Affirmed and Opinion Filed June 8, 2022
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-20-00110-CV
PRASHANT PRABHULKAR, Appellant
V.
PROGRESSIVE AUTO INSURANCE, Appellee
On Appeal from the 366th Judicial District Court
Collin County, Texas
Trial Court Cause No. 366-03030-2018
MEMORANDUM OPINION
Before Justices Schenck, Osborne, and Partida-Kipness
Opinion by Justice Osborne
Prashant Prabhulkar, pro se, appeals the trial court’s no-evidence summary
judgment dismissing his claims against Progressive Auto Insurance.1 Prabhulkar
raises three issues on appeal arguing: (1) the trial court erred when it excluded
evidence during the hearing on his motion for new trial; (2) the evidence is factually
insufficient to support the trial court’s no-evidence summary judgment; and (3) there
is a genuine issue of material fact precluding summary judgment on his breach of
1
Progressive advises this Court that Prabhulkar incorrectly refers to it as “Progressive Auto Insurance.”
It states that the correct name for the company is “Progressive County Mutual Insurance Company.”
contract and bad faith claims. We conclude the trial court did not err and affirm the
judgment.
I. PROCEDURAL BACKGROUND
On June 22, 2018, Prabhulkar filed his original petition against Progressive,
his insurance company, alleging, in “two counts,” a tort claim for bad faith or more
precisely, breach of the duty of good faith and fair dealing. He did not assert any
contractual claims. In its first amended answer, Progressive generally denied the
claims, and it asserted a verified denial contending that certain conditions precedent
had not been satisfied, special exceptions, and several affirmative defenses.
On October 3, 2019, Progressive filed a no-evidence motion for summary
judgment and on October 4, 2019, Progressive sent Prabhulkar notice of the October
31, 2019 hearing. On the day of the hearing, Prabhulkar appeared and filed his
response. The trial court granted Progressive’s no-evidence summary judgment
motion and on November 1, 2019, signed a written order to that effect. Prabhulkar
filed a motion for new trial, which the trial court denied.
II. NO-EVIDENCE SUMMARY JUDGMENT
In issues two and three, Prabhulkar argues the evidence is “factually
insufficient” to support the trial court’s no-evidence summary judgment against him2
and there is a genuine issue of material fact precluding summary judgment on his
2
We do not review a no-evidence summary judgment for factual sufficiency. Accordingly, we
construe Prabhulkar’s second issue to argue that he presented more than a scintilla of probative evidence to
raise a genuine issue of material fact on the challenged elements.
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breach of contract and breach of the duty of good faith and fair dealing claims.
Progressive responds that Prabhulkar did not assert a claim for breach of contract or
breach of the UIM/UM contract against Progressive; he asserted only a bad faith
claim for violation of the duty of good faith and fair dealing. Also, Progressive
contends that Prabhulkar did not file a timely response, so the trial court was required
to grant its no-evidence summary judgment motion. But even if the trial court should
have considered Prabhulkar’s response, the trial court was not obligated to search
the record for evidence and Prabhulkar failed to include competent summary
judgment evidence presenting more than a scintilla of proof toward his bad faith
claims because: (1) it was an unsworn pleading and does not constitute competent
summary judgment evidence; (2) his alleged claim did not constitute the level of
“extreme conduct” required; and (3) he offered no evidence of an injury separate and
apart from non-recovery of insurance benefits.
A. Standard of Review
An appellate court reviews a no-evidence summary judgment under the same
legal sufficiency standard used to review a directed verdict. King Ranch, Inc. v.
Chapman, 118 S.W.3d 742, 750–51 (Tex. 2003). A no-evidence motion for
summary judgment is improperly granted if the nonmovant presented more than a
scintilla of probative evidence to raise a genuine issue of material fact on the
challenged elements. Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004).
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More than a scintilla of evidence exists if the evidence “rises to a level that would
enable reasonable, fair-minded persons to differ in their conclusions.” Id. at 601.
B. Applicable Law
A party seeking a no-evidence summary judgment must assert that no
evidence exists as to one or more of the essential elements of the nonmovant’s claim
on which the nonmovant would have the burden of proof. See TEX. R. CIV. P.
166a(i). Once the nonmovant specifies the elements on which there is no evidence,
the burden shifts to the nonmovant to raise a fact issue on the challenged elements.
See id.; Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex. 2002).
To defeat a no-evidence motion for summary judgment, the respondent is not
required to marshal his proof; his response need only point out evidence that raises
a fact issue on the challenged elements. TEX. R. CIV. P. 166a, cmt.—1997; Johnson
v. Brewer & Pritchard, P.C., 73 S.W.3d 193, 207 (Tex. 2002). If he fails to do so,
the trial court must grant the no-evidence summary judgment. TEX. R. CIV. P.
166a(i); Soda v. Caney, No. 05-10-00628-CV, 2012 WL 1996923, at *1 (Tex.
App.—Dallas June 5, 2012, pet. denied) (mem. op.).
