Full Opinion (html_with_citations)

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


                                           3
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


                                         4
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


                                         5
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


                                            6
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.


                                          7
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


                                         9
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




                                          10
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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