Royal Surplus Lines v. Brownsville Indep. School
| Decision Date | 02 June 2005 |
| Docket Number | No. CIV.A. B-03-109.,CIV.A. B-03-109. |
| Parties | ROYAL SURPLUS LINES INSURANCE COMPANY v. BROWNSVILLE INDEPENDENT SCHOOL DISTRICT. |
| Court | U.S. District Court — Southern District of Texas |
Jay W. Brown, Stephen Russell Wedemeyer, Beirne, Maynard & Parsons, LLP, Houston, TX, for Royal Surplus Lines Insurance Company.
Baltazar Salazar, Attorney at Law, Houston, TX, Craig Stephen Smith, Attorney at Law, Corpus Christi, TX, Ramon Garcia, Attorney at Law, Edinburg, TX, for Brownsville Independent School District.
Before this Court are three motions for summary judgment filed by the plaintiff, Royal Surplus Lines Insurance Company ("Royal" or "Plaintiff"). Each will be discussed in greater detail below but, suffice it to say, each seeks a judgment that Royal is not liable to the defendant, Brownsville Independent School District ("BISD"), for damages suffered by BISD due to the presence of mold at two of its schools: Bruce Aiken Elementary School ("Aiken") and Raul Besteiro Middle School ("Besteiro"). Despite warnings by the Court and a direct order setting a deadline, BISD has not filed a response to two of the three motions. Also, despite warnings from the Court, including an admonition to supplement its sole response, and the issuance of a firm deadline, the one response filed was not supplemented to provide the Court with any competent summary judgment evidence that raises an issue of material fact. That being the case, the Court hereby GRANTS all three of Royal's summary judgment motions.
This lawsuit was initiated on June 9, 2003, by Royal. It sought a declaratory judgment that it did not owe insurance coverage to BISD for the mold problems experienced at Aiken and Besteiro under four insurance policies covering the period between September 1, 1993, to April 1, 2002. BISD answered on June 30, 2003, with a Motion to Dismiss or Abate [Docket No. 5]. It later withdrew this pleading and filed an answer and counterclaim [Docket No. 18]. A scheduling order was instituted on September 15, 2003, at the initial Rule 16 conference [Docket No. 34]. At that hearing, the Court emphasized to the parties that they needed to respond to all motions to which they were opposed. See infra note 5. Among other deadlines, the Court set a February 27, 2004 deadline for dispositive motions and a trial date in June 2004. At the request of one of the parties, these deadlines were extended on December 11, 2003, and again on March 19, 2004. Pursuant to this last extension, dispositive motions were due on June 11, 2004, with a trial date of September 2, 2004.
On May 17, 2004, Royal filed its first motion for summary judgment [Docket No. 42] to which BISD replied on June 3, 2004 [Docket No. 45]. Royal filed two more summary judgment motions on June 10, 2004 [Docket Nos. 47, 49], as well as a reply to BISD's response [Docket No. 50]. The Court then held a hearing on June 27, 2004, to address all outstanding motions. The Court at that time gave Royal until October 29, 2004, to supplement any pending motions for summary judgment, and BISD until November 19, 2004, to file its responses. See Docket No. 60. This Court made it clear that it intended to act upon these motions by the end of 2004. Royal complied by filing its supplemental motions on October 29, 2004 [Docket Nos. 76, 77, 78]. BISD filed nothing.
This Court, concerned that an inadequate response had been filed to the first summary judgment motion and that no responses had been filed to the other two, instead of ruling, elected to hold yet another hearing on the motions.1 Prior to that hearing, on January 19, 2005, BISD filed a motion to continue the hearing, which was eventually held on January 24, 2005. At that hearing, the Court with all counsel present told the parties in no uncertain terms: (1) that despite the fact that Royal's second two summary judgment motions were ripe for the Court's decision, BISD had not responded to them and (2) that the reply to the first motion for summary judgment was inadequate, i.e., that it contained no deposition testimony, affidavits, or other competent (authenticated) summary judgment evidence that raised a material fact issue in this case. Counsel for BISD acknowledged that he had not responded to two of the three dispositive motions. When the Court reminded him that the motions could have already been granted, counsel responded by saying "we don't feel like it's time." Further, when counsel for BISD suggested he had experts that would show this Court why the policy exclusions did not apply, this Court immediately asked "...do I have an affidavit that says that, because I don't think I do or summary judgment evidence in any form?"
Later the following exchange occurred:
THE COURT: But be that as it may, I mean, Mr. Salazar [attorney for BISD], do we have any summary judgment testimony? Forget about the bad faith issue for a minute. I mean — and forget — kind of forget about the legal basis for some of Royal's motions. Let me talk about the factual basis for their motion.
