Lisa Plunkett v. Connecticut General Life Insurance Company and South Central RS, INC. ( 2015 )

Opinion filed May 29, 2015
In The
Eleventh Court of Appeals
__________
No. 11-13-00129-CV
__________
LISA PLUNKETT ET AL., Appellants
V.
CONNECTICUT GENERAL LIFE INSURANCE COMPANY
AND SOUTH CENTRAL RS, INC., Appellees
On Appeal from the 68th District Court
Dallas County, Texas
Trial Court Cause No. 02-1176-C
MEMORANDUM OPINION
Appellants are former residents (the Residents) of Saratoga Springs
Apartments, a multi-unit apartment complex in Dallas that was closed due to mold
contamination. The Residents sued Connecticut General Life Insurance Company
(the owner), South Central RS, Inc. (the manager), and others, alleging (1) property
losses and personal injuries due to the toxic mold contamination and (2) conversion
of the Residents’ property. In Plunkett v. Connecticut General Life Insurance Co.,
285 S.W.3d 106 (Tex. App.—Dallas 2009, pet. denied), the court of appeals
affirmed the trial court’s grant of summary judgment in favor of the defendants on
the Residents’ claims for property damage and personal injury. The court of appeals
remanded the conversion claims to the trial court. Plunkett, 285 S.W.3d at 122.
The trial court subsequently granted some of the defendants’ motions for
summary judgment on the Residents’ conversion and non-conversion claims and,
thereafter, granted the parties’ joint motion and dismissed all remaining claims. The
Residents filed this appeal against Connecticut General Life Insurance Company and
South Central RS, Inc. (Appellees), who were the only defendants named in the last
petition filed by the Residents.1 We affirm.
Issues Presented
In their first issue, the Residents argue that the trial court erred in dismissing
and limiting their claims that Appellees made negligent misrepresentations that
caused the Residents to discard or abandon their possessions that were in the
apartments. In their second issue, the Residents argue that the trial court erred in
dismissing their claims of “conversion by fear/apprehension”: claims in which the
Residents asserted that Appellees’ acts and misrepresentations with respect to the
conditions at the apartment complex caused the Residents to dispose of or abandon
their possessions.
1
We note that this case was transferred to us from the Fifth Court of Appeals in Dallas pursuant to
an order of the Texas Supreme Court under the authority of Section 73.001 of the Texas Government Code.
TEX. GOV’T CODE ANN. § 73.001 (West 2013).
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Background Facts
Appellees have not disputed the presence of mold contamination at the
apartment complex. At issue in Plunkett was whether the Residents had defeated
summary judgment by producing sufficient evidence to show (1) the existence of
contamination of and damage to the Residents’ personal property and (2) any
property damage and health complaints caused by exposure to the mold at the
complex. The parties also disputed whether the trial court’s summary judgment
properly encompassed the Residents’ conversion claims and disposed of them.
Plunkett, 285 S.W.3d at 111.
The Dallas court affirmed the trial court’s summary judgment for Appellees
(and the other defendants) principally on the ground that the testimony of the
Residents’ experts did not meet the reliability standards for scientific and medical
evidence; therefore, the Residents had not presented sufficient evidence to defeat the
summary judgment. But the Dallas court agreed with the Residents that the motions
for summary judgment did not encompass and dispose of the Residents’ conversion
claims. The court pointed out that “[t]here is a material difference between ‘property
taken’ and ‘property damaged.’” Id. at 122 (quoting Nortex Oil & Gas Corp. v.
Harbor Ins. Co., 456 S.W.2d 489, 493 (Tex. Civ. App.—Dallas 1970, no writ)). “A
summary judgment motion on ‘property damage’ claims is substantively different
from one specifying conversion as its subject.” Id.
After the case was remanded to the trial court, the Residents filed a thirteenth
amended petition in which they reasserted their prior conventional conversion claims
and added claims for “conversion by fear,” seeking recovery for items that they had
abandoned, destroyed, or discarded due to the fear of contamination that Appellees
had created by Appellees’ handling of the situation. Appellees moved for summary
judgment on the Residents’ claims for “conversion by fear,” asserting six grounds
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for summary judgment. In response, the Residents filed a fourteenth amended
petition, asserting the claims for “conversion by fear” and adding new claims that
the Residents had abandoned or discarded their personal property due to “negligent
misrepresentations” by Appellees. At the same time, the Residents moved for a
continuance, requesting more time for discovery because their earlier discovery “did
not focus on claims of conversion or property interference.”
