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  • Motion for Rehearing Granted; Affirmed in Part, Reversed and Remanded in Part, and Majority and Concurring and Dissenting Opinions filed February 3, 2009

    Motion for Rehearing Granted; Affirmed in Part, Reversed and Remanded in Part, and Majority and Concurring and Dissenting Opinions filed February 3, 2009.

     

    In The

     

    Fourteenth Court of Appeals

    _______________

     

    NO. 14-05-01090-CV

    _______________

     

    ENVIRONMENTAL PROCEDURES, INC. and ADVANCED WIRECLOTH, INC., Appellants

     

    V.

     

    GEORGE E. GUIDRY, DWIGHT W. ANDRUS, III, DWIGHT W. ANDRUS INSURANCE, INC., and LEXINGTON INSURANCE CO., Appellees

    On Appeal from the 164th District Court

    Harris County, Texas

    Trial Court Cause No. 03-49520

     

    C O N C U R R I N G   A N D   D I S S E N T I N G   O P I N I O N

                                                                O N   R E H E A R I N G

    I concur in several parts of the court=s judgment[1] but I part ways with the majority


    when it comes to the analysis of the trial court=s March 18, 2005 summary-judgment order (AMarch Order@).  In its review of that order, the majority wrongly refuses to consider the evidence attached to the brokers= reply (AReply Evidence@).  The Reply Evidence was timely filed more than 21days before the submission date for the brokers= motion for summary judgment, and this evidence conclusively proves the brokers= limitations defense.  Therefore, this court should affirm, rather than reverse, the March Order.

    As to the third issue, the Insureds did not preserve error as to the appellate argument they assert under this issue.  Therefore, this issue should be overruled.  Though the majority overrules this issue, it mischaracterizes the alleged error asserted by the Insureds under this issue. 

                                         Summary Judgment on Limitations

    In their first issue, the Insureds[2] challenge the March Order on the grounds that (a) in their motion for partial summary judgment based on the statute of limitations (AMotion@), the Brokers[3] did not address the 1991 and 1992 placements; (b) limitations on the claims regarding the 1993 and 1994 placements did not begin to run until the Insureds suffered a legal injury, which they claim did not occur until Lexington denied coverage or until the Insureds became liable to pay a settlement in excess of policy limits, both of which occurred within two years before this lawsuit was filed; and (c) the Brokers did not offer any summary-judgment evidence establishing that the Insureds knew or should have known of the Brokers= violations of article 21.21 of the Insurance Code more than two years before they filed suit. 


    Scope of the Motion

    In their first sub-issue, the Insureds argue that the Brokers asserted only one ground in the MotionCthat the statute of limitations had run as to the Insureds= claims involving placement of the Lexington policies in 1993 and 1994.  In the Motion, the Brokers asserted that the two-year statute of limitations bars the Insureds= claims for negligence, negligent supervision, negligent misrepresentation, and alleged violations of article 21.21 of the Insurance Code.  The Brokers did not limit their summary-judgment ground to the Insureds= claims involving placement of the Lexington policies.  Therefore, the Insureds= first sub-issue lacks merit.

    The Trial Court=s Re-setting of the Submission Date and Consideration of the Reply Evidence

    The Insureds assert on appeal that this court cannot consider the Reply Evidence because (1) this evidence was allegedly untimely and (2) the trial court never granted the Brokers leave to file this evidence late.  Although the trial court never granted leave to file the Reply Evidence late, the record reveals that no leave was necessary because the Brokers filed this evidence more than 21 days before the submission date on March 18, 2005.

    The record reflects the following chronology regarding the Brokers= summary-judgment motion:

    !         November 10, 2004 C The Brokers file the Motion.

     

    !         The Motion is set for submission on December 13, 2004.

     

    !         The Motion is re-set, to be submitted to the court without oral argument on February 7, 2005.[4]

     

    !         January 26, 2005 C The Brokers file their reply with attached evidence (AReply@).

     

    !         January 31, 2005 C The Insureds file a motion to strike the Reply Evidence as untimely because it was not filed 21 days before the submission date.  The Insureds also file a motion to strike the Brokers= summary-judgment motions because they had been set for submission after the deadline in the docket control order.

     

    !         February 9, 2005 C The trial court denies the Insureds= motion to strike the Brokers= summary-judgment motions.

     

    !         At some point between February 9, 2005 and March 18, 2005, the trial court re-sets the Motion for submission on March 18, without oral argument.

     

    !         March 18, 2005 C During a status conference in open court, the trial  judge announces that she has denied a group of motions, and this group includes the Insureds= motion to strike as untimely the Reply Evidence.[5] The trial judge further states that she had set the Motion for submission on March 18, 2005, and that counsel knew about this setting.[6] No party challenges this statement, states that the court did not re-set the submission date, expresses surprise that the trial court had set the Motion for submission on that date, or objects to any alleged lack of notice that the submission date had been re-set. The trial court also announces that it is granting the Motion.  The Insureds= counsel complains that the Reply Evidence had been on file for less than ten days before the submission date for the Motion.  The trial court responds by noting that the court set the Motion for submission on March 18, which is more than 21 days after the Reply was filed.

    Except on leave of court, a movant is required to file and serve summary-judgment evidence at least 21 days before the time specified for the motion to be submitted to the trial court for decision.  See Tex. R. Civ. P. 166a(c); Martin v. Martin, Martin & Richards, Inc., 989 S.W.2d 357, 359 (Tex. 1998).  Though the trial court did not grant the Brokers leave to file the Reply Evidence, it did not need to do so because the trial court took an action that made the evidence in question timely filedCit specified March 18 as the submission date for the Motion.  See Dalehite v. Nauta, 79 S.W.3d 243, 245 (Tex. App.CHouston [14th Dist.] 2002, pet. denied) (holding that evidence filed less than 21 days before original summary-judgment hearing was timely, even though trial court never granted leave to file late evidence, because the summary-judgment hearing was re-set to a date more than 21 days after the evidence was filed); Thomas v. Medical Arts Hosp. of Texarkana, 920 S.W.2d 815, 818 (Tex. App.CTexarkana 1996, pet denied) (holding that trial court=s re-setting of hearing date for motion for summary judgment made timely summary-judgment evidence that had been untimely based on hearing date in effect when the evidence was filed and served).  Thus, the timeliness of the Reply Evidence was no longer an issue.