A response to a no-evidence summary-judgment motion, including any
evidence opposing the motion, is due seven days before the summary-judgment
hearing. TEX. R. CIV. P. 166a(c). Rule 166a(c) provides that a response must be
timely filed “[e]xcept on leave of court.” Id. Where nothing appears in the record
to indicate a late filing was done with leave of court, it is presumed the trial court
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did not consider it. B.C. v. Steak N Shake Operations, Inc., 598 S.W.3d 256, 260–
62 (Tex. 2020) (per curiam). Appellate courts examine the record for an affirmative
indication that the late filing was “accepted and considered.” Id. That indication
may arise from a “separate order, a recital in the summary judgment, or an oral ruling
contained in the reporter’s record of the summary judgment hearing.” Id. A recital
in the trial court’s summary judgment order that it considered the “evidence,”
without any limitation, is an affirmative indication that the trial court considered the
untimely filed summary judgment response. Id.
C. Application of the Law to the Facts
In this case, Prabhulkar filed his response to the no-evidence motion for
summary judgment on the day of the hearing without a motion for leave to file his
response. During the hearing, when Prabhulkar made his appearance, he also
announced that he had filed his response. Progressive objected on the basis that the
response had not been filed seven days before the hearing, but the trial court did not
rule on the objection. At the conclusion of the hearing, the trial court granted
Progressive’s no-evidence summary judgment motion. The trial court’s written
order specified it was based on Progressive’s no-evidence summary judgment
motion and the arguments of Prabhulkar and Progressive’s counsel. Unlike the order
at issue in B.C., the summary judgment order in this case contains an explicit
limitation on what was considered by the trial court. It clearly states the trial court
limited its consideration to Progressive’s motion for summary judgment and the
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arguments of the parties. It does not state that it considered Prabhulkar’s response
or the “evidence.” Given this limiting language and the absence of a motion or order
granting Prabhulkar leave to file the late response, we must presume the trial court
did not consider the response or any other evidence. See B.C., 598 S.W.3d at 260–
62.
Nevertheless, even if we were to consider Prabhulkar’s response, it does not
present more than a scintilla of probative evidence to raise a genuine issue of
material fact on the challenged elements. The response does not attach any evidence
and to the extent it references evidence, it states, “All necessary, related and relevant
documents have been submitted by [Prabhulkar] to start the due process of claim
investigation as requested by [Progressive]. It has been four months since these
documents have been submitted.” (Emphasis omitted.). Further, this statement
suggests that Prabhulkar is referring to documents he provided to Progressive as part
of the claim process, not documents filed with the trial court. In addition, the
response requested that the trial court “grant [Prabhulkar’s] motion for summary
judgment so that both parties will make [a] genuine proactive attempt to overcome
their differences outside of the court by following either a prompt due process of
mediation or a fair settlement no later than 21 days from [the date of the hearing].”
(Emphasis omitted.). However, Prabhulkar did not file a competing motion for
summary judgment. When the trial judge asked Prabhulkar if he had any evidence
to support his claims, Prabhulkar responded that he needed to print out his emails if
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the trial judge wanted them. Even if the trial court considered Prabhulkar’s response,
the trial court was required to grant Progressive’s no-evidence summary judgment
motion because Prabhulkar did not present or point out any evidence that raised a
fact issue on the challenged elements. See TEX. R. CIV. P. 166a(i).
We conclude the trial court did not err when it granted Progressive’s no-
evidence motion for summary judgment. Issues two and three are decided against
Prabhulkar.
III. MOTION FOR NEW TRIAL
In issue one, Prabhulkar argues the trial court erred when it denied his motion
for new trial and excluded “critical evidence” presented at the hearing. Progressive
responds that Prabhulkar’s motion for new trial did not attach any evidence and his
memorandum in support of his motion, which included new argument and attached
documents not previously presented, was untimely.
A. Standard of Review
The abuse-of-discretion standard applies to an appellate court’s review of both
a motion to reconsider a prior summary judgment and the denial of a motion for new
trial. See In re R.R., 209 S.W.3d 112, 114 (Tex. 2006) (per curiam) (motion for new
trial); Macy v. Waste Mgmt., Inc., 294 S.W.3d 638, 651 (Tex. App.—Houston [1st
Dist.] 2009, no pet.) (motion to reconsider). A trial court abuses its discretion when
it acts without reference to any guiding rules or principles. Garcia v. Martinez, 988
S.W.2d 219, 222 (Tex. 1999).
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B. Applicable Law
Texas Rule of Civil Procedure 329b references the timing of motions for new
trial and motions to modify, correct, or reform a judgment. See TEX. R. CIV. P. 329b.
It provides that “[o]ne or more amended motions for new trial may be filed without
leave of court before any preceding motion for new trial filed by the movant is
overruled and within thirty days after the judgment or other order complained of is
signed.” Id. 329b(b).
