Stevens v. State Farm Fire and Cas. Co.

• Decision Date: 13 September 1996
• Docket Number: No. 06-96-00013-CV,06-96-00013-CV
• Citation: 929 S.W.2d 665
• Parties: James STEVENS, Appellant, v. STATE FARM FIRE AND CASUALTY COMPANY, Elaine Wourms, Joe Parks, and Robert Dierkes, Appellees.
• Court: Texas Court of Appeals

Page 665

929 S.W.2d 665

James STEVENS, Appellant, v. STATE FARM FIRE AND CASUALTY COMPANY, Elaine Wourms, Joe

Parks, and Robert Dierkes, Appellees.

No. 06-96-00013-CV.

Court of Appeals of Texas,

Texarkana.

Sept. 13, 1996.

Rehearing Overruled Oct. 8, 1996.

Joe R. Green, Fetter, Green & Associates, Longview, for Appellant.

Gregory P. Grajczyk, Edward L. Merritt, Harbour, Kenley, Boyland, Smith, Harris, Longview, for Appellees.

Before CORNELIUS, C.J., and GRANT and STARR, JJ.

OPINION

CORNELIUS, Chief Justice.

James Stevens appeals from an adverse summary judgment in his suit against State Farm Fire and Casualty Company, Elaine Wourms, Joe Parks, and Robert Dierkes. He contends that the trial court erred in granting the judgment. We reverse the judgment as to State Farm and remand the cause against State Farm for a trial on the merits. We affirm the judgment as to Wourms, Parks, and Dierkes.

Stevens' home burned on January 3, 1991. State Farm insured the building for $167,000.00 and the personal property for $100,260.00. The day after the fire, Stevens called Charles Roach, his insurance agent, and told him of the fire. The week after the fire, Elaine Wourms, a State Farm adjuster, contacted Stevens, and they met on January 14 to discuss coverage. On January 25, Stevens and his attorney, Joe Green, again met with the adjuster to work out an estimate for repairing or replacing Stevens' house.

On February 7, State Farm sent Stevens a letter and enclosed a draft for $86,877.78 for repairs. In the letter, State Farm said it would pay an additional $20,332.00 for depreciation and $21,492.12 for contractor overhead and profit on completion of the repairs. State Farm deposited into Stevens' Lone Star State Bank account both the initial and the subsequent depreciation and overhead-profit payments.

Stevens testified in his deposition that around February 22, his contractor began tearing down parts of the house in anticipation of repairing it. A few weeks after the contractor began, however, he told Stevens that the damage was so extensive that he would have to raze and rebuild the entire house.

On March 19, Stevens signed a sworn proof of loss in which his actual loss was represented to be $130,000.00 in real property and $100,260.00 in contents. After the house was rebuilt in October 1991, State Farm made two supplemental payments, $4,005.00 and $738.00, for repairs to the septic and plumbing systems.

More than a year later, on November 20, 1992, Stevens sent State Farm a letter in which he submitted an additional claim of $4,246.84 to reimburse him for payments to a cleaning company in an attempt to salvage certain items of personal property. He also submitted an additional claim for $33,577.53, representing the difference between the $167,000.00 total real property coverage and the $133,522.47 State Farm had paid for building repairs.

In a November 25 letter, Dierkes, a State Farm claim superintendent, acknowledged receipt of the November 20 letter and said that State Farm would investigate Stevens' requests, but said the company would not immediately honor either request. Dierkes also said in the letter that in his opinion the statute of limitations would run on January 3, 1993.

On December 21, Parks, State Farm's senior claim representative, wrote to Stevens denying the claim for additional monies. Stevens filed suit on December 23 against State Farm, alleging violations of the Texas Insurance Code, the Deceptive Trade Practices Act, negligence per se, breach of good faith and fair dealing, fraud, misrepresentation, negligent infliction of emotional distress, and breach of contract. Stevens' attorney also on December 23 sent State Farm a demand letter pursuant to the DTPA and the Insurance Code. The attorney said he sent the letter contemporaneously with the suit to prevent State Farm from relying on the January 3, 1993 limitations date mentioned in a previous State Farm letter. On January 7, 1993, State Farm sent a letter to Stevens' attorney again denying Stevens' claims.

Citation in the suit was issued about a year later, on January 18, 1994, and served on State Farm February 9. ¹

On October 6, 1995, State Farm moved for summary judgment on the grounds of (1) limitations, (2) laches, (3) estoppel, (4) accord and satisfaction, (5) that Texas does not recognize The trial court in a December 18 letter to the parties stated that it was granting summary judgment on the ground of limitations. The court's order granting the summary judgment, however, did not specify the grounds on which it was granted.

the tort of negligent infliction of emotional distress, and (6) that as a matter of law the claims against Wourms, Parks, and Dierkes, all State Farm employees, failed because the employees were acting within the course and scope of their employment.

