NUMBER 13-07-310-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
BRYAN T. HAYE, Appellant,
v.
ELTON PORTER MARINE INSURANCE, Appellee.
On appeal from the 55th District Court of Harris County, Texas.
MEMORANDUM OPINION
Before Justices Yañez, Benavides, and Vela Memorandum Opinion by Justice Yañez
By two sub-issues, appellant, Bryan T. Haye, appeals the granting of summary
judgment in favor of appellee, Elton Porter Marine Insurance (“Elton Porter”). Appellant
contends the trial court erred in granting summary judgment because: (1) there are
material fact issues as to each of his claims; and (2) Elton Porter did not seek summary judgment on his claim for promissory estoppel. By a cross-issue, Elton Porter contends
the trial court erred in overruling its objections to and motion to strike appellant’s summary
judgment evidence. We overrule Elton Porter’s cross-issue, reverse the summary
judgment as to each of appellant’s claims, and remand to the trial court.
I. Background
On May 5, 2005, a boat owned by appellant was badly damaged in an accident.
Although appellant believed the boat to be fully insured at the time of the accident, the
policy covering the boat expired on February 7, 2005, almost three months prior to the
accident. Appellant sued Elton Porter, his insurance agency, alleging that it negligently
“fail[ed] to procure or renew insurance” on the boat.1
On September 29, 2006, Elton Porter filed a combined traditional and no-evidence
“Motion for Final Summary Judgment.”2 In the “traditional” section of its motion, Elton
Porter argues, among other things, that appellant’s negligence claim fails because even
if Elton Porter had a duty to notify appellant of the pending expiration of the policy, it
satisfied any such duty by providing notice. Elton Porter also argues that appellant’s
negligence claim fails because no act or omission by Elton Porter proximately caused
appellant’s damages; rather, appellant’s damages were proximately caused by the
accident and appellant’s own failure to pay the insurance premium.
With respect to appellant’s Insurance Code claim, Elton Porter argued, as a
1 In his Second Am ended Petition, filed on August 1, 2006, appellant alleged causes of action for negligence, prom issory estoppel, violations of the DTPA and Insurance Code, and breach of Elton Porter’s duty to “notify the lender of the non[-]renewal of the policy.”
2 See T EX . R. C IV . P. 166a(c), (i). W e note that appellant requested the appellate record to include Elton Porter’s “Motion for Final Sum m ary Judgm ent” dated “7-26-06;” however, the only “Motion for Final Sum m ary Judgm ent” in the record before us is file-stam ped Septem ber 29, 2006.
2 traditional ground, that the claim fails because appellant’s claimed damages are the
benefits under the policy, and his failure to receive benefits was proximately caused by his
own acts and omissions. As to appellant’s DTPA claim, Elton Porter urged, as a traditional
ground, that the claim fails because even if it failed to notify appellant of the delinquency
(which it denies), any such failure is a breach-of-contract claim, and is not actionable under
the DTPA. In support of its traditional motion, Elton Porter attached various documents,
including documentation that the policy’s expiration date was February 7, 2005, the
January 12, 2005 renewal notice sent to appellant, along with an invoice for the premium,
and a February 26, 2005 letter to appellant stating that no renewal premium had been
received. Elton Porter also attached excerpts from several depositions, including
appellant’s deposition, and appellant’s responses to requests for disclosure.
In the “no-evidence” section of its motion, Elton Porter urged that there is no
evidence that the insurance premium was paid. As to appellant’s negligence claim, Elton
Porter argued that there is no evidence that it had a duty to keep appellant reasonably
informed, and no evidence that it breached any such duty. With regard to appellant’s
DTPA claim, Elton Porter argued there is no evidence that appellant is a “consumer” under
the DTPA because he did not pay the premium or purchase any insurance policy to keep
the boat insured.3
On August 10, 2006, appellant filed a response to Elton Porter’s combined motion.
In his response, appellant asserted that Elton Porter had a “three-step policy renewal
3 W e note that Elton Porter also urged “no-evidence” argum ents with regard to appellant’s contract and bad faith claim s, but appellant asserts that those argum ents are “irrelevant” because he did not plead any contract or bad faith claim s.
3 process,” which included: (1) notifying the insured of the impending expiration of a policy;
(2) notifying the insured when a policy terminates or lapses; and (3) following up with a
phone call to the insured to make certain the insured knows that no coverage exists.
Appellant contends that based on his past business relationship with Elton Porter, he relied
on the company to annually obtain insurance on his boats. He also contends that Elton
Porter did not notify him in writing of the expiration of the policy, and did not provide a
follow-up phone call to ensure that he knew of the lapse in the policy. Appellant contends
that “the producing (and sole) cause of [his] damages was Elton Porter’s negligence in
failing to follow its own internal policies regarding insurance renewals.” In support of his
response, appellant attached the following evidence: (1) his own affidavit; (2) the affidavit
of Jennifer Kubeczka, an employee who works for appellant; (3) an excerpt from the
deposition of Ken Collier, then vice-president of Elton Porter; (4) an excerpt from the
deposition of Shelly Waller, then office manager for Elton Porter; (5) an excerpt from the
deposition of James Cobb, then a sales associate with Elton Porter; and (6) an excerpt
from the deposition of Dennis Onstott, then a sales associate with Elton Porter.
On September 29, 2006, the trial court granted the summary judgment without
stating the grounds for its ruling. In the same order, the trial court ordered that “all
objections to summary judgment evidence are denied.”
II. Jurisdiction
By his second sub-issue, appellant contends that Elton Porter did not seek summary
judgment on his claim for promissory estoppel. Thus, we must first determine whether the
trial court’s judgment is a final judgment.
