Joe M. Garza, Pay Phone Owners Legal Fund, and Ernest Bustos v. Terra Nova Insurance Company, Ltd., Guaranty National Insurance Company, Burlington Insurance Company, and United National Insurance Company

• Court: Court of Appeals of Texas
• Decided: May 20, 2010
• Docket: 14-08-00653-CV
• Status: Published

Opinion

Appellant’s Motion for Rehearing Overruled, Affirmed and Opinion of March 30, 2010, Withdrawn and Vacated and Substituted with Memorandum Opinion filed May 20, 2010.

In The

Fourteenth Court of Appeals

NO. 14-08-00653-CV

Joe M. Garza, Pay Phone Owners Legal Fund, LLC, and Ernest Bustos, Appellants

v.

Terra Nova Insurance Company, Ltd., Guaranty National Insurance Company, The Burlington Insurance Company, and United national Insurance Company, Appellees

On Appeal from the 434th District Court

Fort Bend County, Texas

Trial Court Cause No. 07-DCV-155905-B

SUBSTITUTE MEMORANDUM OPINION

We originally issued our opinion affirming the trial court’s judgment on March 30, 2010.  Joe M. Garza mailed a motion for rehearing on April 29, 2010, which was filed on May 3, 2010.  We overrule the motion for rehearing, vacate our March 30, 2010 judgment, withdraw our previous opinion and judgment, and issue this substitute memorandum opinion in its place.  Our disposition of the appeal is unchanged. 

Appellants Joe M. Garza, Pay Phone Owners Legal Fund, LLC, and Ernest Bustos appeal the trial court’s order to transfer venue from Hidalgo County to Fort Bend County.  Appellants also appeal the trial court’s grant of summary judgment in favor of appellees Terra Nova Insurance Company, Ltd., Guaranty National Insurance Company, The Burlington Insurance Company, and United National Insurance Company (“the insurers”).  We affirm.

I

            Appellants Joe M. Garza, Pay Phone Owners Legal Fund, LLC, and Ernest Bustos purchased pay telephones from American Telecommunications Company, Inc. (“ATC”) in 2000 and 2001.  When the appellants were purchasing the telephones, ATC allegedly represented to them that it would buy back the telephones at the original price after 36 months or at a reduced price before 36 months if the appellants were not satisfied with the telephones.  ATC also allegedly represented to the appellants that it had insured the value of the telephones if it was unable to repurchase them.  Additionally, ATC allegedly marketed that Northern & Western Insurance Company would provide primary insurance for its “buy-back program,” and additional insurance companies would provide excess insurance for the program.[1]  But when the appellants submitted requests for ATC to buy back the telephones, ATC did not honor the requests.  Some appellants tried to collect on the insurance policies, but those claims were denied because the policies were standard commercial general liability policies that did not cover the appellants’ claims. 

The additional insurance companies included appellees Terra Nova Insurance Company, Ltd., Guaranty National Insurance Company, The Burlington Insurance Company, and United National Insurance Company.  The insurers assert that the appellants were victims of ATC’s Ponzi scheme.  Furthermore, the insurers contend that they provided standard commercial general liability coverage to ATC, not to the appellants, and the coverage was not designated for the “buy-back program.”  The coverage was simply applicable to unexpected or unintended “bodily injury” and “property damage” that ATC might become legally obligated to pay.       

            The insurers filed a motion to transfer venue from Hidalgo County to either Harris County or Fort Bend County.  The Hidalgo County trial court granted the motion and transferred the case to Fort Bend County.  The insurers then moved for summary judgment, and the trial court granted their motion.  Finally, the insurers moved to sever the matter, and the trial court also granted the severance.  This appeal followed. 

II

The appellants contend the Hidalgo County trial court erred in granting the motion to transfer venue to Fort Bend County.  The insurers respond that the appellants failed to bring forward a complete and adequate record with regard to the transfer of venue.  After reviewing the record, we note that the insurers’ motion to transfer venue as well as a response from the appellants was not included, but we take as true statements of facts in briefs unless the opposing party contradicts them.  See Garza v. Reed, No. 14-08-00211-CV, 2009 WL 4270888, at *1 (Tex. App.—Houston [14th Dist.] July 7, 2009, no pet.) (mem. op.).  In their briefs, the parties seem to agree that one reason the insurers requested a venue transfer was on the basis of convenience.  See Tex. Civ. Prac. & Rem. Code Ann. § 15.002(b) (Vernon 2002) (authorizing a court to transfer venue “[f]or the convenience of the parties and witnesses and in the interest of justice”).  A trial court’s decision to grant or deny a transfer based on convenience “is not grounds for appeal” and “is not reversible error.”  Id. § 15.002(c). 

In Garza v. Garcia, the Texas Supreme Court reviewed a trial court’s order granting a motion to transfer venue.  137 S.W.3d 36, 37, 38–39 (Tex. 2004).  The trial court did not specify in the order the reason or reasons why it granted the motion; it simply stated “‘after considering the motion, the pleadings, the affidavits, the responses . . . arguments . . . and hearing, the Court grants Defendants’ Motion to Transfer Venue.’”  Id. at 38.  The supreme court held that an appellate court must affirm any such order because of the presumption that a venue order is granted on convenience grounds.  Id. at 40; accord Trend Offset Printing Servs., Inc. v. Collin County Cmty. Coll. Dist., 249 S.W.3d 429, 430 (Tex. 2008).  Here, the trial court did not specify in the order its reason for granting the venue transfer.    The trial court could have granted the motion based on convenience, and section 15.002(c) of the Texas Civil Practices and Remedies Code expressly precludes this court from reversal if the decision was based on convenience.  See Garza, 137 S.W.3d at 40.  Accordingly, we overrule the appellants’ first issue.

