Bock v. State Farm Cnty. Mut. Ins. Co. of Tex.

675 S.W.3d 36

Andrew Wayne BOCK, Appellant

v.STATE FARM COUNTY MUTUAL INSURANCE COMPANY OF TEXAS, Appellee

No. 04-22-00055-CV

Court of Appeals of Texas, San Antonio.

Delivered and Filed: June 28, 2023

APPELLANT ATTORNEY: Jeff Small, Law Office of Jeff Small, 12451 Starcrest Dr., Ste. 100, San Antonio, TX 78216-2988, Lucas Williams, DeSouza Law, PC, 3201 Cherry Ridge Dr., Ste. B-208, San Antonio, TX 78230, Jason F. DeSouza, Robert B. Evans III, DeSouza Law, PC, 3201 Cherry Ridge Dr., Ste. C-300, San Antonio, TX 78230.

APPELLEE ATTORNEY: Melissa A. Lorber, Enoch Kever PLLC, 7600 N. Capital of Texas Hwy., Bldg. B, Ste. 200, Austin, TX 78731, Stephen W. Bosky, Marc-Anthony P. Hanna, Elizabeth Sandoval Cantu, Sarah A. Nicolas, Ramon Worthington, PLLC, 13413 Galleria Circle, Bldg. Q, Ste. 120, Bee Cave, TX 78738.

Sitting: Rebeca C. Martinez, Chief Justice, Patricia O. Alvarez, Justice, Beth Watkins, Justice (concurring in the judgment only)

OPINION

Opinion by: Patricia O. Alvarez, Justice

This is an appeal from a petition for bill of review. In the underlying case, the trial court granted summary judgment for the insurer, but the court clerk did not give notice of the judgment to the parties. The insured petitioned for a bill of review case, and the trial court granted it. The bill of review court withdrew—and then reinstated—the previously rendered summary judgment. By doing so, it put Appellant back in the same position as if he had received notice of the original judgment. Appellant now challenges the reinstated summary judgment, which we affirm.

BACKGROUND

This appeal pertains to three civil suits: an automobile accident case, an extra-contractual claims case, and a bill of review case.

A. Automobile Accident Case¹

After Andrew Wayne Bock was injured in an automobile accident, he sued the other driver for, inter alia, negligence. He also sued State Farm County Mutual Insurance Company of Texas, his insurer. His automobile insurance policy included underinsured motorist (UIM) coverage. Bock's claims against State Farm included breach of contract, unfair insurance practices, breach of the duty of good faith and fair dealing, DTPA violations, and fraud; he also sought attorney's fees. In his breach of contract claim, Bock alleged that State Farm refused to pay him "reasonable benefits under [his] policy as it is contractually required to do."

Bock settled his claims against the other driver for the driver's policy limits of $100,000.00, but he tried his UIM benefits claim against State Farm to a jury. The jury found the other driver negligent and Bock's damages at $98,343.00.

In its August 28, 2019 judgment, the trial court awarded Bock damages in accordance with the verdict, and prejudgment interest of $3,082.16. After applying the offset credit from the other driver's insurance policy, the trial court ordered that State Farm pay Bock $1,425.16, or the remaining available underinsured policy monies, whichever was less.²

On December 31, 2019, State Farm paid Bock the full amount from the trial court's judgment plus 18% interest for a period of seventy-five days. See TEX. INS. CODE ANN. § 542.060(a).

B. Extra-Contractual Case³

Before the automobile accident case went to trial, State Farm moved to sever Bock's numerous extra-contractual claims—which included unfair insurance practices, breach of duty of good faith and fair dealing, violations of the Texas Deceptive Trade Practices Act, violations of the Texas Insurance Code, fraud, negligence, and gross negligence. The trial court granted State Farm's motion: it severed those claims into the extra-contractual case, which was abated until the automobile accident case was concluded.

In July 2020, after the final judgment in the automobile accident case, State Farm moved for summary judgment in the extra-contractual case against all of Bock's claims, including his claim for attorney's fees, on traditional and no-evidence grounds. State Farm asserted that Bock had produced no evidence of his reasonable and necessary attorney's fees associated with its late payment of Bock's UIM claim.

Bock moved to compel discovery from State Farm, and he moved for a continuance on State Farm's no-evidence motion.

Nine days after a hearing on the parties’ motions, on August 12, 2020, the trial court signed an order which denied Bock's motions and granted State Farm's traditional and no-evidence motions in full. The order states that it "is a final and appealable judgment." However, the court clerk did not give notice of the judgment to any of the parties. Contra TEX. R. CIV. P. 306a.3; Caldwell v. Barnes , 975 S.W.2d 535, 536 (Tex. 1998).

C. Bill of Review Case⁴

On January 28, 2021, Bock filed a petition for bill of review. His petition alleged that, in the extra-contractual case, the court's clerk did not give him notice of the trial court's order. In his second amended petition for bill of review, he asked the bill of review court to set aside the August 12, 2020 final judgment in the extra-contractual case and put him in the position he would have been in if he had timely received notice of the order. He also prayed for the relief he sought in the extra-contractual case.