A. Standard of Review and Applicable Law
4 Appellate courts are obligated to review sua sponte issues affecting jurisdiction.4
We examine the entire record to determine whether an order disposes of all pending
claims and parties.5
A judgment is not final unless it disposes of all pending parties and claims in the
record.6 There can be no presumption that a motion for summary judgment addresses all
of the movant’s claims.7 In cases in which only one final and appealable judgment can be
rendered, a judgment issued without a conventional trial is final for purposes of appeal if
and only if it either states with unmistakable clarity that it is a final judgment or actually
disposes of all claims and parties then before the court, regardless of its language.8 The
law does not require that a final judgment be in any particular form.9 Therefore, whether
a summary-judgment order is a final judgment must be determined from its language and
the record in the case.10
The Texas Supreme Court has stated that “language that the plaintiff take nothing
by his claims in the case . . . shows finality if there are no other claims by other parties.”11
4 M. O. Dental Lab v. Rape, 139 S.W .3d 671, 673 (Tex. 2004).
5 Lehmann v. Har-Con Corp., 39 S.W .3d 191, 205-06 (Tex. 2001)
6 Cartwright v. Cologne Prod. Co., 182 S.W .3d 438, 443 (Tex. App.–Corpus Christi 2006, pet. denied) (citing Guajardo v. Conwell, 46 S.W .3d 862, 863-64 (Tex. 2001) (per curiam ); Garcia v. Comm'rs Court, 101 S.W .3d 778, 784 (Tex. App.–Corpus Christi 2003, no pet.)).
7 Id. (citing McNally v. Guevara, 52 S.W .3d 195, 196 (Tex. 2001) (per curiam )).
8 Id. (citing Lehmann, 39 S.W .3d at 204; Garcia, 101 S.W .3d at 784).
9 Id. (citing Lehmann, 39 S.W .3d at 195; Garcia, 101 S.W .3d at 784).
10 Id. (citing Lehmann, 39 S.W .3d at 195; Garcia, 101 S.W .3d at 784).
11 Jacobs v. Satterwhite, 65 S.W .3d 653, 655 (Tex. 2001) (quoting Lehmann, 39 S.W .3d at 205).
5 “In addition, ‘if a defendant moves for summary judgment on only one of [multiple] claims
asserted by the plaintiff, but the trial court renders judgment that the plaintiff take nothing
on all claims asserted, the judgment is final—erroneous, but final.’”12
B. Discussion
Here, the judgment (1) is entitled “Final Judgment,” (2) states that it “finally disposes
of all parties and all claims and is appealable, (3) states that it “is a final judgment,” (4)
states that appellant “shall take nothing on any of its [sic] claims against Defendant, Elton
Porter,” and (5) states that “all relief not expressly granted herein is denied.”
In response to the argument that Elton Porter failed to seek summary judgment on
appellant’s promissory estoppel claim, Elton Porter first argues that when it filed its motion
for summary judgment, no promissory estoppel claim had been pleaded. As noted above,
however, appellant’s second amended petition, which included the promissory estoppel
claim, was filed on August 1, 2006; Elton Porter’s “Motion for Final Summary Judgment”
(which does not address the promissory estoppel claim) is file-stamped September 29,
2006.
Second, Elton Porter argues that it addressed the promissory estoppel claim in its
reply in support of its motion for summary judgment. Elton Porter points to the following
passage from its reply:
[4] Haye alleges further that Elton Porter made certain promises to him which resulted in his own failure to pay his insurance premium when due. However, because Haye had no communication with Elton Porter, there is no “promise” upon which he could have reasonably relied. Further, any reliance on any such fictitious “promise” would have been unreasonable in light of the written notices sent and received.
12 Id. (quoting Lehmann, 39 S.W .3d at 200).
6 Based on this passage, Elton Porter argues that it “clearly set forth two elements upon
which there is no evidence: (1) no promise; and, (2) no reasonable reliance.” We
disagree.
Initially, we note that the certificate of service on Elton Porter’s reply is dated August
16, 2006, but the reply is file-stamped August 16, 2007. Even if we assume, however, that
the trial court considered Elton Porter’s reply, its argument fails because a movant may not
use a reply brief to meet the specificity requirement of rule 166a(i) or to assert new grounds
for summary judgment.13 Therefore, we do not consider any arguments raised in Elton
Porter’s reply. We conclude that Elton Porter did not seek summary judgment on
appellant’s promissory estoppel claim.
We hold that the trial court’s judgment was a final judgment encompassing
appellant’s promissory estoppel claim, but because the promissory estoppel claim was not
addressed in Elton Porter’s motion, summary judgment on that claim was erroneous.14
We sustain appellant’s second sub-issue, reverse the summary judgment on
appellant’s promissory estoppel claim, and remand that claim to the trial court.
III. Summary Judgment
A. Standards of Review
Elton Porter filed a combined traditional and no-evidence motion for summary
judgment. The standard of review for the grant of a motion for summary judgment is
13 Community Initiatives, Inc. v. Chase Bank of Texas, 153 S.W .3d 270, 280 (Tex. App.–El Paso 2004, no pet.); see T EX . R. C IV . P. 166a(i) (stating that a no-evidence m otion for sum m ary judgm ent “m ust state the elem ents as to which there is no evidence”).
