“[W]hen the evidence offered to prove a vital fact is so weak as to do no more than create a mere surmise or suspicion of its existence, such evidence is in legal effect no evidence, and it will not support a verdict or judgment.”
How later courts described this case
- “[W]hen the evidence offered to prove a vital fact is so weak as to do no more than create a mere surmise or suspicion of its existence, such evidence is in legal effect no evidence, and it will not support a verdict or judgment.”
Written by the judges who cited it.
The opinion
Opinion issued December 21, 2023
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-22-00537-CV
———————————
KEVIN FRYMIER, Appellant
V.
TAREN BELLOWS, OLD AMERICAN COUNTY MUTUAL UNITED
AUTOMOBILE INSURANCE SERVICES, AND ALLSTATE INSURANCE
CO., Appellees
On Appeal from the 129th District Court
Harris County, Texas
Trial Court Case No. 2021-70100
MEMORANDUM OPINION
Kevin Frymier brought claims of fraud and negligent misrepresentation
against Taren Bellows, Old American County Mutual United Automobile Insurance
Services, and Allstate Insurance Co. following an auto accident. The trial court
granted no-evidence summary judgments in favor of Bellows and Old American and
dismissed the claims against Allstate for want of prosecution. On appeal, Frymier
contends that the no-evidence summary judgments were premature, that fact issues
precluded summary judgment, and that Allstate was wrongly dismissed.
We affirm.
Background
A car accident occurred while Frymier was driving Bellows’s car. Frymier
and Bellows were in a relationship. Bellows had allowed Frymier to borrow her car
in the past, but she revoked permission about a month before the accident. Frymier
became financially responsible for the accident after Bellows’s insurance carrier,
Old American, denied coverage because Bellows said Frymier drove her car without
permission.
Frymier sued, alleging fraud and negligent misrepresentation by Bellows, Old
American, and Allstate. Frymier claimed that Bellows authorized him to drive her
car but then denied it to Old American, resulting in his financial responsibility for
the accident. Against Allstate, Frymier alleged a negligent misrepresentation claim
for failing to reach out to him during the insurance claim period.
Six months after Frymier sued, Bellows moved for a no-evidence summary
judgment. Three months later, Old American also moved for a no-evidence summary
judgment. The trial court separately granted both motions. The order granting Old
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American’s motion stated that it was a final, appealable judgment that disposed of
all claims and parties. As to the claims against Allstate, the order stated: “It does not
appear that Allstate was ever served. Given the passage of time and the failure to
serve and prosecute his claims against Allstate, the court presumes [Frymier] has
abandoned his claims against Allstate.”
Adequate time for Discovery
Frymier contends that the trial court should have denied the no-evidence
summary judgment motions because they were filed before the docket-control-order
deadline for dispositive motions and before he had adequate time for discovery.
A. Standard of Review
The party without the burden of proof may move for a no-evidence summary
judgment because no evidence supports an essential element of the nonmovant’s
claim after there has been an adequate time for discovery. TEX. R. CIV. P. 166a(i);
see Hamilton v. Wilson, 249 S.W.3d 425, 426 (Tex. 2008). We review a trial court’s
determination of whether adequate time for discovery has passed for an abuse of
discretion. Specialty Retailers, Inc. v. Fuqua, 29 S.W.3d 140, 145 (Tex. App.—
Houston [14th Dist.] 2000, pet. denied).
B. Analysis
The trial court’s docket control order provided no start date for when
no-evidence motions for summary judgment could be heard. Instead, it provided a
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deadline by which all dispositive motions or pleas must be heard. But a party may
move for no-evidence summary judgment only “[a]fter adequate time for
discovery.” TEX. R. CIV. P. 166a(i). “Whether a nonmovant has had adequate time
for discovery under rule 166a(i) is case specific.” See Madison v. Williamson, 241
S.W.3d 145, 155 (Tex. App.—Houston [1st Dist.] 2007, pet. denied) (quoting Rest.
