In The
Court of Appeals
Ninth District of Texas at Beaumont
________________
NO. 09-24-00212-CV ________________
CESAR DE LEON, Appellant
V.
STATE FARM LLOYDS, Appellee ________________________________________________________________________
On Appeal from the 457th District Court Montgomery County, Texas Trial Cause No. 23-03-04388-CV ________________________________________________________________________
MEMORANDUM OPINION
In this first party insurance lawsuit, Cesar De Leon appeals the trial court’s
Order Granting State Farm Lloyds’ (“State Farm”) Motion for Summary Judgment.
He also complains that the trial court abused its discretion by sustaining State Farm’s
objections to certain summary judgment evidence, and by its ruling on State Farm’s
Motion to Exclude Expert Witnesses. As discussed below, we affirm the trial court’s
judgment.
1 BACKGROUND
De Leon sued State Farm, his home insurer, for damage his home allegedly
sustained when his waterpipes burst during a winter storm that occurred in February
2021. The record shows that on February 22, 2021, De Leon made a claim with State
Farm. Before the adjuster arrived, De Leon along with family, friends, and neighbors
began making repairs, including stopping the pipe leaks. On March 21, 2021, State
Farm sent an adjuster to inspect the property, after rescheduling an inspection on
March 12, 2021, at De Leon’s request.
On March 23, 2021, State Farm sent a letter to De Leon telling him that they
determined the loss was less than his $2,800.00 deductible, so State Farm would not
be paying any money on the claim. According to State Farm, it did not hear from De
Leon again until he retained counsel. State Farm Claims Team Manager Nick
D’Alessandro stated that State Farm timely acknowledged the letter of
representation it received from De Leon’s attorney in writing, and it requested to
complete a second inspection to address De Leon’s new concerns. After
rescheduling a second inspection in April 2023, nobody was present at De Leon’s
property on the agreed upon date, and before State Farm could reschedule, De Leon
filed suit.
Later, Brandon Gadrow, an adjuster with Quantum Claim Consulting Services
hired by De Leon’s attorney, inspected the property and estimated repairs would cost
2 $110,785.25. Gadrow testified, however, that he did not speak with De Leon about
whether the damage was old or new and did not investigate the cause of damages or
any issues in the home. Likewise, De Leon testified in his deposition that he did not
have receipts for the repairs he made, nor could he track the costs for those repairs.
De Leon’s Petition and Causes of Action
On March 23, 2023, De Leon filed “Plaintiff’s Original Petition Expedited
Action Under TRCP 169[.]” Except for identifying the date of loss, the factual details
in De Leon’s Original Petition are sparse. That said, he alleged that State Farm
“failed to properly adjust the claim and summarily improperly paid the claim with
obvious knowledge and evidence of serious damages.” He also asserted that State
Farm “failed to perform its contractual duty to adequately compensate Plaintiff
under the terms of the policy” and “misrepresented to Plaintiff that the damage to
the property was not in excess to the amount paid even though the damage was
caused by a covered occurrence.” He alleged that “Defendant refused to fully
compensate Plaintiff, under the terms of the policy, even though Defendant failed to
conduct a reasonable investigation.” De Leon pleaded the following causes of action:
(1) breach of contract; (2) breach of the duty of good faith and fair dealing; (3)
violation of the Texas Deceptive Trade Practices Act (DTPA); (4) violation of
chapter 542 of the Texas Insurance Code, Prompt Payment of Claims Act; (5) unfair
3 insurance practices in violation of Texas Insurance Code chapter 541; (6) common-
law fraud; and (7) ongoing conspiracy to commit illegal acts.