14 See Satterwhite, 65 S.W .3d at 655.
7 determined by whether the motion was brought on no-evidence or traditional grounds.15
A no-evidence summary judgment is equivalent to a pretrial directed verdict, and this
Court applies the same legal sufficiency standard on review.16 In an appeal of a
no-evidence summary judgment, this Court reviews the evidence in the light most favorable
to the non-movant, disregarding all contrary evidence and inferences.17 If the non-movant
produces evidence to raise a genuine issue of material fact, summary judgment is
improper.18
All that is required of the non-movant is to produce a scintilla of probative evidence
to raise a genuine issue of material fact.19 “Less than a scintilla of evidence exists when
the evidence is 'so weak as to do no more than create a mere surmise or suspicion of a
fact.'”20 Conversely, more than a scintilla exists when the evidence “rises to a level that
would enable reasonable and fair-minded people to differ in their conclusions.”21 In
determining whether the non-movant has produced more than a scintilla of evidence, we
review the evidence in the light most favorable to the non-movant, crediting such evidence
15 See T EX . R. C IV . P. 166a(c), (i); see also Ortega v. City Nat'l Bank, 97 S.W .3d 765, 771 (Tex. App.–Corpus Christi 2003, no pet.) (op. on reh'g).
16 Mack Trucks, Inc. v. Tamez, 206 S.W .3d 572, 582 (Tex. 2006); Ortega, 97 S.W .3d at 772.
17 City of Keller v. W ilson, 168 S.W .3d 802, 825 (Tex. 2005) (noting that review of a “no-evidence” m otion for sum m ary judgm ent is effectively restricted to the evidence contrary to the m otion); Ortega, 97 S.W .3d at 772.
18 T EX . R. C IV . P. 166a(i).
19 Ortega, 97 S.W .3d at 772.
20 Id. (quoting Kindred v. Con/Chem, Inc., 650 S.W .2d 61, 63 (Tex. 1983)).
21 Id. (citing Transp. Ins. Co. v. Moriel, 879 S.W .2d 10, 25 (Tex. 1994)).
8 if reasonable jurors could, and disregarding contrary evidence unless reasonable jurors
could not.22 The burden of producing evidence is entirely on the non-movant; the movant
has no burden to attach any evidence to the motion.23 We may not consider any evidence
presented by the movant unless it creates a fact question.24
We review the trial court’s granting of a traditional motion for summary judgment de
novo.25 When reviewing a traditional summary judgment, we must determine whether the
movant met its burden to establish that no genuine issue of material fact exists and that
the movant is entitled to judgment as a matter of law.26 The movant bears the burden of
proof in a traditional motion for summary judgment, and all doubts about the existence of
a genuine issue of material fact are resolved against the movant.27 We take as true all
evidence favorable to the nonmovant, and we indulge every reasonable inference and
resolve any doubts in the nonmovant's favor.28
We will affirm a traditional summary judgment only if the record establishes that the
movant has conclusively proved its defense as a matter of law or if the movant has
22 Tamez, 206 S.W .3d at 582; City of Keller, 168 S.W .3d at 827.
23 T EX . R. C IV . P. 166a(i).
24 Binur v. Jacobo, 135 S.W .3d 646, 651 (Tex. 2004); Newkumet v. Allen, 230 S.W .3d 518, 521 (Tex. App.–Eastland 2007, no pet.).
25 See Provident Life & Accident Ins. Co. v. Knott, 128 S.W .3d 211, 215 (Tex. 2003); Branton v. W ood, 100 S.W .3d 645, 646 (Tex. App.–Corpus Christi 2003, no pet.).
26 T EX . R. C IV . P. 166a(c); Sw. Elec. Power Co. v. Grant, 73 S.W .3d 211, 215 (Tex. 2002); City of Houston v. Clear Creek Basin Auth., 589 S.W .2d 671, 678 (Tex. 1979).
27 See Sw. Elec. Power Co., 73 S.W .3d at 215.
28 Valence Operating Co. v. Dorsett, 164 S.W .3d 656, 661 (Tex. 2005).
9 negated at least one essential element of the plaintiff's cause of action.29 A matter is
conclusively established if reasonable people could not differ as to the conclusion to be
drawn from the evidence.30 Only when the movant has produced sufficient evidence to
establish its right to summary judgment does the burden shift to the plaintiff to come
forward with competent controverting evidence raising a genuine issue of material fact with
regard to the element challenged by the defendant.31 A defendant seeking summary
judgment on an affirmative defense must conclusively prove all the elements of the
affirmative defense.32 To accomplish this, the defendant-movant must present summary
judgment evidence that establishes each element of the affirmative defense as a matter
of law.33
When a party moves for summary judgment under both rules 166a(c) and 166a(i)
of the Texas Rules of Civil Procedure, we will first review the trial court's judgment under
the standards of rule 166a(i).34 If the appellant fails to produce more than a scintilla of
evidence under that burden, then there is no need to analyze whether appellee's summary
judgment proof satisfies the less stringent rule 166a(c) burden.35
29 IHS Cedars Treatment Ctr. of DeSoto, Tex., Inc. v. Mason, 143 S.W .3d 794, 798 (Tex. 2004); Am. Tobacco Co. v. Grinnell, 951 S.W .2d 420, 425 (Tex. 1997); Clear Creek Basin, 589 S.W .2d at 678.
30 City of Keller, 168 S.W .3d at 816.
31 Rhone-Poulenc, Inc. v. Steel, 997 S.W .2d 217, 223 (Tex. 1999); see Centeq Realty, Inc. v. Siegler, 899 S.W .2d 195, 197 (Tex. 1995).