    If, as in this case, the trial court exercises its discretion to re-set the submission date for a motion for summary judgment, the movants= summary-judgment evidence must be on file and served at least 21 days before the new submission date.  See Dalehite, 79 S.W.3d at 245; Thomas, 920 S.W.2d at 818.  Because the Brokers filed and served the Reply Evidence more than 21 days before March 18, that evidence was timely.[7] See Dalehite, 79 S.W.3d at 245; Thomas, 920 S.W.2d at 818.  And because this evidence was timely, no presumption arose that the trial court did not consider the evidence.  Thus, it was unnecessary for the Brokers to obtain leave of court to file the Reply Evidence late.

     

    The majority finds the trial court did not re-set the Motion but, in their motion for rehearing, even the Insureds agree that the trial court re-set the submission date for the Motion to March 18.

    In determining that the trial court reversibly erred in granting the Motion (and that the Insureds= motion for rehearing should be granted), the majority relies on its conclusion that the trial court did not re-set the submission date for the Motion to March 18.  But, contrary to the majority=s conclusion, in their Motion for Rehearing, the Insureds assert that the trial court did re-set the submission date for the Motion to March 18; however, the Insureds claim that they did not receive notice that the Motion had been re-set until March 18.  The Insureds state that Agiving notice on March 18 C the day summary judgment was granted C that the submission date had been re-set to March 18 made it impossible for plaintiffs to file controverting evidence.@  Thus, the majority=s conclusion  that the trial court did not re-set the submission date for the Motion to March 18 is contradicted by the Insureds themselves.    In addition, the Insureds= assertion in their motion for rehearing that they had insufficient notice of the trial court=s re-setting of the submission date is not a basis for granting rehearing because it is well-established that, if the trial court did not give sufficient notice in this regard, the Insureds had to raise this complaint in the trial court.  See Okonkwo v. Washington Mut. Bank, No. 14-05-00925-CV, 2007 WL 763821, at *2 (Tex. App.CHouston [14th Dist.] Mar. 15, 2007, no pet.) (mem. op.) (holding appellant waived his complaint that trial court gave him no notice of submission date for summary-judgment motion by not raising the objection in the trial court); Babajide v. Citibank (South Dakota), N.A., No. 14-04-00064-CV, 2004 WL 2933575, at *1 (Tex. App.CHouston [14th Dist.] Dec. 21, 2004, no pet.) (mem. op.) (holding appellant waived her complaint that trial court gave her no notice of summary-judgment hearing by not raising the objection in the trial court); Rios v. Texas Bank, 948 S.W.2d 30, 32B33 (Tex. App.CHouston [14th Dist.] 1997, no pet.) (concluding that, to preserve error, nonmovant who receives insufficient notice of summary-judgment hearing but is able to attend hearing must complain about the notice in writing before the end of the hearing but that  a nonmovant who receives no notice of the hearing and is unable to attend the hearing still must preserve error in the trial court, though such a party may do so by obtaining an adverse ruling on a post-judgment motion).[8] When the trial court stated that counsel and parties knew that the court had re-set the submission date for the Motion to March 18, no party challenged this statement or expressed surprise or lack of awareness that the trial court had re-set the submission date.  The Insureds did not object at the March 18 hearing to any lack of notice of the trial court=s re-setting of the submission date on the Motion, and they did not voice any such complaint at any other point in the trial court.  Therefore, the Insureds did not preserve error as to any alleged defect in the trial court=s notice regarding the re-setting of the submission date for the Motion.  See Okonkwo, 2007 WL 763821, at *2; Babajide, 2004 WL 2933575, at *1; Rios, 948 S.W.2d at 32B33.

    The majority devotes nearly one-third of its lengthy opinion to outlining its reasons for concluding that the trial court did not re-set the submission date for the Motion to March 18.  Though the parties dispute the propriety of the trial court=s action in re-setting the Motion, no party asserts that the Motion was not re-set.  The majority=s reasons for reaching the opposite conclusion are not convincing.

    On March 18, the trial court told counsel Ayou know that I have put on this morning=s submission docket, on the Court=s motion, the [Motion] . . .@   The majority concludes that the trial court could not have meant that it had re-set the submission date on the Motion to March 18 because this would conflict with the requirement of the Texas Rules of Civil Procedure that summary-judgment notices must be given in writing.[9]  However, presuming that written notice is required, the failure to give notice in writing does not mean that no notice was given.  To the extent the notice was not in accordance with the rules, the Insureds waived their objections to any defects by failing to complain in the trial court.  See Okonkwo, 2007 WL 763821, at *2; Babajide, 2004 WL 2933575, at *1; Rios, 948 S.W.2d at 32B33.  The trial court stated twice that it had re-set the Motion to March 18 and once that counsel knew that it had done so.  Nonetheless, the Insureds (represented by various lawyers whose ability to object is apparent in the record) did not contradict these statements or complain that the notice was inadequate or not in writing.[10] Therefore, any written-notice requirement would not indicate that the trial court did not re-set the Motion.

