Bryan T. Haye v. Elton Porter Marine Insurance

NUMBER 13-07-310-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

BRYAN T. HAYE, Appellant,

v.

ELTON PORTER MARINE
INSURANCE, Appellee.

On appeal from the 55th District Court of Harris County, Texas.

MEMORANDUM OPINION

Before Justices Yañez, Benavides, and Vela
Memorandum Opinion by Justice Yañez

By two sub-issues, appellant, Bryan T. Haye, appeals the granting of summary

judgment in favor of appellee, Elton Porter Marine Insurance (“Elton Porter”). Appellant

contends the trial court erred in granting summary judgment because: (1) there are

material fact issues as to each of his claims; and (2) Elton Porter did not seek summary
judgment on his claim for promissory estoppel. By a cross-issue, Elton Porter contends

the trial court erred in overruling its objections to and motion to strike appellant’s summary

judgment evidence. We overrule Elton Porter’s cross-issue, reverse the summary

judgment as to each of appellant’s claims, and remand to the trial court.

I. Background

On May 5, 2005, a boat owned by appellant was badly damaged in an accident.

Although appellant believed the boat to be fully insured at the time of the accident, the

policy covering the boat expired on February 7, 2005, almost three months prior to the

accident. Appellant sued Elton Porter, his insurance agency, alleging that it negligently

“fail[ed] to procure or renew insurance” on the boat.1

On September 29, 2006, Elton Porter filed a combined traditional and no-evidence

“Motion for Final Summary Judgment.”2 In the “traditional” section of its motion, Elton

Porter argues, among other things, that appellant’s negligence claim fails because even

if Elton Porter had a duty to notify appellant of the pending expiration of the policy, it

satisfied any such duty by providing notice. Elton Porter also argues that appellant’s

negligence claim fails because no act or omission by Elton Porter proximately caused

appellant’s damages; rather, appellant’s damages were proximately caused by the

accident and appellant’s own failure to pay the insurance premium.

With respect to appellant’s Insurance Code claim, Elton Porter argued, as a

1
In his Second Am ended Petition, filed on August 1, 2006, appellant alleged causes of action for
negligence, prom issory estoppel, violations of the DTPA and Insurance Code, and breach of Elton Porter’s
duty to “notify the lender of the non[-]renewal of the policy.”

2
See T EX . R. C IV . P. 166a(c), (i). W e note that appellant requested the appellate record to include
Elton Porter’s “Motion for Final Sum m ary Judgm ent” dated “7-26-06;” however, the only “Motion for Final
Sum m ary Judgm ent” in the record before us is file-stam ped Septem ber 29, 2006.

2
traditional ground, that the claim fails because appellant’s claimed damages are the

benefits under the policy, and his failure to receive benefits was proximately caused by his

own acts and omissions. As to appellant’s DTPA claim, Elton Porter urged, as a traditional

ground, that the claim fails because even if it failed to notify appellant of the delinquency

(which it denies), any such failure is a breach-of-contract claim, and is not actionable under

the DTPA. In support of its traditional motion, Elton Porter attached various documents,

including documentation that the policy’s expiration date was February 7, 2005, the

January 12, 2005 renewal notice sent to appellant, along with an invoice for the premium,

and a February 26, 2005 letter to appellant stating that no renewal premium had been

received. Elton Porter also attached excerpts from several depositions, including

appellant’s deposition, and appellant’s responses to requests for disclosure.

In the “no-evidence” section of its motion, Elton Porter urged that there is no

evidence that the insurance premium was paid. As to appellant’s negligence claim, Elton

Porter argued that there is no evidence that it had a duty to keep appellant reasonably

informed, and no evidence that it breached any such duty. With regard to appellant’s

DTPA claim, Elton Porter argued there is no evidence that appellant is a “consumer” under

the DTPA because he did not pay the premium or purchase any insurance policy to keep

the boat insured.3

On August 10, 2006, appellant filed a response to Elton Porter’s combined motion.

In his response, appellant asserted that Elton Porter had a “three-step policy renewal

3
W e note that Elton Porter also urged “no-evidence” argum ents with regard to appellant’s contract
and bad faith claim s, but appellant asserts that those argum ents are “irrelevant” because he did not plead any
contract or bad faith claim s.

3
process,” which included: (1) notifying the insured of the impending expiration of a policy;

(2) notifying the insured when a policy terminates or lapses; and (3) following up with a

phone call to the insured to make certain the insured knows that no coverage exists.

Appellant contends that based on his past business relationship with Elton Porter, he relied

on the company to annually obtain insurance on his boats. He also contends that Elton

Porter did not notify him in writing of the expiration of the policy, and did not provide a

follow-up phone call to ensure that he knew of the lapse in the policy. Appellant contends

that “the producing (and sole) cause of [his] damages was Elton Porter’s negligence in

failing to follow its own internal policies regarding insurance renewals.” In support of his

response, appellant attached the following evidence: (1) his own affidavit; (2) the affidavit

of Jennifer Kubeczka, an employee who works for appellant; (3) an excerpt from the

deposition of Ken Collier, then vice-president of Elton Porter; (4) an excerpt from the

deposition of Shelly Waller, then office manager for Elton Porter; (5) an excerpt from the

deposition of James Cobb, then a sales associate with Elton Porter; and (6) an excerpt

from the deposition of Dennis Onstott, then a sales associate with Elton Porter.

On September 29, 2006, the trial court granted the summary judgment without

stating the grounds for its ruling. In the same order, the trial court ordered that “all

objections to summary judgment evidence are denied.”

II. Jurisdiction

By his second sub-issue, appellant contends that Elton Porter did not seek summary

judgment on his claim for promissory estoppel. Thus, we must first determine whether the

trial court’s judgment is a final judgment.

