Opinion issued February 27, 2014




                                   In The

                           Court of Appeals
                                   For The

                       First District of Texas
                        ————————————
                           NO. 01-12-00168-CV
                        ———————————
  PAMELA LOMBANA, AS TRUSTEE OF THE FERNANDO LOMBANA
 INVESTMENT TRUST 10-6-98; PAMELA LOMBANA, AS TRUSTEE OF
    THE CHRISTINA ELISA LOMBANA TRUST AGENCY; PAMELA
 LOMBANA, AS TRUSTEE OF THE NATALIA ELIZABETH LOMBANA
     TRUST AGENCY; PAMELA LOMBANA, AS TRUSTEE OF THE
    NICHOLAS FERNANDO LOMBANA TRUST AGENCY, Appellant
                                     V.
AIG AMERICAN GENERAL LIFE INSURANCE COMPANY, F/K/A THE
  OLD LINE LIFE INSURANCE COMPANY OF AMERICA, Appellee


                 On Appeal from the 270th District Court
                         Harris County, Texas
                     Trial Court Case No. 1026662
                          MEMORANDUM OPINION

      Appellant, Pamela Lombana (“Lombana”), acting as the trustee of the

Fernando Lombana Investment Trust 10-6-98, the Christina Elisa Lombana Trust

Agency, the Natalia Elizabeth Lombana Trust Agency, and the Nicholas Fernando

Lombana Trust Agency, challenges the trial court’s rendition of summary

judgment in favor of appellee, AIG American General Life Insurance Company, on

her claims against AIG for breach of contract, breach of an oral or implied contract

to reinstate, promissory estoppel, negligence, violations of the Texas Insurance

Code, 1 violations of the Texas Deceptive Trade Practices Act (“DTPA”), 2 breach

of the duty of good faith and fair dealing, fraud, and fraud by nondisclosure. In

eleven issues, Lombana contends that the trial court erred in granting AIG

summary judgment on her claims.

      We affirm.

                                   Background

      In October 1998, Dr. Fernando Lombana (“Dr. Lombana”) created the

Fernando Lombana Investment Trust 10-6-98 (“the Investment Trust”), which was

to be funded by the proceeds of life insurance policies, including a $4 million AIG

life insurance policy. Distributions from the Investment Trust were to be made to


1
      See TEX. INS. CODE ANN. §§ 541.060, 541.061, 542.055 (Vernon 2009).
2
      See TEX. BUS. & COM. CODE ANN. § 17.41–.926 (Vernon 2011 & Supp.2013).
                                         2
three “Descendent Trusts” established for Dr. Lombana’s children: the Christina

Elisa Lombana Trust Agency, the Natalia Elizabeth Lombana Trust Agency, and

the Nicholas Fernando Lombana Trust Agency. Dr. Lombana named his wife,

Lombana, the trustee of the Investment Trust 3 as well as the Descendent Trusts.

      The $4 million AIG life insurance policy, number MM0357292 (“the

Policy”), 4 went into effect on January 28, 2003. It insured Dr. Lombana’s life and

named the Investment Trust as the “owner” and “primary beneficiary” of the

Policy with Lombana, the trustee, as the “premium payor.”

      The Policy contained the following language pertinent to Lombana’s claims:

      PREMIUM PAYMENT

      The first premium is due on the date of issue and is payable at our
      home office or to an authorized agent, insurance will not take effect
      before this premium is paid. Later premiums are due and payable at
      the intervals and for the period shown . . . while the insured is alive.
      Later premiums may be sent to our home office or given to an
      authorized agent in exchange for a receipt signed by one of our
      officers. With our consent, premiums may be paid at other intervals.

      Any premium, after the first, not paid on or before its due date will be
      in default. Each due date will be the date of default.

            ....


3
      Dr. Lombana and Lombana divorced after the Investment Trust was created, but
      Lombana remained the trustee.
4
      The Policy was originally issued by The Old Line Life Insurance Company of
      America, a predecessor in interest to AIG.

                                         3
GRACE PERIOD

A 31 day grace period, without interest charge, is allowed for the
payment of each premium after the first. This policy will stay in force
during this period. If the premium is not paid before the end of the
grace period, insurance will end and this policy will lapse.

        ....

ELIGIBILITY

If your policy lapses, it may be eligible for reinstatement if all of the
following conditions are met:

1. The policy has been in force continuously for at least five years
   immediately prior to the date of lapse;
2. All premiums have been paid in a timely manner during this
   period;
3. The lapse results from an unintentional default in premium
   payments caused by the mental incapacity of the insured; and
4. We receive a request for reinstatement and proof of the insured’s
   mental incapacity within one year from the date of the lapse.

     ....

PROOF AND REQUEST

To establish proof of the insured’s mental incapacity, we must be
provided with a clinical diagnosis by a physician licensed in Texas
and qualified to make the diagnosis. We will accept the proof and
request for reinstatement from:

1.   you;
2.   the insured, if you are not the insured;
3.   the legal guardian of the insured;
4.   other legal representative of the insured; or
5.   the legal representative of the estate of the insured.

     ....

                                      4
MENTAL INCAPACITY

Mental incapacity means lacking the ability, based on reasonable
medical judgment, to understand and appreciate the nature and
consequences of a decision regarding failure to pay a premium when
due and the ability to reach an informed decision in the matter.

   ....