Teams Int’l, Inc. v. MG Sec. Corp., 95 S.W.3d 336, 339 (Tex. App.—Dallas 2002,
no pet.)). By granting a no-evidence motion, a trial court implicitly finds that an
adequate time for discovery passed before its consideration of the motion. Chamie
v. Mem’l Hermann Health Sys., 561 S.W.3d 253, 256–57 (Tex. App.—Houston
[14th Dist.] 2018, no pet.).
“When a party contends that it has not had an adequate opportunity for
discovery before a summary judgment hearing, it must file either an affidavit
explaining the need for further discovery or a verified motion for continuance.” West
v. SMG, 318 S.W.3d 430, 443 (Tex. App.—Houston [1st] 2010, no pet.) (quoting
Tenneco Inc. v. Enter. Prods. Co., 925 S.W.2d 640, 647 (Tex. 1996)); see TEX. R.
CIV. P. 166a(g). “The affidavit or motion must describe the evidence sought, state
with particularity the diligence used to obtain the evidence, and explain why the
continuance is necessary.” West, 318 S.W.3d at 443. The record does not show that
Frymier filed an affidavit explaining the need for further discovery or a verified
motion for continuance. Frymier therefore cannot show that the trial court abused its
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discretion by ruling on the summary judgment motion. See English v. Bajjali, No.
01-17-00093-CV, 2017 WL 6520433, at *2 (Tex. App.—Houston [1st Dist.] Dec.
21, 2017, pet. denied) (mem. op.) (rejecting inadequate time for discovery claim
when neither sworn motion nor affidavit explaining need was filed).
We overrule this issue.
No-Evidence Summary Judgment
Frymier contends that fact issues precluded summary judgment for Bellows
and Old American. Because our reasoning for Frymier’s fraud and negligent
misrepresentation claims against Bellows is the same, we first address those claims
together. Second, we address the claims against Old American.
A. Standard of Review and Applicable Law
We review a trial court’s summary judgment de novo. JLB Builders, L.L.C. v.
Hernandez, 622 S.W.3d 860, 864 (Tex. 2021). A party may move for summary
judgment, asserting that there is no evidence of one or more elements of a claim on
which the nonmovant bears the burden of proof at trial, after an adequate time for
discovery. TEX. R. CIV. P. 166a(i). A no-evidence summary judgment is essentially
a pretrial directed verdict, to which we apply the same legal sufficiency standard of
review. See King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750–51 (Tex. 2003);
Valero Mktg. & Supply Co. v. Kalama Int’l, LLC, 51 S.W.3d 345, 350 (Tex. App.—
Houston [1st Dist.] 2001, no pet.). To defeat a no-evidence motion, the nonmovant
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must produce evidence raising a genuine issue of material fact on each element
challenged. TEX. R. CIV. P. 166a(i); see Ford Motor Co. v Ridgway, 135 S.W.3d 598,
600 (Tex. 2004). A genuine issue of material fact exists if the evidence “rises to a
level that would enable reasonable and fair-minded people to differ in their
conclusions.” Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex.
1997). Evidence that does no more than create a mere surmise or suspicion does not
create a fact issue. Kia Motors Corp. v. Ruiz, 432 S.W.3d 865, 875 (Tex. 2014).
In our review, we take as true all evidence favorable to the nonmovant,
indulging every reasonable inference and resolving any doubts in his favor. King
Ranch, 118 S.W.3d at 751. We sustain a no-evidence challenge when
(a) there is a complete absence of evidence of a vital fact, (b) the court
is barred by rules of law or of evidence from giving weight to the only
evidence offered to prove a vital fact, (c) the evidence offered to prove
a vital fact is no more than a mere scintilla, or (d) the evidence
conclusively establishes the opposite of the vital fact.
Id.
