Opinion
No. 05-04-00902-CV
Opinion Filed August 16, 2005.
On Appeal from the 116 Judicial District Court, Dallas County, Texas, Trial Court Cause No. 02-01425-F.
Affirmed.
Before Justices MORRIS, FRANCIS, and MAZZANT.
MEMORANDUM OPINION
This is an appeal from a take-nothing summary judgment in a dispute arising out of the denial of an insurance claim. Appellant, Dr. Michael Hoffman Associates, through its successor in interest and assignee of insurance proceeds, Dallas Medical Holdings, Ltd., sued St. Paul Guardian Insurance Company and Harry J. Playfair after St. Paul denied an insurance claim for alleged plumbing leak damages to a medical clinic building that occurred when Dr. Michael Hoffman Associates owned the building. In six issues, appellant generally contends the trial court erred in granting summary judgment. For the reasons that follow, we affirm the trial court's judgment.
In November 1999, Hoffman filed a claim under its commercial property insurance policy with St. Paul for damages to Hoffman's clinic building allegedly caused by plumbing leaks. In January 2000, while the insurance claim was pending, Hoffman sold the clinic building and other items to Dallas Medical Holdings, Ltd. The contract for sale provided that, ". . . if a claim has been made by Seller against any insurance carried on the Property, . . Seller will assign any rights Seller has under such policy to Purchaser at Closing." The contract further provided, "Seller agrees to assign to Purchaser at Closing all rights of Seller in and to the insurance policy or policies carried by Seller to provide insurance protection of the Property." In February 2000, St. Paul denied Hoffman's claim based upon an engineering report which concluded the damage to the building was not caused by plumbing leaks.
Dallas Medical filed this suit as Hoffman's assignee, asserting violations of the Texas Insurance Code, violations of the Texas Deceptive Trade Practices Act, breach of contract, and breach of the duty of good faith and fair dealing arising from St. Paul's denial of Hoffman's insurance claim. Appellant later amended its petition to include fraud claims on behalf of Dallas Medical arising out of Dallas Medical's own purchase of insurance from St. Paul after acquiring ownership of the Hoffman building. St. Paul filed several motions for summary judgment. Among other things, St. Paul moved for summary judgment arguing a non-assignment clause in Hoffman's insurance policy prevented Dallas Medical from asserting Hoffman's claims against St. Paul. The trial court ultimately granted a take-nothing summary judgment on all of appellant's claims without specifying the basis for its ruling. This appeal followed.
We review de novo a trial court's summary judgment. See Foreness v. Hexamer, 971 S.W.2d 525, 527 (Tex.App.-Dallas 1997, pet. denied). For a traditional summary judgment motion, the moving party has the burden to show no genuine issue of material fact exists and that it is entitled to judgment as a matter of law. See Tex. R. Civ. P. 166a(c); Swilley v. Hughes, 488 S.W.2d 64, 67 (Tex. 1972). Where, as here, the trial court's summary judgment order does not specify the grounds on which it relied for its ruling, we will affirm the summary judgment if any of the theories presented to the trial court are meritorious. See Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001).
Before addressing the merits of this appeal, we must clarify the identity of parties appearing before us. In its appellate brief, appellant continuously refers to "appellants" Hoffman and Dallas Medical as though there were two distinct plaintiffs below each asserting separate claims against St. Paul. Our review of the record, however, reveals the sole plaintiff in the underlying lawsuit and appellant on appeal is Dallas Medical. Although the original petition named Dr. Michael Hoffman Associates as the sole plaintiff, the first and second amended petitions identified plaintiff as "Dr. Michael Hoffman through its successor in interest and assignee of insurance proceeds, Dallas Medical Holdings, Ltd." (emphasis added). The original petition was superceded by the amended petitions. Tex. R. Civ. P. 65. Hoffman is therefore not a party to this lawsuit. Instead, Dallas Medical is asserting causes of action it allegedly received from Hoffman by assignment and fraud claims on its own behalf arising from its purchase of an insurance policy from St. Paul. Regardless of the name Dallas Medical chooses to sue under, as Hoffman's purported assignee, Dallas Medical is the real party in interest controlling this lawsuit. See S. County Mut. Ins. Co. v. Ochoa, 19 S.W.3d 452, 465 (Tex.App.-Corpus Christi 2000, no pet.). Our analysis will focus on those issues which specifically address Dallas Medical's ability to pursue Hoffman's claims against St. Paul and those claims which Dallas Medical brings on its own behalf.