    The majority asserts that there is no evidence in the record that the trial court withdrew the Motion from its submission on February 7, 2005, and that therefore the Motion=s submission date was not re-set.[11] This reasoning is flawed for several reasons.   The record reflects that the Motion was originally set for submission on December 13, 2004, and then re-set for submission on February 7, 2005.  Nonetheless, the record contains no notice setting the Motion for submission on either date, and there is no evidence that any party or the trial court withdrew the Motion from submission on December 13, 2004.  In addition, if the trial court re-sets the submission date of a motion, it necessarily withdraws the former submission date.  The majority has cited no legal requirement that, in addition to re-setting the submission date on a motion, the trial court also must take separate action to withdraw a motion from submission on a certain date.  The absence of an express withdrawal of the Motion from submission on February 7, 2005 does not indicate that the trial court did not re-set the Motion, especially in light of the trial court=s clear and uncontroverted statement that it did re-set the submission date for the Motion to March 18.

    The majority asserts that the trial court=s statement that it had re-set the submission date conflicts with Rule 3.3.3 of the Rules of the Civil Trial Division of the Harris County District Courts.[12]  Harris County Dist. Ct. Civ. Tr. Div. R. 3.3.3.  However, this local rule simply states that, as to motions to be heard by submission, the AMotions shall state Monday at 8:00 a.m. as the date for written submission.@  Harris County Dist. Ct. Civ. Tr. Div. R. 3.3.3.  The Motion that the Brokers filed did not state any Monday as a date for written submission.  Even though the first two days on which the Brokers set the Motion for submission were Mondays, nothing in the local rule states that trial courts lack the power to re-set motions to a submission date that is not on a Monday.  Indeed, the rule does not address the manner in which a trial court is to re-set the submission date for a motion.

    The majority and the Insureds rely on the absence of any reference to the Reply in the trial court=s March Order.[13] The trial court indicated in open court on March 18, that the Reply Evidence was timely because it was filed more than 21 days before the March 18 submission date.  Nonetheless, the majority concludes that the trial court recognized that the Reply Evidence was not timely and that the trial court did not consider this evidence, a fact the majority claims is reflected by the absence of a reference to the Reply in the March 18 order.[14] However, on March 18, the Insureds= counsel specifically asked the trial court what documents it had considered before signing the March Order.  The Insureds= counsel stated that the trial court had considered the Reply and the Insureds= sur-reply, and the trial court agreed.  The Insureds= counsel then complained that the Reply Evidence was filed less than 21 days before the submission date for the Motion.  The trial court indicated that this was not a problem given that the court had re-set the submission date to March 18.  The March Order does not make reference to either the Reply or the sur-reply, upon which the trial court stated it was relying.  This silence is not surprising because the record reflects that the proposed order (filed on November 12, 2004) that eventually would become the March Order was filed before the Reply and the sur-reply were filed, and thus the drafter of that order would not have included those yet-to-be created documents in the recital of the proposed order filed months before.  Because the record reflects that the trial court did consider the Reply, the fact that the March Order makes no specific reference to the Reply is hardly significant.  Though trial courts can and sometimes do affirmatively state in a summary-judgment order the evidence considered or  not considered, trial courts are not required to do so.[15] In the March Order, the trial court did not specify the summary-judgment evidence upon which its ruling was based. At the March 18 hearing, the trial court stated that it had considered the Reply.[16]


    The majority and the Insureds emphasize that, during the hearing on the Insureds= motion for reconsideration, the trial court stated that it was not going to consider the statute- of-limitations arguments in the Reply.[17] The majority and the Insureds suggest that this statement shows that the trial court did not consider the Reply Evidence in granting summary judgment on March 18.  However, the trial court also stated that it was not convinced that it should change its prior summary-judgment ruling, and the court denied the motion for reconsideration.[18]  At the hearing on this motion, the trial court made no mention of the Reply Evidence or the timeliness of this evidence.  Regardless of the submission date for the Motion, the trial court could not consider the additional grounds[19] that the Brokers added in their Reply because summary-judgment grounds must be contained in the summary-judgment motion rather than in a reply or in any other document.[20]  See McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337,  341 (Tex. 1993).  At the motion-for-reconsideration hearing, the trial court did not state that it had not considered the Reply Evidence; rather, the court stated, AAnd by the way, even though no one really mentioned it, I=m not going to consider the statute of limitations arguments that were in your reply. I=m going to limit it to the matter of law that you raised in your initial motion.@[21]  In context, the trial court=s statements indicate that, looking back over the grounds asserted in the Motion and not considering the new grounds contained in the Reply, the trial court did not wish to change its summary-judgment ruling.  These statements do not address whether the trial court considered the Reply Evidence.[22] 

    Rather than conclude that the trial court did not re-set the submission date for the Motion to March 18, the majority should take the trial court at its word.

    The Reply Evidence

    The Insureds did not controvert the timely Reply Evidence, which showed, among other things, the following:

    ! On July 20, 1993, the Insureds submitted to the Andrus Defendants a listing of attorneys= fees for which they were seeking reimbursement under the comprehensive general liability (ACGL@) policies brokered by British American.  The Insureds were seeking reimbursement of attorneys= fees incurred in connection with the Derrick claim.

     

    ! On or about July 15, 1994, Derrick filed a patent infringement suit arising out of the 421 patent against Wirecloth.  The suit involves patent and trademark infringement activities by Wirecloth which allegedly began in 1993.

     

    ! The Andrus Defendants submitted a bid for the renewal of the Insureds= coverage for the 1994B1995 period.  The Insureds accepted the bid which included another written proposal submitted by the Agency.  That proposal stated that defense costs were within limits.

     

    ! On or about October 5, 1994, the law firm of Maginnis & Picou, on behalf of the London Underwriters for the primary CGL coverage for the 1992B1993 policy, wrote a letter to Wirecloth, stating that the underwriters were investigating the 1994 Derrick lawsuit to determine if they had any duty to defend and indemnify as to this lawsuit.  The underwriters stated that they would not pay any amount of costs or attorneys= fees until they determined their obligation, if any, to indemnify Wirecloth regarding this matter. 