State Farm’s Motion for Summary Judgment
On May 2, 2024, State Farm filed its Traditional and No-Evidence Motion for
Summary Judgment. State Farm argued that after one year of discovery and litigation,
De Leon failed to produce any credible or reliable evidence supporting that there
were covered damages beyond what State Farm estimated or that the reasonable cost
to repair any undisputed damages exceeded his policy deductible. State Farm argued
that instead, the evidence established it had conducted a “diligent investigation and
prepared an estimate for the reasonable and proper scope and cost of repairs for the
covered damage[,]” which fell below De Leon’s policy deductible, and he had no
evidence to the contrary. Additionally, State Farm asserted that it was entitled to
summary judgment on De Leon’s extra-contractual claims, regardless of the breach
of contract claim, because: (1) the summary judgment record established a
reasonable basis for its claim decision; (2) it timely acknowledged the claim,
investigated, and explained the decision; and (3) it communicated its position to De
Leon in writing, and his frustration that the loss fell below his deductible was
irrelevant and insufficient to support his claims. State Farm described the nature of
the damage it observed after the freeze. It explained that it determined the water
damage from the plumbing leaks was confined to the kitchen, laundry room, and
4 master bathroom. It also observed the home had issues unrelated to the freeze, like
signs of ongoing and long-term damage from bathing activity or poor or improper
ventilation in the master bathroom.
Based on its inspection and interactions with De Leon, State Farm prepared
an estimate for $2,345.14, which fell below the policy deductible. State Farm
asserted that it relayed its decision to De Leon on March 23, 2021, De Leon reviewed
and understood State Farm’s position but took no further action regarding the
decision. According to State Farm, De Leon did not provide pre-suit notice or any
documentation advising of the scope or amount of damages claimed. Then, on May
2, 2023, De Leon submitted an estimate prepared by Gadrow from Quantum Claim
Consulting Services. State Farm outlined the deficiencies in De Leon’s discovery
responses and expert designations noting his failure to supplement or timely
designate. State Farm asserted that “[b]ecause Plaintiff has not produced any
admissible evidence and has not timely and properly designated expert witnesses,
Plaintiff’s causes of action fail as a matter of law.”
In the no-evidence portion of its motion, State Farm argued that De Leon did
not produce any reports or actual opinions or the experts’ resumes. Additionally,
State Farm claimed that De Leon, in response to request for admissions, conceded
the designated “expert witnesses” Morgan, Bray, Degeyter, Perera, and Cole had not
inspected the property, reviewed any documents pertaining to the claim, nor formed
5 any opinions. State Farm argued that Gadrow with Quantum Claim Consulting
Services was the only person who inspected the property on behalf of opposing
counsel, and it was after De Leon sued. State Farm added that Gadrow was not
designated as an expert in the case, and Gadrow conceded in his deposition that he
did not investigate the cause of the damage or issues he observed in the home.
State Farm alleged that the breach of contract claim failed because there was
no evidence that the occurrence caused covered damages beyond the policy
deductible. It argued that for De Leon to recover under the policy, he must prove
that the damage claimed was caused by water damage from the freeze and was
covered under the policy. State Farm also asserted that he must prove the actual cash
value of the damages, if covered, exceeded the $2,800 policy deductible. It argued
that proving covered damages associated with the freeze required physical
observations or expert opinions, but De Leon had neither, so there was no evidence
of breach, causation, or damage elements of his breach of contract claim.
State Farm also cited policy provisions excluding certain things and asserted
that the summary judgment evidence established the damage was confined to the
kitchen, laundry room, and master bathroom, which are the same areas State Farm
estimated. It argued that although De Leon “loosely alleges” other damages, he did
not produce admissible evidence establishing causation.
6 As for the claim for breach of the common law duty of good faith and fair
dealing and its statutory counterpart under chapter 541, State Farm asserted that De
Leon did not provide evidence of unreasonableness. Further, it claimed its summary
judgment evidence affirmatively established State Farm had a reasonable basis for
its claim’s decision, thus could not be liable for his extra-contractual claims.
According to State Farm, it promptly and reasonably inspected the property, then
informed De Leon the covered damage did not exceed the policy deductible. State
Farm contended that if De Leon cannot establish that he is entitled to additional
policy benefits, he cannot recover for extra-contractual claims because he has
alleged no independent injury. State Farm listed the elements of a claim under Texas
Insurance Code chapter 541 and argued that De Leon had no evidence that it engaged
in a practice that violated the applicable statute which he relied on to his detriment
nor that State Farm’s act or practice was the producing cause of actual damages.
State Farm contended that the summary judgment evidence established otherwise. It
also claimed that De Leon produced no evidence of or identified any specific
misrepresentation State Farm made, which was also fatal to his DTPA claim. State
Farm noted De Leon’s deposition testimony that the adjuster made no
misrepresentations.