A. Standard of Review and Applicable Law

4
 Appellate courts are obligated to review sua sponte issues affecting jurisdiction.4

We examine the entire record to determine whether an order disposes of all pending

claims and parties.5

A judgment is not final unless it disposes of all pending parties and claims in the

record.6 There can be no presumption that a motion for summary judgment addresses all

of the movant’s claims.7 In cases in which only one final and appealable judgment can be

rendered, a judgment issued without a conventional trial is final for purposes of appeal if

and only if it either states with unmistakable clarity that it is a final judgment or actually

disposes of all claims and parties then before the court, regardless of its language.8 The

law does not require that a final judgment be in any particular form.9 Therefore, whether

a summary-judgment order is a final judgment must be determined from its language and

the record in the case.10

The Texas Supreme Court has stated that “language that the plaintiff take nothing

by his claims in the case . . . shows finality if there are no other claims by other parties.”11

4
M. O. Dental Lab v. Rape, 139 S.W .3d 671, 673 (Tex. 2004).

5
Lehmann v. Har-Con Corp., 39 S.W .3d 191, 205-06 (Tex. 2001)

6
Cartwright v. Cologne Prod. Co., 182 S.W .3d 438, 443 (Tex. App.–Corpus Christi 2006, pet. denied)
(citing Guajardo v. Conwell, 46 S.W .3d 862, 863-64 (Tex. 2001) (per curiam ); Garcia v. Comm'rs Court, 101
S.W .3d 778, 784 (Tex. App.–Corpus Christi 2003, no pet.)).

7
Id. (citing McNally v. Guevara, 52 S.W .3d 195, 196 (Tex. 2001) (per curiam )).

8
Id. (citing Lehmann, 39 S.W .3d at 204; Garcia, 101 S.W .3d at 784).

9
Id. (citing Lehmann, 39 S.W .3d at 195; Garcia, 101 S.W .3d at 784).

10
Id. (citing Lehmann, 39 S.W .3d at 195; Garcia, 101 S.W .3d at 784).

11
Jacobs v. Satterwhite, 65 S.W .3d 653, 655 (Tex. 2001) (quoting Lehmann, 39 S.W .3d at 205).

5
“In addition, ‘if a defendant moves for summary judgment on only one of [multiple] claims

asserted by the plaintiff, but the trial court renders judgment that the plaintiff take nothing

on all claims asserted, the judgment is final—erroneous, but final.’”12

B. Discussion

Here, the judgment (1) is entitled “Final Judgment,” (2) states that it “finally disposes

of all parties and all claims and is appealable, (3) states that it “is a final judgment,” (4)

states that appellant “shall take nothing on any of its [sic] claims against Defendant, Elton

Porter,” and (5) states that “all relief not expressly granted herein is denied.”

In response to the argument that Elton Porter failed to seek summary judgment on

appellant’s promissory estoppel claim, Elton Porter first argues that when it filed its motion

for summary judgment, no promissory estoppel claim had been pleaded. As noted above,

however, appellant’s second amended petition, which included the promissory estoppel

claim, was filed on August 1, 2006; Elton Porter’s “Motion for Final Summary Judgment”

(which does not address the promissory estoppel claim) is file-stamped September 29,

2006.

Second, Elton Porter argues that it addressed the promissory estoppel claim in its

reply in support of its motion for summary judgment. Elton Porter points to the following

passage from its reply:

[4] Haye alleges further that Elton Porter made certain promises to him which
resulted in his own failure to pay his insurance premium when due.
However, because Haye had no communication with Elton Porter, there is
no “promise” upon which he could have reasonably relied. Further, any
reliance on any such fictitious “promise” would have been unreasonable in
light of the written notices sent and received.

12
Id. (quoting Lehmann, 39 S.W .3d at 200).

6
Based on this passage, Elton Porter argues that it “clearly set forth two elements upon

which there is no evidence: (1) no promise; and, (2) no reasonable reliance.” We

disagree.

Initially, we note that the certificate of service on Elton Porter’s reply is dated August

16, 2006, but the reply is file-stamped August 16, 2007. Even if we assume, however, that

the trial court considered Elton Porter’s reply, its argument fails because a movant may not

use a reply brief to meet the specificity requirement of rule 166a(i) or to assert new grounds

for summary judgment.13 Therefore, we do not consider any arguments raised in Elton

Porter’s reply. We conclude that Elton Porter did not seek summary judgment on

appellant’s promissory estoppel claim.

We hold that the trial court’s judgment was a final judgment encompassing

appellant’s promissory estoppel claim, but because the promissory estoppel claim was not

addressed in Elton Porter’s motion, summary judgment on that claim was erroneous.14

We sustain appellant’s second sub-issue, reverse the summary judgment on

appellant’s promissory estoppel claim, and remand that claim to the trial court.

III. Summary Judgment

A. Standards of Review

Elton Porter filed a combined traditional and no-evidence motion for summary

judgment. The standard of review for the grant of a motion for summary judgment is

13
Community Initiatives, Inc. v. Chase Bank of Texas, 153 S.W .3d 270, 280 (Tex. App.–El Paso
2004, no pet.); see T EX . R. C IV . P. 166a(i) (stating that a no-evidence m otion for sum m ary judgm ent “m ust
state the elem ents as to which there is no evidence”).