After a hearing in August 2012, the trial court granted summary judgment in
favor of Appellees on the Residents’ claims for “conversion by fear” without
specifying the grounds. But the trial court did not rule on the Residents’ motion for
continuance.
The Residents then filed their fifteenth and sixteenth amended petitions.
These petitions contained the Residents’ “conversion by fear” claims (on which the
trial court had granted summary judgment) and their claims that they had chosen to
abandon or discard personal property in reliance on alleged “negligent
misrepresentations” by Appellees. The only defendants named in the sixteenth
amended petition were Appellees.
Appellees then filed a motion for partial summary judgment on the grounds
that (1) the Residents could not recover on their negligent misrepresentation claims
as a matter of law and (2) the Residents had no evidence to support the elements of
negligent misrepresentation. With their response to Appellees’ motion, the
Residents also included a second motion for continuance, arguing that they had not
had time for discovery related to their negligent misrepresentation claims.
In October 2012, the trial court granted Appellees’ motion for summary
judgment on the Residents’ claims for negligent misrepresentation that are at issue
in this appeal. Again, the trial court did not rule on the Residents’ motion for
continuance. The trial court did not grant summary judgment to Appellees on the
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Residents’ claims for negligent misrepresentation to the extent that the Residents
sought unreimbursed cleaning expenses incurred prior to May 10, 2010.
Subsequently, the parties settled the claims for unreimbursed cleaning expenses
incurred prior to May 10, 2010, and all other claims on which summary judgment
had not been granted. The Residents’ appeal concerns the trial court’s summary
judgments on their claims for negligent misrepresentation (including damages for
unreimbursed cleaning expenses after May 10, 2010) and their claims for
“conversion by fear.”
Before addressing whether the trial court erred in granting the summary
judgments in favor of Appellees, we will first address the Residents’ argument that
the trial court should have granted their motions for continuance to allow them to
conduct further discovery.
Residents’ Motions for Continuance
The record does not show that the trial court denied the Residents’ motions
for continuance or refused to rule on the motions, or that the Residents objected to
that lack of action by the trial court. Appellees argue that the Residents have not
preserved this issue for appellate review. Bryant v. Jeter, 341 S.W.3d 447, 451 (Tex.
App.—Dallas 2011, no pet.). Because the Residents contend that the trial court’s
summary judgments were in effect a denial of their motions, we will discuss the
reasons why we cannot find that the trial court abused its discretion in refusing to
grant their motions for continuance. We review the denial of a motion for
continuance under an abuse of discretion standard. Miller v. Prosperity Bank, N.A.,
239 S.W.3d 440, 442 (Tex. App.—Dallas 2007, no pet.); Crooks v. Moses, 138
S.W.3d 629, 634 (Tex. App.—Dallas 2004, no pet.).
The Residents state that the remanded case was not reinstated on the trial
court’s docket until May 17, 2012, and that they amended their petition in June and
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August to clarify existing claims and add the following new claims: (1) conversion
and negligent bailment relating to certain Residents’ property items left at the
apartment complex; (2) negligent misrepresentations that caused the Residents to
dispose of or abandon their personal property; and (3) conversion of their property
by fear/apprehension. The conversion and negligent bailment claim was settled in
November 2012 and is not a subject of this appeal.
Emphasizing the short time frame between the reinstatement on the court’s
docket in May and the thirteenth and fourteenth amended petitions that were filed in
June and August 2012, the Residents argue that they did not have an adequate time
for discovery related to their new claims. A review of the record, however, reflects
that the Residents have had ample opportunity for discovery in this case. Lisa
Plunkett began the suit in Harris County in 2000; by the end of March 2002, there
were one hundred and thirty-four Residents who had joined in her suit. The case
was subsequently transferred to Dallas County in November 2002. By the end of
2002, most of the Residents had joined the suit against Appellees.