As to the prompt payment claim under Texas Insurance Code chapter 542,
State Farm contended that De Leon failed to plead any specific facts to support this
7 claim or produce any evidence of it. It asserted that the summary judgment evidence
established State Farm satisfied each statutory deadline.
Finally, as to the common-law fraud and conspiracy claims, State Farm
outlined the requisite elements and specifically challenged the lack of evidence to
support that State Farm made a material misrepresentation of fact or that De Leon
relied on such a misrepresentation. Despite generic allegations of misrepresentations
in his Petition, State Farm argued that De Leon testified that no such
misrepresentations were made, so the evidence also conclusively negated these
claims.
State Farm’s summary judgment evidence included: State Farm Records
Custodian’s Affidavit with insurance records, including a copy of the insurance
policy and premium information; Affidavit of State Farm Claims Team Manager
Nick D’Alessandro attaching the claim file, estimate showing $2,395 in damages,
and email communication between State Farm and Dick Law Firm; excerpts from
De Leon’s deposition; excerpts of Brandon Gadrow’s deposition; and State Farm’s
Designation of Expert Witnesses naming Jeff Hunt and Hunt’s report.
In his affidavit, D’Allesandro averred, among other things:
3. On February 22, 2021, Mr. De Leon reported a Claim for alleged water damage to the interior of the insured property located at 30 Hall Drive North, Montgomery, Texas 77316 (the Property) reportedly caused by plumbing leaks during Win[t]er Storm Uri. State Farm acknowledged the Claim in writing and immediately commenced its investigation. State Farm thereafter opened the Claim. . . . 8 ...
5. The initial inspection was scheduled for March 12, 2021. The day before the scheduled inspection, State Farm contacted Mr. De Leon to confirm. Mr. De Leon requested that the inspection be rescheduled for March 21, 2021.
6. On March 21, 2021, State Farm inspected the Property with Mr. De Leon present. State Farm inspected the exterior and interior of the Property, took photographs and measurements, as well as spoke with Mr. De Leon regarding his observations and the repairs he had completed. State Farm determined that the water damage from the plumbing leaks was confined to the kitchen, laundry room, and master bathroom. State Farm further observed issues in the Property unrelated to the freeze, including signs of ongoing and long-term damage to the ceiling of the master bathroom, as well as signs of settlement throughout the Property. Based on its inspection findings, State Farm prepared a repair estimate for the covered damages. The replacement cost value (RCV) totaled $2,345.14, which fell below the Policy deductible. State Farm relayed its inspection findings to Mr. De Leon, including sending Mr. De Leon written correspondence, dated March 23, 2021, explaining that the loss fell below the Policy deductible, as well as a copy of the State Farm Estimate.
D’Alessandro also attached a copy of State Farm’s Decision Letter and Estimate as
an exhibit to his affidavit.
State Farm’s evidence also showed that Gadrow failed to investigate the cause
of the damages contained in his estimate and whether it resulted from the loss in
question. Additionally, Hunt’s report contained the following conclusions:
1. The water damage occurring on the RDOL was confined to the kitchen, laundry room, and to a lesser extent, the master bathroom. No evidence was observed or presented to substantiate claims of damage in other rooms.
9 2. The drywall distress observed is consistent with expected minor differential movement of a block and base foundation and is not related to water leaks on the RDOL. 3. The microbial growth observed on the master bathroom ceiling and walls is the result of bathing activity and poor or improper use of ventilation. 4. The State Farm estimate was reasonable and proper for the damage observed. 5. The Quantum estimate is an unreliable and indefensible representation of the reasonable and necessary cost to repair the damage sustained on the RDOL. State Farm set its Motion for Summary Judgment to be considered by submission on
May 24, 2024.
De Leon’s Response to State Farm’s Motion for Summary Judgment
On May 17, 2024, De Leon filed Plaintiff’s Response to Defendant’s No-
Evidence Motion for Summary Judgment. In his Response, De Leon argued that the
damage exceeded the policy deductible, citing to his own Unsworn Declaration and
Gadrow’s estimate. He also generically contended that State Farm violated Texas
Insurance Code chapters 541 and 542 without identifying any specific facts or
evidence that supports these allegations. He argued that State Farm breached the
insurance contract by failing to act in good faith. He responded that State Farm
violated its duty to act in good faith by acting “unreasonably” and conducting an
“outcome-oriented investigation.” Finally, De Leon countered that State Farm
10 violated multiple provisions of the Texas Insurance Code and DTPA. De Leon did
not address the fraud or conspiracy claims.
