Gilberto Hernandez and Eva Hernandez v. Fire Insurance Exchange ( 2002 )

                                                             11th Court of Appeals

                                                                  Eastland, Texas

                                                                        Opinion

Gilberto Hernandez and Eva Hernandez

Appellants

Vs.                   No. 11-02-00226-CV B Appeal from Dallas County

Fire Insurance Exchange

Appellee

This is a case involving a claim for insurance proceeds resulting from damages to the roof on Gilberto Hernandez and Eva Hernandez=s home.  A justice court in Dallas rendered summary judgment for appellee, Fire Insurance Exchange, and appellants appealed to the County Court at Law No. 4 in Dallas County.  That court also granted summary judgment in favor of appellee.  Because we find that the award of summary judgment was proper, we affirm.

Appellants insured their home with appellee. Appellants notified appellee that they had suffered a loss as a result of damage to their roof.   The parties could not agree on the amount of damages. The insurance policy contained the following clause:

7.  Appraisal. If you and we fail to agree on the actual cash value, amount of loss, or cost of repair or replacement, either can make a written demand for appraisal.  Each will then select a competent, independent appraiser and notify the other of the appraiser=s identity within 20 days of receipt of the written demand.  The two appraisers will choose an umpire.  If they cannot agree upon an umpire within 15 days, you or we may request the choice be made by a judge of a district court of a judicial district where the loss occurred.  The two appraisers will then set the amount of loss, stating separately the actual cash value and loss to each item.  If you or we request that they do so, the appraisers will also set:

a.  the full replacement cost of the dwelling.

b.  the full replacement cost of any other building upon

      which loss is claimed.

c.  the full cost of repair or replacement of loss to

     such building, without deduction for depreciation.

If the appraisers fail to agree, they will submit their differences to the umpire.  An itemized decision agreed to by any two of these three and filed with us will set the amount of the loss.  Such award shall be binding on you and us.

Each party will pay its own appraiser and bear the other expenses of the appraisal and umpire equally.

Each party appointed an appraiser; and those appraisers appointed an umpire, pursuant to the policy provisions.  Both appraisers and the umpire found that appellee owed nothing under the terms of the policy.

Appellants, represented by appellant Gilberto Hernandez, filed suit against appellee in a justice court in Dallas.  Appellee filed a motion for summary judgment alleging, among other things, that the appraisal clause was final and binding upon all of the parties.  The court agreed and entered a take-nothing summary judgment against appellants.  Appellants, still represented by Gilberto, appealed that judgment to Dallas County Court at Law No. 4.  That court also agreed with appellee that the appraisal clause was binding upon the parties, and it entered summary judgment for appellee.

Appellants present three points of error.  In their first point of error, appellants claim that the trial court erred when it granted the motion for summary judgment.

The rules for reviewing a summary judgment are well established.  The movant has the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law.  In deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the non-movant will be taken as true. Every reasonable inference is indulged in favor of the non-movant, and any doubts must be resolved in favor of the non-movant.  American Tobacco Company, Inc. v. Grinnell, 951 S.W.2d 420 (Tex.1997); Nixon v. Mr. Property Management Company, Inc., 690 S.W.2d 546, 548‑49 (Tex.1985).  Summary judgment is proper if the defendant disproves at least one element of each of the plaintiff=s claims or establishes all elements of an affirmative defense to each claim. American Tobacco Company, Inc. v. Grinnell, supra; Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 476‑77 (Tex.1995);  Montgomery v. Kennedy, 669 S.W.2d 309, 310‑11 (Tex.1984). When a defendant produces evidence sufficient to establish its right to summary judgment, the plaintiff must present evidence sufficient to raise a material issue of fact.  AMoore@ Burger, Inc. v. Phillips Petroleum Company, 492 S.W.2d 934, 936 (Tex.1972).

The summary judgment proof conclusively establishes that the insurance contract contained the appraisal clause set forth above.  When an award is made in accordance with an appraisal clause, that award is binding and enforceable.  Wells v. American States Preferred Insurance Company, 919 S.W.2d 679 (Tex.App. B Dallas 1996, writ den=d). An appraisal award may be set aside when the award was made without authority; when the award was the result of fraud, accident, or mistake; or when the award was not made in substantial compliance with the terms of the contract.  Wells v. American States Preferred Insurance Company, supra. Because appellee had conclusively established the final and binding nature of the appraisal award, appellants were required to present sufficient evidence to raise a material issue of fact on at least one of those elements in order to defeat the motion for summary judgment.

In their original petition, appellants did not plead any reason to set aside the award.  However, in County Court at Law No. 4, appellants amended their petition four days before trial.  TEX.R.CIV.P. 63 requires that a party amending a petition within seven days of trial must request permission from the trial court.  This record gives no indication of whether permission was sought or granted.  When the record is silent on the subject of permission to amend, leave of court is presumed.  Goswami v. Metropolitan Savings and Loan Association, 751 S.W.2d 487 (Tex.1988).  Furthermore, the amended petition was on file when the trial court issued its summary judgment.  For purposes of this appeal, we will assume that the allegations in the amended petition raised the matters of which appellants complain.  The summary judgment recites that the trial court considered, among other things, the pleadings. 

Even though we presume that the amended pleadings were before the trial court, there is no summary judgment evidence which would support setting aside the appraisal award.  In their  response to appellee=s motion for summary judgment and in argument to this court, appellants make many statements and claims in their petition.  It is not within the province of this court to determine the validity of those statements and claims.  This court must make its decision based upon proper summary judgment rules. A part of those rules require the conclusion that most of the statements and claims made by appellants have not been submitted as proper summary judgment proof. Allegations in petitions, copies of letters which have been mailed, other documents not attached as summary judgment evidence,  unsworn allegations in a summary judgment response, and arguments before this court are not competent summary judgment evidence.  Hidalgo v. Surety Savings and Loan Association, 462 S.W.2d 540 (Tex.1971); Ford v. City State Bank of Palacios, 44 S.W.3d 121 (Tex.App. B Corpus Christi 2001, no pet=n hist.).  Appellants presented an affidavit executed by their daughter, Sonia Hernandez.  The statements in that affidavit relate to a conversation between appellee=s appraiser and the umpire when they were at appellants= house. The appraiser told the umpire that affiant=s father was committing fraud because he was filing another claim for damages he had failed to repair previously. She testified by affidavit that these things were said in Aa very loud and intimidating manner, in [her] presence, which [she felt] was very unprofessional and detrimental to my father.@ These statements provide no evidence relating to the factors required to set aside an appraisal award.  There is no other proper summary judgment evidence provided by appellants.  Furthermore, both appraisers signed the award as well as the umpire; only two signatures were required.   Because they have failed to present any competent summary judgment evidence to raise a genuine issue of material fact relating to setting the appraisal award aside, appellants= first point of error is overruled. 

In their second point of error, appellants complain that the trial court erred in accepting the appraisal award as valid. This point amounts to a restatement of parts of the first point of error.  For the same reasons stated in our discussion of appellants= first point, appellants= second point of error is overruled.

In their third point of error, appellants assert that the trial court erred when it did not allow them to amend their petition. Because we have considered appellants= amended petition as though it were properly before the trial court, we need not address appellants= third point of error.

The judgment of the trial court is affirmed.

JIM R. WRIGHT

JUSTICE

November 7, 2002

Do not publish.  See TEX.R.APP.P. 47.3(b).

Panel consists of: Arnot, C.J., and

Wright, J., and McCall, J.