     

    ! On or about August 11, 1995, Robert Holman of Technical Risks, Inc. conducted an insurance review for the Insureds.  In reviewing the existing CGL coverage, he noted: AThe second area of concern is that defense costs are part of the limit.  Not only does this reduce your >per occurrence= limit; it also reduces your aggregate.@

     

    ! On or about November 13, 1995, Cynthia Fountain of Lexington Insurance Company wrote the Insureds advising that Lexington denied coverage and would not defend or indemnify the Insureds regarding Derrick=s 1995 lawsuit against the Insureds.

     

    ! On or about February 27, 1996, the Insureds forwarded to Guidry a summary of invoices for attorneys= fees broken down by claims.  Guidry forwarded the summary to the various insurers.  The Insureds had forwarded invoices for Derrick defense costs and attorneys= fees to the insurers in September of 1995, seeking reimbursement for the Insureds= payment of these invoices.  However, no payment was forthcoming as of the end of February 1996.

     

    ! On or about March 8, 1996, attorney Steve Borgman of Vinson & Elkins sent the Insureds an insurance coverage analysis he had prepared.  The Insureds invoked privilege and refused to produce this document in discovery. 

     

    ! On or about March 12, 1996, Borgman (Vinson & Elkins) wrote to Fountain (Lexington) regarding a potential $6 million settlement of the two Derrick lawsuits that could occur between the Insureds and Derrick.  Borgman also noted that to this point Lexington had denied coverage and had refused to provide a defense.  Borgman argued that Derrick=s claims were covered by the Lexington policies.  In their petition, the Insureds allege that the failure to settle the case at this point was proximately caused by the Brokers= tortious conduct. 

     

    ! On or about April 29, 1996, Lexington wrote the Insureds stating that Lexington would now provide defense counsel for the Insureds in the consolidated Derrick lawsuits under a complete reservation of rights.

     

    ! On March 11, 1997, Anglo American Insurance Company went into a Scheme of Arrangement (the English equivalent of bankruptcy).  Anglo American was responsible for 75% of the $100,000 primary CGL insurance for the 1992B1993 policy period.

     

    ! On or about March 17, 1997, Lexington issued another reservation-of-rights letter.

     

    ! On or about May 28, 1998, James Cornell, an attorney with Haynes & Boone who was representing the Insureds, wrote to Fountain (Lexington).  Cornell stated that Lexington=s reservation of rights created a conflict of interest and entitled the Insureds to select their own defense counsel.  Cornell stated that the Insureds have continued to pay Vinson & Elkins to defend them in the Derrick litigation, and that the Insureds were seeking reimbursement for their legal expenses in defending against Derrick=s claims.  

     

    ! On June 12, 1998, an attorney for some of the underwriters advised Cornell (Haynes & Boone) of Anglo American=s Scheme of Arrangement (bankruptcy proceeding) in England.  As of June 12, 1998, the London Underwriters for the primary CGL coverage for the 1992B1993 policy still had not stated their position in writing to Cornell regarding their defense and indemnity obligations.

     

    ! On May 12, 1999, Chester Makowski, an attorney with Royston Rayzor, Vickery & Williams wrote to Cornell (Haynes & Boone) and advised that Lexington would pay only two-thirds of defense costs based on the time of the risk and tendered a check for $181,079.12.  Cornell was reminded that defense costs reduced the limits under the primary policies issued by Lexington.  As of May 1999, a substantial amount of attorneys= fees and expenses had not been paid.

     

    ! On August 23, 1999, Lexington, through Fountain, issued another reservation-of-rights letter to the Insureds, noting that defense costs reduced the applicable limits of insurance under both Lexington primary CGL policies.

     

    ! In the Insureds= answer in the Coverage Suit, they stated that they had incurred more than $17 million in attorneys= fees and expenses defending the Derrick litigation and that through November 19, 2001, Lexington had reimbursed the Insureds less than $330,000, in payments made in 1999.  The Insureds stated that the underwriters on the 1991 and 1992 policies had reimbursed the Insureds less than $365,000 of the more than $17 million in attorneys= fees and expenses. 

     

    Limitations as a Bar to the Insureds= Claims: The Insureds suffered a legal injury more than two years before they filed suit.

    In their second sub-issue, the Insureds assert that limitations on the claims regarding the 1993 and 1994 placements did not begin to run until the Insureds suffered a legal injury, which the Insureds assert did not occur until Lexington denied coverage or until the Insureds became liable to pay a settlement in excess of policy limits. 

    The Insureds alleged, in part, that the Brokers engaged in the following Atortious conduct@:

    !         failing to promptly notify insurers of Derrick=s claim in the early summer of 1994;

     

    !         placing coverage with financially unsound insurers and insurers whose management was unsound;

     

    !         placing coverage with non-existent insurers, insurers who had ceased doing business, or insurers who were corrupt and engaged in criminal misconduct;

     

    !         failing to disclose to the Insureds the Brokers= knowledge of the insolvency and corruption of the insurers with whom the coverage had been placed;

     

    !         selling insurance to Texans without a Texas license;

     

    !         selling surplus-lines insurance without a surplus-lines license and without compliance with the surplus-lines laws;

     

    !         failing to understand the defects in the insuring contracts and insuring entities, or, alternatively, knowing of the defects, and selling the policies without disclosure;

     

    !         negligently failing to secure better, available insurance;

     

    !         falsely representing that ASovereign@ had insured the Insureds when it had not;

     

    !         falsely representing that they were obtaining the best possible insurance at the lowest possible price, when in fact they were not; and

     

    !         falsely representing terms and conditions of insurance and failing to disclose material terms of the insurance prior to binding the insurance.[23]

    The statute of limitations does not begin to run until a claim accrues.  S.V. v. R.V., 933 S.W.2d 1, 4 (Tex. 1996).  Generally, a claim accrues when a wrongful act causes some legal injury, even if the fact of injury is not discovered until later, and even if all resulting damages have not yet occurred.  Id.; Moreno v. Sterling Drug, Inc., 787 S.W.2d 348, 351 (Tex. 1990) (stating that Aa cause of action can generally be said to accrue when the wrongful act effects an injury@).  When a claim accrues is a question of law for the court.  Loyd v. ECO Resources, Inc., 956 S.W.2d 110, 126 (Tex. App.CHouston [14th Dist.] 1997, no pet.).

