Seim v. Lloyds
| Decision Date | 08 November 2018 |
| Docket Number | No. 02-16-00050-CV,02-16-00050-CV |
| Parties | RICHARD SEIM AND LINDA SEIM, Appellants v. ALLSTATE TEXAS LLOYDS AND LISA SCOTT, Appellees |
| Court | Texas Court of Appeals |
On Appeal from the 141st District Court Tarrant County, Texas
Before Walker, Meier, and Gabriel, JJ.
The Texas Supreme Court reversed our judgment affirming the trial court's summary judgment for Appellees Allstate Texas Lloyds and Lisa Scott and against Appellants Richard Seim and Linda Seim and remanded this appeal to us with instructions to determine whether—based on issues we did not previously reach—the trial court's summary judgment for Allstate and Scott may be affirmed on other grounds. See Seim v. Allstate Tex. Lloyds (Seim II), 551 S.W.3d 161, 166 (Tex. 2018)1 ( ). Two of the grounds for summary judgment that Allstate and Scott asserted in the trial court, in this court, and in the Texas Supreme Court as a basis for affirming the summary judgment in their favor—even if they did waive their objections to the affidavit of the Seims' expert Neil B. Hall—are (1) that no evidence exists that the damage sustained to the Seims' home in the August 13, 2013 storm was caused by or attributable solely to a covered peril (wind or hail making an opening in the roof as a result of the August 2013 storm) as opposed to prior storms, thermal cracking, or other causes and, alternatively, (2) that no evidence exists segregating the damages to the Seims' home resulting from the alleged covered peril of the August 2013 storm from damages resulting from the uncovered perils of previous storms in which the Seims' home had sustained damage, thermal cracking, and other causes.2 We agree. Accordingly, we will affirm the trial court's summary judgment.
Allstate provided the Seims with a homeowners' policy covering their property in Bedford, Texas. The policy period began on April 27, 2013, and ended on April 27, 2014. On August 28, 2013, the Seims notified Allstate that their home had beendamaged by a storm that had occurred earlier in August, on or about August 13, 2013. Scott, an adjuster for Allstate, inspected the Seims' property on or about September 10, 2013. Scott testified at her deposition that the Seims' property had some interior water damage, but the roof did not have any wind or hail damage. Scott further testified that in order for the interior water damage to be covered under the Seims' policy, "there ha[d] to be an opening in the roof [caused] by wind or hail . . . and [the Seims] did not have that."3 Allstate denied the Seims' claim on September 10, 2013. See Seim v. Allstate Tex. Lloyds (Seim I), No. 02-16-00050-CV, 2017 WL 1738028, at *1 (Tex. App.—Fort Worth May 4, 2017) (), rev'd, 551 S.W.3d 161 (Tex. 2018).
The sequencing of the Seims' amended pleadings and their content is pertinent to our disposition of this appeal; it is as follows:
At this point, Allstate and the individual defendants filed multiple motions for summary judgment.4
• October 28, 2015—The Seims filed a third amended petition, pleading causes of action against Allstate and Scott based on their handling of claim number 0297959876, which was submitted by the Seims against their homeowners' policy for damages to their home arising from asevere storm that had passed through the Bedford area on August 13, 2013. The Seims' third amended petition deleted all references to all causes of action against Allstate or Scott arising from claim numbers 0102779105, 0112511373, and 0245019815, which were submitted by the Seims against their homeowners' policy for damages to their home arising from severe storms that had passed through the Bedford area on, respectively, April 13, 2007, April 9, 2008, and May 8, 2012. The Seims' third amended petition explained the deletion of the other claims, stating,
Because the Seims' live, third amended petition deleted and omitted all claims arising from any alleged storms or conduct by Allstate or Scott other than the August 13, 2013 storm and claim, the trial court did not conduct a hearing or rule on Allstate and Scott's first three motions for summary judgment. Instead, Allstate and Scott filed a combined no-evidence and traditional fourth motion for summary judgment as to the causes of action asserted in the Seims' third amended petition.5 After a hearing, the trial court granted the combined motion without stating the reasons.