14
See Satterwhite, 65 S.W .3d at 655.

7
determined by whether the motion was brought on no-evidence or traditional grounds.15

A no-evidence summary judgment is equivalent to a pretrial directed verdict, and this

Court applies the same legal sufficiency standard on review.16 In an appeal of a

no-evidence summary judgment, this Court reviews the evidence in the light most favorable

to the non-movant, disregarding all contrary evidence and inferences.17 If the non-movant

produces evidence to raise a genuine issue of material fact, summary judgment is

improper.18

All that is required of the non-movant is to produce a scintilla of probative evidence

to raise a genuine issue of material fact.19 “Less than a scintilla of evidence exists when

the evidence is 'so weak as to do no more than create a mere surmise or suspicion of a

fact.'”20 Conversely, more than a scintilla exists when the evidence “rises to a level that

would enable reasonable and fair-minded people to differ in their conclusions.”21 In

determining whether the non-movant has produced more than a scintilla of evidence, we

review the evidence in the light most favorable to the non-movant, crediting such evidence

15
See T EX . R. C IV . P. 166a(c), (i); see also Ortega v. City Nat'l Bank, 97 S.W .3d 765, 771 (Tex.
App.–Corpus Christi 2003, no pet.) (op. on reh'g).

16
Mack Trucks, Inc. v. Tamez, 206 S.W .3d 572, 582 (Tex. 2006); Ortega, 97 S.W .3d at 772.

17
City of Keller v. W ilson, 168 S.W .3d 802, 825 (Tex. 2005) (noting that review of a “no-evidence”
m otion for sum m ary judgm ent is effectively restricted to the evidence contrary to the m otion); Ortega, 97
S.W .3d at 772.

18
T EX . R. C IV . P. 166a(i).

19
Ortega, 97 S.W .3d at 772.

20
Id. (quoting Kindred v. Con/Chem, Inc., 650 S.W .2d 61, 63 (Tex. 1983)).

21
Id. (citing Transp. Ins. Co. v. Moriel, 879 S.W .2d 10, 25 (Tex. 1994)).

8
if reasonable jurors could, and disregarding contrary evidence unless reasonable jurors

could not.22 The burden of producing evidence is entirely on the non-movant; the movant

has no burden to attach any evidence to the motion.23 We may not consider any evidence

presented by the movant unless it creates a fact question.24

We review the trial court’s granting of a traditional motion for summary judgment de

novo.25 When reviewing a traditional summary judgment, we must determine whether the

movant met its burden to establish that no genuine issue of material fact exists and that

the movant is entitled to judgment as a matter of law.26 The movant bears the burden of

proof in a traditional motion for summary judgment, and all doubts about the existence of

a genuine issue of material fact are resolved against the movant.27 We take as true all

evidence favorable to the nonmovant, and we indulge every reasonable inference and

resolve any doubts in the nonmovant's favor.28

We will affirm a traditional summary judgment only if the record establishes that the

movant has conclusively proved its defense as a matter of law or if the movant has

22
Tamez, 206 S.W .3d at 582; City of Keller, 168 S.W .3d at 827.

23
T EX . R. C IV . P. 166a(i).

24
Binur v. Jacobo, 135 S.W .3d 646, 651 (Tex. 2004); Newkumet v. Allen, 230 S.W .3d 518, 521 (Tex.
App.–Eastland 2007, no pet.).

25
See Provident Life & Accident Ins. Co. v. Knott, 128 S.W .3d 211, 215 (Tex. 2003); Branton v.
W ood, 100 S.W .3d 645, 646 (Tex. App.–Corpus Christi 2003, no pet.).

26
T EX . R. C IV . P. 166a(c); Sw. Elec. Power Co. v. Grant, 73 S.W .3d 211, 215 (Tex. 2002); City of
Houston v. Clear Creek Basin Auth., 589 S.W .2d 671, 678 (Tex. 1979).

27
See Sw. Elec. Power Co., 73 S.W .3d at 215.

28
Valence Operating Co. v. Dorsett, 164 S.W .3d 656, 661 (Tex. 2005).

9
negated at least one essential element of the plaintiff's cause of action.29 A matter is

conclusively established if reasonable people could not differ as to the conclusion to be

drawn from the evidence.30 Only when the movant has produced sufficient evidence to

establish its right to summary judgment does the burden shift to the plaintiff to come

forward with competent controverting evidence raising a genuine issue of material fact with

regard to the element challenged by the defendant.31 A defendant seeking summary

judgment on an affirmative defense must conclusively prove all the elements of the

affirmative defense.32 To accomplish this, the defendant-movant must present summary

judgment evidence that establishes each element of the affirmative defense as a matter

of law.33

When a party moves for summary judgment under both rules 166a(c) and 166a(i)

of the Texas Rules of Civil Procedure, we will first review the trial court's judgment under

the standards of rule 166a(i).34 If the appellant fails to produce more than a scintilla of

evidence under that burden, then there is no need to analyze whether appellee's summary

judgment proof satisfies the less stringent rule 166a(c) burden.35

29
IHS Cedars Treatment Ctr. of DeSoto, Tex., Inc. v. Mason, 143 S.W .3d 794, 798 (Tex. 2004); Am.
Tobacco Co. v. Grinnell, 951 S.W .2d 420, 425 (Tex. 1997); Clear Creek Basin, 589 S.W .2d at 678.

30
City of Keller, 168 S.W .3d at 816.

31
Rhone-Poulenc, Inc. v. Steel, 997 S.W .2d 217, 223 (Tex. 1999); see Centeq Realty, Inc. v. Siegler,
899 S.W .2d 195, 197 (Tex. 1995).