    The Insureds argue that this court=s precedent in Mauskar v. Hardgrove does not apply to this case.  See No. 14-02-00756-CV, 2003 WL 21403464, at *2B3 (Tex. App.CHouston [14th Dist.] June 19, 2003, no pet.) (mem. op.) (holding claims for negligent procurement of insurance accrued on date the insured purchased the insurance policies).  At a minimum, Mauskar applies to the Insureds= claims for negligence and negligent misrepresentation regarding the terms and conditions of the insurance policies, including the term under which defense costs would reduce the applicable limits of insurance as to the 1993 and 1994 policies. See Mauskar, 2003 WL 21403464, at *2B3.  Therefore, the summary-judgment evidence conclusively proved these claims were time-barred by the  two-year statute of limitations when the Insureds filed suit in 2003.

    As to the other claims regarding the 1993 and 1994 placements, the Insureds argue in their second sub-issue that the claims did not accrue until the Insureds suffered a legal injury, which they claim did not occur until Lexington filed its declaratory-judgment action against the Insureds or until the Insureds settled the Derrick suit.  In support of this contention, the Insureds cite a case decided by the First Court of Appeals.  See All-Tex Roofing, Inc. v. Greenwood Ins. Group, Inc., 73 S.W.3d 412, 414B17 (Tex. App.CHouston [1st Dist.] 2002, pet. denied).  However, in that case there was no allegation that the insured was damaged by a failure to provide a defense or to pay defense costs.  See id.  The insured only alleged damage based on a failure to indemnify against a judgment.  See id. In this case, the Brokers  submitted undisputed summary-judgment evidence conclusively proving that on or about November 13, 1995, Lexington denied coverage, both as to defense and indemnity.  More than five months later, on or about April 29, 1996, Lexington wrote the Insureds stating that Lexington would provide defense counsel for the Insureds in the consolidated Derrick lawsuits under a complete reservation of rights.  However, even after April 29, 1996, the Insureds continued to pay their retained defense counsel, and they did not accept the services of the counsel that Lexington offered to provide at Lexington=s expense.  Under the Insureds= allegations and the uncontroverted summary-judgment evidence, the Insureds paid their own defense counsel millions of dollars in attorneys= fees prior to August 29, 2001, two years before the date on which the Insureds filed this suit.  Despite the Insureds= requests for reimbursement, Lexington reimbursed the Insureds less than $330,000 of their defense costs, and did not make any reimbursement payments until 1999. 

    Because Lexington  denied  coverage and the Insureds allegedly incurred millions of dollars in damages, sufficient facts existed for the Insureds to seek a judicial remedy based on their claims for negligence and negligent-misrepresentation and their claims for violations of article 21.212 of the Texas Insurance Code.  See Abe=s Colony Club, Inc. v. C & W Underwriters, Inc., 852 S.W.2d 86, 90B91 (Tex. App.CFort Worth 1993, writ denied) (holding that cases in which only issue was liability above the policy limits were not on point in case in which insured sought damages for expenses it incurred in defending third-party claims, and that such damages constitute legal injury resulting in accrual of claim and starting of limitations).  Therefore, the Insureds= second sub-issue lacks merit.

    The evidence conclusively proves that the statute of limitations bars the Texas Insurance Code claims.

    In their third sub-issue, the Insureds assert that the summary-judgment evidence does not conclusively prove that the statute of limitations bars their claims for violations of the Insurance Code.  The Insureds allege that the Brokers violated subsections (2), (5), and (11) of section 4 of former article 21.21 of the Texas Insurance Code.  In summary, the Insureds allege that they sustained actual damages caused by the Brokers= alleged (a) untrue, deceptive, or misleading statements with respect to the business of insurance or with respect to any person in the conduct of his insurance business, (b) false statements of financial condition of an insurer made with intent to deceive, and (c) misrepresentation regarding insurance policies.  The following is a summary of the Insureds= allegations regarding this conduct:

    !         The Brokers falsely represented their competence and efforts.

    !         The Brokers concealed the true state of affairs about Lexington, British American, and other underwriters to continue getting the Insureds= business and avoid getting sued.

     

    !         The Brokers failed to disclose to the Insureds the Brokers= knowledge of the insolvency and corruption of the insurers with whom the coverage had been placed.

     

    !         The Brokers failed to understand the defects in the insuring contracts and insuring entities, or, alternatively, knew of the defects, and sold the policies without disclosure.

     

    !         The Brokers falsely represented that ASovereign@ had insured the Insureds when it had not.

     

    !         The Brokers falsely represented that they were obtaining the best possible insurance at the lowest possible price, when, in fact, they were not.

     

    !         The Brokers falsely represented terms and conditions of insurance and failed to disclose material terms of the insurance prior to binding the insurance.

     

    !         As regards the Amiddle note@ sold in October 1992, the Brokers falsely represented the identity of certain insurers and represented that certain insurers were bound when they were not.

     

    !         The Brokers failed to disclose that the notes sold through British American were not protected by the guaranty funds of either Louisiana or Texas.


