Felipe Hernandez, Jr., Jose Casares, and Oscar Casares v. State and County Mutual Insurance Company

NUMBER 13-06-634-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

FELIPE HERNANDEZ, JR., JOSE CASARES,
AND OSCAR CASARES, Appellants,

v.

STATE AND COUNTY MUTUAL INSURANCE COMPANY, Appellee.

On appeal from the County Court at Law No. 4
of Hidalgo County, Texas.

MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Garza and Benavides
Memorandum Opinion by Justice Benavides

Appellants, Felipe Hernandez, Jr., Jose Casares,1 and Oscar Casares, appeal a

1
In som e places in the record, Jose Casares is referred to as “Jose Casares, Jr.” However, we have
styled this case and referenced Jose Casares without the “Jr.” because that is how the parties were listed in
the appellants’ pleadings below.
summary judgment in favor of appellee, State and County Mutual Insurance Company

(“State and County Mutual”). Because appellants have failed to challenge all possible

grounds for the summary judgment, we affirm.

I. BACKGROUND

On March 13, 2001, Felipe Hernandez, Jr. and Jose Casares were involved in an

automobile accident. Jose Casares was driving a car owned by his father, Oscar Casares.

Oscar carried automobile insurance through State and County Mutual. The policy

contained an excluded driver endorsement that expressly excluded coverage for the

vehicle if it was driven by an excluded driver.2 The endorsement expressly named Jose

as an excluded driver.

On April 16, 2001, Hernandez filed suit against Jose and Oscar for negligence and

negligent entrustment. State and County Mutual intervened in the lawsuit and sought a

declaratory judgment that the claims made against the Casareses were excluded from the

policy’s coverage. State and County Mutual also refused to defend Oscar pursuant to the

insurance policy’s excluded driver provision. Oscar failed to answer, and the trial court

rendered a default judgment against him on August 1, 2001. Thereafter, Hernandez

nonsuited his remaining claims, and State and County Mutual nonsuited its claims.

2
The endorsem ent was titled “515A Exclusion of Nam ed Driver and Partial Rejection of Coverage,”
and stated:

YOU AGREE THAT NONE OF THE INSURANCE COVERAGES AFFORDED BY THIS
POLICY SHALL APPLY W HILE 2: Jose Casares Jr. . . . IS OPERATING YOUR COVERED
AUTO OR ANY OTHER MOTOR VEHICLE. YOU FURTHER AGREE THIS
ENDORSEMENT W ILL ALSO SERVE AS A REJEC T IO N OF
UNINSURED/UNDERINSURED MOTORISTS COVERAGE AND PERSONAL INJURY
PROTECTION W HILE YOUR COVERED AUTO OR ANY OTHER M O TO R VEHICLE IS
OPERATED BY THE EXCLUDED DRIVER(S).

It is undisputed that the endorsem ent was signed by Oscar Casares.

2
 On March 7, 2006, Hernandez and the Casareses filed the underlying lawsuit

alleging that State and County Mutual had a duty to defend Oscar and failed to do so.3

State and County Mutual answered and filed a motion for summary judgment, asserting

that the claims were barred by limitations and that it had no duty to defend because of the

policy’s excluded driver endorsement. On October 16, 2006, the trial court granted

summary judgment without stating the basis for its ruling. This appeal ensued.

II. DUTY TO CHALLENGE ALL POSSIBLE GROUNDS FOR SUMMARY JUDGMENT

If a trial court’s order granting summary judgment does not specify the grounds for

the ruling, the appellant bears the burden of negating all possible grounds for the trial

court’s ruling. Star-Telegram, Inc. v. Doe, 915 S.W.2d 471, 473 (Tex. 2001). “If summary

judgment may have been rendered, properly or improperly, on a ground not challenged [on

appeal], the judgment must be affirmed.” Ellis v. Precision Engine Rebuilders, Inc., 68

S.W.3d 894, 898 (Tex. App.–Houston [1st Dist.] 2002, no pet.).

State and County Mutual moved for traditional summary judgment on two grounds:

(1) limitations, and (2) its lack of a duty to defend under the policy. The trial court’s

judgment does not specify the grounds for its ruling—rather, it states that there are no

issues of material fact and that the motion is “in all things” granted. Thus, appellants had

the burden on appeal to negate both grounds raised by State and County Mutual’s motion

for summary judgment. Id.

Appellants have raised a general issue arguing that the summary judgment is

improper, as is allowed under Malooly Bros., Inc. v. Napier, 461 S.W.2d 119, 121 (Tex.

3
Hernandez claim s that Oscar Casares assigned his claim for breach of the duty to defend to
Hernandez; however, there is no evidence in the record of such an assignm ent.

3
1970). However, a sufficiently raised issue is not the end of an appellant’s burden—an

appellant must not only raise a proper issue, he or she must present arguments and

supporting authority for the Court to reverse a summary judgment. McCoy v. Rogers, 240

S.W.3d 267, 272 (Tex. App.–Houston [1st Dist.] 2007, pet. denied).

Appellants, however, have not argued that the trial court erred in granting summary

judgment on limitations. Rather, their entire brief is spent arguing that State and County

Mutual had a duty to defend Oscar. Under these circumstances, the summary judgment

must be affirmed, and we need not address whether State and County Mutual had a duty

to defend. Ellis, 68 S.W.3d at 898.

III. CONCLUSION

The trial court’s judgment is AFFIRMED.4

__________________________
GINA M. BENAVIDES,
Justice

Memorandum Opinion delivered and
filed this the 22nd day of May, 2008.

4
All pending m otions are hereby dism issed as m oot.

4