De Leon included the following evidence with his Response: De Leon’s
Unsworn Declaration; Quantum Claim Consulting Services Estimate showing a total
repair estimate of $110,785.25; and State Farm’s Letter showing a damage estimate
less than the deductible. De Leon’s Unsworn Declaration outlined facts pertaining
to the freeze, loss of power, and pipe rupture, which he alleged he discovered on
Sunday, February 21, 2021. De Leon’s statements included the following:
9. On Monday, we determined the extent of the water leaks/ruptures, which was quite extensive. We repaired the water lines and fixtures to make the house livable, but there are still holes in the walls and faucets that have not been replaced. Over the next few weeks, I noticed cracks in the walls and windows, and issues with doors not closing or sticking. An inspection revealed erosion of several footings due to the water flow from the ruptured pipes.
...
11. In April 2021, I contacted FEMA for assistance, which they denied because I had homeowners’ insurance. They referred me to the Small Business Administration (SBA) Disaster Relief. The SBA sent out a damage adjuster who determined the damage exceeded $25,000. The SBA processed a Disaster loan for me, which I used to relevel my house, replace windows, carpets, and padding to control mildew.
12. Based on an estimator’s assessment, the total damage to my property is $110,785.25.
De Leon’s Response did not address how his evidence supports any specific cause
of action or any particular elements that would preclude summary judgment.
11 State Farm’s Reply and Objections to De Leon’s Summary Judgment Evidence
On May 21, 2024, State Farm filed its Reply to Plaintiff’s Response to
Defendant’s Traditional and No-Evidence Motion for Summary Judgment, which
also included objections to De Leon’s summary judgment evidence. It responded
that De Leon still failed to produce any competent or admissible evidence to defeat
a no-evidence summary judgment. State Farm objected to portions of De Leon’s
Unsworn Declaration, asserting that it failed to comply with Texas Rule of Civil
Procedure 166a(f). It also objected to the Quantum Claim Consulting Services
Estimate.
State Farm objected that Paragraphs 9, 11, and 12 contained conclusory
statements that lacked a basis for De Leon’s knowledge and contained improper
opinions, particularly his statement that “an inspection revealed erosion of several
footings due to water flow from ruptured pipes.” State Farm contended the statement
contained an improper opinion, amounted to a conclusory statement without
foundation or supporting evidence or a stated basis on which De Leon would have
personal knowledge, so it was improper and inadmissible summary-judgment
evidence. State Farm complained that Paragraphs 11 and 12 attempted to opine on
cost of damages; however, De Leon did not provide a basis for the stated knowledge
and any such knowledge of another was based on hearsay. Further, State Farm
asserted that any opinion from De Leon on damages was improper and an attempt to
12 backdoor inadmissible evidence through an uninformed witness. Finally, State Farm
objected that in Paragraph 11, De Leon referenced an estimate purportedly prepared
by an undisclosed witness, Gadrow, as well as repairs that were allegedly completed.
Yet, De Leon failed to produce supporting documents to substantiate the statements’
validity, despite the court’s ordering him to produce such documents by May 20,
2024, which he failed to do.
As to the Quantum Claim Consulting Services Estimate, State Farm
complained that it was unauthenticated and unsupported by any affidavit. It also
objected that the estimate constituted inadmissible hearsay. It objected that De Leon
failed to designate Gadrow to offer any opinion on the scope of damages and failed
to show he is qualified, which are prerequisites to admissibility under Rule 702.
On May 24, 2024, the trial court signed an order sustaining all State Farm’s
objections to De Leon’s summary judgment evidence. As to De Leon’s Unsworn
Declaration, the trial court sustained objections to Paragraphs 9, 11, and 12 that: (1)
they are based on hearsay; (2) the witness lacks personal knowledge; and (3) they
contain improper opinions under Texas Rule of Evidence 702. It also sustained
objections to the Quantum Claim Consulting Services Estimate that: (1) it
constituted hearsay; and (2) it included improper opinions from an undesignated
witness under Texas Rule of Evidence 702.