    Suit on such claims must be commenced Awithin two years after the date on which the . . . unfair or deceptive act or practice occurred or within two years after the person bringing the action discovered or, in the exercise of reasonable diligence, should have discovered the occurrence of the . . . unfair or deceptive act or practice.@  Tex. Ins. Code Ann. art. 21.21, ' 16(d).  The evidence shows that the Insureds were defendants in major patent and trademark litigation in federal court starting in 1994.  As of August 29, 2001, the Insureds had been involved in this litigation for more than seven years.  Despite the Insureds= payment of insurance premiums on various policies for the 1991 to 1994 period, their insurers had not provided them with a defense in the litigation, had not admitted that the policies provided any coverage, and had reimbursed the Insureds for only a small percentage of the millions of dollars that the Insureds had spent in defense costs.  The Insureds had received an insurance review report from Technical Risks, Inc. discussing various weaknesses in their insurance coverages, including the policy feature under which the defense costs  reduced the applicable limits of insurance.  The Insureds also had received an insurance coverage analysis from Vinson & Elkins.  Additionally, the Insureds had been advised that Anglo American was in the English equivalent of bankruptcy. The summary-judgment evidence conclusively proves that the Brokers= acts and practices alleged to be unfair or deceptive occurred before August 29, 2001, and that the Insureds, in the exercise of reasonable diligence, should have discovered the occurrence of the alleged unfair or deceptive acts or practices more than two years before the date on which the Insureds filed this suit.  See Mausker, 2003 WL 21403464, at *4 (affirming summary judgment dismissing article 21.21 claims against agent relating to procurement of insurance policies based on statute of limitations and holding that plaintiff should have discovered that the terms of the policies were not as stated by the agent by reading the policies or descriptions of the policies).  Therefore, the Insureds= third sub-issue lacks merit. 

    Because all of the sub-issues lack merit, this court should overrule the Insureds= first issue and affirm the trial court=s March Order.

                                        Unauthorized Insurance Act Claims

    In their third issue, the Insureds contend that the trial court erred by failing to render judgment in the Insureds= favor on their claims under section 101.21 of the Texas Insurance Code (AUnauthorized Insurance Claims@) because the evidence conclusively establishes that the only exception to liability invoked by the Brokers did not apply.  Contrary to the majority=s characterization of the third issue, the Insureds do not argue that the trial court erred by denying the Brokers= motion for judgment notwithstanding the verdict.[24]


    The trial court charged the jury on the Insureds= Unauthorized Insurance Claims.  question 9 of the court=s charge was the first question concerning these claims.  In it, the jury was asked whether policies from British-American Insurance Group Ltd. were independently procured, which is an affirmative defense that the Brokers asserted.  Because of instructions contained in questions  10, 11, and 12, the jury would not answer any liability or damages questions regarding the Unauthorized Insurance Act (AAct@) unless the jury found in question 9 that one of the policies was not independently procured.  The Insureds objected at the charge conference that there was no evidence to support the submission of question 9.  The Insureds did not object to the instructions in questions 10, 11, and 12 that would result in the jury not answering the liability and damages questions if they found that both policies were independently procured.[25]

    In answer to question 9, the jury found that both policies were independently procured.  The jury obeyed the instructions in questions 10, 11, and 12 and did not answer the liability and damages questions regarding the Unauthorized Insurance Claims.  The Insureds filed a motion for judgment notwithstanding the verdict and brief in support thereof (AJNOV motion@).  In their JNOV motion, the Insureds asserted that the trial court should disregard the jury=s answer to question 9 because there is no evidence to support it.  The Insureds further asserted that the evidence at trial conclusively established liability and damages for the Unauthorized Insurance Claims, so that the trial court should render judgment on these claims without the need for any jury findings.  The trial court denied the Insureds= JNOV motion. 

    Under their third appellate issue, the Insureds assert the trial court erred by not rendering judgment in favor of the Insureds on the Unauthorized Insurance Claims, and the Insureds assert this court should render judgment that the Brokers are liable under these claims and remand for a new trial on damages under the Act.  There are several problems with the Insureds= argument.

    First, the Insureds never asked the trial court to render judgment that the Brokers are liable on the Unauthorized Insurance Claims and to order a new trial as to the damages under these claims.  Therefore, the Insureds did not preserve error as to their third issue.  See Tex. R. App. P. 33.1 (a); Weinberger v. Longer, 222 S.W.3d 557, 567 (Tex. App.CHouston [14th Dist.] 2007, pet. denied) (holding that appellant filed to preserve error because it did not present appellate complaint to trial court). 

    Second, even if the Insureds were asserting on appeal that the trial court erred in denying their JNOV motion, the Insureds have not briefed this argument.[26] Presuming for the sake of argument that the Insureds are correct that the evidence is legally insufficient to support the jury=s answer to question 9, this would only indicate that question 9 should be disregarded; it would not provide a basis for judgment as a matter of law or for a new trial on the Unauthorized Insurance Claims.  In accordance with this reality, the Insureds argued in their JNOV motion that the trial court should render judgment in their favor on the Unauthorized Insurance Claims in the amount of $10,875,000 plus attorney=s fees because the trial evidence conclusively proved that the Brokers were liable for these damages under the Unauthorized Insurance Claims, obviating the need for jury findings.  However, on appeal, the Insureds have provided no argument, citations to the record or to authorities, and no analysis showing that the trial evidence conclusively proves as a matter of law that the Brokers are liable under the Act and that this evidence conclusively proves the amount of the Insureds= damages under the Unauthorized Insurance Claims.  Therefore, even if the Insureds had challenged the trial court=s denial of the JNOV motion, they waived this issue by failing to brief it.[27] See Tex. R. App. P. 38.1(h); Halim v. Ramchandani, 203 S.W.3d 482, 487 n.7 (Tex. App.CHouston [14th Dist.] 2006, no pet.).