32
Steel, 997 S.W .2d at 223; see T EX . R. C IV . P. 166a(b), (c).

33
Ryland Group, Inc. v. Hood, 924 S.W .2d 120, 121 (Tex. 1996).

34
Ford Motor Co. v. Ridgway, 135 S.W .3d 598, 600 (Tex. 2004).

35
Id.

10
 The admission or exclusion of summary-judgment evidence rests in the sound

discretion of the trial court.36 A trial court abuses its discretion if it acts without reference

to any guiding rules or principles or acts in an arbitrary or unreasonable manner.37 A trial

court does not abuse its discretion if it decides a matter within its discretion differently than

the appellate court would.38 An appellate court must uphold the trial court’s evidentiary

ruling if there is any legitimate basis for the ruling.39 Moreover, we will not reverse a trial

court for an erroneous evidentiary ruling unless the error probably caused the rendition of

an improper judgment.40 We review the entire record and require the complaining party to

demonstrate that the judgment turns on the particular evidence admitted.41

B. Discussion

1. Negligence Claim

a. No-Evidence Motion

In the no-evidence section of its motion, Elton Porter argued that there is no

evidence that it (1) had any duty to keep appellant reasonably informed, nor that it (2)

breached any such duty.

To establish negligence, a party must establish a duty, a breach of that duty, and

36
Alaniz v. Hoyt, 105 S.W .3d 330, 341 (Tex. App.–Corpus Christi 2003, no pet.).

37
Id.

38
Id.

39
See Owens-Corning Fiberglass Corp. v. Malone, 972 S.W .2d 35, 43 (Tex. 1998).

40
Id.; see also T EX . R. A PP . P. 44.1(a)(1).

41
Bay Area Healthcare Group, Ltd. v. McShane, 239 S.W .3d 231, 234 (Tex. 2007).

11
damages proximately caused by the breach.42 Whether a duty exists is a threshold inquiry

and a question of law; liability cannot be imposed if no duty exists.43

In his response, appellant states:

Clearly, the affidavits of [appellant] and Jennifer Kubeczka combined
with the deposition testimony of Elton Porter’s agents, Waller, Collier, Cobb
and Onstott (attached hereto and incorporated herein as Exhibits “A” through
“F”) establish a duty based upon both a course of dealing between the
parties and Elton Porter’s own internal office policy regarding renewal of
existing insurance policies. The only question, therefore, is whether that duty
was breached in this case.

In the following section of his response, entitled “Breach of duty, causation and

damages,” appellant argued:

Elton Porter failed to follow its own policies and procedures when it failed to
notify [appellant] in writing or otherwise that the policy lapsed; when it failed
to provide a follow-up telephone call; and when it wrongfully informed
[appellant’s] agent that the policy was in effect until the end of November,
2005, a date more than six months after the accident date of May 1, 2005
(See Plaintiff’s Exhibits “A” through “F”). These acts constituted a breach of
that duty and negligence. As a direct and proximate result of that breach,
[appellant] was “uninsured” and when his boat was totaled on May 1, 2005
and suffered damages of $287,000.00.

In his appellate brief, appellant refers to the testimony of Elton Porter employees

Ken Collier, Shelly Waller, and James Cobb to establish that (1) Elton Porter had a three-

step policy renewal process and (2) Cobb did not call appellant to advise him that the

policy had lapsed. Appellant asserts generally that “[t]he summary judgment evidence

outlined in sections (b) and (c) of this brief established that a duty existed based upon an

established course of dealing between the parties, as well as upon Elton Porter’s own

42
Kroger Co. v. Elwood, 197 S.W .3d 793, 794 (Tex. 2006).

43
Id. (citing Van Horn v. Chambers, 970 S.W .2d 542, 544 (Tex. 1998)).

12
internal office policy.” The only summary judgment evidence referenced in appellant’s brief

addressing whether there was an established course of dealing between the parties is

appellant’s own affidavit, in which he states, in pertinent part, that:

I never received Defendant’s Exhibit “9”, a letter dated February 26,
2005 from James Cobb.[44] I never received notice, in writing or orally, that
my insurance on the vessel had actually lapsed or expired. I have been
doing business with Elton Porter for 8 years and I have never allowed any
other insurance coverage on a boat that I owned to lapse and not renew. I
have always relied on Elton Porter to advise me about the status of my
insurance coverage on this vessel and my other watercraft and to secure
proper insurance coverage prior to the expiration of an existing policy. Over
the eight[-]year relationship I had with Elton Porter, I always received written
notice and follow-up calls when one of my vessels was up for insurance
renewal. These notices were either received by me or by my designated
agent.

At the time of the accident in this case (May 1, 2005), it was my
understanding that the subject vessel was fully insured. This was based
upon my past course of dealing with Elton Porter and my agent Jennifer
Kubeczka informing me of the facts set out in her affidavit, attached hereto,
which I have reviewed.

Appellant also cites Trinity Universal Ins. Co. v. Burnette,45 and Horn v. Hedgecoke

Ins. Agency46 to support his contention that Elton Porter owed him a duty based on (1) his

established course of dealing with Elton Porter and (2) its own internal policies. Elton

Porter concedes that it had a duty to keep appellant reasonably informed,47 but argues that

44
Defendant’s Exhibit 9 is a letter to appellant, dated February 26, 2005, from Jam es Cobb, Elton
Porter’s account representative, stating that the policy was due to renew on 2-7-2005, that no paym ent had
been received, and that “[i]t m ay not be too late to still renew this policy.”

45
Trinity Universal Ins. Co. v. Burnette, 560 S.W .2d 440, 442 (Tex. App.–Beaum ont 1977, no writ).

46
Horn v. Hedgecoke Ins. Agency, 836 S.W .2d 296, 299 (Tex. App.–Am arillo 1992, writ denied).

47
See A PPELLEE ’S B RIEF , p. 11 (“It is settled law that an insurance agent like Elton Porter has a duty
to keep its clients reasonably inform ed about the status of any coverage.” (citing Kitching v. Zamora, 695
S.W .2d 553 (Tex. 1985)).

