Veronica L. Davis and James Anthony Davis v. State Farm Lloyds Texas
03-14-00546-CV
| Tex. App. | Jan 28, 2015Background
- Plaintiffs Veronica and James Davis sued State Farm Lloyds alleging mishandling of a 2002 homeowners mold claim (and originally also asserted unrelated auto UM/UIM claims). The auto claims were severed into a separate case (Cause No. D-1-GN-13-001724) and are not before the court.
- Over the litigation period plaintiffs produced no medical records, expert disclosures, or other summary‑judgment evidence supporting mold‑related injury or mishandling by State Farm despite repeated discovery requests and a court scheduling order.
- On October 24, 2013 the trial court (Judge Jenkins) entered a scheduling order (with an obvious clerical date typo) setting an expert disclosure deadline of January 15, 2014; plaintiffs missed the deadline and later sought extensions and abatement.
- Motions to extend and to abate were denied (April 18, 2014); State Farm filed a no‑evidence summary judgment on May 14, 2014, plaintiffs did not timely respond and did not appear at the June 5, 2014 hearing; summary judgment was granted for State Farm.
- On appeal plaintiffs raised multiple complaints (including alleged ambiguity of the severance/abatement order, the scheduling order’s typographical date error, denial of continuance, and notice/due‑process issues); State Farm contends (and the record shows) plaintiffs waived many arguments and offered no controverting evidence to defeat a no‑evidence summary judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the severance/abatement order abated the homeowners case | Severance order ambiguous; plaintiffs read it to abate the homeowners case so they need not produce evidence | Order severed auto claims and only abated extra‑contractual claims in the auto case; the homeowners case proceeded; parties and subsequent hearings confirm that construction | Court treats the record and hearings as confirming only the auto claims were abated; plaintiffs waived belated attack on the order |
| Whether the scheduling order was void due to a clerical date error | Typo (signed Oct. 24, 2014) rendered the scheduling order void so its deadlines are unenforceable | Typo is a minor clerical error; the oral pronouncement and record are enforceable; discovery deadlines would have otherwise run under Level 2 rules | Clerical error did not void the order; oral on‑the‑record pronouncement and conduct cured any defect; plaintiffs waived the objection |
| Whether denial of extensions/continuance or refusal to abate was an abuse of discretion or denial of due process | Plaintiffs needed more time for discovery and to designate experts; denial prejudiced their ability to oppose summary judgment | Plaintiffs had ample time (case active ~17 months), produced no evidence, did not explain what discovery remained or why it was diligent; Rule 193.6 and Rule 166a(i) support exclusion absent good cause | Trial court did not abuse discretion; plaintiffs failed to show diligence or identify necessary discovery; exclusion and summary judgment proper |
| Whether summary judgment was improper (notice/conflict/improper evidence/pleading issues) | Plaintiffs assert inadequate notice, conflict prevented counsel’s attendance, and procedural defects in State Farm filings | State Farm served the motion electronically and by hand delivery; plaintiffs consented to the hearing date in email; plaintiffs filed no timely response or controverting evidence and waived procedural complaints by not raising them below | Summary judgment affirmed as no‑evidence motion was unrebutted and plaintiffs waived or failed to substantiate procedural complaints |
Key Cases Cited
- Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706 (Tex. 1997) (standard for more‑than‑a‑scintilla evidence and evaluation of proof sufficiency)
- King Ranch, Inc. v. Chapman, 118 S.W.3d 742 (Tex. 2003) (definition of "more than a scintilla" evidence)
- McConnel v. Southside ISD, 858 S.W.2d 337 (Tex. 1993) (issues not presented below are waived on appeal; Rule 166a procedural requirements)
- Lone Star Cement Corp. v. Fair, 467 S.W.2d 402 (Tex. 1971) (order construction requires reading the order with the motion, record and subsequent conduct)
- Cire v. Cummings, 134 S.W.3d 835 (Tex. 2004) (clerical errors in orders do not necessarily void an otherwise valid order)
- Madison v. Williamson, 241 S.W.3d 145 (Tex. App.-Houston [1st Dist.] 2007) (factors for whether adequate time for discovery elapsed under Rule 166a(i))