Opinion
No. 11-07-00135-CV
Opinion filed January 15, 2009.
On Appeal from the 9th District Court Montgomery County, Texas, Trial Court Cause No. 05-07-06385-CV.
Panel consists of: WRIGHT, C.J., McCALL, J., and STRANGE, J.
MEMORANDUM OPINION
Imagination Realty Limited Company, L.L.C., Imagination Plus Inc., and their principal owner, Jay Setchell, sued Trinity Universal Insurance Company. They claimed that they had suffered a loss when their building lessee, Ashley Walker d/b/a Auto Concepts Performance, broke into the building and retrieved the personal property that he had left there. On the day before, Setchell had posted an eviction notice and had changed the locks on the building. Plaintiffs filed a claim with Trinity claiming that Trinity had insured them against the theft of that personal property. After Trinity denied the claim, this suit was filed. Plaintiffs not only sought to recover for the theft, but also sought damages against Trinity for engaging in deceptive trade practices, for engaging in unconscionable actions or courses of action, and for engaging in unfair claim settlement practices. The trial court granted a motion for summary judgment for Trinity on Setchell's claims. Later, it granted an additional motion for summary judgment for Trinity on the Imagination parties' claims. Setchell has not appealed. We affirm the trial court's summary judgment.
The Imagination parties present three issues on appeal. First, they assert that the no-evidence allegations in Trinity's motion for summary judgment fail because Trinity did not identify the elements of their cause of action for which they could produce no evidence. Next, they assert that the trial court erred in granting the traditional motion for summary judgment. Finally, they assert in their third issue on appeal that the trial court erred when it signed an order of dismissal for want of prosecution after it denied "[a]ppellants's finding of facts and conclusion of law."
We first address the third issue. The trial court entered the summary judgment on Setchell's claims on January 10, 2007. It entered the summary judgment on the Imagination claims on March 19, 2007. It entered an order of dismissal for want of prosecution on May 14, 2007. On May 16, 2007, the trial court vacated its order of dismissal. The order of dismissal was entered after the expiration of the trial court's plenary power. See TEX. R. CIV. P. 329b. However, Rule 329b(f) empowers a trial court to declare a previous judgment or order void if it was signed after the plenary power of that court had expired. Even if we were to hold that the trial court could enter the order of dismissal, it vacated that order two days after it was entered. The third issue on appeal is overruled.
As to their first issue on appeal, before the Imagination parties can recover in this lawsuit, they must show that they had an insurable interest in the property that Walker retrieved from the premises. Jones v. Tex. Pac. Indem. Co., 853 S.W.2d 791, 794 (Tex.App.-Dallas 1993, no writ). That is an element of their cause of action. On January 16, 2007, after the trial court had granted Trinity's motion for summary judgment against Setchell on January 10, 2007, Trinity filed an additional motion in which it addressed the claims of the Imagination parties. Trinity opted, and so stated in its motion for summary judgment against the Imagination parties, to refer to all plaintiffs collectively as "Setchell," and it alleged that "Setchell had no insurable interest in Walker's property." Trinity makes that same claim as to its traditional grounds as well as its no-evidence grounds. Because Trinity has specifically pointed out the element for which it claimed the Imagination parties had no evidence — proof of an insurable interest in the property — we overrule the first issue on appeal.
Trinity's motion for summary judgment on the Imagination claims included both traditional and no-evidence grounds. The trial court did not state the grounds upon which it granted the motion. Because the trial court granted Trinity's motion without specifying the grounds, the summary judgment will be upheld if any of the theories advanced by Trinity are meritorious. Harwell v. State Farm Mut. Auto. Ins. Co., 896 S.W.2d 170, 173 (Tex. 1995).
The Imagination parties raise no other complaints in connection with the no-evidence motion for summary judgment; their only other issue on appeal is directed at Trinity's traditional summary judgment claims. Because we have overruled the only issue on appeal directed at Trinity's no-evidence motion, and because no other complaints were directed at the no-evidence allegations in Trinity's motion for summary judgment, and because the trial court did not state why it granted the motion for summary judgment, we could affirm the trial court's judgment without further discussion. However, in the interest of justice, we will address the second issue on appeal directed only at Trinity's traditional summary judgment claims.
We will review this summary judgment in accordance with the well-recognized standards of review of summary judgments. We review traditional motions for summary judgment de novo. St. Paul Ins. Co. v. Tex. Dep't of Transp., 999 S.W.2d 881 (Tex.App.-Austin 1999, pet. denied). We must consider whether reasonable and fair-minded jurors could differ in their conclusions in light of all the evidence presented. Goodyear Tire Rubber Co. v. Mayes, 236 S.W.3d 754, 755 (Tex. 2007). We must consider all the evidence in the light most favorable to the nonmovant, indulging all reasonable inferences in favor of the nonmovant, and determine whether the movant proved that there were no genuine issues of material fact and that it was entitled to judgment as a matter of law. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671 (Tex. 1979). The issue is not whether the summary judgment proof raises fact issues with reference to the essential elements of a plaintiff's claim or cause of action but, rather, is whether the summary judgment proof establishes as a matter of law that there is no genuine issue of fact as to one or more of the essential elements of the plaintiff's cause of action. Gibbs v. Gen. Motors Corp., 450 S.W.2d 827, 828 (Tex. 1970).
As we have stated, before the Imagination parties could recover on their claim against Trinity, they must have established that they had an insurable interest in the property that Walker had returned to the building to retrieve. Jones, 853 S.W.2d at 794. It is Trinity's position that there is no genuine issue of fact as to that element of the cause of action and that it is entitled to judgment as a matter of law. It also points to the Imagination parties' failure to produce, as summary judgment evidence, the policy under which they claimed that they were covered.
It is rather difficult to tell who or which entity did what as this case was unfolding because the names, "Setchell," "Imagination Realty Limited Company, L.L.C.," and "Imagination Plus Inc." seem to be used interchangeably both in the evidence and in the briefing of all parties. However, it does appear that a theft report was filed after Walker retrieved his property. A petition to evict Walker was also filed on the date that the theft report was filed. On June 9, 2004, "Imagination Realty Co. Ltd. LLC" obtained a default judgment against Walker. The justice court awarded "Imagination Realty Co. Ltd. LLC" possession of the real property and court costs, but it found that the amount of "back rent" was "$0.00." Contrary to assertions by the Imagination parties, a review of the justice court judgment shows that it did not award any personal property to "Imagination Realty Co. Ltd. LLC."
The policy of insurance was not a part of the summary judgment evidence. But, Trinity has stated in its brief that the policy provided coverage for "Your Business Personal Property" located in or on the building described in the declarations section of the policy. So far as we know from the summary judgment evidence, the property retrieved by Walker was his property. In any event, it was not the property of either of the Imagination companies. Without so holding, even if they had a preference lien on the property, that does not mean that the property fit the definition of "Your Business Personal Property" contained in the policy (furnished to the court for informational purposes) because neither of the companies owned the personal property. See TEX. PROP. CODE ANN. § 54.021 (Vernon 2007). They had neither perfected nor foreclosed any lien that they might have held. There is no genuine issue of material fact pertaining to the issue of whether the Imagination parties had an insurable interest in Walker's personal property; they did not as a matter of law. The trial court did not err if it granted the traditional motion for summary judgment on this ground. The second issue on appeal is overruled.
Trinity has attached a copy of the insurance policy as an exhibit to its brief "for informational purposes."
The judgment of the trial court is affirmed.