The elements of fraud are: (1) that a material representation was made; (2) the
representation was false; (3) when the representation was made, the speaker knew it
was false or made it recklessly without any knowledge of the truth and as a positive
assertion; (4) the speaker made the representation with the intent that the other party
should act on it; (5) the party acted in reliance on the representation; and (6) the party
thereby suffered injury. See Italian Cowboy Partners, Ltd. v. Prudential Ins. Co. of
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Am., 341 S.W.3d 323, 337 (Tex. 2011). The elements of negligent misrepresentation
are: (1) a representation made by a defendant in the course of his business, or in a
transaction in which he has a pecuniary interest, (2) the defendant supplies false
information for the guidance of others in their business, (3) the defendant did not
exercise reasonable care or competence in obtaining or communicating the
information, and (4) the plaintiff suffers pecuniary loss by justifiably relying on the
representation. McCamish, Martin, Brown & Loeffler v. F.E. Appling Ints., 991
S.W.2d 787, 791 (Tex. 1999); Miller v. Raytheon Aircraft Co., 229 S.W.3d 358, 379
(Tex. App.—Houston [1st Dist.] 2007, no pet.).
B. Fraud and Negligent Misrepresentation - Bellows
Frymier argues that the trial court should have considered his second amended
petition as evidence rebutting Bellows’s no-evidence motion. But pleadings, even if
sworn or verified, are not competent summary judgment evidence. See Laidlaw
Waste Sys., Inc. v. City of Wilmer, 904 S.W.2d 656, 660 (Tex. 1995); Hidalgo v. Sur.
Sav. & Loan Ass’n, 462 S.W.2d 540, 545 (Tex. 1971).
The only other evidence offered by Frymier were text messages between
Frymier and Bellows and a letter from Allstate. These documents are not
self-authenticating. See TEX. R. EVID. 902 (listing self-authenticating documents).
Under the summary judgment standard, copies of documents must be authenticated
to be considered as summary judgment evidence. See Republic Nat’l Leasing Corp.
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v. Schindler, 717 S.W.2d 606, 607 (Tex. 1986) (per curiam); see also Obialo v. N.
Healthcare Land Ventures, Ltd., No. 01-17-00317-CV, 2018 WL 3233575, at *4
(Tex. App.—Houston [1st Dist.] July 3, 2018, no pet.) (mem. op.). An affidavit
stating that the documents are true and correct copies of the originals authenticates
the copies so they may be considered as summary judgment evidence. Republic, 717
S.W.2d at 607. The record does not show that when the trial court ruled on Bellows’s
no-evidence motion there were authenticated copies of any of the documents
Frymier relied on, nor had Frymier submitted an affidavit to authenticate those
documents. See Johnson v. Bank of Am., N.A., No. 01-21-00432-CV, 2022 WL
3363191, at *4 (Tex. App.—Houston [1st Dist.] Aug. 16, 2022, no pet.) (mem. op.)
(“Unauthenticated exhibits attached to a response to a motion for summary judgment
are not competent summary judgment evidence.”).1
Accordingly, Frymier’s evidence did not raise a fact issue, and the trial court
did not err in granting Bellows’s no-evidence motion for summary judgment on
Frymier’s fraud and negligent misrepresentation claims. See TEX. R. CIV. P. 166a(i).
1
Although Bellows did not object to Frymier’s summary judgment evidence, the
absence of authentication is a substantive defect that can be raised for the first time
on appeal. See Johnson, 2022 WL 3363191, at *4 n.5 (citing In Estate of Guerrero,
465 S.W.3d 693, 706–08 (Tex. App.—Houston [14th Dist.] 2015, pet.)).
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C. Fraud and Negligent Misrepresentation – Old American
As to Old American, Frymier offered the text messages between Frymier and
Bellows, a letter from Allstate, and his third amended pleading. Again, pleadings are
not competent summary judgment evidence. See Laidlaw Waste Sys., Inc., 904
S.W.2d at 660; Hidalgo, 462 S.W.2d at 545. But as for the text messages and letter,
in responding to Old American’s no-evidence motion, Frymier filed an affidavit
swearing that they were true and correct copies and attached the text messages and
letter, so we will consider them. See Republic, 717 S.W.2d at 607.
