Pena v. State Farm Lloyds

• Citation: 980 S.W.2d 949
• Decision Date: 12 November 1998
• Docket Number: No. 13-97-150-CV,13-97-150-CV
• Parties: Ernest PENA and Yvonne Pena, Appellants, v. STATE FARM LLOYDS, Appellee.
• Court: Court of Appeals of Texas

Page 949

980 S.W.2d 949

Ernest PENA and Yvonne Pena, Appellants, v. STATE FARM LLOYDS, Appellee.

No. 13-97-150-CV.

Court of Appeals of Texas Corpus Christi.

Nov. 12, 1998.

Rehearing Overruled Dec. 17, 1998.

Savannah L. Robinson, Friendswood, Stacy L. Keaton, Austin, for Appellant.

Paul Dodson, White, Huseman & Pletcher, Corous Christi, for Appellee.

Before Justices DORSEY, HINOJOSA, and RODRIGUEZ.

OPINION

HINOJOSA, Justice.

This is an appeal from the grant of a summary judgment in favor of appellee, State Farm Lloyds, an insurance company. Appellants, Ernest Pena and Yvonne Pena, raise five points of error contending the trial court erred: (1) in granting State Farm's motion for summary judgment, (2) in finding that their tort and policy benefit claims were barred by limitations, (3) in deciding that State Farm had a reasonable basis for denying their claims, (4) in determining that State Farm did not violate any provisions of the insurance code or engage in deceptive trade practices, and (5) in ordering that they take nothing on their extra-contractual claims. We reverse and remand.

Background

The Penas purchased their home in Corpus Christi, Texas in July 1989. The single-story house was built in 1939 with a pier-and-beam foundation system, and a basement. The home's hardwood floor was installed in 1939 without sub-flooring or a vapor barrier. In 1987, the then-owner, Ward Thomas, Jr., added a bathroom to the master bedroom at the rear of the house. The bathroom sits on a concrete slab foundation. Thomas never experienced any problems with the foundation or plumbing. After purchasing the home, the Penas obtained homeowner's insurance coverage from State Farm.

In October 1991, the Penas came home from a vacation and discovered the hardwood floor throughout their home had buckled or cupped severely. Upon inspection, they discovered a leaking water heater pipe had allowed steam to escape into the basement directly beneath the hardwood floor. They then filed a claim for the damage. State Farm acknowledged the claim on October 21, 1991, and assigned it claim number 53-N305-844.

In November 1991, Jim Wiethorn of Haag Engineering studied the damage to the floor and confirmed to State Farm that the water heater leak had been the cause. He noted that fungal growth was present on the underside of the wooden planks. He told State Farm that reasonable repairs for the hardwood floor consisted of sanding and refinishing. State Farm issued a check on December 20, 1991, for the recommended repairs.

The Penas were unable to find any contractor willing to perform such repairs. All of the contractors that looked at the floor determined it was damaged to such an extent, it would continue to buckle after every period of rainy weather. The contractors recommended the Penas install sub-flooring and a vapor barrier, in addition to replacing the floor.

On August 10, 1993, Mr. Pena contacted State Farm, explained that the disbursement of December 1991 was insufficient to cover the needed repairs to the floor, and requested additional funds to replace the floorboards under the replacement coverage provided for in the policy. The claim was finally denied on May 11, 1994.

On October 21, 1991, the Penas filed a claim for damages caused by movement of the slab foundation under the master bathroom. State Farm assigned it claim number 53-N305-923. When Wiethorn inspected the hardwood floor in November 1991, Mr. Pena pointed out various cracks in the bathroom walls as well as roof and floor separations where the bathroom addition joined the original structure of the home. Wiethorn concluded that the water heater leak in the basement could not have caused the slab foundation and structural damage, but he performed only a cursory investigation to determine other causes. State Farm denied the slab foundation claim on January 16, 1992, on the basis that the water heater leak had not affected the foundation and the roof problems were the result of "improper roof detailing."

Over the next four years, the slab foundation problems were investigated by four groups of engineers and handled by seven different claims representatives. It was determined that the foundation had moved, and leaks in the bathroom plumbing were discovered. Plumbing tests were authorized in late 1993. Several leaks were discovered and reported to State Farm on December 20, 1993. State Farm sent the Penas a draft to make plumbing repairs, and indicated the foundation claim was continuing.

State Farm assigned the claim for the damaged, leaking roof claim number, 53-N313-378, and made a payment for the roof damage on December 8, 1993.

On October 18, 1993, the Penas made additional damage claims for the plumbing leaks and slab foundation movement, and State Farm assigned them claim number 53-N313-382.

