Reverend Reshunn D. Chambers, th.m v. American Hallmark Insurance Co. of Texas , 465 S.W.3d 389 ( 2015 )

NUMBER 13-13-00381-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
REVEREND RESHUNN D. CHAMBERS, TH.M, Appellant,
v.
AMERICAN HALLMARK INSURANCE
CO. OF TEXAS, Appellee.
On appeal from the 192nd District Court
of Dallas County, Texas.
OPINION
Before Chief Justice Valdez and Justices Rodriguez and Longoria
Opinion by Justice Rodriguez
Appellant Reverend Reshunn D. Chambers, Th.M (Chambers) appeals the trial
court’s grant of summary judgment in favor of appellee, American Hallmark Insurance Co.
of Texas (Hallmark). 1 Chambers raises three issues on appeal challenging the trial
court’s grant of Hallmark’s “no cause of action” traditional motion for summary judgment
and Hallmark’s special exceptions. We reverse and remand in part and affirm in part.
I. BACKGROUND
Chambers purchased a renter’s insurance policy (the Policy) from Hallmark that
went into effect on February 1, 2010. The insurance policy covered the premises at 502
S.W. 16th Street in Grand Prairie, Texas. Chambers paid $252.00 in premiums on the
Policy. On or about March 13, 2010, Chambers reported a loss of personal property
from the residence identified on the Policy. Chambers submitted his claim for coverage
with Hallmark. Hallmark claimed that the alleged theft was not a covered loss under the
Policy and denied the claim.
On February 9, 2012, Chambers filed suit in the 192nd District Court of Dallas
County as a pro se litigant. Chambers’s original petition purported to allege claims for
negligence, violations of Chapters 541 and 542 of the Texas Insurance Code, and
violations of Chapter 17 of the Texas Business and Commerce Code (DTPA). 2 On
March 12, 2012, Hallmark filed its original answer and special exceptions to Chambers’s
petition. The trial court granted Hallmark’s special exceptions and required Chambers
to replead to: 1) “provide fair notice of the specific acts and violations alleged against
[Hallmark] under the Texas Insurance Code and Texas DTPA,” and 2) dismiss “any and
1This case is before the Court on transfer from the Fifth Court of Appeals in Dallas pursuant to a
docket equalization order issued by the Supreme Court of Texas. See TEX. GOV'T CODE ANN. § 73.001
(West, Westlaw through 2013 3d C.S.).
2 Chambers titled his pleadings as “complaints.” To prevent confusion we shall refer to his
pleadings as “petitions” in conformity with the Texas Rules of Civil Procedure. TEX. R. CIV. P. 78.
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all claims against [Hallmark] that constitute negligent claim handling.” Chambers was
given thirty days to replead.
Chambers did not file an amended petition within the thirty days provided by the
court. On June 12, 2012, Hallmark filed a motion to dismiss for want of prosecution. At
the hearing on Hallmark’s motion to dismiss, the trial court gave Chambers an additional
two weeks to file an amended petition in compliance with its order. Chambers then filed,
on June 27, 2012, a motion to vacate the court’s order granting Hallmark’s special
exceptions. The court never ruled on Chambers’s motion to vacate, and Chambers filed
an amended petition on July 11, 2012. Hallmark filed an amended answer and counter-
claim against Chambers alleging civil fraud, among other causes of action, and asserting
the affirmative defense of fraud.
Hallmark again specially excepted to Chambers’s amended pleading. Chambers
then filed a second amended petition alleging claims pursuant to the Texas Insurance
Code and DTPA, and adding claims under the Texas Administrative Code pursuant to
section 21.203. Hallmark filed a traditional motion for summary judgment on Chambers’s
claims and on its counter-claims.
In its motion, Hallmark sought summary judgment on the basis that Chambers had
failed to plead a cause of action. Hallmark also moved for summary judgment on its
affirmative defense of fraud and its counter-claims for fraud. Hallmark filed summary
judgment evidence consisting of Chambers’s deemed admissions, the deposition
excerpts of Chambers’s family members, Chambers’s “sworn proof of loss” and “affidavit
of property theft,” the general warranty deed for the premises, and an affidavit by
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Hallmark’s attorney on attorneys’ fees. The evidence supported Hallmark’s fraud
counter-claim and its affirmative defense of fraud.