13
it “discharged that duty” by notifying appellant in writing before the policy expired and again

after the policy expired. Although appellant does not specifically identify the “duty” that

Elton Porter owed him, we construe his argument to be that Elton Porter had a duty to keep

him reasonably informed, and that it breached that duty by (1) failing to notify him in writing

or otherwise that the policy had lapsed, (2) failing to provide a follow-up telephone call, and

(3) wrongfully informing Kubeczka that the policy was in effect until November 2005.

i. Elton Porter’s Cross-Issue: Kubeczka’s Affidavit

Because appellant relies, in part, on Kubeczka’s affidavit, as summary judgment

evidence, we address Elton Porter’s challenge to statements in her affidavit.48 Specifically,

Elton Porter argues that certain statements in Kubeczka’s affidavit that were attributable

to Sea Horse49 should have been stricken on hearsay grounds. It also argues that

Kubeczka’s statements regarding any purported agency relationship between Elton Porter

and Sea Horse are conclusory and inadmissible. Kubeczka’s affidavit stated, in pertinent

part:

In late February, 2005, at the request of Bryan Haye, I contacted Elton
Porter regarding the status of the insurance covering the 1997 Sea Ray 440

48
W e note that in the “Issues Presented” section of its brief, Elton Porter fram es its cross-issue as
“Did the trial court err in overruling Elton Porter’s Objections to and Motion to Strike Haye’s Sum m ary
Judgm ent Evidence?” See A PPELLEE ’S B RIEF , p. 3. The record shows that in its Objections to and Motion to
Strike, Elton Porter objected to appellant’s affidavit, Kubeczka’s affidavit, and to appellant’s failure to
specifically identify statem ents within the deposition excerpts he offered as evidence. In the “Cross Issue”
section of its brief, however, Elton Porter objects only to certain statem ents in Kubeczka’s affidavit on the
basis of hearsay. See id., p. 15. Thus, we address only the argum ents raised by Elton Porter in the “Cross
Issue” section of its brief.

49
The record before us is unclear as to the identity of “Sea Horse.” As noted, Kubeczka’s affidavit
refers to “Sea Horse underwriters insurance com pany,” and that a “Sea Horse representative” told her the
policy had been renewed through Novem ber 2005. Elton Porter asserts that there cannot have been any
“renewal” because the policy (before it expired) was “a Royalm aster Preferred Yacht Policy, not a Sea Horse
policy.” According to Elton Porter, the insurer on the lapsed policy was Royal Insurance Com pany of Am erica,
then part of Royal & SunAlliance.

14
 vessel (hereinafter referred to as the “vessel”) that is the subject of this
lawsuit. I spoke with a man named James Cobb who told me to contact Sea
Horse underwriters insurance company. Cobb said that Elton Porter was the
agent for Sea Horse and that Sea Horse provided the insurance for this
vessel. I contacted Sea Horse at the number provided by Cobb and was told
by one of the Sea Horse representatives that [the] policy on this specific
vessel had renewed; payment had been made; and the vessel was fully
covered by insurance through the end of November 2005. I relayed this
information to Bryan Haye that same day.

In its “Objections to and Motion to Strike Evidence,” Elton Porter objected to “the

entirety of the Kubekcza [sic] Affidavit because it is not competent summary judgment

evidence.” In support of its argument, Elton Porter cited Texas Rule of Civil Procedure

166a(f) and Box v. Bates.50 In a parenthetical, it quoted language from Box that an

“affidavit based on hearsay and statements contained in affidavits that are but mere

conclusions of law are insufficient to warrant the overruling of a motion for summary

judgment.”51 In its motion, the only statement that Elton Porter specifically objected to on

hearsay grounds is “the hearsay in sentence 5 of paragraph 2. Kubeczka testifies that she

‘relayed’ information to Haye; such being an out-of-court statement offered to prove the

truth of the matter asserted.” On appeal, Elton Porter challenges only the “statements [in

Kubeczka’s affidavit] attributable to Sea Horse.”

In his reply brief, appellant responds by arguing that (1) Kubeczka’s statements

regarding Sea Horse are admissible as admissions by a party opponent under rule

801(e)(2),52 and (2) Cobb’s statements to Kubeczka—that Elton Porter was an agent for

50
Box v. Bates, 346 S.W .2d 317, 319 (Tex. 1961).

51
Id.

52
See T EX . R. E VID . 801(e)(2).

15
Sea Horse—are admissible as admissions by a party opponent’s employee or agent.53

There is no evidence, however, that appellant made these arguments to the trial court.

“‘Hearsay’” is a statement, other than one made by the declarant while testifying at

the trial or hearing, offered in evidence to prove the truth of the matter asserted.”54 The

proponent of hearsay has the burden of showing that the testimony fits within an exception

to the general rule prohibiting the admission of hearsay evidence.55 An affidavit containing

hearsay is objectionable and does not raise a fact issue to defeat a summary judgment

motion if a proper objection is made.56 Inadmissible hearsay admitted without objection

is not denied probative value merely because it is hearsay.57

To preserve a complaint for appellate review, rule of evidence 103(a)(1) requires “a

timely objection . . . stating the specific ground of objection, if the specific ground was not

apparent from the context.”58 “Stated another way, a ‘timely’ and ‘specific’ objection is

53
See id. 801(e)(2)(C).

54
Id. 801(d).

55
Volkswagen of Am., Inc. v. Ramirez, 159 S.W .3d 897, 908 n.5 (Tex. 2004).

56
See Querner Truck Lines, Inc. v. Alta Verde Indus., Inc., 747 S.W .2d 464, 468 (Tex. App.–San
Antonio 1988, no writ).

57
See T EX . R. E VID . 802; Pickens v. Pickens, 62 S.W .3d 212, 216 n.2 (Tex. App.–Dallas 2001, pet.
denied); Atkinson Gas Co. v. Albrecht, 878 S.W .2d 236, 242 (Tex. App.–Corpus Christi 1994, writ denied);
Casas v. Gilliam, 869 S.W .2d 671, 673 (Tex. App.–San Antonio 1994, no writ) (holding statem ent in affidavit
was not denied probative value, even though affidavit, adm itted without objection, contained inadm issible
hearsay); Irlbeck v. John Deere Co. 714 S.W .2d 54, 57-58 (Tex. App.–Am arillo 1986, writ ref’d n.r.e.) (holding
affidavit supporting the am ount due on a written instrum ent was sufficient to support an award for that am ount
even though affidavit, adm itted without objection, contained inadm issible hearsay).