13 After sustaining State Farm’s objections to De Leon’s summary judgment
evidence, the trial court signed an Order Granting State Farm’s Motion for Summary
Judgment. The Order specified that there is no evidence of essential elements for all
causes of action and that the evidence conclusively establishes that De Leon is not
entitled to any benefits under the insurance policy, that he has not suffered any
damages as a result of State Farm’s handling of his claim, and that State Farm “is
accordingly entitled to judgment as a matter of law as to all claims brought against
it in this lawsuit.”
Additional Discovery Issues and Expert Witnesses
Contemporaneously with his Original Petition, De Leon filed his initial
Required Disclosures and his Designation of Expert Witnesses. The expert
designations were generic and included no information or opinions tied to the
specific facts of De Leon’s claim or loss. The Designation of Expert Witnesses
identified the following individuals: Shiran Perera, an engineer; Matt Morgan, an
adjuster and bad faith expert; Billy Bray, an insurance agent; Greg Degeyter, a
meteorologist; Rebecca Cole, a mental health expert; and De Leon’s attorney, Eric
Dick from the Dick Law Firm who was expected to testify about attorney’s fees. The
Designation did not include Gadrow. The designation did not identify any facts or
data the experts relied on or reviewed. De Leon did not provide any expert reports
14 or current resumes. De Leon did not supplement or amend his expert designations
before the expert deadline passed.
In September 2023, State Farm sent correspondence to De Leon’s attorney
complaining about the deficient expert designations, noting they provided no
information about this case or anything they reviewed or relied on. After the deadline
to designate experts passed, State Farm moved to exclude De Leon’s expert
witnesses based on his failure to disclose their reports or opinions. State Farm
contended that since the expert designations were incomplete, untimely, defective,
and failed to comply with Texas Rule of Civil Procedure 194.2(f), they should be
excluded. It set the Motion to Exclude Plaintiff’s Experts to be considered by
submission on May 24, 2024.
On May 21, 2024, De Leon responded to Defendant’s Motion to Exclude
Plaintiff’s Expert Witnesses, and the same day, he filed an Amended Designation of
Expert Witnesses. In his amended designation, De Leon added Gadrow as an expert
for the first time and named Morgan, Degeyter, and Dick as experts, who were
included in his original designation, while dropping others. He also attached
Gadrow’s Quantum Claim Consulting Services Estimate.
In his Response to Defendant’s Motion to Exclude, among other things, De
Leon asserted he timely designated his experts and that he “supplemented those
timely disclosed general opinions with detailed reports afterward as contemplated
15 by the rules.” That said, the record shows that DeLeon failed to provide any expert
reports or the details pertaining to the opinions of his experts. He also asserted that
he supplemented discovery and provided “documentation reviewed by experts in a
timely manner prior to their depositions, consistent with the discovery deadlines.”
But he failed to specify when he provided the information, and more specifically
where the information and documentation exists in the record.
On May 24, 2024, after the trial court sustained State Farm’s objections to De
Leon’s summary judgment evidence and granted State Farm’s Traditional and No-
Evidence Motion for Summary Judgment, the trial court also signed an Order on
State Farm’s Motion to Exclude Late Designated Experts. The trial court denied
State Farm’s Motion to exclude “as moot” because it had granted the Motion for
Summary Judgment and dismissed all causes of action against State Farm. Even so,
the trial court’s Order stated it “finds the experts were not properly nor timely
designated[.]”
Before moving to exclude De Leon’s expert witnesses, in April 2024, State
Farm had also filed a Motion to Compel complaining that he had failed to respond
completely to discovery requests. Particularly, State Farm complained about
documents that De Leon failed to produce after his deposition and after Gadrow’s
deposition. These requested documents were related to repairs done to De Leon’s
home and his mitigation efforts. Additional requested documents he failed to
16 produce included communications between Gadrow and De Leon’s attorney,
including a specific assignment email Gadrow testified he received. On May 10,
2024, the trial court signed an Order Granting State Farm’s Motion to Compel
Complete Discovery Responses and ordered De Leon to produce all requested
documents within ten days. The record does not show these documents were ever
produced.