They're basically saying that this is all excluded and that you have no summary judgment proof — evidence that gets you by the factual basis that throws them under their exclusions. Now, I may be talking about exclusions; I may be talking about coverage issues, but I'm using those interchangeably. I'm not using them as a form [term] of art.
But is anybody going to come in, any expert, engineer, construction guru, mold guru? Because right now I don't have anything that controverts their summary judgment.
* * * * * *
I mean, it's got to be sworn to in some form.
* * * * * * There's been no response to the Celotex motion nor any response to the bad faith motion.
Much to the chagrin of Royal's counsel, the Court chose to give BISD one more chance to file an adequate response to the first summary judgment motion and any response at all to the other two. It continued the consideration of these motions yet again and ordered BISD to file responses to these motions by April 29, 2005. See Docket No. 90. The Court went one step further and urged both sides:
...in all the other summary judgments and responses thereto, make sure they comply with the rules, evidentiary. I mean an unsworn to report or segment of a report is not summary judgment evidence that I can consider.
I would strongly suggest, you know, if you have a good piece of evidence that says, hey, this is where the water comes from, this is why we have coverage that you ... succinctly put it out for me where I can match it up with the policy exclusions that Mr. Brown is claiming that he doesn't have coverage for...so I'm looking at apples to apples and oranges to oranges as opposed to trying to cross-reference why this works.
Finally in closing, the Court told the parties to look at their responses and make sure that the items they were relying on were proven up in some fashion.
Following that discussion in which the Court practically set out for BISD the form in which its responses should be filed, pointed out the need for a better response on one motion, and pointed out the need for some kind of response on the other two, BISD filed nothing! Royal filed a supplemental summary judgment motion containing numerous affidavits which establish the competence of and/or authenticated many of the exhibits it had attached to its prior motions. Even after this was filed, BISD filed nothing. The old adage comes to mind that you can lead a horse to water, tell him to take a drink, give him extra time to drink, but you still cannot make him drink. This Court cannot make a non-movant file a complete response (or any response for that matter) to a summary judgment motion, but it can grant the motions.
At the onset, this Court notes that, although BISD never responded to two of Royal's three motions, a motion for summary judgment cannot be granted simply because there is no opposition — despite the Court's repeated admonitions — even if the failure to oppose it violates a local rule. Hibernia Nat'l Bank v. Administracion Central Sociedad Anonima, 776 F.2d 1277, 1279 (5th Cir.1985).5
Royal maintains in its various motions that it seeks a complete summary judgment under a "no evidence" standard pursuant to both Federal Rule of Civil Procedure 56 and Rule 166a(i) of the Texas Rules of Civil Procedure, a partial summary judgment on the...
To continue reading
Request your trial
-
Simco Enterprises, Ltd. v. James River Ins. Co.
...Bank, 776 F.2d at 1279); see Owens v. Town of Delhi, 469 F.Supp.2d 403, 405 (W.D.La. 2007); Royal Surplus Lines Ins. Co. v. Brownsville Indep. Sch. Dist, 404 F.Supp.2d 942, 947 (S.D.Tex.2005). Nonetheless, the court may grant summary judgment if the movant has made a prima facie showing tha......
-
Williams v. City of Port Arthur, CIVIL ACTION NO. 1:10-CV-823
...F.2d at 1279); see Owens v. Town of Delhi, 469 F. Supp. 2d 403, 405-06 (W.D. La. 2007); Royal Surplus Lines Ins. Co. v. Brownsville Indep. Sch. Dist., 404 F. Supp. 2d 942, 947-49 (S.D. Tex. 2005). Nonetheless, the court may grant summary judgment if the movants have made a prima facie showi......
-
Aban Offshore Ltd. v. Covington, CIVIL ACTION NO. 1:10-CV-5
...F.2d at 1279); see Owens v. Town of Delhi, 469 F. Supp. 2d 403, 405-06 (W.D. La. 2007); Royal Surplus Lines Ins. Co. v. Brownsville Indep. Sch. Dist., 404 F. Supp. 2d 942, 947-49 (S.D. Tex. 2005). Nonetheless, the court may grant summary judgment if the movants have made a prima facie showi......
-
Kors v. Hernandez Int'l Inc.
...nor has any particular import in the vernacular of federal summary judgment procedure." Royal Surplus Lines Ins. Co. v. Brownsville Independent School Dist., 404 F. Supp. 2d 942, 948 (S.D. Tex. 2005). Though a "no evidence" motion for summary judgment is available in state court,70 federal ......