III

In their second contention, the appellants argue the trial court erred in granting the insurers’ motion for summary judgment.  In their brief, the appellants assert the insurers’ misrepresentations are actionable under the Texas Insurance Code and Texas Deceptive Trade Practices Act (“DTPA”), and the appellants relied on these misrepresentations when purchasing ATC’s telephones.  The insurers contend the appellants have failed to show evidence of any misrepresentation to defeat the summary judgment because the appellants did not file a response to the motion for summary judgment.  We agree with the insurers.

A

We review the trial court’s summary judgment de novo.  Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005); Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003).  Here, the insurers moved for summary judgment on both traditional and no-evidence grounds.  See Tex. R. Civ. P. 166a(c), 166a(i).  If the trial court does not specify which it granted, as in this case, we may uphold the summary judgment on either ground.  See Taylor v. Carley, 158 S.W.3d 1, 8 (Tex. App.—Houston [14th Dist.] 2004, pet. denied); Samson v. Manley, No. 14-07-01085-CV, 2009 WL 3790410, *3 (Tex. App.—Houston [14th Dist.] Oct. 6, 2009, pet. denied) (mem. op.).  The party moving for a traditional summary judgment has the burden to show that no material fact exists and that it is entitled to summary judgment as a matter of law.  Tex. R. Civ. P. 166a(c); M.D. Anderson Hosp. & Tumor Inst. v. Willrich, 28 S.W.3d 22, 23 (Tex. 2000) (per curiam). 

We will assume that all evidence favorable to the non-movant is true and indulge every reasonable inference in favor of the non-movant.  KPMG Peat Marwick v. Harrison County Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999).  “In a no-evidence summary judgment, the movant must specifically state the elements as to which there is no evidence.”  Rivers v. Charlie Thomas Ford, LTD., 289 S.W.3d 353, 357–58 (Tex. App.—Houston [14th Dist.] 2009, no pet.); Walker v. Thomasson Lumber Co., 203 S.W.3d 470, 473–74 (Tex. App.—Houston [14th Dist.] 2006, no pet.).  The trial court must grant the motion unless the non-movant can point out evidence that raises a fact issue on the challenged elements.  See Tex. R. Civ. P. 166a(i); Hamilton v. Wilson, 249 S.W.3d 425, 426 (Tex. 2008).  We must determine de novo whether the non-movant produced more than a scintilla of probative evidence to raise an issue of genuine material fact.  See Allen v. Connolly, 158 S.W.3d 61, 64 (Tex. App.—Houston [14th Dist.] 2005, no pet.). 

B

In their original petition, the appellants cited to Section 17.46(b) of the Texas Business and Commerce Code to allege which provision of the DTPA the insurers had violated and referred generally to former Article 21.21 of the Texas Insurance Code.  The appellants generally claimed the insurers made untrue and deceptive statements representing the terms of the insurance policies.  In the insurers’ motion for summary judgment, they argued the appellants have not produced and could not produce any evidence that the insurers “made representations and/or statements concerning excess insurance covering the ATC buy-back program” or “failed to disclose any information” to appellants.  The insurers highlighted portions of the DTPA, contending the appellants had not proved and could not prove the insurers made false representations or failed to disclose information about the insurance policies.  Additionally, the insurers identified provisions of the Texas Insurance Code that the appellants relied on in their petition, and then demonstrated that the appellants had produced and could not produce evidence to support their claims concerning these provisions.   

Because the insurers filed a no-evidence motion for summary judgment that complied with the requirements of Rule 166a(i) and the appellants did not respond to it,  we conclude there is no evidence raising a genuine issue of material fact about any of the claims challenged in the motion.   Because a “court must grant the motion unless the respondent produces summary[-]judgment evidence raising a genuine issue of material fact” concerning the elements raised in the motion, we hold the trial court did not err in granting the insurers’ motion for summary judgment.  See Tex. R. Civ. P. 166a(i).  Therefore we overrule the appellants’ second issue.       

C

            In their motion for rehearing, the appellants complain that we focused too much in our initial opinion on their failure to respond to the insurers’ summary-judgment motion.  They maintain that the insurers did not contend in their motion that there was no evidence to support the appellants’ allegations in their pleadings that agents of the insurers had made actionable misrepresentations.[2]

            We reject that argument.  The appellants sued the insurers for making misrepresentations that amounted to violations of the DTPA and the Texas Insurance Code.  The insurers filed a no-evidence motion for summary judgment challenging the appellants to produce evidence of any such misrepresentation.  If the appellants believed that authorized agents of the insurers made actionable misrepresentations, it was incumbent upon the appellants to provide summary-judgment evidence of the same.  Instead, the appellants filed no response at all to the insurers’ motion.  Accordingly, the trial court correctly granted the motion for summary judgment.   

* * *

For the foregoing reasons, we affirm the trial court’s judgment.

                                                                        /s/        Jeffrey V. Brown

                                                                                    Justice

Panel consists of Justices Yates, Seymore, and Brown.

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[1] Northern & Western Insurance Company is not a party in this proceeding. 

[2] In the motion for rehearing, the appellants repeatedly refer to their petition to demonstrate or prove the insurers’ alleged agent made misrepresentations to them.  But a party’s petition or pleadings are not competent summary-judgment evidence.  Laidlaw Waste Sys. (Dallas), Inc. v. City of Wilmer, 904 S.W.2d 656, 660 (Tex. 1995).