In the Residents’ verified motion for continuance that was filed on October
12, 2012, and in the affidavit of their attorney, the Residents and their attorney stated
that the additional information needed was:
(a) further individual statements about the items of personal property and/or
household goods that each individual plaintiff discarded and/or
abandoned,
(b) the statements from the Appellees that were heard or read by the individual
Residents,
(c) the value of the Residents’ items at the time they were disposed of and/or
abandoned, and
(d) the replacement value of same.
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The Residents have not explained why this information was not obtained at
some point during the long period of this litigation. Neither the motion for
continuance nor the counsel’s affidavit demonstrated that the Residents used due
diligence to procure the evidence sought as required by TEX. R. CIV. P. 252. It does
not appear that the Residents needed any discovery from Appellees. In 2009, the
Dallas Court of Appeals observed, in its opinion, under the heading “Conversion
Claimants”:
Residents generally alleged appellees are liable for conversion of
some property items left behind at the apartment complex when
vacating the premises. The petition did not identify which residents
claimed conversion or what items they claim had been converted, and
there is no evidence of declarations or disclosures filed by any resident
detailing these claims.
Plunkett, 285 S.W.3d at 121. That was a clear indication to the Residents in 2009
concerning the evidence they needed.
In their brief, the Residents admit that conversion claims had long been a part
of their pleadings. In the Residents’ fifth amended petition filed in 2003, they
alleged that their property had been “lost, destroyed or appropriated.” In their “new”
claims of “negligent misrepresentation,” the Residents claimed that they chose to
abandon or discard their personal property in reliance on alleged misrepresentations
by Appellees. But, in substance, the “negligent misrepresentation” claims are
similar to their earlier allegations.
The Residents, in their original petition, asserted that Appellees were
negligent in their handling of the mold issue and that “the explicit representations
made by Defendants . . . conceal[ed] from Plaintiff the Defendants’ knowledge of
the contamination and their wrongful actions.” The original petition asserted
damages for the replacement value of the Residents’ property. Looking at the
numerous amended petitions, one would assume that counsel for the Residents
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would have thoroughly investigated all representations made by Appellees to his
clients and the effect of Appellees’ representations upon his clients.
As the court observed in Restaurant Teams International, Inc. v. MG
Securities Corp., 95 S.W.3d 336, 340 (Tex. App.—Dallas 2002, no pet.), a plaintiff
is “presumed to have investigated [the] case before filing suit.” Certainly, this
investigation should have been done sometime before 2012. The Residents failed to
provide any evidence to show that they used due diligence to timely obtain the
evidence they sought. See TEX. R. CIV. P. 252; Landers v. State Farm Lloyds, 257
S.W.3d 740, 747 (Tex. App.—Houston [1st Dist.] 2008, no pet.).
The Residents’ contention that the trial court erred in failing to grant their
motions for continuance is overruled.
Standard of Review
The appellate standard of review for traditional summary judgments is well-
settled. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548–49 (Tex. 1985). The
summary judgment movant bears the burden of establishing that no material fact
issue exists and that it is entitled to 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). A defendant is entitled to summary judgment if it disproves as a matter
of law at least one element of each of the plaintiff’s causes of action or if it
conclusively establishes all the elements of an affirmative defense. D. Houston,
Inc. v. Love, 92 S.W.3d 450, 454 (Tex. 2002). Once the defendant establishes a right
to summary judgment as a matter of law, the burden shifts to the plaintiff to present
evidence raising a genuine issue of material fact. City of Houston v. Clear Creek
Basin Auth., 589 S.W.2d 671, 678–79 (Tex. 1979).
A no-evidence summary judgment is properly granted if, after adequate time
for discovery, the movant asserts that there is no evidence supporting one or more
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specified elements of a claim or defense on which the nonmovant bears the burden
of proof at trial, and the nonmovant then produces no summary judgment evidence
raising a genuine issue of material fact on those elements. TEX. R. CIV. P. 166a(i);
LMB, Ltd. v. Moreno, 201 S.W.3d 686, 688 (Tex. 2006). In Plunkett, the Dallas
Court of Appeals reviewed in detail the standards of review for both traditional
summary judgments and no-evidence summary judgments. Plunkett, 285 S.W.3d at
111–12. We refer the parties to that thorough explanation.