In issues three and four, appellant contends the trial court erred in granting St. Paul's motion for summary judgment on the ground that Hoffman's insurance policy prohibited any assignment of Hoffman's interest in the policy to Dallas Medical absent written consent from St. Paul. Specifically, appellant claims that because Hoffman agreed to assign to Dallas Medical only the rights to any proceeds from the insurance claim, the non-assignment clause contained in the policy does not preclude appellant's claims.
The policy in question provides the following with respect to assignments:
Neither you or anyone else covered under this policy can assign or turn over your interest in it without our written consent attached to the policy.
St. Paul moved for summary judgment urging that because Hoffman never obtained its written consent to assign Hoffman's interest in the policy to Dallas Medical, the purported assignment to Dallas Medical, although perhaps effective between Hoffman and Dallas Medical, was unenforceable against St. Paul. Non-assignment clauses, such as the one in the St. Paul policy, have been consistently enforced by Texas courts. See Tex. Farmers Ins. Co. v. Gerdes, 880 S.W.2d 215, 218 (Tex.App.-Fort Worth 1994, writ den'd). The summary judgment record conclusively establishes that Hoffman never received written consent from St. Paul when it assigned its interest in the St. Paul policy to Dallas Medical. Without an assignment approved by St. Paul in writing, appellant cannot pursue Hoffman's claims arising out of the denial of its insurance claim against St. Paul.
In reaching this conclusion, we necessarily reject appellant's argument that Hoffman assigned to Dallas Medical only the rights to insurance proceeds, thereby circumventing the policy's non-assignment provision. Our guiding principle governing the interpretation of insurance policies is to give effect to the parties intent as expressed in the policy's plain language. See Forbau v. Aetna Life Ins. Co., 876 S.W.2d 132, 133 (Tex. 1994). The clear language of the policy provision prohibits the insured from assigning its interest in the policy. Such interest necessarily includes Hoffman's right to any insurance claim proceeds. Moreover, contrary to its argument on appeal, appellant's own summary judgment evidence included the affidavit of Jim Blamer who stated "All rights [Hoffman] had under any insurance policies were assigned to [Dallas Medical] at closing." To the extent appellant claims the policy's non-assignment clause is an illegal restraint on freedom of contract and void against public policy, we note that appellant has provided no authority to support its position. Accordingly, appellant has waived this argument. See Tex.R.App.P. 38.1(h).
Appellant also contends that even if the anti-assignment clause is applicable to insurance proceeds, material fact issues preclude summary judgment. We disagree. Appellant first attempts to raise a fact issue by asserting St. Paul approved the combining of Hoffman's and Dallas Medical's accounts as stated in a computerized log in St Paul's underwriting file identifying "Dallas Medical Center, P.A., DK 06620209 previously under DK 06615983, DK 06620091 and DA 06600954." It also contends there are fact issues with respect to whether St. Paul knew about the sale of the building to Dallas Medical and whether St. Paul tacitly approved the assignment by certain actions. The material issue presented, however, is whether Hoffman obtained St. Paul's written consent to assign its interest in the policy to Dallas Medical. The purported fact issues appellant attempts to raise are irrelevant to this critical inquiry. Through the affidavits of Cindy Morgan, Harry Playfair, and Maureen McDonald, St. Paul presented uncontroverted summary judgment evidence that Hoffman never sought or obtained St. Paul's written consent before assigning its interest to Dallas Medical. Appellant contends these affidavits are not competent summary judgment evidence because the affiants lack personal knowledge of the sale of the medical building from Hoffman to Dallas Medical. Again, appellant's argument misses the mark as this is not the relevant inquiry. Because Hoffman's policy prohibited assignments without St. Paul's written consent, and there was conclusive evidence such consent was never obtained, Dallas Medical is precluded from pursuing Hoffman's claims against St. Paul.