58
See T EX . R. E VID . 103(a)(1); see also T EX . R. A PP . P. 33.1(a)(1)(A) (a tim ely objection or m otion
m ust state the grounds for the objection with sufficient specificity to m ake the trial court aware of the
com plaint, unless grounds are apparent from the context).

16
required.”59 “A general objection to evidence as a whole, whether it be oral or

documentary, which does not point out specifically the portion objected to, is properly

overruled if any part of it is admissible.”60 If a specific objection is made, the trial court has

a duty to strike that portion of testimony that is inadmissible, where other parts of it are

admissible.61 Absent such a specific objection, the complaining party waives any argument

to the improper admission of the evidence.62

Here, Elton Porter objected “to the entirety of the Kubekcza [sic] Affidavit because

it is not competent summary judgment evidence.” Although the parenthetical to the cited

case suggests that the affidavit is incompetent evidence because it may contain hearsay

and/or conclusory statements, the objection does not specify which basis is the ground for

the objection. Moreover, the affidavit contained statements that were clearly admissible

(e.g., “I contacted Elton Porter . . . .”). We conclude that Elton Porter waived any argument

as to the Kubeczka affidavit by failing to specifically identify objectionable statements within

the affidavit.63 With respect to the one statement specifically identified—that Kubeczka

relayed “this information” to appellant—appellant’s own affidavit (which was not objected

59
In re M.P., 220 S.W .3d 99, 101 (Tex. App.–W aco 2007, pet. denied) (citing Kerr-McGee Corp. v.
Helton, 133 S.W .3d 245, 251 (Tex. 2004); Residential Dynamics, LLC v. Loveless, 186 S.W .3d 192, 195 (Tex.
App.–Fort W orth 2006, no pet.)) .

60
Id. (quoting Brown & Root, Inc. v. Haddad, 180 S.W .2d 339, 341 (1944)); see also Speier v.
W ebster College, 616 S.W .2d 617, 619 (Tex. 1981); McCormick v. Ramirez, No. 13-99-00804-CV, 2001 Tex.
App. LEXIS 4702, at *9 (Tex. App.–Corpus Christi 2001, pet. denied) (m em . op., not designated for
publication) (a general objection to evidence as a whole is properly overruled if any portion of the evidence
is adm issible).

61
Speier, 616 S.W .2d at 619.

62
Id.

63
See id.

17
to) stated the same information: that “Kubeczka inform[ed him] of the facts set out in her

affidavit.”64 We conclude the trial court did not abuse its discretion in admitting Kubeczka’s

affidavit.65 We overrule Elton Porter’s cross-issue.

ii. Appellant’s Other Evidence

Appellant’s summary judgment evidence also included excerpts from the deposition

testimony of Ken Collier, who testified that Elton Porter’s renewal procedures on an agency

bill policy66 included sending a renewal notice (in the form of a letter to the insured)

approximately twenty to thirty days prior to the renewal date, along with an invoice for the

renewal premium. Collier also testified that the renewal procedure also included a follow-

up telephone call from the agent (in this case, Dennis Onstott) and the customer service

representative (here, James Cobb).

Shelly Waller’s deposition testimony established that Elton Porter’s renewal

procedures included sending the insured a renewal offer, and if the insured failed to

respond, a “close out letter” advising that the policy had expired.

James Cobb testified that he sent a renewal letter to appellant, and when the policy

was not renewed, he documented the file. He testified he did not call appellant to tell him

that the policy had expired, and that he did not typically make such calls.

In his deposition testimony, Dennis Ostott was asked about a “letter,” which he

64
See State Office of Risk Mgmt. v. Allen, 247 S.W .3d 797, 799 (Tex. App.–Dallas 2008, no pet.)
(holding an error in adm ission of evidence is deem ed harm less if the objecting party perm its the sam e or
sim ilar evidence to be introduced without objection).

65
See Hoyt, 105 S.W .3d at 341.

66
Collier testified that “this case” involved an “agency bill policy.”

18
identified as “a notice that looks like we [Elton Porter] didn’t receive the renewal payment

by the renewal date.”67 Ostott also testified that he spoke to “Frank,” an associate of

appellant’s,68 after the renewal notice was received. According to Ostott, Frank complained

that the premium was more expensive, and stated that they were going to “shop and see

if they could get a better price.”

We conclude that appellant presented sufficient evidence to raise a genuine issue

of material fact as to (1) whether Elton Porter owed him a duty to keep him reasonably

informed and (2) whether it breached that duty. Accordingly, summary judgment was

improperly granted on the grounds asserted in Elton Porter’s no-evidence motion as to

appellant’s negligence claim.

b. Traditional Motion for Summary Judgment

We turn next to the arguments and evidence Elton Porter presented in its traditional

motion for summary judgment regarding appellant’s negligence claim. We must determine

whether Elton Porter conclusively established its right to judgment as a matter of law by

negating at least one essential element of appellant’s negligence cause of action.69

Elton Porter argues that even if it owed appellant a duty to provide notice of the

67
Although we assum e the letter referenced above is the February 26, 2005 letter to appellant from
Jam es Cobb, it is not specifically identified in the excerpt of deposition testim ony contained in the record.