Because the Residents have stated that their negligent misrepresentation
claims are “the heart of this appeal,” we will first deal with the summary judgment
on that claim. Although not labeled, Appellees’ motion appears to have been a no-
evidence motion for summary judgment.
The Residents’ Negligent Misrepresentation Claims
Both parties refer to Federal Land Bank Ass’n of Tyler v. Sloane, 825 S.W.2d
439, 442 (Tex. 1991), for the four elements of a claim of negligent
misrepresentation: (1) the defendant made a representation in the course of his
business or in a transaction in which he has a pecuniary interest; (2) the defendant
supplied “false information” for the guidance of others in their business; (3) the
defendant did not exercise reasonable care or competence in obtaining or
communicating the information; and (4) the plaintiff suffered pecuniary loss by
justifiably relying on defendant’s representation. Appellees argued in their motion
that the Residents had no evidence on elements two, three, and four.
The trial court did not specify the grounds for the summary judgment granted
to Appellees against the Residents’ negligent misrepresentation claims. When the
trial court does not specify the basis for its summary judgment, we must affirm the
summary judgment on any meritorious ground raised in the motion. FM Props.
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Operating Co. v. City of Austin, 22 S.W.3d 868, 872–73 (Tex. 2000); Plunkett, 285
S.W.3d at 112.
In their brief, the Residents quote at length from their fourteenth amended
petition, stating that the quoted portion shows the factual basis for their negligent
misrepresentation claims. A plaintiff’s petition is not summary judgment evidence.
Laidlaw Waste Sys. (Dallas), Inc. v. City of Wilmer, 904 S.W.2d 656, 660 (Tex.
1995); Clear Creek Basin Auth., 589 S.W.2d at 678. The Residents point to evidence
provided by Jeannie (Sullivan) Fischer. But, as Appellees point out, Fischer is not
a party to this appeal; she settled her claims. The Residents have not pointed to any
evidence that shows that Appellees provided information to the Residents that was
false or that Appellees were negligent or failed to exercise reasonable care when
communicating with the Residents. Nor have the Residents provided factual
evidence that a Resident suffered a pecuniary loss as a result of relying on a claimed
misrepresentation. They have only provided general conclusory statements that
some Residents suffered losses because of the claimed misrepresentations.
The only summary judgment evidence that the Residents submitted consisted
of the Residents’ and Fischer’s answers to interrogatories; these answers fell short
of raising a genuine issue of material fact. The Residents referred to the “substance”
of the alleged misrepresentations but could not state the exact dates they were made.
They also attached a number of letters or documents that Appellees issued. We have
read the communications that were issued by Saratoga Springs Apartments as events
unfolded and the claimed misrepresentations mentioned in the interrogatory
answers. But we have found no summary judgment evidence indicating that any
statements were false or were made negligently.
The principal difficulty the Residents face in this appeal is the lack of evidence
to show that Appellees were negligent when they communicated with the Residents.
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The Residents asserted that they chose to abandon or discard their personal property
in reliance on alleged misrepresentations by Appellees. But the Residents failed to
produce evidence that any representation made by Appellees was false or negligently
made at the time the statement was made. The Residents have failed to point out
any evidence of expert testing to support the Residents’ assertions that Appellees
made negligent misrepresentations about the mold. We have only the Residents’
conclusory statement that Appellees “made many false representations.”
The Residents’ first issue is overruled.
The Residents’ Conversion-By-Fear Claims
After the Plunkett decision in 2009, the Residents filed a thirteenth amended
petition that asserted a variation of their conversion claim that they termed
“conversion by fear.” They claimed that the conversion occurred when the
Residents abandoned, destroyed, or discarded their property out of fear of the mold.
Appellees filed a traditional motion for summary judgment on the Residents’
conversion-by-fear claims. Appellees asserted six grounds in their motion. The trial
court granted summary judgment against the Residents on their claims for
“conversion by fear” without specifying the grounds. The Residents have only
addressed one ground of the traditional summary judgment.
