Dallas Court of Appeals, No. 05-11-01120-CV (May 29, 2013)
Justices Lang-Miers, Murphy, and Fillmore (Opinion)
The court of appeals affirmed summary judgment for an insurer on claims arising from rescission of a life insurance policy. The trial court granted summary judgment after sustaining the insurer’s objection to all of the plaintiff’s summary judgment evidence on the ground that the plaintiff failed to specifically cite to any of the evidence. The court of appeals upheld the trial court’s evidentiary ruling and also concluded the plaintiff had waived any argument on appeal that the insurer’s motion, considered alone, failed to carry the insurer’s summary judgment burden.
Nguyen’s mother bought a life insurance policy from Allstate and died approximately three months later. Allstate rescinded the policy based on alleged misrepresentations by Nguyen’s mother about her medical history. Nguyen sued Allstate under the policy, and Allstate raised misrepresentation as a defense. Allstate later moved for summary judgment on traditional and no-evidence grounds. Nguyen filed a response and almost 650 pages of summary judgment evidence. Allstate argued in its reply that Nguyen’s response was insufficient because it made global assertions about the evidence and cited to entire documents rather than specifically identifying evidence addressing each issue. The trial court sustained Allstate’s “procedural objection” to Nguyen’s evidence and granted the motion for summary judgment.
On appeal, the court adopted the rule articulated by other courts of appeals that “[m]erely citing generally to voluminous summary judgment evidence in response to either a no-evidence or traditional motion for summary judgment is not sufficient to raise an issue of fact.” Because Nguyen’s response “repeatedly referenced groups of exhibits consisting of hundreds of pages” and “did not cite, quote, or otherwise point out to the trial court the evidence she relied on,” the court found no abuse of discretion in the trial court’s refusal to consider Nguyen’s evidence.
The court went on to consider whether, in the absence of responsive evidence, Allstate had established its entitlement to summary judgment. The court acknowledged that, with respect to Allstate’s traditional grounds, Nguyen had no burden to respond to the motion at all unless the motion conclusively established Allstate’s misrepresentation defense. But the court noted that Nguyen’s opening brief did not challenge the summary judgment on the basis that Allstate failed to establish its misrepresentation defense in its motion. Instead, Nguyen’s brief urged that the evidence in her response raised a fact issue. It was not until her reply brief that Nguyen argued Allstate’s motion was itself insufficient. The court refused to consider this issue because it was first raised in Nguyen’s reply brief. The court therefore concluded that summary judgment was proper.