68
“Frank” was identified in appellant’s deposition testim ony as Frank Dom inguez, chief operations
officer of appellant’s com pany.

69
See IHS Cedars Treatment Ctr., 143 S.W .3d at 798; Goodyear Tire and Rubber Co. v. Mayes, 236
S.W .3d 754, 755-56 (Tex. 2007) (“An appellate court reviewing a sum m ary judgm ent m ust consider whether
reasonable and fair-m inded jurors could differ in their conclusions in light of all the evidence presented.”).

19
expiration of the policy,70 it fully discharged any such duty by notifying appellant (1) that the

policy would expire on February 7, 2005; (2) that a premium was due on or before January

25, 2005 to keep a policy in place; and (3) that coverage had lapsed. As evidence, Elton

Porter presented (1) the declaration page of the policy, showing that the policy period was

from 2/7/04 to 2/7/05; (2) a renewal notice letter from Elton Porter to appellant, dated

January 12, 2005, showing that the renewal date is February 7, 2005 and the renewal

premium is $3,559.00;71 (3) an invoice with a “premium” for payment attached, noting that

payment is needed by “01/25/05” to renew coverage; and (4) a letter dated February 26,

2005 to appellant from James Cobb,72 advising him that the policy was due to renew on

February 7, 2005, and that no payment had been received.

Elton Porter also argues appellant’s negligence claim fails because his damages

were proximately caused by the accident and his own failure to pay the insurance

premium, not by any act or omission by Elton Porter.73

We conclude that Elton Porter’s evidence establishes that appellant’s office received

the January 12, 2005 renewal notice. With respect to the February 26, 2005 letter from

Cobb, notifying appellant that the policy had lapsed, the evidence is conflicting: Cobb

testified he sent the letter; appellant denies receiving it. Appellant claims Elton Porter

70
Elton Porter did not challenge the duty elem ent of appellant’s negligence claim in its traditional
m otion.

71
Appellant’s com m on-law wife, Charlene “Charlie” Palm er, acknowledged that she received the
renewal notice.

72
This letter was previously identified as “Defendant’s Exhibit 9.”

73
Appellant does not dispute that the accident occurred and that the insurance prem ium was not paid.

20
breached its duty to him, in part, by failing to provide written notice that the policy had

lapsed and failing to provide a follow-up phone call advising him that the policy had lapsed.

With regard to whether Elton Porter conclusively negated the proximate cause

element of appellant’s negligence claim, we conclude that a finding of no coverage is not

dispositive of appellant’s claim. Appellant contends that “the producing (and sole) cause

of [his] damages was Elton Porter’s negligence in failing to follow its own internal policies

regarding insurance renewals.”74

We conclude that Elton Porter’s evidence failed to conclusively establish its right to

judgment as a matter of law by negating either the breach or proximate cause elements

of appellant’s negligence cause of action.75 Accordingly, we hold the trial court improperly

granted summary judgment in Elton Porter’s favor on appellant’s negligence claim.

2. Appellant’s DTPA Claim

a. No-Evidence Motion

The basic elements of a DTPA cause of action are (1) the plaintiff is a consumer;

(2) the defendant engaged in false, misleading, or deceptive acts; and (3) the acts were

a producing cause of the plaintiff’s injuries.76 In its no-evidence motion, Elton Porter argues

there is no evidence that appellant is a “consumer” under the DTPA.

A consumer is an individual who “seeks or acquires by purchase or lease, any

74
See A PPELLAN T ’S B RIEF , p.13.

75
See IHS Cedars Treatment Ctr., 143 S.W .3d at 798; Goodyear Tire and Rubber Co., 236 S.W .3d
at 755.

76
See T EX . B U S . & C O M . C OD E A N N . § 17.46 (Vernon Supp. 2008); Herrin, 89 S.W .3d at 310.

21
goods or services.”77 Whether or not a plaintiff is a consumer is a question of law, unless

there is a dispute concerning factual issues that create consumer status.78 Consumer

status is established merely by seeking to acquire services, even if the services are not

actually acquired.79 It is unnecessary for money to change hands to establish consumer

status.80 It is also unnecessary for there to have been a written agreement or an actual

purchase; it is sufficient for the plaintiff to seek to acquire services in good faith.81 An

insured seeking to acquire the services of future professional insurance coverage is a

“consumer” for purposes of the DTPA.82

In its no-evidence motion, Elton Porter argues there is no evidence that appellant

contacted the company regarding coverage, and therefore, there is no evidence that he

“sought” any insurance policy. However, appellant’s affidavit establishes that he believed

the boat was insured, based on his course of dealing with Elton Porter and the information

he was given by Kubeczka. We hold that appellant’s evidence is sufficient to raise a fact

issue as to his consumer status.

In its appellate brief, Elton Porter argues there is no evidence of a DTPA violation

because the alleged violation is based on Kubeczka’s affidavit, which asserts that Sea

77
T EX . B U S . & C O M . C OD E A N N . § 17.45(4) (Vernon Supp. 2008).

78
Nast v. State Farm Fire & Cas. Co., 82 S.W .3d 114, 122 (Tex. App.–San Antonio 2002, no pet.).

79
Id.

80
Id.

81
Id.

82
Herrin v. Med. Protective Co., 89 S.W .3d 301, 310 (Tex. App.–Texarkana 2002, pet. denied).

22
Horse—not Elton Porter—represented that the policy had renewed. According to Elton

Porter, “[t]here is neither evidence nor authority for attributing Sea Horse’s statements to

Elton Porter.” This argument, however, was not made to the trial court, and we therefore

do not address it.83

b. Traditional Motion

In its traditional motion, Elton Porter argued that (1) appellant was not a consumer,84

and (2) his claim was a breach-of-contract claim, which is not actionable under the DTPA.

