHI filed an unopposed motion to sever Howard's claims against Crist into a separate cause of action and the trial court signed an order granting their motion. Because Howard's claims against Crist were severed by the trial court into a separate lawsuit, the record contains no indication whether the trial court found that Crist misrepresented the quotation, binder or insurance policy. The issue of Crist's liability is not before us and we express no opinion on the question. Tex.R.App. P. 47.1.

Howard filed a motion for new trial, which was denied by the trial court. Howard then filed his first appeal, asserting the trial court erred in granting summary judgments in favor of TBIC and MHI. On September 28, 2009, this Court issued its mandate, dismissing Howard's first appeal for want of jurisdiction because there was no final judgment in the trial court that resolved all claims between the parties. The judgments granting TBIC's and MHI's motions for summary judgment were not final, appealable orders because TBIC's counterclaim and MHI's motion for sanctions against Howard remained pending. The parties returned to the trial court and sought dismissal of the pending claims. On September 29, 2009, MHI withdrew its motion for sanctions against Howard and the trial court signed an order denying MHI's motion as moot. Also on September 29, 2009, the trial court entered an agreed order dismissing TBIC's counterclaim against Howard, and Howard's counterclaim against TBIC and crossclaim against MHI. On October 28, 2009, Howard filed the appeal currently before this Court.

II. STANDARD OF REVIEW

When a motion for summary judgment presents both no-evidence and traditional grounds, we first review the propriety of the summary judgment under the rule 166a(i) no-evidence standards. See Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex.2004). If an appellant failed to produce more than a scintilla of evidence under the no-evidence standards, there is no need to analyze whether an appellee's summary judgment proof satisfied the burden related to traditional summary judgment motions. Id.

A no-evidence motion for summary judgment must specifically state the elements for which there is no evidence. Tex.R. Civ. P. 166a(i); see Johnson v. Brewer & Pritchard, P.C., 73 S.W.3d 193, 207 (Tex.2002). The trial court must grant the motion unless the non-movant produces summary judgment evidence that raises a genuine issue of material fact on the challenged elements. Tex.R. Civ. P. 166a(i); see Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex.2002). When reviewing a no-evidence motion for summary judgment, we examine the record in the light most favorable to the non-movant and disregard all contrary evidence and inferences. Sudan v. Sudan, 199 S.W.3d 291, 292 (Tex.2006). A no-evidence summary judgment is improper if the respondent brings forth more than a scintilla of probative evidence to raise a genuine issue of material fact. Tex.R. Civ. P. 166a(i); Kastner v. Jenkens & Gilchrist, P.C., 231 S.W.3d 571, 576 (Tex.App.-Dallas 2007, no pet.). Less than a scintilla of evidence exists when the evidence is so weak that it does nothing more than create a mere surmise or suspicion of a fact. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750–51 (Tex.2003). More than a scintilla of evidence exists when the evidence would enable reasonable and fair-minded people to reach different conclusions. See Hamilton v. Wilson, 249 S.W.3d 425, 426 (Tex.2008); Ford Motor Co., 135 S.W.3d at 601.

We review a traditional motion for summary judgment de novo to determine whether a party's right to prevail is established as a matter of law. See Provident Life & Acc. Ins. Co. v. Knott, 128 S.W.3d 211, 215–16 (Tex.2003). A defendant moving for traditional summary judgment must either (1) disprove at least one essential element of the plaintiff's cause of action as a matter of law or (2) plead and conclusively establish each essential element of an affirmative defense. See Doe v. Boys Clubs of Greater Dall., Inc., 907 S.W.2d 472, 476–77 (Tex.1995). Once the defendant establishes its right to summary judgment as a matter of law, the burden shifts to the plaintiff to present evidence raising a genuine issue of material fact, thereby precluding summary judgment. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex.1979); Talford v. Columbia Med. Ctr. at Lancaster Subsidiary, L.P., 198 S.W.3d 462, 464 (Tex.App.-Dallas 2006, no pet.). When the trial court's order granting summary judgment does not specify the grounds upon which it was granted, we will affirm the judgment if any of the theories...