Jimmy D. Hand v. Old Republic National Title Insurance Company ( 2011 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-10-00347-CV
JIMMY D. HAND APPELLANT
V.
OLD REPUBLIC NATIONAL APPELLEE
TITLE INSURANCE COMPANY
----------
FROM THE 97TH DISTRICT COURT OF MONTAGUE COUNTY
----------
MEMORANDUM OPINION1
----------
Appellant Jimmy D. Hand appeals the trial court’s order granting summary
judgment for Old Republic National Title Insurance Company (Old Republic). We
will affirm the trial court’s judgment.
1
See Tex. R. App. P. 47.4.
I. Background Facts
Hand’s neighbor, Glen Jones, sued Hand over a rock wall that Hand built
along the border separating their properties.2 Specifically, Jones claims that the
rock wall ―fails to follow the true boundary line and encroaches upon the
boundary of [his] property.‖ Jones sued for trespass to try title and adverse
possession.3
Hand filed a claim with his insurance company, Old Republic, and
requested that it intervene and defend against the action. Old Republic denied
the claim on the basis that Hand’s policy explicitly excludes coverage for ―[a]ny
discrepancies, conflicts, or shortages in area or boundary lines, or any
encroachments, or any overlapping of improvements‖ and ―[r]ights of parties in
possession.‖ Hand subsequently filed a third party petition against Old Republic
in the underlying case and asserted claims based on Old Republic’s denial of
coverage including breach of contract and violation of the Texas Deceptive Trade
Practices Act.
On March 26, 2010, Old Republic filed a motion for summary judgment.
Hand responded on April 29, 2010. After a hearing on the motion, Hand filed a
motion for leave to supplement his response. Hand sought to include Old
2
Jones also sued over the location of a boat dock that Hand had
constructed, but the trial court granted summary judgment in favor of Hand on
those claims, which are not before us.
3
Jones also sued for encroachment, interference, and nuisance, but only
as to the location of the boat dock. Thus, those claims are not before us.
2
Republic’s responses to his requests for production, which he claims
demonstrated that Old Republic ―did not have any policies or procedures in place
for the denial of coverage and denial of providing a defense to Hand in this
matter.‖ The motion states that it was served on counsel on May 14, 2010, but
according to the file stamp, it was not filed with the trial court until May 17, 2010.
The trial court notified the parties in a letter dated May 15, 2010, that it
would be granting Old Republic’s motion for summary judgment. The order was
signed on June 3, 2010. No order from the trial court regarding Hand’s motion
for leave appears in the record. Old Republic moved to sever the claims against
it, and the trial court granted the motion. Hand then filed this appeal.
II. Standard of Review
We review a summary judgment de novo. Travelers Ins. Co. v. Joachim,
315 S.W.3d 860, 862 (Tex. 2010). We consider the evidence presented in the
light most favorable to the nonmovant, crediting evidence favorable to the
nonmovant if reasonable jurors could, and disregarding evidence contrary to the
nonmovant unless reasonable jurors could not. Mann Frankfort Stein & Lipp
Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). We indulge every
reasonable inference and resolve any doubts in the nonmovant’s favor. 20801,
Inc. v. Parker, 249 S.W.3d 392, 399 (Tex. 2008). A defendant who conclusively
negates at least one essential element of a cause of action is entitled to
summary judgment on that claim. Frost Nat’l Bank v. Fernandez, 315 S.W.3d
494, 508 (Tex. 2010); see Tex. R. Civ. P. 166a(b), (c).
3
III. Discussion
A. Summary Judgment
In his first two issues, Hand argues that the trial court erred in granting Old
Republic’s motion for summary judgment. His sole argument on these issues is
that Jones failed to plead factual allegations that must be pleaded in order for the
―rights of parties in possession‖ exception to apply. See Smith v. McCarthy, 195
S.W.3d 301, 308–309 (Tex. App.—Fort Worth 2006, pet. denied) (noting that the
policy holder must have actual notice of possession of the property by a third
party). The ―rights of parties in possession‖ exception, however, was not one of
the grounds upon which the court granted Old Republic’s motion for summary
judgment.