ISSUE TWO: EVIDENTIARY RULINGS
For purposes of organization and clarity, we address De Leon’s issues out of
order and begin with issue two. In issue two, De Leon asks whether the trial court
abused its discretion in excluding his summary judgment evidence. On appeal, De
Leon argues the trial court improperly excluded evidence including
contemporaneous photographs, multiple firsthand witness accounts, and expert
analysis. State Farm contends that De Leon waived his challenge to the trial court’s
exclusion of his summary judgment evidence for failure to adequately brief this issue.
Standard of Review and Applicable Law
We review a trial court’s decision to exclude summary judgment evidence for
an abuse of discretion. See Starwood Mgmt., LLC v. Swaim, 530 S.W.3d 673, 678
(Tex. 2017). A trial court abuses its discretion “by acting ‘without reference to any
guiding rules and principles.’” Id. (quoting Downer v. Aquamarine Operators, Inc.,
701 S.W.2d 238, 241–42 (Tex. 1985)).
17 The rules require that summary judgment affidavits must be made on personal
knowledge, must set forth such facts as would be admissible in evidence, and shall
show affirmatively that the declarant is competent to testify to the matters stated. See
Tex. R. Civ. P. 166a(j)(4). 1 Documents referred to in an affidavit must be attached
and either sworn or certified. See id.
Analysis
De Leon’s brief fails to cite a single case or rule in support of his contention
that the trial court erred when it sustained State Farm’s objections to portions of his
Unsworn Declaration and to the estimate prepared by Gadrow. Moreover, De Leon’s
brief seemingly addresses facts not contained in the record before us – for instance
improperly striking firsthand testimony from multiple witnesses. The only witness
testimony De Leon submitted was in his Declaration. Although he references other
witnesses who he asserts could substantiate his claims, no such testimony from those
witnesses was included in the summary judgment record. He also complains about
the exclusion of “expert analysis” and references an engineering analysis. There is
no engineering analysis in the record, and Gadrow admittedly did not investigate the
cause of the purported damages.
1 Since the substantive requirements under current Rule 166a(j)(4) and prior Rule 166(a)(f) are essentially the same (i.e., made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify), we cite to the current version of Rule 166a, which went into effect in March 2026. 18 De Leon includes no analysis applying any law to the facts of the case before
us explaining why the trial court erred in sustaining the particular objections to
Paragraphs 9, 11, and 12 of De Leon’s Declaration and to the Quantum Claim
Consulting Services Estimate prepared by Gadrow, thus we conclude that De Leon’s
argument is inadequately briefed. See Tex. R. App. P. 38.1(i) (“The brief must
contain a clear and concise argument for the contentions made, with appropriate
citations to authorities and to the record.”); Celtic Props., L.C. v. Cleveland Reg’l
Med. Ctr., L.P., No. 09-13-00464-CV, 2015 WL 4600661, at *5 (Tex. App.—
Beaumont July 31, 2015, no pet.) (mem. op.) (concluding appellant waived
complaint that trial court improperly sustained objections to summary judgment
affidavit where it failed to provide legal analysis and inadequately briefed issue);
Goodenberger v. Ellis, 343 S.W.3d 536, 539–40 (Tex. App.—Dallas 2011, pet.
denied) (“Existing legal authority applicable to the facts and the questions we are
asked to address must be accurately cited and analyzed.”). We overrule issue two
regarding De Leon’s challenge to the trial court’s rulings that sustained State Farm’s
objections to his Declaration and to the Quantum Claim Consulting Services
Estimate prepared by Gadrow.
ISSUE ONE: SUMMARY JUDGMENT
In issue one, De Leon asks whether the trial court erred by granting State
Farm’s no-evidence motion for summary judgment because he presented evidence
19 creating genuine issues of material fact regarding: the existence of water damage
exceeding the policy deductible; State Farm’s failure to conduct a reasonable
investigation; and State Farms statutory violations in handling the claim. De Leon
challenges the propriety of the trial court’s no-evidence summary judgment and
contends his evidence created a fact issue on “every challenged element[.]”