After hearing the arguments of the parties, the trial court issued an order granting
Hallmark’s motion for summary judgment on all grounds but fraud.3 Hallmark then non-
suited its counter-claim for fraud against Chambers. The court vacated its previous order
and re-issued a final judgment that disposed of all claims before the court.
This appeal followed.
II. PRESERVATION OF ERROR
Chambers complains of three issues on appeal: 1) summary judgment was not
appropriate on the affirmative defense of fraud; 2) summary judgment was not appropriate
on Chambers’s pleadings, and 3) the court erred when it granted Hallmark’s special
exceptions on Chambers’s original petition. As a threshold matter, Hallmark contends
that Chambers failed to preserve error on his appellate issues.4
In Chambers’s second issue, he is challenging the legal sufficiency of the trial
court’s order granting Hallmark’s motion for summary judgment on his pleadings. The
Texas Supreme Court has noted that a non-movant is not required to object to the legal
sufficiency of a traditional motion for summary judgment to raise a complaint on appeal.
Cimarron Hydrocarbons Corp. v. Carpenter, 143 S.W.3d 560, 562 (Tex. App.—Dallas
3 In its brief, Hallmark states that the trial court “clearly denied” summary judgment on the basis of
their affirmative defense of fraud. Hallmark made the following representation in its brief: “if the [c]ourt
had found in favor of Hallmark on its affirmative defense of fraud, then it would likewise have found in favor
of Hallmark on the counter-claim involving fraud . . . which it clearly did not.”
4 Because Hallmark’s affirmative defense of fraud was not a ground on which the trial court based
its order granting the summary judgment, there can be no error on that basis on appeal. We will not reach
Chambers’s first issue.
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2004, pet. denied) (citing McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 341
(Tex. 1993)). Hallmark’s contention that Chambers was required to bring forth
competent summary judgment evidence misstates the burden of proof in a traditional
motion for summary judgment. See TEX. R. CIV. P. 166a(b); Tello v. Bank One, 218
S.W.3d 109, 118–19 (Tex. App.—Houston [14th Dist.] 2007, no pet.); see also Medlock
v. Comm’n for Lawyer Discipline, 24 S.W.3d 865, 870 (Tex. App.—Texarkana 2000, no
pet.). Chambers’s issue on appeal challenging the legal sufficiency of the trial court’s
grant of summary judgment is properly before this Court.5
In Chambers’s third issue, he challenges the trial court’s grant of Hallmark’s special
exceptions. To preserve error, Chambers was required to object to the ruling on the
special exceptions before the trial court and properly raise the issue before this Court on
appeal. See Mowbray v. Avery, 76 S.W.3d 663, 678 (Tex. App.—Corpus Christi 2002,
pet denied); Gomez v. Tex. Windstorm Ins. Ass’n, No. 13-04-598-CV, 2006 WL 733957,
at *12 (Tex. App.—Corpus Christi March 23, 2006, pet. denied) (mem. op.); see also TEX.
R. APP. P. 33.1. Chambers filed a “Motion to Vacate Order on Defendant’s Special
Exception” after the court issued its order granting Hallmark’s special exceptions.
Because Chambers objected to the trial court about its ruling on Hallmark’s special
exceptions, we find that Chambers’s motion to vacate was sufficient to preserve error in
the trial court. See TEX. R. APP. P. 33.1(c). Chambers’s third issue is properly before
this Court.
5 Chambers only addresses his causes of action under the DTPA and Texas Insurance Code on
appeal, therefore only those causes of action are preserved for appellate review. See Young v. City of
Dimmitt, 787 S.W.2d 50, 50 (Tex. 1990).