In support of this argument, Elton Porter cites MacIntire v. Armed Forces Benefit

Association.85 MacIntire stands for the proposition that an insurer who establishes a

reasonable basis for denying a claim, even if that basis is shown to be erroneous, enjoys

immunity from statutory bad faith under the Texas Insurance Code and the DTPA.86

Appellant argues that MacIntire is inapplicable because it involved a claim for “bad

faith” denial of benefits under an insurance policy that had lapsed for failure to pay the

premiums.87 In his response to Elton Porter’s motion, appellant contends he has neither

83
See T EX . R. C IV . P. 166a(c) (“Issues not expressly presented to the trial court by written m otion,
answer or other response shall not be considered on appeal as grounds for reversal.”); see Stiles v.
Resolution Trust Corp., 867 S.W .2d 24, 26 (Tex. 1993) (“[W ]e hold that a sum m ary judgm ent cannot be
affirm ed on grounds not expressly set out in the m otion or response”).

84
In its traditional m otion, Elton Porter m akes the sam e argum ent as to appellant’s lack of consum er
status as asserted in its no-evidence m otion. Elton Porter points to appellant’s deposition testim ony, which
establishes only that he did not have any conversations with Elton Porter regarding renewal of the policy. W e
find this evidence does not negate appellant’s status as a consum er for the sam e reasons stated in the
discussion of the no-evidence m otion.

85
MacIntire v. Armed Forces Benefit Ass’n, 27 S.W .3d 85, 92-93 (Tex. App.–San Antonio 2000, no
pet.).

86
Id. at 92.

87
Id. at 88.

23
“asserted a claim for breach of contract” nor “filed a ‘bad faith’ claim.”88 According to

appellant, his claim is based on Elton Porter (1) breaching its duty to follow its own renewal

policies and (2) informing him (through his agent, Kubeczka) that the insurance was

renewed, when it was not. Appellant states, “[c]learly[,] the deceptive act of telling

[appellant] that he had insurance (when none was in place) caused [his] damages in this

case.”

A misrepresentation claim is independent of a breach-of-contract claim, and may

exist in the absence of coverage.89 When an insurance agent is alleged to have

misrepresented the extent or scope of insurance coverage on an item of property, a finding

of no coverage will not, as a matter of law, defeat the property owner’s complaints against

the agent for the alleged misrepresentation and deceptive trade practices.90

The purpose of requiring that a motion for summary judgment state its specific

grounds is to give fair notice to the opponent and define the issues, and for that reason,

a defendant-movant is not entitled to summary judgment on a ground or defense not

asserted in his motion, even though the summary judgment proof conclusively establishes

his right to judgment on that ground.91 Here, we have addressed the grounds expressly

stated in Elton Porter’s motion, and conclude that it has failed to conclusively establish its

entitlement to judgment as a matter of law by negating at least one essential element of

88
W e agree that appellant’s Second Am ended Petition asserts causes of action for negligence,
prom issory estoppel, and violations of the DTPA and Insurance Code.

89
See Sledge v. Mullin, 927 S.W .2d 89, 94 (Tex. App.–Fort W orth 1996, no writ).

90
Id.

91
Id. at 95 (citations om itted).

24
appellant’s DTPA claim.92 Accordingly, the trial court improperly granted summary

judgment as to appellant’s DTPA claim.

3. Texas Insurance Code Claim

In its traditional motion, Elton Porter argued that appellant’s Insurance Code claim

“fails as a matter of law” because as in MacIntire, appellant’s claims are not actionable

because he has shown no injury beyond the denial of benefits under a lapsed policy.93

According to Elton Porter, appellant’s damages (the failure to receive benefits under the

policy) were proximately caused by his own acts, errors, and omissions.

As with appellant’s DTPA claim, we find that Elton Porter has not established its

entitlement to summary judgment as a matter of law on appellant’s Insurance Code claim.

The only authority cited by Elton Porter regarding this claim is MacIntire; it does not point

to any evidence in support of its argument. Elton Porter’s only argument is that like the

claimant in MacIntire, appellant can have no recovery because he failed to pay the

premiums, which caused the insurance to lapse. As noted above, a finding of no coverage

does not, as a matter of law, defeat a property owner’s complaint against an agent for an

alleged misrepresentation as to insurance coverage.94

We conclude that Elton Porter failed to show its entitlement to judgment as a matter

of law by negating at least one element of appellant’s Insurance Code claim.95

92
See IHS Cedars Treatment Ctr., 143 S.W .3d at 798.

93
See MacIntire, 27 S.W .3d at 92.

94
See Sledge, 927 S.W .2d at 94.

95
See See IHS Cedars Treatment Ctr., 143 S.W .3d at 798.

25
Accordingly, we hold the trial court improperly granted summary judgment as to this claim.

4. Breach of Duty to Notify Lender

In its traditional motion, Elton Porter denies that it breached “an unspecified

contract” when it failed to notify appellant’s lender that appellant failed to make his

premium payment. Elton Porter argued that “there was no contract in place which required

Elton Porter to notify [appellant’s] lender that [appellant] failed to make the premium

payment.” Elton Porter points to no evidence in support of its argument. We note that in

his deposition testimony, appellant testified he expected that his lender would be notified

of any lapse in insurance, because in an earlier incident involving a different boat, the

lender was notified of a lapse in insurance, and the situation was immediately “corrected.”

We conclude Elton Porter failed to conclusively establish its entitlement to judgment as a

matter of law on this claim and that the trial court improperly granted summary judgment

as to this claim.

IV. Conclusion

The summary judgment is reversed as to each of appellant’s claims, and the cause

is remanded to the trial court.

LINDA REYNA YAÑEZ,
Justice

Memorandum Opinion delivered and filed
this the 5th day of March, 2009.

26