The text messages show that on September 26, 2019, weeks before the
accident on October 14, 2019, Bellows texted “TODAY is the LAST day you use
the car THANKS.” Later that day, she reiterated that “TODAY IS UR LAST DAY”
in a text to Frymier. On October 8, 2019, she texted Frymier, “I want my fucking
keys back use ur car you owe me about 600 for using my car so if you aren’t giving
me 1000 on Thursday im getting my keys back.” To which Frymier responded, “I
dnt have a. 1000 wtf my car is not fucking working.” The only text messages
provided after this date and before the accident are instructions from Bellows to
Frymier to not give someone anything to eat or drink and stating that Bellows and
Frymier were not together.
Frymier also provided text messages from after the accident, including an
exchange with Bellows about her unblocking him so he could send her “the 40,” to
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which Frymier stated, “[w]e have to pay for the car.” Bellows responded, “[s]end
the 40 now you need to come up with more money or Im stopping the payment . . . I
have my own car to pay.” As for the letter from Allstate, it shows nothing more than
that Frymier was sent a notice informing him of steps to take involving coverage for
the accident. None of this evidence creates more than a mere suspicion that Frymier
had permission to use Bellows’s car on the date of the accident. See Johnson, 2022
WL 3363191, at *5 (citing Seideneck v. Cal Bayreuther Assocs., 451 S.W.2d 752,
755 (Tex. 1970) (“[W]hen the evidence offered to prove a vital fact is so weak as to
do no more than create a mere surmise or suspicion of its existence, such evidence
is in legal effect no evidence, and it will not support a verdict or judgment.”)). That
is not enough to defeat a no-evidence motion for summary judgment. See id.
We overrule this issue.
Dismissal
In his last issue, Frymier contends the trial court erred by dismissing his claims
against Allstate when it granted Old American’s summary judgment motion.
We review a trial court’s dismissal for want of prosecution for an abuse of
discretion. MacGregor v. Rich, 941 S.W.2d 74, 75 (Tex. 1997); Renfro v. Davis, No.
01-21-00540-CV, 2022 WL 3031605, at *2 (Tex. App.—Houston [1st Dist.] Aug.
2, 2022, no pet.) (mem. op.). A trial court may exercise its inherent powers to dismiss
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a case when it has not been prosecuted with due diligence. See Villarreal v. San
Antonio Truck & Equip., 994 S.W.2d 628, 630 (Tex. 1999).
When granting Old American’s summary judgment motion, the trial court
noted that Allstate was never served and presumed Frymier had abandoned his
claims against Allstate. The plaintiff must obtain service of the citation and a copy
of the petition on the defendant. TEX. R. CIV. P. 99 (a). The citation must contain the
“names of parties” and “be directed to the defendant.” TEX. R. CIV. P. 99(b). An
“officer or authorized person executing the citation must complete a return of
service,” and that the return, together with any document to which it is attached,
must include, among other things, “the person or entity served” and the “address
served.” TEX. R. CIV. P. 107(b)(5), (6).
While Frymier asserts that he timely served Allstate through the Harris
County District Clerk, he has provided no proof of service, and we find none in the
record. A party may ordinarily rely on a clerk’s office to perform its duty to timely
issue and deliver citations. See Rivera v. Henderson, No. 01-21-00418-CV, 2022
WL 3722320, at *10 (Tex. App.—Houston [1st Dist.] Aug. 30, 2022, no pet.) (mem.
op.) (citing Boyattia v. Hinojosa, 18 S.W.3d 729, 732–34 (Tex. App.—Dallas 2000,
pet. denied)). But when a party learns or should have learned by exercising diligence
that the clerk failed to fulfill its duty, the party must ensure the job is completed. Id.;
see also Taylor v. Thompson, 4 S.W.3d 63, 65 (Tex. App.—Houston [1st Dist.] 1999,
11
pet. denied) (party requesting service, not process server, has responsibility to ensure
service). With no evidence provided by Frymier, we cannot determine whether
Allstate was served or conclude that the trial court abused its discretion by
dismissing Allstate for want of prosecution.
We overrule Frymier’s final issue.
Conclusion
We affirm the trial court’s judgment.
Sarah Beth Landau
Justice
Panel consists of Justices Kelly, Landau, and Farris.
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