In its motion, Old Republic argued two grounds for summary judgment: (1)
that because Jones never made a claim to title to any portion of Hand’s lot,
coverage under Hand’s policy was not invoked and (2) that even if Jones were
making a claim to Hand’s property, all of Jones’s claims were based on the
location of the boundary line between the two lots and therefore were specifically
excluded under the policy. Hand argued to the trial court in his response that
Jones did make a claim to Hand’s property, but he failed to address the other
ground upon which the motion could have been granted. Hand also does not
address the boundary line exception on appeal. Because Hand failed to address
a ground upon which the motion was granted in the trial court, he did not
preserve the issue for appeal. See Star-Telegram, Inc. v. Doe, 915 S.W.2d 471,
4
473 (Tex. 1995) (―When the trial court does not specify the basis for its summary
judgment, the appealing party must show it is error to base it on any ground
asserted in the motion.‖). We therefore affirm the summary judgment. See
Bridges v. Citibank (S.D.) N.A., No. 02-06-00081-CV, 2006 WL 3751404, at *1
(Tex. App.—Fort Worth Dec. 21, 2006, no pet.) (―When a trial court’s order
granting summary judgment does not specify the ground or grounds relied on for
its ruling, and its judgment rests upon more than one independent ground or
defense asserted by the movant, the aggrieved party must assign error to each
ground, or the judgment will be affirmed on the ground to which no complaint is
made.‖); King v. Tex. Employers’ Ins. Ass’n, 716 S.W.2d 181, 182–83 (Tex.
App.—Fort Worth 1986, no writ) (affirming summary judgment ―because
summary judgment may have been granted, properly or improperly,‖ on the
ground set out in the motion, and the appellant did not challenge that ground);
see also Smith, 195 S.W.3d at 311 (noting that because the plaintiff’s cause of
action was excluded under one exception, the court did not need to address
whether another alleged exception would apply). We overrule Hand’s first and
second issues.
B. Motion for Leave to Supplement Response
In his third issue, Hand argues that the trial court erred in refusing to allow
him to supplement his response to Old Republic’s motion for summary judgment.
We review the denial of a motion for leave to file a late summary judgment
5
response for an abuse of discretion. Carpenter v. Cimarron Hydrocarbons Corp.,
98 S.W.3d 682, 686 (Tex. 2002).
The rules of civil procedure require summary judgment evidence to be filed
and served at least seven days before the hearing, unless the court grants
permission to file later. Tex. R. Civ. P. 166a(c), (d). Evidence may be filed after
the hearing with permission of the court, but no evidence can be filed after the
court rules on the motion. See id. 166a(c); Valores Corporativos, S.A. de C.V. v.
McLane Co., 945 S.W.2d 160, 162 (Tex. App.—San Antonio 1997, writ denied).
A motion for leave to file a late summary judgment response or evidence in
support thereof should be granted when the nonmovant establishes (1) good
cause by showing that the failure to timely file was not intentional or the result of
conscious indifference, and (2) that the late filing would cause no undue delay or
otherwise injure the summary judgment movant. Carpenter, 98 S.W.3d at 685.
Hand acknowledges that his supplemental evidence was submitted out of
time. He argues on appeal that he had good cause for missing the deadline and
that the filing would cause no undue prejudice. His motion to the trial court,
however, fails to offer any excuse for his untimeliness or any argument that
granting the motion would not unduly prejudice Old Republic. Hand therefore
failed to demonstrate any reason why his motion should have been granted. See
id. at 688 (holding that a party moving for leave to file a late summary judgment
response must establish good cause and no undue prejudice). Because Hand
6
failed to meet his burden, the trial court did not abuse its discretion in refusing his
request to supplement his response. We overrule Hand’s third issue.
IV. Conclusion
Having overruled all of Hand’s issues, we affirm the trial court’s judgment.
LEE GABRIEL
JUSTICE
PANEL: LIVINGSTON, C.J.; DAUPHINOT and GABRIEL, JJ.
DELIVERED: March 24, 2011
7