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III. SUMMARY JUDGMENT ON CHAMBERS’S PLEADINGS
A. Standard of Review for Summary Judgment on the Pleadings
A movant may file a motion for summary judgment that, instead of proving or
disproving facts, shows the non-movant has no viable cause of action or defense based
on the non-movant's pleadings. See generally Helena Lab. Corp. v. Snyder, 886 S.W.2d
767, 768–69 (Tex. 1994) (per curiam); Hansler v. Nueces County, No. 13-99-00583-CV,
2001 WL 997350, at *2 (Tex. App.—Corpus Christi May 3, 2001, no pet.) (mem. op.)
(stating that summary judgment can be used to establish that the nonmovant has not pled
a viable cause of action). Summary judgment based on a pleading deficiency may be
proper if a party has had an opportunity, by special exception, to amend and fails to do
so, or files an additional defective pleading. Natividad v. Alexsis, Inc., 875 S.W.2d 695,
699 (Tex. 1994); Gallien v. Washington Mut. Home Loans, Inc., 209 S.W.3d 856, 866
(Tex. App.—Texarkana 2006, no pet.). A review of the pleadings in such case is de
novo, with the reviewing court taking all allegations, facts, and inferences in the pleadings
as true and viewing them in a light most favorable to the pleader. Natividad, 875 S.W.2d
at 699 (noting that the focus of the review is on the non-movant’s pleadings at the time of
the summary judgment).
If the plaintiff, after amending its petition in response to an order sustaining special
exceptions, still fails to plead a valid claim, the trial court may grant summary judgment
on the pleadings. Gross v. Davies, 882 S.W.2d 452, 454 (Tex. App.—Houston [1st Dist]
1994, writ denied) (citing Greater S.W. Office Park, Ltd. v. Tex. Commerce Bank Nat'l
Ass'n, 786 S.W.2d 386, 388 (Tex. App.—Houston [1st Dist.] 1990, writ denied)). When
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a motion for summary judgment is directed solely to a petition, the reviewing court must
take every factual allegation in the petition as true. Anders v. Mallard & Mallard, Inc.,
817 S.W.2d 90, 93 (Tex. App.—Houston [1st Dist.] 1991, no writ). If a liberal construction
of the petition to which the motion for summary judgment is directed reveals a valid claim,
the judgment on the petition should be reversed. Id. We will affirm the summary
judgment only if the pleadings are legally insufficient. Natividad, 875 S.W.2d at 699.
B. Applicable Law
Texas follows a “fair notice” standard for pleading, in which courts assess the
sufficiency of pleadings by determining whether an opposing party can ascertain from the
pleading the nature, basic issues, and the type of evidence that might be relevant to the
controversy.” Low v. Henry, 221 S.W.3d 609, 612 (Tex. 2007); see also TEX. R. CIV. P.
47(a) (original pleading shall contain short statement of cause of action sufficient to give
fair notice of the claim involved), 45(b) (pleading shall consist of a statement in plain and
concise language of the plaintiff's cause of action; the allegation is not objectionable
“when fair notice to the opponent is given by the allegations as a whole”). “Rule 45 does
not require that the plaintiff set out in his pleadings the evidence upon which he relies to
establish his asserted cause of action.” Dallas Area Rapid Transit v. Morris, 434 S.W.3d
752, 760–61 (Tex. App.—Dallas 2014, pet denied) (quoting Paramount Pipe & Supply
Co. v. Muhr, 749 S.W.2d 491, 494–95 (Tex. 1988)).
The purpose of the fair notice requirement is to give the opposing party information
sufficient to enable it to prepare a defense. Horizon/ CMS Healthcare Corp. v. Auld, 34
S.W.3d 887, 897 (Tex. 2000). A court will look to the pleader's intent “and the pleading
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will be upheld even if some element of a cause of action has not been specifically alleged.”
Morris, 434 S.W.3d at 761 (quoting Roark v. Allen, 633 S.W.2d 804, 809 (Tex.1982)).
C. Analysis
Chambers’s second issue challenges the trial court’s grant of Hallmark’s summary
judgment on his pleadings. Hallmark had previously filed special exceptions
complaining that Chambers failed to state a claim on which relief could be granted.
