Doris Evans v. American General Life Ins. Co. & American International Group

Opinion issued December 16, 2010 In The Court of Appeals For The First District of Texas ———————————— NO. 01-09-00363-CV Doris Evans, Appellant V. American General Life Insurance Company, Appellee On Appeal from the 333rd District Court Harris County, Texas Trial Court Case No. 2008-28934 MEMORANDUM OPINION The trial court granted summary judgment for appellee, American General Life Insurance Co. (“AGLI”), rendering a take-nothing judgment on the claims of appellant, Doris Evans, for fraud, breach of contract, and violations of the Texas Deceptive Trade Practices–Consumer Protection Act[1] (“DTPA”) in connection with a life insurance policy of which Evans’s daughter was owner and beneficiary. The court’s judgment also declared that Evans’s claims were barred by a prior settlement agreement. In her first issue, Evans argues that the trial court erred in granting summary judgment against her claims because there existed a genuine issue of material fact as to her fraud claim.[2] In her second issue, she alleges that the trial court erred in dismissing her motion to compel AGLI to produce various documents.[3] We affirm. BACKGROUND A. Previous Suit, Appeal, and Settlement On July 27, 2007, Evans filed suit in the Small Claims Court of Harris County, Texas against AGLI and two individual defendants.[4] She alleged fraud, breach of contract, and violations of the DTPA in connection with her own life insurance policy [“Policy 1”].[5] After the Small Claims Court had dismissed her claims, Evans appealed to the 333rd District Court of Harris County, Texas. With that appeal pending, Evans entered into a settlement agreement with AGLI, releasing all of her claims as to Policy 1. On the basis of this agreement, the district court dismissed her initial suit with prejudice. B. Current Suit Some two months later, however, Evans filed an original petition in the same district court, alleging the same claims against the same defendants as in her previous action, but with respect to another policy [“Policy 2”], of which her daughter was owner and beneficiary. AGLI counterclaimed for a declaratory judgment that all of her claims were barred by the prior settlement agreement. On February 27, 2009, the parties attended a hearing on a motion that Evans had filed to compel the production of various documents. The court verbally dismissed Evans’s motion on the basis that she had failed to serve an initial request for the documents upon AGLI and therefore could not move to compel production of anything at that time. Approximately one week later, Evans served AGLI with 15 interrogatories, in which she requested that AGLI produce certain documents. AGLI never answered these interrogatories or requests for production, and Evans did not file a new motion to compel. On March 19, 2008, AGLI filed a traditional summary judgment motion (a) on its declaratory counterclaim and (b) against Evans’s claims. The portion of the summary judgment motion attacking Evans’s claims raised four independent grounds. The trial court granted the summary-judgment motion in its entirety, without specifying the basis of its ruling with respect to Evans’s claims, rendered judgment that Evans take nothing on her claims, and rendered declaratory judgment that those claims were barred by the prior settlement agreement. FAILURE TO ASSIGN ERROR Generally, an appellant must attack all independent bases or grounds that fully support a complained-of ruling or judgment; if an appellant does not do so, then we must affirm the ruling or judgment. Britton v. Tex. Dep’t of Criminal Justice, 95 S.W.3d 676, 681 (Tex. App.—Houston [1st Dist.] 2002, no pet.); see Walling v. Metcalfe, 863 S.W.2d 56, 58 (Tex. 1993) (holding that appellate court in civil cases normally may not alter erroneous judgment in favor of appellant who does not challenge that error on appeal). If an independent ground fully supports the complained-of ruling or judgment, but the appellant assigns no error to that independent ground, then (1) we must accept the validity of that unchallenged independent ground, see Walling, 863 S.W.2d at 58, and thus (2) any error in the grounds challenged on appeal is harmless because the unchallenged ground fully supports the complained-of ruling or judgment. Britton, 95 S.W.3d at 681. We have applied this rule in the context of summary-judgment rulings. See Ellis v. Precision Engine Rebuilders, Inc., 68 S.W.3d 894, 898 (Tex. App.—Houston [1st Dist.] 2002, no pet.). AGLI’s motion for summary judgment set forth four supporting grounds: (1) that Evans had failed clearly to state the facts and laws relevant to her claims; (2) that her claims were barred by the prior settlement agreement; (3) that Evans could not establish one or more essential elements of any of her claims; and (4) that she lacked standing to sue for a breach of Policy 2. Evans has, at best, challenged only one of these grounds on appeal—the ground asserting that she could not establish one or more elements of her fraud claim. Because summary judgment may have been rendered, properly or improperly, on a ground not challenged, the judgment must be affirmed. See Holloway v. Starnes, 840 S.W.2d 14, 23 (Tex. App.—Dallas 1992, writ denied). We overrule Evans’s first issue. DISMISSAL OF MOTION TO COMPEL DISCOVERY In her second issue, Evans asserts that “[t]he trial court erred in ruling because under [Rule 197 of the Texas Rules of Civil Procedure] the Appellee fail[ed] to produce financial statements on behalf of Appellant[’s] child[’s] . . . life insurance policy . . . per interrogatories.” At a hearing on February 27, 2009, the court dismissed Evans’s motion to compel AGLI to produce various documents because she had not previously requested them. An order to compel an answer to an interrogatory, or to compel production of a requested item, is appropriate—as relevant here—only when the movant has properly served the interrogatory or request upon the nonmovant. See Tex. R. Civ. P. 215.1(b)(3). The trial court did not abuse its discretion by dismissing Evans’s original motion to compel the production of documents that she had not yet requested from AGLI. Although Evans served AGLI with interrogatories approximately one week after the trial court’s ruling, she never filed another motion to compel production. Accordingly, to the extent that Evans’s second issue has not been mooted by our overruling of her first, we overrule it for the reasons stated above. CONCLUSION We affirm the judgment of the trial court. Sherry Radack Chief Justice Panel consists of Chief Justice Radack and Justices Massengale and Cox.[6] [1] Tex. Bus. & Com. Code Ann. §§ 17.41–.63 (Vernon 2007). [2] Evans’s first issue reads: The trial court erred in granting Summary Judgment in favor of [AGLI] because [AGLI] “collectively” admitted under oath [that it] falsified and fabricated insurance policy numbers . . . that together have been used by [AGLI] to generate fictitious documents and statements; that is fraud . . . as clearly shown in the documents of Appellee American General Life Insurance Company. [3] Evans’s second issue reads: The trial court erred in ruling because under [Rule 197 of the Texas Rules of Civil Procedure, AGLI] fail[ed] to produce financial statements on behalf of [Evans’s] child[’s] . . . life insurance policy . . . per interrogatories. Rule 197 concerns the rights and obligations of parties to submit and to answer interrogatories. See Tex. R. Civ. P. 197. [4] The individual defendants were the respective presidents of AGLI and its parent company, American International Group, Inc. They were struck from the present cause and are not parties to this appeal. [5] In addition to this policy, Evans owned a policy insuring the life of her daughter. Her daughter, in turn, owned a third policy insuring her own life. [6] The Honorable Lonnie Cox, judge of the 56th District Court of Galveston County, participating by assignment.