The six grounds in Appellees’ motion for summary judgment were (1) that
the Residents’ claim failed because the Residents had admitted in their pleadings
that they had retained possession of their property and had chosen “to abandon,
destroy or discard” their property; (2) that a claim of conversion by fear is not
actionable because the Texas Supreme Court has rejected claims for damages arising
out of fear of injury where no such injury has actually occurred, Temple-Inland
Forest Prods. Corp. v. Carter, 993 S.W.2d 88, 89–91 (Tex. 1999); (3) that the
Residents admitted by pleading that Appellees did not take property away from the
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Residents and, thus, there was no conversion of the property; (4) that there was no
evidence that Appellees had intentionally asserted a right in the property as required
by Texas law of conversion; (5) that there was no evidence that the Residents made
a demand for the return of their property and that Appellees refused to return the
property (to the contrary, the Residents judicially admitted that the property was in
their possession until they discarded or abandoned their property due to their “fear”);
and (6) that Appellees conclusively established their affirmative defense of
“abandonment” based on the Residents’ judicial admissions.
The Residents begin their argument by stating they adequately pleaded that
Appellees’ actions amounted to “active interference with [their] right of property
and/or control as to deprive [them] of their free use and enjoyment” of the property.
Based on this statement, the Residents then assert that the tort of conversion under
Texas law is sufficiently broad to encompass their claims of “conversion by fear.”
We disagree.
Conversion is the unauthorized and wrongful dominion and control over
personal property of the owner to the exclusion of, or inconsistent with, the owner’s
rights. Waisath v. Lack’s Stores, Inc., 474 S.W.2d 444, 447 (Tex. 1971); Khorshid,
Inc. v. Christian, 257 S.W.3d 748, 758–59 (Tex. App.—Dallas 2008, no pet.). The
elements of a conversion claim are (1) the plaintiff owned or had possession of the
property or entitlement to possession; (2) the defendant unlawfully and without
authorization assumed and exercised control over the property to the exclusion of,
or inconsistent with, the plaintiff’s rights as an owner; (3) the plaintiff demanded
return of the property; and (4) the defendant refused to return the property. Tex.
Integrated Conveyor Sys., Inc. v. Innovative Conveyor Concepts, Inc., 300 S.W.3d
348, 366 (Tex. App.—Dallas 2009, pet. denied); Khorshid, 257 S.W.3d at 759.
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The Residents’ conversion-by-fear claims are not consistent with the well-
settled elements of conversion. The Residents’ claim is not that Appellees assumed
and exercised control over the Residents’ property to the exclusion of, or
inconsistent with, their rights as owner. The Residents’ claim is that their fear of
mold contamination led them to dispose of their property or abandon their property.
The Residents respond that the “gist of a conversion is not the acquisition of the
property by the wrongdoer, but the wrongful deprivation of a person of property
which he is entitled to possess. Ligon v. E. F. Hutton & Co., 428 S.W.2d 434 (Tex.
Civ. App.—Dallas [1968], writ ref’d n.r.e.).” But there is no evidence that Appellees
intended to assert control over the Residents’ property or that they wrongfully
deprived the Residents of their property. The Residents chose to dispose of or
abandon their property.
There also is no evidence that the Residents demanded the return of the
property and that Appellees refused to return the property. To the contrary, the
Residents admit that they simply left their property in the apartments or abandoned
their property due to their fear of mold contamination. In effect, the conversion-by-
fear theory is inconsistent with the second, third, and fourth elements of a conversion
claim.
As stated earlier, where the summary judgment order does not specify the
grounds for the summary judgment, an appellate court will affirm the summary
judgment if any one of the grounds in the motion is meritorious. It was the
Residents’ burden to show that each of the grounds asserted in the motion were
insufficient to support the trial court’s judgment. See Jones v. Hyman, 107 S.W.3d
830, 832 (Tex. App.—Dallas 2003, no pet.). Several of the grounds appear to have
merit. For example, the Residents did not address Appellees’ ground that the
Residents judicially admitted in their pleadings that they had chosen to abandon or
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dispose of their property. Nor did the Residents challenge Appellees’ ground that
there was no evidence that Appellees intentionally asserted a right in the Residents’
property.
The Residents’ second issue is overruled.
This Court’s Ruling
The orders at issue in this appeal are affirmed.
TERRY McCALL
JUSTICE
May 29, 2015
Panel consists of: Wright, C.J.,
Willson, J., and McCall.2
Bailey, J., not participating.
2
Terry McCall, Retired Justice, Court of Appeals, 11th District of Texas at Eastland, sitting by
assignment.
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