Chambers amended his petition, attaching his original petition as an exhibit. At that time
the court noted that Chambers’s pro se pleading was still defective and was “offensive to
this [c]ourt.” The court went on to tell Chambers that his pleadings were not amended
properly. Chambers was instructed to “[r]efine [his] pleadings, refile [sic] your lawsuit in
a way that can sustain or overcome [Hallmark’s] challenge.”
On August 13, 2012, Chambers filed his second amended petition. This petition
specifically pled the portions of the DTPA and the Texas Insurance Code that Chambers
contended Hallmark violated with sufficient facts to put Hallmark on notice of the
allegations against it. Additionally, Chambers complied with the trial court order and did
not replead his claim for negligence. We determine that Chambers made a “good faith”
effort to replead his claims to state a valid cause of action in compliance with the trial
court’s order. See Humphreys v. Meadows, 938 S.W.2d 750, 753 (Tex. App.—Fort
Worth 1996, writ denied) (explaining that if the plaintiff makes a good faith effort to amend
after special exceptions, the defendant is required to specially except to the amended
pleadings); but see Ford v. Performance Aircraft Servs., 178 S.W.3d 330, 336 (Tex.
App.—Fort Worth 2005, pet. denied) (recognizing that a plaintiff’s right to cure is not
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unlimited).
Because the trial court had previously granted Hallmark’s special exceptions,
Hallmark’s motion for summary judgment was an appropriate procedural tool to address
continuing deficiencies. See Friesenhahn v. Ryan, 960 S.W.2d 656, 658 (Tex. 1998).
Because Hallmark did not specially except to the second amended petition we will
construe the petition liberally in favor of Chambers. See Dallas Area Rapid Transit v.
Morris, 434 S.W.3d 752, 761 (Tex. App.—Dallas 2014, pet. denied) (stating that “in the
absence of special exceptions, a petition will be construed liberally in favor of the
pleader”). We will determine whether Chambers’s live pleading states a claim upon
which relief could be granted.
Chambers’s second amended petition included a section titled “Statement of
Factual Allegations,” in which he pled the following relevant facts:
 Hallmark is an insurance company that writes homeowner’s and renter’s
insurance policies in the State of Texas through a network of insurance
company agents that are appointed as its agents. Virtually all policies
sold by Defendant to homeowners or renters are single premium policies
where the entire period of insurance coverage, . . . is paid for in one or
more payments and policy is underwritten and placed into full force and
effect.
 In selling single premium homeowner’s insurance policies, Defendant
represents that if an insured’s underlying debt is paid off early or their
insurance terminates, Defendant will refund the unearned portion of the
homeowner’s insurance premium.
 Defendant has refused or failed to promptly refund unearned portions of
the homeowner’s insurance premiums to insured and has unlawfully
retained these premiums, unjustly enriching itself.
 Defendant maintains business policies and practices that require
insureds to fulfill conditions not required by their insurance policies or by
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law as a precondition to obtaining refunds of unearned homeowner’s
insurance premiums paid to Defendant by insured.
 Defendant has totally failed to establish procedures that are sufficient to
ensure that it will receive timely notification from claims filed by insured
to the extent that the claims department had terminated homeowner’s
policy when insured has initiated a claim of loss and property is no longer
insured as a direct result of the loss.
 Defendant delegates premium intake and refund functions to its agents
and/or claims adjusters, but Defendant grossly fail[s] to implement any
meaningful audit procedures to ensure that it[s] agents and/or claims
adjusters are making timely refunds owed to insureds.
Chambers also titled sections of his second amended petition “Texas Deceptive Trade
Practices—Consumer Protection Act Violations” and “Texas Insurance Code Violations”
where he set forth the portions of the statutes of which he was complaining. 6
1. Chambers’s DTPA Claims
The facts pled by Chambers, which we take as true for the purpose of this review,
alleged that Hallmark represented that unearned premiums would be returned in the
event of early policy termination. For instance, Chambers alleged that Hallmark violated
the DTPA by “representing that a contract agreement confers or involves rights, remedies,
or obligations which it does not have, nor intend to have, or which are prohibited by law.” 7
TEX. BUS. & COMM. CODE § 17.46(b)(12). Chambers alleged that he paid the premium in
full and that his insurance terminated before the expiration of the policy period.