We review a trial court’s decision to grant summary judgment de novo. See H-
E-B, LP v. Peterson, 732 S.W.3d 541, 545 (Tex. 2026). We view the evidence in the
light most favorable to the nonmovant. Id. (quoting City of Keller v. Wilson, 168
S.W.3d 802, 824 (Tex. 2005)). In doing so, we indulge every reasonable inference
and resolve any doubts against the motion. See id.; City of Keller, 168 S.W.3d at 824.
A no-evidence motion for summary judgment “is essentially a pretrial
directed verdict, and we apply the same legal sufficiency standard in reviewing a no-
evidence summary judgment as we apply in reviewing a directed verdict.” King
Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750–51 (Tex. 2003) (citations omitted);
see also Tex. R. Civ. P. 166a(a)(2) (formerly rule 166a(i)). A no-evidence point will
be sustained when (a) there is a complete absence of evidence of a vital fact, (b) the
court is barred by rules of law or of evidence from giving weight to the only evidence
offered to prove a vital fact, (c) the evidence offered to prove a vital fact is no more
than a mere scintilla, or (d) the evidence conclusively establishes the opposite of the
20 vital fact. Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex.
1997) (citation omitted). To defeat a no-evidence summary judgment motion, the
non-movant must produce summary judgment evidence sufficient to raise a genuine
issue of material fact on each element of the claims challenged by the movant. Ford
Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004).
A party moving for traditional summary judgment has the burden of
establishing there is no genuine issue of material fact as to at least one requisite
element of the asserted cause of action and that it is entitled to judgment as a matter
of law. See Lightning Oil Co. v. Anadarko E & P Onshore, LLC, 520 S.W.3d 39, 45
(Tex. 2017) (citations omitted); see also Tex. R. Civ. P. 166a(a)(1), (h). 2 If a
defendant files a combined traditional and no-evidence summary judgment motion,
we first review the judgment under the no-evidence standards. See Ridgway, 135
S.W.3d at 600; Werth v. Johnson, 294 S.W.3d 908, 909 (Tex. App.—Beaumont
2009, no pet.).
A plaintiff claiming breach of contract must prove: (1) the existence of a valid
contract; (2) the plaintiff’s performance or tendered performance; (3) the defendant
breached the contract; and (4) damages as a result of the breach. See S & S
2 We cite to the current version of the Texas Rules of Civil Procedure, although the former version of the rules applied to this case, as under both versions a traditional movant is held to the matter of law standard and must show no genuine issue of material fact exists. 21 Emergency Training Sols., Inc. v. Elliott, 564 S.W.3d 843, 847 (Tex. 2018) (citing
USAA Texas Lloyds Co. v. Menchaca, 545 S.W.3d 479, 501 n.21 (Tex. 2018)). “An
insurance policy is a contract[.]” RSUI Indem. Co. v. The Lynd Co., 466 S.W.3d 113,
118 (Tex. 2015) (citation omitted) (stating same in the context of contract
interpretation). “To prove coverage, the plaintiff must establish that the injury or
damage is the type covered by the policy.” Seger v. Yorkshire Ins. Co., 503 S.W.3d
388, 400 (Tex. 2016) (citation omitted) (stating so in context of a Stowers
demand). “An insured cannot recover any damages based on an insurer’s statutory
violation unless the insured establishes a right to receive benefits under the policy or
an injury independent of a right to benefits.” Menchaca, 545 S.W.3d at 500 (citations
omitted).
We explained above that De Leon inadequately briefed his challenge to the
trial court’s rulings excluding certain summary judgment evidence and thus waived
that issue. The trial court sustained objections to portions of De Leon’s Declaration
pertaining to: (1) his damages and the cause, particularly as it related to the alleged
foundation issues and that water erosion was the cause; (2) that a FEMA adjuster
determined the damage exceeded $25,000; and (3) the total amount of damages,
which De Leon based on the “estimator’s assessment.” Likewise, the trial court
sustained State Farm’s objection to the entirety of Gadrow’s estimate. Absent
22 evidence damages constituted a covered loss under the policy that exceeded the
deductible or contradicted State Farm’s estimate, no evidence created a fact issue
that any of De Leon’s alleged damages were caused by a breach on State Farm’s
part. See Seger, 503 S.W.3d at 400; RSUI Indemnity Co., 466 S.W.3d at 118. Thus,
his breach of contract claim fails. See Elliott, 564 S.W.3d at 847 (stating requisite
elements of breach of contract claim). As to his extra-contractual statutory claims
and bad faith claims, because there is no evidence that De Leon had a right to receive
benefits under the policy or an injury independent of a right to benefits, his extra-
contractual claims for statutory violations and bad faith likewise fail. See Menchaca,