Bock's petition for bill of review was tried to the bench. The trial court found that Bock had one or more meritorious grounds of appeal, and his petition satisfied the other essential elements for a bill of review. In its November 9, 2021 order, the trial court granted Bock's petition: it set aside its August 12, 2020 final judgment in the extra-contractual case. Without holding any more hearings or receiving any additional evidence, the trial court reinstated its former judgment in the extra-contractual case. It ordered that Bock was "now in the position he would have been in had he timely received notice of the final judgment entered in Cause Number 2018-CI-00203 on August 12, 2020."

Bock timely filed a motion for new trial, which was overruled by operation of law.

D. Bock's Appeal

Bock also timely filed a notice of appeal. In it, he does not challenge the portion of the trial court's order that granted his petition for bill of review, but he "seeks to appeal all parts of the trial court's Bill of Review judgment dated November 9, 2021, which adopted the original judgment granted in Cause No. 2018 CI 00203 as part of its final judgment in this cause."

In his brief, Bock presents three issues addressing the trial court's decisions in the extra-contractual case. First, the trial court erred by granting summary judgment for State Farm against his statutorily authorized attorney's fees. Second, the trial court erred by granting summary judgment for State Farm against his UIM coverage breach of contract claim because the claim did not accrue until after the automobile accident case judgment was rendered. Third, the trial court abused its discretion by denying Bock's motion for continuance to conduct additional discovery.

PORTION OF JUDGMENT TO BE REVIEWED

In its November 9, 2021 "Final Judgment on Plaintiff's Bill of Review," the trial court found that Bock had "one or more meritorious grounds of appeal," and it granted his petition for bill of review. See Eastin v. Dial , 288 S.W.3d 491, 497–98 (Tex. App.—San Antonio 2009, pet. denied) (citing Petro-Chem. Transp., Inc. v. Carroll , 514 S.W.2d 240, 244 (Tex. 1974) ); Thompson v. Ballard , 149 S.W.3d 161, 164 (Tex. App.—Tyler 2004, no pet.).

Bock did not appeal the portion of the final judgment that granted his petition for bill of review, and we do not review that portion. See TEX. R. APP. P. 38.1(i) ; Day v. Fed'n of State Med. Bds. of the U.S. , 579 S.W.3d 810, 826 (Tex. App.—San Antonio 2019, pet. denied) (citing Lowry v. Tarbox , 537 S.W.3d 599, 619–20 (Tex. App.—San Antonio 2017, pet. denied) ).

Instead, we review the portion of the bill of review final judgment that reinstated the summary judgment order in the extra-contractual case; that order granted State Farm's motion for summary judgment on traditional and no-evidence grounds. See Eastin , 288 S.W.3d at 498.

SUMMARY JUDGMENT STANDARD OF REVIEW

"If a party moves for summary judgment on both traditional and no-evidence grounds, ... we first consider the no-evidence motion." Lightning Oil Co. v. Anadarko E&P Onshore, LLC , 520 S.W.3d 39, 45 (Tex. 2017) (citing Ford Motor Co. v. Ridgway , 135 S.W.3d 598, 600 (Tex. 2004) ).

"A party may move for summary judgment, after adequate time for discovery, ‘on the ground that there is no evidence of one or more essential elements of a claim or defense on which an adverse party would have the burden of proof at trial.’ " Helena Chem. Co. v. Cox , 664 S.W.3d 66, 72 (Tex. 2023) (quoting TEX. R. CIV. P. 166a(i) ).

We review a no-evidence summary judgment de novo using a legal sufficiency standard. King Ranch, Inc. v. Chapman , 118 S.W.3d 742, 750–51 (Tex. 2003) ; see also TEX. R. CIV. P. 166a(i). "When reviewing a summary judgment, we take as true all evidence favorable to the nonmovant, and we indulge every reasonable inference and resolve any doubts in the nonmovant's favor." Joe v. Two Thirty Nine Joint Venture , 145 S.W.3d 150, 157 (Tex. 2004) ; accord Helena Chem. Co. , 664 S.W.3d at 73.

If the nonmovant fails to produce some evidence on a challenged essential element of a claim, "[t]he court must grant the motion" with respect to that claim. TEX. R. CIV. P. 166a(i) (emphasis added); Helena Chem. Co. , 664 S.W.3d at 72 ; Boerjan v. Rodriguez , 436 S.W.3d 307, 310 (Tex. 2014). And for that claim, we need not determine whether the movant met the requirements for its traditional motion. Lightning Oil , 520 S.W.3d at 45 ; Ridgway , 135 S.W.3d at 600.

ISSUES ON APPEAL

The trial court granted State Farm's motion for summary judgment against all of Bock's claims. On appeal, Bock presents arguments and authorities to reverse the trial court's judgment on only his breach of contract and bad faith claims.

We conclude that Bock has abandoned his unbriefed claims. See Bolling v. Farmers Branch Indep....