6 Chambers’s code citations contained errors; however, we do not find that the citation errors
precluded Hallmark from understanding the substantive allegations against it. See, e.g., CKB & Assocs.,
Inc. v. Moore McCormack Petro., Inc., 809 S.W.2d 577, 586 (Tex. App.—Dallas 1991, writ denied).
7 Chambers also alleged violations of Texas Business and Commerce Code section 17.46 (b)(5).
See TEX. BUS. & COMM. CODE ANN. § 17.46(b)(5) (West, Westlaw through 2013 3d C.S.) (representing that
goods or services have characteristics, uses, or benefits which they do not have).
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Chambers further alleged that Hallmark refused to refund the unearned portion of his
premium in violation of the policy, and that such action was unlawful. The specific facts
in the second amended petition, taken in conjunction with the alleged statutory violations,
provide fair notice of Chambers’s DTPA claims. See Low v. Henry, 221 S.W.3d at 612;
see also TEX. R. CIV. P. 47(a). The trial court erred in entering summary judgment on
Chambers’s pleadings against Hallmark under the DTPA.
2. Claims under the Texas Insurance Code
We likewise find that Chambers’s pleadings, liberally construed, state claims for
violations of the Texas Insurance Code. Chambers pled that Hallmark made
misrepresentations regarding the rental policy he purchased.8 Specifically, Chambers
complained Hallmark misrepresented that he would receive a refund of any unearned
premiums paid on the policy. Chambers alleged Hallmark violated sections
541.051(1)(B), 541.052; and 541.061 of the Texas Insurance Code. Those statutes
make misrepresentations by an insurer, directly or through advertising, actionable. See
TEX. INS. CODE ANN. §§ 541.051, 052, .061 (West, Westlaw through 2013 3d C.S.).
Because Hallmark moved for traditional summary judgment on the pleadings, we take the
facts plead by Chambers as true and do not address the merits of his claims.
Employing a liberal reading of the pleadings—as required by the Texas Rules of
Civil Procedure and case law—Chambers expressly pled that Hallmark made at least two
8 Chambers cited section 1153 of the Texas Insurance Code in his fact section discussing policy
refunds. TEX. INS. CODE. ANN. § 1153.202 (West, Westlaw through 2013 3d C.S.) While we agree with
Hallmark that section 1153 is wholly inapplicable to Chambers’s claims, we note that Chambers set forth
sufficient facts, without reference to section 1153, to maintain his cause of action.
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representations. First, Chambers alleged that Hallmark represented that if the insurance
terminated prior to the end of the policy period, then Hallmark would refund the unearned
portion of the premium paid. Chambers noted that he did not receive his refund and that
Hallmark failed to ensure its representatives made timely refunds. Second, Chambers
pled that Hallmark maintained business policies and practices that required insureds to
fulfill conditions not required by the wording in the policies or the law in order to obtain
refunds. These statements were sufficient to plead a claim under the Texas Insurance
Code. We find that Chambers’s pleadings comply with the fair notice provisions and
were sufficient to allow Hallmark to determine the nature, basic issues, and type of
evidence relevant to the controversy. The trial court erred in entering summary judgment
on Chambers’s pleadings against Hallmark under the Texas Insurance Code. See Low,
221 S.W.3d at 612.
3. Chambers’s Coverage Claim
Chambers also contends that the trial court erred in granting summary judgment
on his coverage claim. Chambers’s original petition contained allegations that could
have conceivably constituted a coverage claim; however, those allegations were not
included in Chambers’s second amended petition. Amended pleadings supersede and
supplant previous pleadings. Smith Detective Agency & Nightwatch Serv., Inc. v.
Stanley Smith Sec., Inc., 938 S.W.2d 743, 747 (Tex. App.—Dallas 1996, writ denied).