    Third, for the Insureds to be entitled to a new trial based on the jury=s failure to answer the questions 10-12 because the jury followed the instructions in these questions, the Insureds would have to have objected to the instructions in questions 10-12 that caused the jury not to answer these questions.  See Little Rock Furniture Mfg. Co. v. Dunn, 222 S.W.2d 985, 989B90 (Tex. 1949) (holding that party that failed to object to instruction that jury not answer a question based on its answer to the prior question waived that party=s right to have the jury make findings as to the subsequent question), modified on other grounds by Bradford v. Arhelger, 340 S.W.2d 772 (Tex. 1960);  Texas Employers= Ins. Ass=n v. Ray, 68 S.W.2d 290, 295 (Tex. Civ. App.CFort Worth 1933, writ ref=d) (holding appellant could not complain of jury=s failure to answer question because the charge instructed the jury not to do so based on its answer to a prior question and because appellant did not object to this instruction); Underwriters at Lloyds v. Edmond, Deaton & Stephens Insurance Agency, No. 14-07-00352-CV, 2008 WL 5441225, at *8 (Tex. App.CHouston [14th Dist.] Dec. 30, 2008, no pet. h.) (holding appellant could not obtain a new trial so that jury could answer liability question because the charge instructed the jury not to answer the question based on its answer to a prior question and because appellant did not object to this instruction); Hunter v. Carter, 475 S.W.2d 41, 46 (Tex. Civ. App.CHouston [14th Dist.] 1972, writ ref=d n.r.e.) (concluding that, in case in which jury followed instructions not to answer certain questions based on its answer to a prior question,  party waived jury findings as to unanswered questions by not objecting to the conditional submission of those questions); Spears Dairy v. Davis, 125 S.W.2d 382, 383 (Tex. Civ. App.CBeaumont 1939, no writ) (same as Hunter and stating that party is required to object to the conditioning instruction and to anticipate that jury may answer initial question in such a way that it fails to answer subsequent questions that are improperly conditioned on the jury=s answer to the initial question). Having failed to object to these instructions, the Insureds have waived their right to a new trial to allow the jury to answer the unanswered questions that were conditioned on the jury not finding independent procurement in question 9. 


    In their motion for rehearing, the Insureds rely on BML Stage Lighting, Inc. v. Mayflower Transit, Inc..  See 66 S.W.3d 304 (Tex. App.CHouston [14th Dist.] 2000, pet. denied).  However, BML Stage Lighting is not on point because in that case the conditioned jury question was (1) for a completely separate claim from the prior question and (2) answering the second question would have been inconsistent with the prior question.  See id. at 305B06.  In the case at hand, the first question was an affirmative defense for the Unauthorized Insurance Claims, and such a defense, by definition, presumes that there is liability and damages on these claims.  Therefore, answering the subsequent questions regarding liability and damages on the Unauthorized Insurance Claims would not have been inconsistent with the jury=s finding that the Brokers proved the affirmative defense. In addition, the BML Stage Lighting court distinguished binding authority from the Texas Supreme Court by concluding that this authority applied to conditioning jury questions regarding the same claim whereas BML Stage Lighting involved conditioning between two different claims.  See id.  The case at hand involves conditioning within questions regarding the same claim; therefore, BML Stage Lighting is not on point.  

    For these reasons, there is no merit in the Insureds= third issue. 


                                                        Conclusion

    For the reasons stated above, this court should affirm the March Order in its entirety.  To the extent the court reverses the March Order, I respectfully dissent.[28]

     

     

     

    /s/        Kem Thompson Frost

    Justice

     

    Panel consists of Justices Frost, Seymore, and Guzman (Guzman, J., majority).


    [1]  The court correctly (1) affirms the trial court=s directed verdict as to the Insureds= claims for breach of fiduciary duty, (2) concludes that the trial court did not err in excluding from evidence two issues of a periodical, (3) overrules the Insureds= third and fifth issues,  (4) dismisses as moot the Insureds= appeal as to the trial court=s April 5, 2005 order, (5) dismisses as moot Lexington=s motion to dismiss the Insureds= appeal as to this order, and (6) denies Lexington=s AMotion To Designate Items for In Camera Review.@

    [2]  The AInsureds@ means appellants Environmental Procedures, Inc. d/b/a Sweco Oilfield Services and Advanced Wirecloth, Inc.

    [3]  The ABrokers@ means appellees George E. Guidry, Dwight W. Andrus, III, and Dwight W. Andrus Insurance, Inc.

    [4]  In their AMotion to Strike Defendants= Motions for Summary Judgment,@ filed on January 31, 2005, the Insureds state that the Motion was originally set for submission without oral argument on December 13, 2004, and then re-set for submission on February 7, 2005.  Although the appellate record does not contain any notices of submission for the Motion, it does contain a notice that the Motion was set for oral argument on January 31, 2005.  There is a handwritten notation on this notice indicating that the Motion will be re-set to February 7, 2005.  On February 9, 2005, the parties stated at a conference that the submission date for the Motion had been re-set to February 7, 2005.

    [5]  The trial judge stated that she had denied all pending motions that were based on the untimeliness of documents that then had been on file for more than thirty days.  The Insureds= motion to strike the Reply Evidence was a motion pending on March 18 that was based on the alleged untimeliness of documents that then had been on file for more than thirty days.  Therefore, the trial court denied the Insureds= motion to strike the Reply Evidence.

    [6]  Strangely, though no party disputes that the Motion was submitted on March 18, the majority concludes that the Motion was not submitted on March 18.  See ante at pp. 10B22.  However, on that date, the trial court twice stated that, on its own motion, it had set the Motion for submission on March 18.  The second statement was in response to a complaint by counsel for the Insureds that the trial court could not consider the Reply Evidence because it had not been on file for 21 days before the submission date for the Motion.  This court should take the trial court at its word that it re-set the submission date for the Motion so that it would be submitted on March 18.

    [7]  More than thirty days after the trial court signed its final judgment, the Brokers filed a motion to modify the final judgment to include a statement that the trial court considered the Reply.  This motion was untimely, and the trial court had no plenary power to grant it.  See Tex. R. App. P. 329b(a), (g). Furthermore, the Brokers never set this motion for hearing or submission, and the record does not reflect that the trial court ever considered it. Therefore, the majority should not rely on the trial court=s failure to grant this motion.  See ante at pp. 19B20.