32 Steel, 997 S.W .2d at 223; see T EX . R. C IV . P. 166a(b), (c).
33 Ryland Group, Inc. v. Hood, 924 S.W .2d 120, 121 (Tex. 1996).
34 Ford Motor Co. v. Ridgway, 135 S.W .3d 598, 600 (Tex. 2004).
35 Id.
10 The admission or exclusion of summary-judgment evidence rests in the sound
discretion of the trial court.36 A trial court abuses its discretion if it acts without reference
to any guiding rules or principles or acts in an arbitrary or unreasonable manner.37 A trial
court does not abuse its discretion if it decides a matter within its discretion differently than
the appellate court would.38 An appellate court must uphold the trial court’s evidentiary
ruling if there is any legitimate basis for the ruling.39 Moreover, we will not reverse a trial
court for an erroneous evidentiary ruling unless the error probably caused the rendition of
an improper judgment.40 We review the entire record and require the complaining party to
demonstrate that the judgment turns on the particular evidence admitted.41
1. Negligence Claim
a. No-Evidence Motion
In the no-evidence section of its motion, Elton Porter argued that there is no
evidence that it (1) had any duty to keep appellant reasonably informed, nor that it (2)
breached any such duty.
To establish negligence, a party must establish a duty, a breach of that duty, and
36 Alaniz v. Hoyt, 105 S.W .3d 330, 341 (Tex. App.–Corpus Christi 2003, no pet.).
37 Id.
38 Id.
39 See Owens-Corning Fiberglass Corp. v. Malone, 972 S.W .2d 35, 43 (Tex. 1998).
40 Id.; see also T EX . R. A PP . P. 44.1(a)(1).
41 Bay Area Healthcare Group, Ltd. v. McShane, 239 S.W .3d 231, 234 (Tex. 2007).
11 damages proximately caused by the breach.42 Whether a duty exists is a threshold inquiry
and a question of law; liability cannot be imposed if no duty exists.43
In his response, appellant states:
Clearly, the affidavits of [appellant] and Jennifer Kubeczka combined with the deposition testimony of Elton Porter’s agents, Waller, Collier, Cobb and Onstott (attached hereto and incorporated herein as Exhibits “A” through “F”) establish a duty based upon both a course of dealing between the parties and Elton Porter’s own internal office policy regarding renewal of existing insurance policies. The only question, therefore, is whether that duty was breached in this case.
In the following section of his response, entitled “Breach of duty, causation and
damages,” appellant argued:
Elton Porter failed to follow its own policies and procedures when it failed to notify [appellant] in writing or otherwise that the policy lapsed; when it failed to provide a follow-up telephone call; and when it wrongfully informed [appellant’s] agent that the policy was in effect until the end of November, 2005, a date more than six months after the accident date of May 1, 2005 (See Plaintiff’s Exhibits “A” through “F”). These acts constituted a breach of that duty and negligence. As a direct and proximate result of that breach, [appellant] was “uninsured” and when his boat was totaled on May 1, 2005 and suffered damages of $287,000.00.
In his appellate brief, appellant refers to the testimony of Elton Porter employees
Ken Collier, Shelly Waller, and James Cobb to establish that (1) Elton Porter had a three-
step policy renewal process and (2) Cobb did not call appellant to advise him that the
policy had lapsed. Appellant asserts generally that “[t]he summary judgment evidence
outlined in sections (b) and (c) of this brief established that a duty existed based upon an
established course of dealing between the parties, as well as upon Elton Porter’s own
42 Kroger Co. v. Elwood, 197 S.W .3d 793, 794 (Tex. 2006).
43 Id. (citing Van Horn v. Chambers, 970 S.W .2d 542, 544 (Tex. 1998)).
12 internal office policy.” The only summary judgment evidence referenced in appellant’s brief
addressing whether there was an established course of dealing between the parties is
appellant’s own affidavit, in which he states, in pertinent part, that:
I never received Defendant’s Exhibit “9”, a letter dated February 26, 2005 from James Cobb.[44] I never received notice, in writing or orally, that my insurance on the vessel had actually lapsed or expired. I have been doing business with Elton Porter for 8 years and I have never allowed any other insurance coverage on a boat that I owned to lapse and not renew. I have always relied on Elton Porter to advise me about the status of my insurance coverage on this vessel and my other watercraft and to secure proper insurance coverage prior to the expiration of an existing policy. Over the eight[-]year relationship I had with Elton Porter, I always received written notice and follow-up calls when one of my vessels was up for insurance renewal. These notices were either received by me or by my designated agent.
At the time of the accident in this case (May 1, 2005), it was my understanding that the subject vessel was fully insured. This was based upon my past course of dealing with Elton Porter and my agent Jennifer Kubeczka informing me of the facts set out in her affidavit, attached hereto, which I have reviewed.
Appellant also cites Trinity Universal Ins. Co. v. Burnette,45 and Horn v. Hedgecoke
Ins. Agency46 to support his contention that Elton Porter owed him a duty based on (1) his
established course of dealing with Elton Porter and (2) its own internal policies. Elton
Porter concedes that it had a duty to keep appellant reasonably informed,47 but argues that
44 Defendant’s Exhibit 9 is a letter to appellant, dated February 26, 2005, from Jam es Cobb, Elton Porter’s account representative, stating that the policy was due to renew on 2-7-2005, that no paym ent had been received, and that “[i]t m ay not be too late to still renew this policy.”
45 Trinity Universal Ins. Co. v. Burnette, 560 S.W .2d 440, 442 (Tex. App.–Beaum ont 1977, no writ).
46 Horn v. Hedgecoke Ins. Agency, 836 S.W .2d 296, 299 (Tex. App.–Am arillo 1992, writ denied).
47 See A PPELLEE ’S B RIEF , p. 11 (“It is settled law that an insurance agent like Elton Porter has a duty to keep its clients reasonably inform ed about the status of any coverage.” (citing Kitching v. Zamora, 695 S.W .2d 553 (Tex. 1985)).