When Chambers amended his pleadings and did not reassert his coverage claim, he
effectively non-suited that claim. See FKM P’ship v. Bd. of Regents of the Univ. of
Houston Sys., 255 S.W.3d 619, 633 (Tex. 2008) (discussing non-suit by amended
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petition). Chambers therefore did not have any pleadings before the trial court on his
coverage issue, and it was not included in the summary judgment.
We sustain Chambers’s second issue as to his claims brought pursuant Chapter
17 of the Texas Business and Commerce Code and Chapter 541 of the Texas Insurance
Code. We overrule Chambers’s issue as it applies to his coverage claim.
IV. SPECIAL EXCEPTIONS
By his third issue, Chambers complains that the trial court abused its discretion
when it sustained Hallmark’s special exceptions to his original petition. The court
ordered Chambers to 1) provide fair notice of the specific acts and violations alleged
against Hallmark under the Texas Insurance Code and the DTPA, and 2) dismiss any
and all claims against Hallmark that constitute negligent claim handling. Chambers did
amend his pleadings to comply with the court’s order.
A. Standard of Review & Applicable Law
The purpose of special exceptions is to inform the opposing party of defects in its
pleadings so it can cure them, if possible, by amendment. Auld, 34 S.W.3d at 897. The
trial court has broad discretion to sustain special exceptions and order more definite
pleadings as a particular case may require. See Hubler v. City of Corpus Christi, 564
S.W.2d 816, 820 (Tex. Civ. App.—Corpus Christi 1978, writ ref'd n.r.e.). The standard
of review of a trial court's dismissal upon special exceptions is de novo on the legal
question of whether the pleading stated a cause of action. Krupicka v. White, 584
S.W.2d 733, 737 (Tex. Civ. App.—Tyler 1979, no writ).
The trial court has wide discretion in ruling on special exceptions and its action in
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sustaining them, where it grants leave to amend, will not be disturbed on appeal in the
absence of an abuse of discretion. Portugal v. Jackson, 647 S.W.2d 393, 394 (Tex.
App.—Waco 1983, writ ref’d n.r.e.). A trial court abuses its discretion if it: 1) reaches a
decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of
law; 2) fails to correctly analyze or apply the law; or 3) acts without reference to any
guiding rules or principles. Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992) (orig.
proceeding).
The party complaining of the pleadings must identify the particular part of the
pleading challenged and point out the particular defect, omission, obscurity, duplicity,
generality, or other insufficiency. See TEX. R. CIV. P. 91; Muecke v. Hallstead, 25 S.W.3d
221, 224 (Tex. App.—San Antonio 2000, no pet.). General allegations that the petition
is vague, indefinite, or does not state a cause of action are not sufficient to identify the
defect. Spillman v. Simkins, 757 S.W.2d 166, 168 (Tex. App.—San Antonio 1988, writ
dism’d). If the special exception is not specific, it is a prohibited general demurrer and
should be overruled. TEX. R. CIV. P. 90; Spillman, 757 S.W.2d at 168.
B. Analysis
Hallmark’s special exceptions were filed with its original answer. It set out the
paragraphs of Chambers’s original pleading that it excepted to and identified the defective
portions of the pleading. See Spillman, 757 S.W.2d at 168. Specifically, Hallmark
excepted to the “Noncompliance with Texas Insurance Code: Unfair Settlement Practice
and the Prompt Payment of Claims” section and the “Negligence” section of Chambers
petition. See id. Hallmark requested the court order Chambers to replead to state the
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alleged acts and omissions Hallmark committed that entitled Chambers to damages.
Hallmark’s exceptions were specific and were not a prohibited general demurrer. See
id.
The trial court did not abuse its discretion sustaining Hallmark’s special exceptions.
We overrule Chambers’s third issue.
IV. CONCLUSION
We reverse and remand on Chambers’s DTPA and Texas Insurance Code claims
and affirm as to the remainder of the judgment.
NELDA V. RODRIGUEZ
Justice
Delivered and filed the
11th day of June, 2015.
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