Lucy Tellez v. Allstate Texas Lloyds--Appeal from 152nd District Court of Harris County

Affirmed as Modified and Memorandum Opinion filed October 30, 2007

Affirmed as Modified and Memorandum Opinion filed October 30, 2007.

In The

Fourteenth Court of Appeals

_______________

NO. 14-06-00305-CV

_______________

LUCY TELLEZ, Appellant

V.

ALLSTATE TEXAS LLOYDS, Appellee

On Appeal from the 152nd District Court

Harris County, Texas

Trial Court Cause No. 04-08852

M E M O R A N D U M O P I N I O N

In this insurance coverage dispute, Lucy Tellez appeals a no-evidence summary judgment entered in favor of Allstate Texas Lloyds=s (AAllstate@) on the grounds that: (1) Tellez=s insurance policy (the Apolicy@) with Allstate covered the loss she claimed to her home; (2) a fact issue exists as to whether Allstate breached the policy; and (3) the trial court improperly dismissed Tellez=s extra-contractual claims. We affirm as modified.

Background

Tellez purchased a homeowners Form HO-B insurance policy from Allstate. In 2001, the roof of Tellez=s home sustained damage, Tellez submitted a claim to Allstate, and Allstate paid for roof repairs. In 2002, Tellez discovered mold, water damage, and a leaking shower pan in her home. Tellez submitted another claim to Allstate, and Allstate made a payment on the claim, but Tellez sued Allstate for additional amounts. Allstate filed a no-evidence motion for summary judgment (the Amotion@), which the trial court granted.

Standard of Review

A no evidence motion for summary judgment must be granted if: (1) the moving party asserts that there is no evidence of one or more specified elements of a claim or defense on which the adverse party would have the burden of proof at trial; and (2) the respondent produces no summary judgment evidence raising a genuine issue of material fact on those elements. See Tex. R. Civ. P. 166a(i). To defeat a no-evidence motion for summary judgment, a respondent is not required to marshal its proof, but only to point out evidence that raises a fact issue on the challenged elements. Id., cmt (1997).

In reviewing a no evidence summary judgment, we ascertain whether the nonmovant pointed out summary judgment evidence of probative force to raise a genuine issue of fact as to the essential elements attacked in the no evidence motion. Johnson v. Brewer & Pritchard, P.C., 73 S.W.3d 193, 206B08 (Tex. 2002). We take as true all evidence favorable to the nonmovant and indulge every reasonable inference, and resolve any doubts, in the nonmovant=s favor. Sudan v. Sudan, 199 S.W.3d 291, 292 (Tex. 2006). Where, as here, the trial court does not specify its grounds for granting a movant's motion for summary judgment, we may affirm the judgment if any of the grounds advanced within the motion are meritorious. See W. Invs, Inc. v. Urena,162 S.W.3d 547, 550 (Tex. 2005).

Contract Claims

On appeal, Tellez contends that she produced evidence to raise a fact issue on each of the elements of her contractual claims against Allstate. Allstate counters, however, that Tellez produced no evidence that she suffered any damages caused by Allstate=s conduct or a peril covered by the policy, and particularly that there was no expert evidence linking any mold in her home to a peril and loss covered by the policy.

To prevail on an insurance claim, an insured must produce evidence that affords a reasonable basis for estimating the amount of damage or proportionate part of the damage that was caused by the covered risk. Travelers Indem. Co. v. McKillip, 469 S.W.2d 160, 163 (Tex. 1971). In this case, Tellez=s claimed damages include repairs to her home for water damage and mold and for living expenses while repairs were being made. With regard to the evidence of covered water damage to her home, Tellez=s brief states:

[I]ndependent investigators have determined that the damage to the home is due to covered perils, including the shower pan leakage . . . . The estimated cost of the repairs is over $59,000.

* * * *

There is evidence that Allstate did not pay a sufficient amount for water damage to the home. There is evidence that Allstate did not pay sufficient amounts for contents cleaning.

Tellez=s brief makes reference to various possible sources of the water that caused the damage and mold, including damage to her roof, faulty repair of her roof, a shower pan leak, an air conditioning leak, poor circulation, and the contractor=s negligence in doing destructive testing without repairing the holes. However, rather than explaining how her summary judgment evidence indicated that the water damage and mold for which she claimed coverage were attributable to any of these causes and otherwise covered by the policy, her brief (like her summary judgment response) merely refers to roughly 172 pages of the clerk=s record (pages 288-332, 334-460, 462).

This does not provide a clear and concise argument for the contentions made with appropriate citations to the record. See Tex. R. App. P. 38.1.[1] In order for this court to sustain Tellez=s contention that her summary judgment evidence was sufficient to raise a fact issue on the elements of causation and damage, we would have to analyze the lengthy portions of the record she has cited to determine whether and how any of the factual information contained there constitutes evidence of damage and causation, apply the applicable law to those facts, and then explain the resulting reasoning in our opinion. Not only is this not our obligation, it would require us to abandon our role of impartiality in order to provide reasoning for Tellez=s position that she has not advocated for herself. Under these circumstances, because Tellez=s brief affords us no basis to conclude that the trial court would have erred in granting the no-evidence summary judgment on the lack of damage and causation evidence, we overrule her challenge to the summary judgment against her breach of contract claims.

Extra-Contractual Claims

Tellez=s third issue contends that her extra-contractual issues were improperly dismissed in the trial court=s judgment, even though they had been severed by the court before Allstate filed the motion. Tellez argues that the trial court cannot grant relief that is not supported by the pleadings.[2]

As relevant to this issue, Allstate filed a motion on July 13, 2005 to sever and abate Tellez=s extra-contractual claims. The trial court granted the motion to sever on August 26, 2005 and assigned the extra-contractual claims a separate cause number. However, the March 3, 2006 order, granting Allstate=s motion for summary judgment in this case, purports to grant judgment against the severed extra-contractual claims:

1. Judgment is granted for Allstate Texas Lloyd=s. All of the plaintiff=s claims against Allstate Texas Lloyd=s for breach of contract in this case and any related claims, including claims for breach of the duty of good faith and fair dealing, breach of the Texas Insurance Code, including under section 21.55 and 21.21, and breach of the Texas Deceptive Trade Practices Act.

2. Tellez shall take nothing by way of all of the claims she has asserted or could have asserted in this case against Allstate Texas Lloyd=s . . . .

Because the judgment does not conform to the pleading in this respect, it cannot be affirmed as to the severed claims. Therefore, Tellez=s third issue is sustained, the judgment of the trial court is modified to apply only to Tellez=s contract claims, and, as so modified, it is affirmed.

/s/ Richard H. Edelman

Senior Justice

Judgment rendered and Memorandum Opinion filed October 30, 2007.

Panel consists of Justices Yates, Seymore, and Edelman.*

[1] See, e.g., Lundstrom v. United Servs. Auto. Ass'n CIC, 192 S.W.3d 78, 98 (Tex. App.CHouston [14th Dist.] 2006, pet. denied).

[2] See Tex. R. Civ. P. 301. Contrary to Allstate=s contentions, this complaint was expressly made in Tellez=s summary judgment response.

* Senior Justice Richard H. Edelman sitting by assignment.