A party seeking a new trial on grounds of newly-discovered evidence must
demonstrate to the trial court that: (1) the evidence has come to his knowledge since
the trial, (2) his failure to discover the evidence sooner was not due to lack of
diligence, (3) the evidence is not cumulative, and (4) the evidence is so material it
would probably produce a different result if a new trial were granted. Waffle House,
Inc. v. Williams, 313 S.W.3d 796, 813 (Tex. 2010).
C. Application of the Law to the Facts
On November 1, 2019, the trial judge signed the no-evidence summary
judgment order. On November 26, 2019, Prabhulkar timely filed his motion for new
trial which appears to be a form that he completed, arguing in part:
2. A new trial should be granted because:
....
[T]he evidence is legally and factually insufficient to support [the trial
court’s] judgment. Specifically, the evidence is legally and factually
insufficient to support [the trial court’s] judgment based on the
following [] findings of fact . . .:
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(1) [Progressive’s] non-evidence Motion of [sic] Summary
Judgment has very inaccurate assessment + convenient
interpretation of the facts that [Prabhulkar] experienced and
which he stated in Original Complaint, for [its] advantage &
benefit.
(2) There was no case pending in AR courts, when no
evidence motion of [sic] Summary Judgment was filed by
[Progressive], & that if continues [sic] to happen, then advise
[sic] from the court to transfer venue to Arkansas to minimise
[sic] inconvenience.
(3) [Prabhulkar] had set two motions for hearing prior to
[Progressive] set [sic] [its] motion, with the intent to get the due
process streamlined in order to resolve the UIM claim in a fair +
transparent manner for both parties, following submission of
required, related documents.
....
Other reason not listed above: [Prabhulkar] had tentative plan to go to
India after he missed the earlier planned visit in June, [sic] 2019 (which
was conveyed to [Progressive’s] counsel in person in May 2019.) He
had to go to overseas visit [sic] on a short notice to all the parties, due
to an emergency in his hometown on August 19. After coming back
from [sic] US in 1st week of October, due to jet lag, it took almost a
week for him to review [Progressive’s] motion, which was inserted
prior to Prabhulkar’s alread[y] set motions for hearing. Thus, he
couldn’t find enough time to respond in a timely manner and thus his
intent did not get conveyed.
....
4. [Prabhulkar] has a meritorious defense to the cause of action
alleged in this case. He will also submit appropriate evidence before
the hearing date.
5. The granting of a new trial would not injure Progressive Auto
Insurance.
Prabhulkar’s motion for new trial did not attach any evidence. On December 16,
2019, Progressive filed its response to the motion. Then, on December 18, 2019, on
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the day of the hearing and forty-seven days after the trial court signed the no-
evidence summary judgment, Prabhulkar filed his memorandum in support of his
motion for new trial that referred to claims for breach of contract or breach of the
UIM/UM contract, which were not asserted in his petition, and attached six exhibits,
which appear to be the emails he had referenced to the trial court during the
summary-judgment hearing. After the hearing, the trial court signed an order
denying the motion.
The trial court’s written order denying the motion states it was based on
Prabhulkar’s motion for new trial and the arguments of counsel. Even if
Prabhulkar’s exhibits were properly before the trial court, Prabhulkar does not argue,
either in his motion for new trial, his memorandum, or his appellate brief, that the
evidence attached to his memorandum was newly discovered or could not have been
discovered through due diligence before the trial court’s summary-judgment ruling.
In fact, the documents appear to be the emails that he referenced during the
summary-judgment hearing. Nevertheless, despite Prabhulkar’s contention that the
trial court excluded his evidence during the hearing on his motion for new trial, the
record shows the trial court stated that “[h]aving review[ed] all of these documents
in regards to this case, I do at this time find that [Prabhulkar’s] motion for new trial
is denied.” The trial court also stated that Prabhulkar had not met the standards for
a new trial and he did not have a meritorious claim based on the filings. In addition,
the arguments made in Prabhulkar’s motion for new trial and his memorandum in
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support of that motion do not raise any issues beyond those we have already
considered in determining the merits of the trial court’s no-evidence summary
judgment. Accordingly, we conclude Prabhulkar has not shown the trial court
abused its discretion when it denied his motion for new trial.
Issue one is decided against Prabhulkar.
IV. CONCLUSION
Having overruled all of Prabhulkar’s issues, we affirm the trial court’s
judgment.
/Leslie Osborne//
200110f.p05 LESLIE OSBORNE
JUSTICE
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
PRASHANT PRABHULKAR, On Appeal from the 366th Judicial
Appellant District Court, Collin County, Texas
Trial Court Cause No. 366-03030-
No. 05-20-00110-CV V. 2018.
Opinion delivered by Justice
PROGRESSIVE AUTO Osborne. Justices Schenck and
INSURANCE, Appellee Partida-Kipness participating.
In accordance with this Court’s opinion of this date, the judgment of the trial
court is AFFIRMED.
It is ORDERED that appellee PROGRESSIVE AUTO INSURANCE recover
its costs of this appeal from appellant PRASHANT PRABHULKAR.
Judgment entered this 8th day of June 2022.
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