Theresa Hearn-Haynes v. Financial Insurance Exchange AKA Assurant Group ( 2005 )

Affirmed and Memorandum Opinion filed November 17, 2005

Affirmed and Memorandum Opinion filed November 17, 2005.

In The

Fourteenth Court of Appeals

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NO. 14-04-00461-CV

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THERESA HEARN-HAYNES, Appellant

V.

FINANCIAL INSURANCE EXCHANGE A/K/A ASSURANT GROUP, Appellee

On Appeal from the 133rd District Court

Harris County, Texas

Trial Court Cause No. 03-18652

M E M O R A N D U M   O P I N I O N

Appellant, Theresa Hearn-Haynes, appeals the trial court=s granting of a no-evidence summary judgment in favor of appellee, Financial Insurance Exchange a/k/a Assurant Group (AFIE@).  We affirm.

FIE insured Hearn-Haynes from October 26, 2001, through October 26, 2003. Hearn-Haynes filed a mold damage claim under her FIE homeowner=s policy.  After FIE refused to pay the claim, Hearn-Haynes sued FIE for breach of contract, violations of the Texas Insurance Code, violations of the Texas Deceptive Trade Practices-Consumer Protection Act, negligence, and breach of the duty of good faith and fair dealing.  Hearn-Haynes moved for a traditional partial motion for summary judgment on her claim for breach of contract and claim for attorney fees.  FIE filed a no-evidence motion for summary judgment on all of Hearn-Haynes= claims.  The trial court granted FIE=s no-evidence motion for summary judgment, but did not rule on Hearn-Haynes= motion for summary judgment. 

In her first issue, Hearn-Haynes contends her mold claim is covered under the FIE policy covering the period of October 26, 2001 through October 26, 2002. Hearn-Haynes, however, has failed to provide any cites to the record supporting her claim that her mold claim was covered under the policy, thereby waiving this issue.  Tex. R. App. P. 38.1(f), (h).  Hearn-Haynes= first issue is overruled. 

In her second issue, Hearn-Haynes claims the trial court erred in refusing to rule on her motion for summary judgment, thus, violating her due process and equal protection rights under both the United States and Texas constitutions. Similarly, in her seventh issue, Hearn-Haynes claims the trial court should be sanctioned for due process and equal rights violations for ignoring her motion for summary judgment.  Because Hearn-Haynes has failed to provide any argument or citations to authority in support of these issues, they have been waived. Tex. R. App. P. 38.1(h).  Hearn-Haynes= second and seventh issues are overruled. 

In her third issue, Hearn-Haynes claims the trial court erred in granting FIE=s motion for summary judgment without notice and/or opportunity to be heard.  Under Rule 166a(c) of the Rules of Civil Procedure,^[1] a hearing on a motion for summary judgment may be set as early as the 21st day after the motion is served, or the 24th day if the motion is served by mail.  Lewis v. Blake, 876 S.W.2d 314, 316 (Tex. 1994).  FIE served its no-evidence motion for summary judgment on Hearn-Haynes by mail certified mail on January 23, 2004, along with a notice of a submission date of February 16, 2004C24 days after the motion was served.

In computing the correct hearing date under Rule 4 of the Texas Rules of Civil Procedure, A[t]he last day of the period so computed is to be included, unless it is a Saturday, Sunday or legal holiday, in which event the period runs until the end of the next day which is not a Saturday, Sunday or legal holiday.@  Tex. R. Civ. P. 4.  Included among the legal holidays set forth in the Texas Government Code is Presidents= Day, which is Athe third Monday in February.@  Tex. Gov=t Code Ann. ' 662.003(a)(3) (Vernon 2004).  The submission date for the motion, i.e., February 16, 2004, fell on the legal holiday of Presidents= Day.  Therefore, the earliest date on which the motion could be set for submission was the next day, February 17, 2004. 

The trial court granted FIE=s motion for summary judgment on February 16, 2004. However, Hearn-Haynes has failed to explain or otherwise show that she suffered any harm by the error in setting the motion for submission one day early.  She filed her response to the no-evidence motion for summary judgment on February 9, 2004CAnot later than seven days prior to the day of hearing@^[2] and the trial court=s order granting FIE=s motion for summary judgment recites that it had Areviewed the pleadings on file.@ 

Hearn-Haynes further claims the trial court erred in not conducting an oral hearing on FIE=s no-evidence motion for summary judgment.  Although Rule 166a(c) calls for a hearing on a motion for summary judgment, not every hearing called for under every rule of civil procedure requires an oral hearing.  Martin v. Martin, Martin & Richards, Inc., 989 S.W.2d 357, 359 (Tex. 1998). Because oral testimony cannot be adduced in support of or in opposition to a motion for summary judgment, an oral hearing is not required.  Id.  Therefore, it was not error for the trial court to grant FIE=s no-evidence motion for summary judgment without first having conducted an oral hearing. Hearn-Haynes= third issue is overruled. 

In her fourth issue, Hearn-Haynes claims the trial court erred in ignoring her motion to compel discovery.  In her sixth issue, Hearn-Haynes claims the trial court=s order to compel discovery violates the 14th Amendment to the United States Constitution for lack of specificity and, therefore, is void.  No orders, motions, or any other pleadings concerning discovery are included in the appellate record.  Without the inclusion of the motion to compel discovery and the order to compel discovery, nothing has been presented to this court for review. Hearn-Haynes= fourth and sixth issues are overruled. 

In her fifth issue, Hearn-Haynes claims the trial court erred in not considering the evidence attached to her motion for summary judgment when it granted FIE=s no-evidence motion for summary judgment.  FIE moved for summary judgment on all of Hearn-Haynes= claims for lack of evidence supporting the elements of each of her claims.  When a party moves for summary judgment under Rule 166a(i), the respondent must produce summary judgment evidence raising a genuine issue of material fact, otherwise the trial court must grant the motion.  Western Invs., Inc. v. Urena, 162 S.W.3d 547, 550 (Tex. 2005). 

Hearn-Haynes attached approximately 165 pages of documents to her motion for summary judgment.  In her response to FIE=s no-evidence motion for summary judgment, however, Hearn-Haynes merely referenced a one-page declarations page included in those 165 pages without directing the trial court to any other evidence.  The trial court is not required to search its file for summary judgment evidence raising a genuine issue of material fact without guidance from the non-movant.  Aguilar v. Morales, 162 S.W.3d 825, 838 (Tex. App.CEl Paso 2005, pet. denied); Shelton v. Sargent, 144 S.W.3d 113, 120 (Tex. App.CFort Worth 2004, pet. denied).  Hearn-Haynes= fifth issue is overruled. 

Having overruled each issue, we affirm the judgment of the trial court. 

/s/      J. Harvey Hudson

Justice

Judgment rendered and Memorandum Opinion filed November 17, 2005.

Panel consists of Justices Hudson, Frost, and Seymore.

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^[1]  Tex. R. Civ. P. 166a(c). 

^[2]  Tex. R. Civ. P. 166a(c).