Appellant also argues that St. Paul waived or is estopped from presenting its improper assignment defense because it failed to list this exclusion in its February 2000 denial letter, in a reservation of rights letter, or in its response to appellant's interrogatories. Waiver is the intentional relinquishment of a known right or intentional conduct inconsistent with claiming that right. See Jernigan v. Langley, 111 S.W.3d 153, 156 (Tex. 2003). Appellant has not directed us to any evidence that suggests St. Paul was aware of the purported assignment at the time it sent its denial letter to Hoffman. Moreover, the original complaint in this matter was filed in Hoffman's name without any indication that Dallas Medical was the real party in interest as assignee. It was only after the filing of appellant's first amended petition that Dallas Medical's status as Hoffman's assignee was revealed. In response, St. Paul filed its first amended answer presenting the improper assignment defense. Based on the facts before us, we reject appellant's contention that St. Paul waived this defense. Appellant also complains St. Paul waived this defense by failing to include it in its interrogatory responses. Because appellant has provided no authority to support this position, we will not address it. See Tex.R.App.P. 38.1(h).
Appellant argues that even if the non-assignment clause precluded Dallas Medical from asserting Hoffman's claims against St. Paul, Hoffman is still entitled to pursue the claims and hold any funds in trust for Dallas Medical Holdings. As noted above, Hoffman is not a party to this litigation. Because Hoffman is not before us, any discussion with respect to Hoffman's right to pursue claims against St. Paul in this context would be an advisory opinion which we have no jurisdiction to issue. See McAllen Med. Ctr., Inc., v. Cortez, 66 S.W.3d 227, 232 (Tex. 2001). We note that in its reply brief appellant presents several new arguments as to why the non-assignment clause does not preclude its claims. Some of these arguments were not raised in the trial court while others were not addressed in its original brief. The Texas Rules of Appellate Procedure do not allow appellant to include new issues in a reply brief. See Penley v. C.L. Westbrook, Jr., 146 S.W.3d 220, 227 (Tex.App.-Fort Worth 2004, pet. filed). Accordingly, these issues have not been preserved for our review. We conclude the summary judgment evidence conclusively established the anti-assignment clause in the St. Paul policy precluded appellant's claims. Because the trial court's judgment can be affirmed on this ground, we need not address appellant's second issue which challenges St. Paul's alternative ground for summary judgment.
In its fifth issue, appellant complains that even if the non-assignment clause precludes appellant from pursuing Hoffman's contractual claims against St. Paul, it may still pursue claims under the Texas Insurance Code and the DTPA for the denial of Hoffman's insurance claim as an intended beneficiary which owned the medical building when St. Paul denied the claim. Again, appellant's argument confuses the nature of the claims it has asserted in this lawsuit. It has pursued Hoffman's claims as an assignee, rather than Dallas Medical's independent claims for St. Paul's denial of the claim. Whether Dallas Medical has standing to assert its own claims for St. Paul's denial of Hoffman's claim is irrelevant because those claims are not before us. We resolve appellant's fifth issue against it.
In its sixth issue, appellant contends that summary judgment was improper on its independent fraud claim against St. Paul because St. Paul never moved for summary judgment on this claim. Appellant's argument under this issue consists of a single paragraph without any citations to the record or authorities. Appellant has therefore waived this argument by failing to properly brief this issue. See Tex.R.App.P. 38.1(h). Even absent waiver, however, our review of the record reveals that St. Paul did indeed move for summary judgment on this claim in its second supplement to its motion for summary judgment. We resolve the sixth issue against appellant.
We affirm the trial court's judgment.