    [8]  The majority cites Int=l Ins. Co. v. Herman G. West, Inc.; however, that case deals with insufficient notice rather than preservation of error regarding complaints of insufficient notice. See 649 S.W.2d 824, 825B26 (Tex. App.CFort Worth 1983, no writ).

    [9]  See ante at p. 15.

    [10]  The majority seems to indicate that no notice of the March 18 submission date had been given because there is no written notice of submission in the clerk=s record.  But the record does not contain a notice of submission as to the first two submission dates for the Motion (December 13, 2004, and February 7, 2005) either, yet it is undisputed that notice was given as to these submissions.  There is no requirement that the record contain notices of submission before this court can conclude that the Motion was set for submission on March 18.  The trial court stated that counsel knew that the trial court had set the Motion for submission, and no party corrected the court or objected to a lack of notice in the trial court or expressed surprise that the trial court had set the Motion for submission on that date.  The record shows that the Motion had been set for submission on March 18 and that notice had been given of this submission date. 

    [11]  See ante at pp. 15, 20B21.

    [12]  See ante at p. 15, n.15.

    [13]  See ante at pp. 19, 21B22.

    [14]  In the motion for rehearing, the Insureds go further than the majority by asserting that, in the March Order, the trial court recited that the summary judgment was Abased only on the Motion and Response.@ (emphasis added).  This is inaccurate.  The order does not state that it was based Aonly@ on these items.

    [15]  If in the March Order, the trial court had stated that it considered the Motion, found it had merit and granted the Motion, without mentioning the Insureds= response, this court would not, on the basis of this language, conclude that the trial court had refused to consider the response.

    [16]  The Brokers, in the Reply, sought, among other things, to assert new summary-judgment grounds not contained in the Motion. The trial court did not state that it granted summary judgment based on these new grounds.  Such a ruling would have been improper because summary judgments cannot be based on grounds contained only in replies.  See McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337,  341 (Tex. 1993). 

    [17]  See ante at pp. 20B21.

    [18]  In the final judgment, the trial court states that it denied the Insureds= motion to reconsider. 

    [19]  Among the new summary-judgment grounds not contained in the Motion was the argument that the Insureds= claims were barred by a Louisiana prescription statute. 

    [20]  The majority also states that, if the submission date for the Motion had been re-set to March 18,  then the Reply would have been timely filed, and the trial court could properly have considered the new summary-judgment grounds in the Reply.  Because the trial court stated at the hearing on the Insureds= motion for reconsideration, that it did not consider these grounds, the majority asserts that the trial court must not have re-set the submission date to March 18.  See ante at pp. 20B21. The majority=s analysis in this regard conflicts with Texas Rule of Civil Procedure 166a(c) and with McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337,  341 (Tex. 1993) and its progeny.  Even with the trial court=s re-setting of the submission date for the Motion to March 18, the trial court still could not grant summary judgment based on the new grounds in the Reply because summary judgments in Texas can be based only on grounds stated in motions. McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337,  341 (Tex. 1993).

    [21]  Emphasis added.

    [22]   At one point in their appellate brief, the Brokers assert that the trial court stated it had not considered the evidence attached to the Reply.  The Brokers do not affirmatively state that the trial court did not consider the Reply Evidence.  The Brokers= statement is not so unequivocal as to constitute a judicial admission.  The Brokers argue in their brief that the Insureds= claims are time-barred, that the Reply Evidence was timely, and that the trial court noted, on the day it granted the Motion, that the Reply Evidence was timely because it was filed more than 21 days before the March 18 submission date.  One inaccurate statement made in passing in the argument section of the Brokers= appellate brief should not change the analysis. A judicial admission must be clear, deliberate, and unequivocal.  See Regency Advantage Ltd. P=ship v. Bingo Idea-Watauga, Inc., 936 S.W.2d 275, 278 (Tex. 1996).  The Brokers do not clearly, deliberately, and unequivocally admit that the trial court stated that it did not consider the Reply Evidence,  and they certainly do not admit that the trial court did not consider the Reply Evidence.  See OAIC Comm. Assets, L.L.C. v. Stonegate Village, L.P., 234 S.W.3d 726, 742B43 (Tex. App.CDallas 2007, pet. filed) (holding that appellate briefing did not contain unequivocal and deliberate admission in light of all the arguments and statements made in the briefing).  In their response to the Insureds= motion for rehearing, the Brokers confirm that this statement in the brief was an inadvertent error and not a judicial admission.

    [23]  The Insureds also assert that (1) as for the Amiddle note@ sold in October 1992, the Brokers falsely represented the identity of certain insurers and represented that certain insurers were bound when they were not and that (2) the Brokers failed to disclose that the notes sold through British American were not protected by the guaranty funds of either Louisiana or Texas.  However, these allegations do not apply to the 1993 and 1994 placements that are the subject of this sub-issue.

    [24]  See ante at p. 34.

    [25]  In fact, the Insureds did not voice any objections to questions 10, 11, and 12 at all.

    [26]  The majority claims that this is what the Insureds assert in their third issue.

    [27]  Even if the Insureds had briefed this argument, the record reflects that the trial evidence did not prove liability and damages as to the Unauthorized Insurance Claims as a matter of law.  Therefore, the trial court did not err in denying the JNOV motion.

    [28]  In addition, even if the majority=s disposition of the issues were completely correct, the court  should (1) dismiss as moot the Insureds= appeal as to the trial court=s April 5, 2005 order, (2) dismiss as moot Lexington=s motion to dismiss the Insureds= appeal as to this order, (3) deny Lexington=s AMotion To Designate Items for In Camera Review,@ (4)  reverse the judgment as to the Insureds= claims for negligence, negligent supervision, and alleged violations of article 21.21 of the Insurance Code, (5) sever and remand these claims for further proceedings consistent with the court=s opinion, and (6) affirm the remainder of the trial court=s judgment.