13 it “discharged that duty” by notifying appellant in writing before the policy expired and again
after the policy expired. Although appellant does not specifically identify the “duty” that
Elton Porter owed him, we construe his argument to be that Elton Porter had a duty to keep
him reasonably informed, and that it breached that duty by (1) failing to notify him in writing
or otherwise that the policy had lapsed, (2) failing to provide a follow-up telephone call, and
(3) wrongfully informing Kubeczka that the policy was in effect until November 2005.
i. Elton Porter’s Cross-Issue: Kubeczka’s Affidavit
Because appellant relies, in part, on Kubeczka’s affidavit, as summary judgment
evidence, we address Elton Porter’s challenge to statements in her affidavit.48 Specifically,
Elton Porter argues that certain statements in Kubeczka’s affidavit that were attributable
to Sea Horse49 should have been stricken on hearsay grounds. It also argues that
Kubeczka’s statements regarding any purported agency relationship between Elton Porter
and Sea Horse are conclusory and inadmissible. Kubeczka’s affidavit stated, in pertinent
part:
In late February, 2005, at the request of Bryan Haye, I contacted Elton Porter regarding the status of the insurance covering the 1997 Sea Ray 440
48 W e note that in the “Issues Presented” section of its brief, Elton Porter fram es its cross-issue as “Did the trial court err in overruling Elton Porter’s Objections to and Motion to Strike Haye’s Sum m ary Judgm ent Evidence?” See A PPELLEE ’S B RIEF , p. 3. The record shows that in its Objections to and Motion to Strike, Elton Porter objected to appellant’s affidavit, Kubeczka’s affidavit, and to appellant’s failure to specifically identify statem ents within the deposition excerpts he offered as evidence. In the “Cross Issue” section of its brief, however, Elton Porter objects only to certain statem ents in Kubeczka’s affidavit on the basis of hearsay. See id., p. 15. Thus, we address only the argum ents raised by Elton Porter in the “Cross Issue” section of its brief.
49 The record before us is unclear as to the identity of “Sea Horse.” As noted, Kubeczka’s affidavit refers to “Sea Horse underwriters insurance com pany,” and that a “Sea Horse representative” told her the policy had been renewed through Novem ber 2005. Elton Porter asserts that there cannot have been any “renewal” because the policy (before it expired) was “a Royalm aster Preferred Yacht Policy, not a Sea Horse policy.” According to Elton Porter, the insurer on the lapsed policy was Royal Insurance Com pany of Am erica, then part of Royal & SunAlliance.
14 vessel (hereinafter referred to as the “vessel”) that is the subject of this lawsuit. I spoke with a man named James Cobb who told me to contact Sea Horse underwriters insurance company. Cobb said that Elton Porter was the agent for Sea Horse and that Sea Horse provided the insurance for this vessel. I contacted Sea Horse at the number provided by Cobb and was told by one of the Sea Horse representatives that [the] policy on this specific vessel had renewed; payment had been made; and the vessel was fully covered by insurance through the end of November 2005. I relayed this information to Bryan Haye that same day.
In its “Objections to and Motion to Strike Evidence,” Elton Porter objected to “the
entirety of the Kubekcza [sic] Affidavit because it is not competent summary judgment
evidence.” In support of its argument, Elton Porter cited Texas Rule of Civil Procedure
166a(f) and Box v. Bates.50 In a parenthetical, it quoted language from Box that an
“affidavit based on hearsay and statements contained in affidavits that are but mere
conclusions of law are insufficient to warrant the overruling of a motion for summary
judgment.”51 In its motion, the only statement that Elton Porter specifically objected to on
hearsay grounds is “the hearsay in sentence 5 of paragraph 2. Kubeczka testifies that she
‘relayed’ information to Haye; such being an out-of-court statement offered to prove the
truth of the matter asserted.” On appeal, Elton Porter challenges only the “statements [in
Kubeczka’s affidavit] attributable to Sea Horse.”
In his reply brief, appellant responds by arguing that (1) Kubeczka’s statements
regarding Sea Horse are admissible as admissions by a party opponent under rule
801(e)(2),52 and (2) Cobb’s statements to Kubeczka—that Elton Porter was an agent for
50 Box v. Bates, 346 S.W .2d 317, 319 (Tex. 1961).
51 Id.
52 See T EX . R. E VID . 801(e)(2).
15 Sea Horse—are admissible as admissions by a party opponent’s employee or agent.53
There is no evidence, however, that appellant made these arguments to the trial court.
“‘Hearsay’” is a statement, other than one made by the declarant while testifying at
the trial or hearing, offered in evidence to prove the truth of the matter asserted.”54 The
proponent of hearsay has the burden of showing that the testimony fits within an exception
to the general rule prohibiting the admission of hearsay evidence.55 An affidavit containing
hearsay is objectionable and does not raise a fact issue to defeat a summary judgment
motion if a proper objection is made.56 Inadmissible hearsay admitted without objection
is not denied probative value merely because it is hearsay.57
To preserve a complaint for appellate review, rule of evidence 103(a)(1) requires “a
timely objection . . . stating the specific ground of objection, if the specific ground was not
apparent from the context.”58 “Stated another way, a ‘timely’ and ‘specific’ objection is
53 See id. 801(e)(2)(C).
54 Id. 801(d).
55 Volkswagen of Am., Inc. v. Ramirez, 159 S.W .3d 897, 908 n.5 (Tex. 2004).
56 See Querner Truck Lines, Inc. v. Alta Verde Indus., Inc., 747 S.W .2d 464, 468 (Tex. App.–San Antonio 1988, no writ).
57 See T EX . R. E VID . 802; Pickens v. Pickens, 62 S.W .3d 212, 216 n.2 (Tex. App.–Dallas 2001, pet. denied); Atkinson Gas Co. v. Albrecht, 878 S.W .2d 236, 242 (Tex. App.–Corpus Christi 1994, writ denied); Casas v. Gilliam, 869 S.W .2d 671, 673 (Tex. App.–San Antonio 1994, no writ) (holding statem ent in affidavit was not denied probative value, even though affidavit, adm itted without objection, contained inadm issible hearsay); Irlbeck v. John Deere Co. 714 S.W .2d 54, 57-58 (Tex. App.–Am arillo 1986, writ ref’d n.r.e.) (holding affidavit supporting the am ount due on a written instrum ent was sufficient to support an award for that am ount even though affidavit, adm itted without objection, contained inadm issible hearsay).