SUMMARY JUDGMENT

Although Stevens' single point of error contends that the trial court erred in granting the summary judgment, in his appellate brief he states that the court granted the summary judgment on limitations grounds, and he addresses only the limitations defense in his argument.

A summary judgment is proper only when the movant establishes that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. TEX.R. CIV. P. 166a; Swilley v. Hughes, 488 S.W.2d 64, 67 (Tex.1972). The movant has the burden in a summary judgment proceeding, and the court must resolve against the movant all doubts as to the existence of a genuine issue of fact. Roskey v. Texas Health Facilities Comm'n, 639 S.W.2d 302, 303 (Tex.1982). Once the movant has established a right to a summary judgment, the burden shifts to the nonmovant. The nonmovant must then respond to the summary judgment motion and present to the trial court summary judgment evidence raising a fact issue that would preclude summary judgment. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex.1979).

In deciding whether a disputed material fact issue precludes summary judgment, we take as true all evidence favorable to the nonmovant. We must indulge every reasonable inference and resolve any doubt in the nonmovant's favor. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex.1985).

As an initial matter, State Farm argues that the appeal is moot because the trial court did not specify the grounds on which it granted the judgment and Stevens argues only limitations on appeal. It argues that because the trial court could have granted the judgment on another uncomplained-of ground, we must affirm the judgment.

Although the trial judge in a letter said he was granting summary judgment on the ground of limitations, we cannot consider the letter because it was not a part of the judgment. Martin v. Southwestern Elec. Power Co., 860 S.W.2d 197, 199 (Tex.App.--Texarkana 1993, writ denied). Because the order granting the judgment did not specify the grounds, we cannot tell which ground the trial court relied upon.

Our Supreme Court has held that a general point of error stating that "The trial court erred in granting the motion for summary judgment" will allow the nonmovant to dispute on appeal all possible grounds for the judgment. Plexchem Int'l, Inc. v. Harris County Appraisal Dist., 922 S.W.2d 930 (Tex.1996); Malooly Bros., Inc. v. Napier, 461 S.W.2d 119, 121 (Tex.1970). It is not clear, however, whether an appellant who advances a general point of error in his brief but fails to argue all grounds that the movant advanced in support of its motion in the trial court may challenge the unargued grounds on appeal.

State Farm relies on Fredonia State Bank v. General American Life Ins. Co., 881 S.W.2d 279, 284 (Tex.1994), and argues that Stevens, by failing to argue all possible grounds, has waived those grounds on appeal. That case, however, while reiterating the rule that although an appellate court will not consider matters not properly presented, the court retains some discretion in ordering rebriefing, is not a summary judgment case. A summary judgment differs from non-summary-judgment cases in that on appeal the summary judgment movant has the burden of demonstrating it is entitled to judgment as a matter of law. Nixon v. Mr. Property Management Co., supra. If the appellee "waives" a ground by not arguing it on appeal, this would relieve the movant of its burden even though Malooly seems to allow a single general point of error to bring all Several courts of appeals decisions seem to hold that the unargued grounds are waived. In those cases, however, the appellant failed to advance a general point of error. See, e.g., Reese v. Beaumont Bank, N.A., 790 S.W.2d 801 (Tex.App.--Beaumont 1990, no writ); Inscore v. Karnes County Sav. & Loan Ass'n, 787 S.W.2d 183 (Tex.App.--Corpus Christi 1990, no writ); Dubow v. Dragon, 746 S.W.2d 857 (Tex.App.--Dallas 1988, no writ); King v. Texas Employers' Ins. Ass'n, 716 S.W.2d 181 (Tex.App.--Fort Worth 1986, no writ); Rodriguez v. Morgan, 584 S.W.2d 558 (Tex.Civ.App.--Austin 1979, writ ref'd n.r.e.).

possible grounds into issue. Strictly following that rule, we would be required to affirm the summary judgment even if the trial court erred on a ground not argued on appeal, and even though the general point of error is sufficient to attack all grounds.

In Martin v. Cohen, 804 S.W.2d 201 (Tex.App.--Houston [14th Dist.] 1991, no writ), the appellant advanced a general point of error complaining of the granting of the summary judgment. The appellate court overruled the point of error because the appellant failed to argue the point. The court failed to mention Malooly and relied on TEX.R.APP. P. 74(f) (brief of argument shall include condensed statement of facts and discussion of facts and authorities) and Essex Crane Rental Corp. v. Striland Constr. Co., 753 S.W.2d 751 (Tex.App.--Dallas 1988, writ denied), a non-summary-judgment case.

The First Court of Appeals District in two cases specifically held that...