Joe and Shirley Nathan v. USAA General Indemnity (No. 05-23-00106; May 2, 2024) arose from the homeowners’ property damage claim for roof and interior damage caused by a December 2018 storm. USAA determined that the cost to repair fell below the policy deductible and denied the claim. The homeowners got their own estimate and demanded more than $32,000 in damages and $10,000 in attorney’s fees. When USAA declined to pay, the homeowners filed suit for breach of contract and for an appraisal. The suit dragged on for more than three years until trial was set for October 3, 2022. Ten days before trial, the homeowners filed an amended petition revising their breach of contract claims and asserting new extracontractual claims. They also moved to compel mediation under Chapter 541, Insurance Code, and the DTPA, though they didn’t mention it in their amended petition. Homeowners also did not ask for a hearing on the motion to compel. USAA filed traditional and no-evidence summary judgment motions and set an agreed hearing date of November 17, 2022. Two days prior to the hearing, the homeowners filed for leave to file a late response without explanation. They filed the response and another motion to compel mediation the next day but did not set the motion for hearing. After the hearing on USAA’s summary judgment motions, the trial court denied the homeowners’ leave to file a late response and granted USAA’s no-evidence summary judgment. The homeowners appealed.
In an opinion by Justice Breedlove, the court of appeals affirmed. First, the court held that the homeowners failed to show that their failure to timely file for leave to file a late summary judgment response “(1) was not intentional or the result of conscious indifference, but the result of accident or mistake, and (2) that allowing the late response will occasion no undue delay or otherwise injure the party seeking summary judgment” (citation omitted). The trial court thus did not abuse its discretion by denying the motion. Second, since the homeowners did not set their motions to compel mediation for hearing, they never got a trial court ruling and thus presented the court of appeals with nothing to review on that issue. Strike two. Third, as to the homeowners’ contention that the trial court erred by granting USAA’s summary judgment motion, the homeowners failed to produce more than a scintilla of probative evidence to raise a fact issue on any element of their alleged causes of action. Strike three.
This case clearly didn’t have a leg to stand on from the get-go and should never have ended up taking more than five years to resolve. About three years of this time passed by in appraisal and discovery, an extended process that produced zero in the way of evidence that USAA did anything other than follow the policy provisions. Surely there has to be a better way in cases like this one.