58 See T EX . R. E VID . 103(a)(1); see also T EX . R. A PP . P. 33.1(a)(1)(A) (a tim ely objection or m otion m ust state the grounds for the objection with sufficient specificity to m ake the trial court aware of the com plaint, unless grounds are apparent from the context).
16 required.”59 “A general objection to evidence as a whole, whether it be oral or
documentary, which does not point out specifically the portion objected to, is properly
overruled if any part of it is admissible.”60 If a specific objection is made, the trial court has
a duty to strike that portion of testimony that is inadmissible, where other parts of it are
admissible.61 Absent such a specific objection, the complaining party waives any argument
to the improper admission of the evidence.62
Here, Elton Porter objected “to the entirety of the Kubekcza [sic] Affidavit because
it is not competent summary judgment evidence.” Although the parenthetical to the cited
case suggests that the affidavit is incompetent evidence because it may contain hearsay
and/or conclusory statements, the objection does not specify which basis is the ground for
the objection. Moreover, the affidavit contained statements that were clearly admissible
(e.g., “I contacted Elton Porter . . . .”). We conclude that Elton Porter waived any argument
as to the Kubeczka affidavit by failing to specifically identify objectionable statements within
the affidavit.63 With respect to the one statement specifically identified—that Kubeczka
relayed “this information” to appellant—appellant’s own affidavit (which was not objected
59 In re M.P., 220 S.W .3d 99, 101 (Tex. App.–W aco 2007, pet. denied) (citing Kerr-McGee Corp. v. Helton, 133 S.W .3d 245, 251 (Tex. 2004); Residential Dynamics, LLC v. Loveless, 186 S.W .3d 192, 195 (Tex. App.–Fort W orth 2006, no pet.)) .
60 Id. (quoting Brown & Root, Inc. v. Haddad, 180 S.W .2d 339, 341 (1944)); see also Speier v. W ebster College, 616 S.W .2d 617, 619 (Tex. 1981); McCormick v. Ramirez, No. 13-99-00804-CV, 2001 Tex. App. LEXIS 4702, at *9 (Tex. App.–Corpus Christi 2001, pet. denied) (m em . op., not designated for publication) (a general objection to evidence as a whole is properly overruled if any portion of the evidence is adm issible).
61 Speier, 616 S.W .2d at 619.
62 Id.
63 See id.
17 to) stated the same information: that “Kubeczka inform[ed him] of the facts set out in her
affidavit.”64 We conclude the trial court did not abuse its discretion in admitting Kubeczka’s
affidavit.65 We overrule Elton Porter’s cross-issue.
ii. Appellant’s Other Evidence
Appellant’s summary judgment evidence also included excerpts from the deposition
testimony of Ken Collier, who testified that Elton Porter’s renewal procedures on an agency
bill policy66 included sending a renewal notice (in the form of a letter to the insured)
approximately twenty to thirty days prior to the renewal date, along with an invoice for the
renewal premium. Collier also testified that the renewal procedure also included a follow-
up telephone call from the agent (in this case, Dennis Onstott) and the customer service
representative (here, James Cobb).
Shelly Waller’s deposition testimony established that Elton Porter’s renewal
procedures included sending the insured a renewal offer, and if the insured failed to
respond, a “close out letter” advising that the policy had expired.
James Cobb testified that he sent a renewal letter to appellant, and when the policy
was not renewed, he documented the file. He testified he did not call appellant to tell him
that the policy had expired, and that he did not typically make such calls.
In his deposition testimony, Dennis Ostott was asked about a “letter,” which he
64 See State Office of Risk Mgmt. v. Allen, 247 S.W .3d 797, 799 (Tex. App.–Dallas 2008, no pet.) (holding an error in adm ission of evidence is deem ed harm less if the objecting party perm its the sam e or sim ilar evidence to be introduced without objection).
65 See Hoyt, 105 S.W .3d at 341.
66 Collier testified that “this case” involved an “agency bill policy.”
18 identified as “a notice that looks like we [Elton Porter] didn’t receive the renewal payment
by the renewal date.”67 Ostott also testified that he spoke to “Frank,” an associate of
appellant’s,68 after the renewal notice was received. According to Ostott, Frank complained
that the premium was more expensive, and stated that they were going to “shop and see
if they could get a better price.”
We conclude that appellant presented sufficient evidence to raise a genuine issue
of material fact as to (1) whether Elton Porter owed him a duty to keep him reasonably
informed and (2) whether it breached that duty. Accordingly, summary judgment was
improperly granted on the grounds asserted in Elton Porter’s no-evidence motion as to
appellant’s negligence claim.
b. Traditional Motion for Summary Judgment
We turn next to the arguments and evidence Elton Porter presented in its traditional
motion for summary judgment regarding appellant’s negligence claim. We must determine
whether Elton Porter conclusively established its right to judgment as a matter of law by
negating at least one essential element of appellant’s negligence cause of action.69
Elton Porter argues that even if it owed appellant a duty to provide notice of the
67 Although we assum e the letter referenced above is the February 26, 2005 letter to appellant from Jam es Cobb, it is not specifically identified in the excerpt of deposition testim ony contained in the record.