545 S.W.3d at 499–500.
De Leon failed to respond to State Farm’s no-evidence summary judgment on
his fraud and conspiracy claims in the trial court or point to any evidence supporting
those claims and fails to address the merits of the no-evidence summary judgment
as to those claims on appeal. Since those claims are unchallenged, we must affirm
the no-evidence motion for summary judgment. See Little v. Delta Steel, Inc., 409
S.W.3d 704, 722–23 (Tex. App.—Fort Worth 2013, no pet.) (affirming no-evidence
motion for summary judgment on unchallenged ground).
We hold that De Leon failed to create a genuine issue of material fact as to all
his pleaded claims in response to State Farm’s No-Evidence Motion for Summary
23 Judgment. See Ridgway, 135 S.W.3d at 600. Thus, the trial court properly granted
State Farm’s No-Evidence Motion for Summary Judgment. We overrule issue one.
ISSUE THREE: EXPERT WITNESSES
In issue three, De Leon complains that the trial court erred by finding De
Leon’s expert designations were untimely while simultaneously denying the Motion
to Exclude as moot.
We review a district court’s ruling excluding expert testimony for an abuse of
discretion. See Fort Brown Villas III Condo. Ass’n v. Gillenwater, 285 S.W.3d 879,
881 (Tex. 2009). A court abuses its discretion by “acting arbitrarily and
unreasonably or misapplying the law to the established facts of the case.” Huynh v.
Blanchard, 694 S.W.3d 648, 674 (Tex. 2024) (citations omitted). A party cannot
offer the testimony of an expert who was not timely identified. See Tex. R. Civ. P.
193.6(a); see also Diamond Hydraulics, Inc. v. GAC Equip., LLC, 731 S.W.3d 901,
904 (Tex. 2026). There are two exceptions to this general prohibition, which is when
a district court determines that either: (1) good cause existed for the failure; or (2)
the failure will not unfairly surprise or prejudice the other party. Diamond
Hydraulics, 731 S.W.3d at 904 (citing Tex. R. Civ. P. 193.6(a)). The party who
failed to timely designate the expert bears the burden to prove that one of the
exceptions applies. Id.; see also Tex. R. Civ. P. 193.6(b). No judgment may be
24 reversed on appeal unless the error probably caused the rendition of an improper
judgment or prevented the appellant from properly presenting the case to the court
of appeals. See Tex. R. App. P. 44.1(a).
In the trial court, De Leon did not (1) explain why he had good cause for any
delay in amending his expert designations or providing the necessary information
required by the rules or (2) why his untimely designations would not unfairly
surprise or prejudice the other party. See Tex. R. Civ. P. 193.6(a); Diamond
Hydraulics, 731 S.W.3d at 904. He generally asserted in his response that striking
his experts “would unfairly prejudice presentation” of his case. His response also
seemingly addressed factual details that are inconsistent with this matter. On appeal,
De Leon offers no explanation for how the trial court abused its discretion by acting
arbitrarily or unreasonably or assert that it misapplied the law to these facts. See
Huynh, 694 S.W.3d at 674; Fort Brown Villas III, 285 S.W.3d at 881. Further,
because we have concluded that the trial court properly granted State Farm’s Motion
for Summary Judgment before denying State Farm’s Motion to Exclude Expert
Witnesses as moot, De Leon cannot establish that the trial court’s ruling denying the
Motion to Exclude caused harm or likely resulted in an improper judgment. See Tex.
R. App. P. 44.1(a). We overrule issue three.
25 CONCLUSION
Having overruled each of De Leon’s issues, we affirm the trial court’s
AFFIRMED.
W. SCOTT GOLEMON Chief Justice
Submitted on March 31, 2026 Opinion Delivered July 2, 2026
Before Golemon, C.J., Johnson and Chambers, JJ.