We review the rendition of a no-evidence motion for summary judgment de novo. Starwood Mgmt., LLC v. Swaim, 530 S.W.3d 673, 678 (Tex. 2017). In conducting our review, we apply the same legal sufficiency standards used to review a directed verdict. Timpte Indus., Inc. v. Gish, 286 S.W.3d 306, 310 (Tex. 2009). We consider the evidence in the light most favorable to the nonmovant, indulging every reasonableinference and resolving any doubts against the motion. Smith v. O'Donnell, 288 S.W.3d 417, 424 (Tex. 2009); Gish, 286 S.W.3d at 310. We credit evidence favorable to the nonmovant if a reasonable factfinder could, and disregard contrary evidence and inferences unless a reasonable factfinder could not. Merriman v. XTO Energy, Inc., 407 S.W.3d 244, 248 (Tex. 2013). If the nonmovant brings forward more than a scintilla of probative evidence that raises a genuine issue of material fact on each of the challenged elements, then a no-evidence summary judgment is not proper. Smith, 288 S.W.3d at 424.
When, as here, a summary judgment does not specify or state the grounds on which the trial court relied, the nonmovant on appeal must negate any grounds on which the trial court could have relied, and we will affirm the summary judgment on appeal if any of the grounds presented in the motion is meritorious. See Harwell v. State Farm Mut. Auto. Ins. Co., 896 S.W.2d 170, 173 (Tex. 1995); Sotelo v. Stewart, 281 S.W.3d 76, 80-81 (Tex. App.—El Paso 2008, pet. denied); Mellon Serv. Co. v. Touche Ross & Co., 17 S.W.3d 432, 435 (Tex. App.—Houston [1st Dist.] 2000, no pet.). In other words, when a summary judgment does not state the grounds on which it is based, a nonmovant is required to show that each ground alleged in the motion for summary judgment was insufficient to support the summary judgment. Star-Telegram, Inc. v. Doe, 915 S.W.2d 471, 473 (Tex. 1995).
The Texas Rules of Civil Procedure require that affidavits submitted as summary-judgment evidence set forth facts that would be admissible in evidence.6 See Tex. R. Civ. P. 166a(f); Ashton v. KoonsFuller, P.C., No. 05-16-00130-CV, 2017 WL1908624, at *2 (Tex. App.—Dallas May 10, 2017, no pet.) (mem. op.) (citing Rabe v. Dillard's Inc., 214 S.W.3d 767, 769 (Tex. App.—Dallas 2007, no pet.)). "Expert opinions must be supported by facts in evidence, not conjecture." Marathon Corp. v. Pitzner, 106 S.W.3d 724, 729 (Tex. 2003); Burrow v. Arce, 997 S.W.2d 229, 235 (Tex. 1999); Anderson v. Snider, 808 S.W.2d 54, 55 (Tex. 1991). That is, an expert's opinions cannot rest on the expert's subjective interpretation of the facts. See TXI Transp. Co. v. Hughes, 306 S.W.3d 230, 239 (Tex. 2010). Conclusory statements in an affidavit unsupported by facts are insufficient to defeat summary judgment. CA Partners v. Spears, 274 S.W.3d 51, 63 (Tex. App.—Houston [14th Dist.] 2008, pet. denied); 1001 McKinney Ltd. v. Credit Suisse First Boston Mortg. Capital, 192 S.W.3d 20, 27 (Tex. App.—Houston [14th Dist.] 2005, pet. denied) (citing Wadewitz v. Montgomery, 951 S.W.2d 464, 466 (Tex. 1997)). A conclusory statement is one that does not provide the underlying facts to support the conclusion. CA Partners, 274 S.W.3d at 64 (citing 1001 McKinney Ltd., 192 S.W.3d at 27); see also Earle v. Ratliff, 998 S.W.2d...
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