68 “Frank” was identified in appellant’s deposition testim ony as Frank Dom inguez, chief operations officer of appellant’s com pany.
69 See IHS Cedars Treatment Ctr., 143 S.W .3d at 798; Goodyear Tire and Rubber Co. v. Mayes, 236 S.W .3d 754, 755-56 (Tex. 2007) (“An appellate court reviewing a sum m ary judgm ent m ust consider whether reasonable and fair-m inded jurors could differ in their conclusions in light of all the evidence presented.”).
19 expiration of the policy,70 it fully discharged any such duty by notifying appellant (1) that the
policy would expire on February 7, 2005; (2) that a premium was due on or before January
25, 2005 to keep a policy in place; and (3) that coverage had lapsed. As evidence, Elton
Porter presented (1) the declaration page of the policy, showing that the policy period was
from 2/7/04 to 2/7/05; (2) a renewal notice letter from Elton Porter to appellant, dated
January 12, 2005, showing that the renewal date is February 7, 2005 and the renewal
premium is $3,559.00;71 (3) an invoice with a “premium” for payment attached, noting that
payment is needed by “01/25/05” to renew coverage; and (4) a letter dated February 26,
2005 to appellant from James Cobb,72 advising him that the policy was due to renew on
February 7, 2005, and that no payment had been received.
Elton Porter also argues appellant’s negligence claim fails because his damages
were proximately caused by the accident and his own failure to pay the insurance
premium, not by any act or omission by Elton Porter.73
We conclude that Elton Porter’s evidence establishes that appellant’s office received
the January 12, 2005 renewal notice. With respect to the February 26, 2005 letter from
Cobb, notifying appellant that the policy had lapsed, the evidence is conflicting: Cobb
testified he sent the letter; appellant denies receiving it. Appellant claims Elton Porter
70 Elton Porter did not challenge the duty elem ent of appellant’s negligence claim in its traditional m otion.
71 Appellant’s com m on-law wife, Charlene “Charlie” Palm er, acknowledged that she received the renewal notice.
72 This letter was previously identified as “Defendant’s Exhibit 9.”
73 Appellant does not dispute that the accident occurred and that the insurance prem ium was not paid.
20 breached its duty to him, in part, by failing to provide written notice that the policy had
lapsed and failing to provide a follow-up phone call advising him that the policy had lapsed.
With regard to whether Elton Porter conclusively negated the proximate cause
element of appellant’s negligence claim, we conclude that a finding of no coverage is not
dispositive of appellant’s claim. Appellant contends that “the producing (and sole) cause
of [his] damages was Elton Porter’s negligence in failing to follow its own internal policies
regarding insurance renewals.”74
We conclude that Elton Porter’s evidence failed to conclusively establish its right to
judgment as a matter of law by negating either the breach or proximate cause elements
of appellant’s negligence cause of action.75 Accordingly, we hold the trial court improperly
granted summary judgment in Elton Porter’s favor on appellant’s negligence claim.
2. Appellant’s DTPA Claim
The basic elements of a DTPA cause of action are (1) the plaintiff is a consumer;
(2) the defendant engaged in false, misleading, or deceptive acts; and (3) the acts were
a producing cause of the plaintiff’s injuries.76 In its no-evidence motion, Elton Porter argues
there is no evidence that appellant is a “consumer” under the DTPA.
A consumer is an individual who “seeks or acquires by purchase or lease, any
74 See A PPELLAN T ’S B RIEF , p.13.
75 See IHS Cedars Treatment Ctr., 143 S.W .3d at 798; Goodyear Tire and Rubber Co., 236 S.W .3d at 755.
76 See T EX . B U S . & C O M . C OD E A N N . § 17.46 (Vernon Supp. 2008); Herrin, 89 S.W .3d at 310.
21 goods or services.”77 Whether or not a plaintiff is a consumer is a question of law, unless
there is a dispute concerning factual issues that create consumer status.78 Consumer
status is established merely by seeking to acquire services, even if the services are not
actually acquired.79 It is unnecessary for money to change hands to establish consumer
status.80 It is also unnecessary for there to have been a written agreement or an actual
purchase; it is sufficient for the plaintiff to seek to acquire services in good faith.81 An
insured seeking to acquire the services of future professional insurance coverage is a
“consumer” for purposes of the DTPA.82
In its no-evidence motion, Elton Porter argues there is no evidence that appellant
contacted the company regarding coverage, and therefore, there is no evidence that he
“sought” any insurance policy. However, appellant’s affidavit establishes that he believed
the boat was insured, based on his course of dealing with Elton Porter and the information
he was given by Kubeczka. We hold that appellant’s evidence is sufficient to raise a fact
issue as to his consumer status.
In its appellate brief, Elton Porter argues there is no evidence of a DTPA violation
because the alleged violation is based on Kubeczka’s affidavit, which asserts that Sea
77 T EX . B U S . & C O M . C OD E A N N . § 17.45(4) (Vernon Supp. 2008).
78 Nast v. State Farm Fire & Cas. Co., 82 S.W .3d 114, 122 (Tex. App.–San Antonio 2002, no pet.).
79 Id.
80 Id.
81 Id.
82 Herrin v. Med. Protective Co., 89 S.W .3d 301, 310 (Tex. App.–Texarkana 2002, pet. denied).
22 Horse—not Elton Porter—represented that the policy had renewed. According to Elton
Porter, “[t]here is neither evidence nor authority for attributing Sea Horse’s statements to
Elton Porter.” This argument, however, was not made to the trial court, and we therefore
do not address it.83
b. Traditional Motion
In its traditional motion, Elton Porter argued that (1) appellant was not a consumer,84
and (2) his claim was a breach-of-contract claim, which is not actionable under the DTPA.