On January 11, 1994, State Farm hired Charlie Bellah, a professional engineer, to investigate the slab foundation and structural damages to the home caused by the plumbing leaks. Bellah's report in March 1994, supported by another report from Wiethorn, concluded the plumbing leaks had caused no damages. On March 31, 1994, State Farm finally denied the Penas' slab foundation claims.

In November 1994, State Farm informed the Penas that their homeowner's policy would not be renewed unless the roof was repaired within six months. When the policy was canceled six months later, the stated reason was that the Penas had filed more than three claims in a three-year period.

On March 17, 1995, the Penas sued State Farm, alleging breach of the duty of good faith and fair dealing, violations of the Texas Insurance Code and Deceptive Trade Practices--Consumer Protection Act (DTPA), and for additional policy benefits. State Farm moved for partial summary judgment, which was granted on July 11, 1996. The Penas nonsuited the remainder of their claims in December 1996, and timely appealed the summary judgment.

Jurisdiction

State Farm questions whether the Penas can appeal the partial summary judgment as the remainder of their case was disposed of by non-suit. The order for non-suit contains a final order that the Penas take nothing, in accord with the interlocutory partial summary judgment, and also contains Mother Hubbard language. This is sufficient to render the partial summary judgment final and appealable. See Newco Drilling Co. v. Weyand, 960 S.W.2d 654, 656 (Tex.1998); Hyundai Motor Co. v. Alvarado, 892 S.W.2d 853, 855 (Tex.1995); Mackie v. McKenzie, 890 S.W.2d 807, 807-08 (Tex.1994).

Standard of Review

A motion for summary judgment must expressly state the grounds upon which it is made. McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 339 (Tex.1993); TEX.R. CIV. P. 166a(c). Summary judgments may not be affirmed or reversed on grounds not expressly set forth in the motions presented to the trial court. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 677 (Tex.1979); Carlisle v. Philip Morris, Inc., 805 S.W.2d 498, 518 (Tex.App.--Austin 1991, writ denied). A motion for summary judgment must stand or fall on the grounds expressly presented in the motion, and a court may not rely on briefs or summary judgment evidence in determining whether grounds are expressly presented. McConnell, 858 S.W.2d at 339. However, a non-movant does not need to respond to a motion for summary judgment to complain on appeal that the motion was insufficient as a matter of law to support summary judgment. Clear Creek Basin Auth., 589 S.W.2d at 678.

The proper inquiry on appeal is whether the defendant, in seeking summary judgment, fulfilled his initial burden (1) to establish as a matter of law that there remained no genuine issue of material fact as to one or more essential elements of the plaintiff's cause of action or (2) to establish his affirmative defense to the plaintiff's cause of action as a matter of law. Casso v. Brand, 776 S.W.2d 551, 556 (Tex.1989); Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex.1985); Swilley v. Hughes, 488 S.W.2d 64, 67 (Tex.1972). In deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the non-movant must be taken as true. Nixon, 690 S.W.2d at 549. Every reasonable inference must be indulged in favor of the non-movant and any doubts resolved in his favor. Id. Once the movant establishes an affirmative defense which would bar the suit as a matter of law, the non-movant must produce summary judgment proof raising a fact issue in avoidance of the affirmative defense. Gonzalez v. City of Harlingen, 814 S.W.2d 109, 112 (Tex.App.--Corpus Christi 1991, writ denied).

If a summary judgment order specifies the grounds on which the trial court based the summary judgment, we limit our review to those grounds. State Farm Fire & Cas. Co. v. S.S., 858 S.W.2d 374, 380 (Tex.1993); Delaney v. University of Houston, 835 S.W.2d 56, 58 (Tex.1992); Cox v. Upjohn Co., 913 S.W.2d 225, 228 (Tex.App.--Dallas 1995, no writ). The summary judgment will be affirmed on appeal if the specified grounds are meritorious. S.S., 858 S.W.2d at 380; Rios v. Texas Commerce Bancshares, Inc., 930 S.W.2d 809, 814 (Tex.App.--Corpus Christi 1996, writ denied). Even if the motion contained other independent grounds on which summary judgment was sought, the grounds specified in the order are the only ones on which summary judgment may be affirmed. Carlisle, 805 S.W.2d at 518. In reviewing the summary judgment evidence, we are only allowed to review the summary judgment evidence on file at the time of the hearing. Allen v. Wachtendorf, 962 S.W.2d 279, 281 (Tex.App.--Corpus Christi 1998, writ denied). Statements of facts and arguments made at the hearing are not considered on appeal from the granting of a summary judgment. TEX.R. CIV. P. 166a(c); McConnell, 858 S.W.2d at 341; Allen, 962 S.W.2d at 281.

Limitations

By their first point of error, the Penas complain the trial erred in granting State Farm's motion...