In support of this argument, Elton Porter cites MacIntire v. Armed Forces Benefit
Association.85 MacIntire stands for the proposition that an insurer who establishes a
reasonable basis for denying a claim, even if that basis is shown to be erroneous, enjoys
immunity from statutory bad faith under the Texas Insurance Code and the DTPA.86
Appellant argues that MacIntire is inapplicable because it involved a claim for “bad
faith” denial of benefits under an insurance policy that had lapsed for failure to pay the
premiums.87 In his response to Elton Porter’s motion, appellant contends he has neither
83 See T EX . R. C IV . P. 166a(c) (“Issues not expressly presented to the trial court by written m otion, answer or other response shall not be considered on appeal as grounds for reversal.”); see Stiles v. Resolution Trust Corp., 867 S.W .2d 24, 26 (Tex. 1993) (“[W ]e hold that a sum m ary judgm ent cannot be affirm ed on grounds not expressly set out in the m otion or response”).
84 In its traditional m otion, Elton Porter m akes the sam e argum ent as to appellant’s lack of consum er status as asserted in its no-evidence m otion. Elton Porter points to appellant’s deposition testim ony, which establishes only that he did not have any conversations with Elton Porter regarding renewal of the policy. W e find this evidence does not negate appellant’s status as a consum er for the sam e reasons stated in the discussion of the no-evidence m otion.
85 MacIntire v. Armed Forces Benefit Ass’n, 27 S.W .3d 85, 92-93 (Tex. App.–San Antonio 2000, no pet.).
86 Id. at 92.
87 Id. at 88.
23 “asserted a claim for breach of contract” nor “filed a ‘bad faith’ claim.”88 According to
appellant, his claim is based on Elton Porter (1) breaching its duty to follow its own renewal
policies and (2) informing him (through his agent, Kubeczka) that the insurance was
renewed, when it was not. Appellant states, “[c]learly[,] the deceptive act of telling
[appellant] that he had insurance (when none was in place) caused [his] damages in this
case.”
A misrepresentation claim is independent of a breach-of-contract claim, and may
exist in the absence of coverage.89 When an insurance agent is alleged to have
misrepresented the extent or scope of insurance coverage on an item of property, a finding
of no coverage will not, as a matter of law, defeat the property owner’s complaints against
the agent for the alleged misrepresentation and deceptive trade practices.90
The purpose of requiring that a motion for summary judgment state its specific
grounds is to give fair notice to the opponent and define the issues, and for that reason,
a defendant-movant is not entitled to summary judgment on a ground or defense not
asserted in his motion, even though the summary judgment proof conclusively establishes
his right to judgment on that ground.91 Here, we have addressed the grounds expressly
stated in Elton Porter’s motion, and conclude that it has failed to conclusively establish its
entitlement to judgment as a matter of law by negating at least one essential element of
88 W e agree that appellant’s Second Am ended Petition asserts causes of action for negligence, prom issory estoppel, and violations of the DTPA and Insurance Code.
89 See Sledge v. Mullin, 927 S.W .2d 89, 94 (Tex. App.–Fort W orth 1996, no writ).
90 Id.
91 Id. at 95 (citations om itted).
24 appellant’s DTPA claim.92 Accordingly, the trial court improperly granted summary
judgment as to appellant’s DTPA claim.
3. Texas Insurance Code Claim
In its traditional motion, Elton Porter argued that appellant’s Insurance Code claim
“fails as a matter of law” because as in MacIntire, appellant’s claims are not actionable
because he has shown no injury beyond the denial of benefits under a lapsed policy.93
According to Elton Porter, appellant’s damages (the failure to receive benefits under the
policy) were proximately caused by his own acts, errors, and omissions.
As with appellant’s DTPA claim, we find that Elton Porter has not established its
entitlement to summary judgment as a matter of law on appellant’s Insurance Code claim.
The only authority cited by Elton Porter regarding this claim is MacIntire; it does not point
to any evidence in support of its argument. Elton Porter’s only argument is that like the
claimant in MacIntire, appellant can have no recovery because he failed to pay the
premiums, which caused the insurance to lapse. As noted above, a finding of no coverage
does not, as a matter of law, defeat a property owner’s complaint against an agent for an
alleged misrepresentation as to insurance coverage.94
We conclude that Elton Porter failed to show its entitlement to judgment as a matter
of law by negating at least one element of appellant’s Insurance Code claim.95
92 See IHS Cedars Treatment Ctr., 143 S.W .3d at 798.
93 See MacIntire, 27 S.W .3d at 92.
94 See Sledge, 927 S.W .2d at 94.
95 See See IHS Cedars Treatment Ctr., 143 S.W .3d at 798.
25 Accordingly, we hold the trial court improperly granted summary judgment as to this claim.
4. Breach of Duty to Notify Lender
In its traditional motion, Elton Porter denies that it breached “an unspecified
contract” when it failed to notify appellant’s lender that appellant failed to make his
premium payment. Elton Porter argued that “there was no contract in place which required
Elton Porter to notify [appellant’s] lender that [appellant] failed to make the premium
payment.” Elton Porter points to no evidence in support of its argument. We note that in
his deposition testimony, appellant testified he expected that his lender would be notified
of any lapse in insurance, because in an earlier incident involving a different boat, the
lender was notified of a lapse in insurance, and the situation was immediately “corrected.”
We conclude Elton Porter failed to conclusively establish its entitlement to judgment as a
matter of law on this claim and that the trial court improperly granted summary judgment
as to this claim.
IV. Conclusion
The summary judgment is reversed as to each of appellant’s claims, and the cause
is remanded to the trial court.
LINDA REYNA YAÑEZ, Justice
Memorandum Opinion delivered and filed this the 5th day of March, 2009.