REINSTATEMENT

We will reinstate an eligible policy within a period of one year after
the date of lapse. We will require payment of all unpaid premiums,
plus 6% interest, from the date of lapse to the date of reinstatement.

1. Your policy will be treated as if it has been in force continuously
   since the lapse;
2. The policy provisions will apply as if there had been no lapse; and
3. You will be required to make any and all future premium payments
   required by the policy provisions to keep the policy in force.

   ....

DEFINITIONS

Lapse – The due date of the last premium that remains unpaid after
the expiration of the grace period defined in the policy.

      ....

PAYMENT OF PROCEEDS

Proceeds will be payable on the date of the insured’s death. This
policy will terminate on the earlier of (1) the date of the insured’s
death, or (2) the final expiry date.

Upon receipt of due proof of the insured’s death, we will pay the
insured’s beneficiary the face amount. We will add to the face
amount any premium paid for the period beyond the policy month in
which the insured’s death occurs. If death occurs during the grace
                                  5
      period of an unpaid premium, an amount equal to one month’s
      premium will be deducted from the proceeds.

      Due proof of the insured’s death will consist minimally of our
      company claim form completed by the beneficiary and a certified
      copy of the death certificate of the insured.

      Interest as required by law will be added to the proceeds payable
      under this policy.

(Emphasis added.)

      In October 2006, Dr. Lombana was diagnosed with rheumatoid arthritis, and

his health deteriorated. Prior to the Policy’s annual premium due date of April 28,

2008, AIG sent a billing notice to the Investment Trust at 414 Alkire Lake Drive,

Sugarland, Texas 77478.5 Lombana admits that this premium payment was not

made. On May 18, 2008, AIG sent a payment reminder to the Investment Trust at

the Alkire Lake address, but the U.S. Postal Service returned it to AIG, showing a

change of address to “5307 Saint George Square Ln., Houston, Texas 77056.”

AIG then forwarded the payment reminder to the St. George address. No premium

payment was made during the 31-day grace period provided by the Policy, and the




5
      In 2004, Lombana had requested that her address as premium payor be changed
      from “414 Alkire Lake Drive, Sugarland, Texas 77478” to “2323 Wirt Road,
      Houston, Texas.” In 2006, Dr. Lombana, as the insured, requested that his address
      also be changed from the Alkire Lake Drive address to the Wirt Road address.
      AIG continued to send correspondence to the Investment Trust to the Alkire Lake
      address until it was notified by the U.S. Postal Service of a change of address for
      the Investment Trust, after which it sent correspondence to the Wirt Road address.
                                           6
Policy lapsed on the date of default, April 28, 2008. AIG then sent a Notice of

Termination to the Investment Trust on June 27, 2008.

      Summary-judgment evidence, consisting of Lombana’s deposition testimony

and AIG’s telephone log notes reveal that, seven months later, on January 22,

2009, Lombana telephoned an AIG call center. Lombana testified that because the

AIG representative told her that the Policy had lapsed in April 2008, she requested

policy reinstatement forms and provided an address and fax number for AIG to

send her the forms. Lombana explained that the AIG representative told her that

she had to send AIG a premium payment of $7,017.20 when she received the

forms. The AIG log notes reflect that the “PO,” or “policy owner,” requested that

reinstatement forms be sent that day to a fax number, and AIG log notes from

January 26, 2009 indicate that the reinstatement forms were sent via fax and mail,

but no address or fax number is shown in the notes. An AIG representative

testified that AIG had no fax confirmation and the notes should have indicated the

number to which the fax had been sent. Lombana asserted that she did not receive

any reinstatement forms, but concedes that she did not contact AIG again until

after Dr. Lombana’s death.

      Dr. Lombana died on April 30, 2009, more than a year after the Policy had

lapsed for non-payment of premiums.         Representing Dr. Lombana’s estate,

JPMorgan Chase contacted AIG on August 24, 2009 to notify AIG of his death and

                                        7
request certain forms related to his insurance policies. AIG, in a letter dated

September 9, 2009, notified JPMorgan Chase that the Policy had terminated in

2008, and it enclosed copies of the Reminder of Payment Due and Notice of

Termination.

      Lombana subsequently filed the instant lawsuit and, on the same day, mailed

three checks to AIG for the “reinstatement” of the Policy. In the memo line for the

checks she noted, “Reinstatement of policy #MM0357292.” In conformance with

its standard practice, AIG deposited the checks into a “suspense account” and later,

after determining that the Policy had terminated and the matter was in litigation,

returned the funds to Lombana. AIG paid on four other life insurance policies,

which were in force at the time of Dr. Lombana’s death, totaling $7 million in

death benefits.

      In its summary-judgment motion, AIG challenged all of Lombana’s claims.

AIG asserted that, as a matter of law, Lombana did not have standing to sue and it

was otherwise entitled to judgment in its favor on Lombana’s claims for breach of

contract, breach of an oral or implied contract to reinstate, violations of the Texas

Insurance Code, violations of the DTPA, fraud, fraud by nondisclosure, and breach

of the duty of good faith and fair dealing. AIG also asserted that Lombana had no

evidence to support her claims for breach of contract, breach of an oral or implied

contract to reinstate, promissory estoppel, violations of the Texas Insurance Code,

                                         8
violations of the DTPA, breach of the duty of good faith and fair dealing, fraud,

fraud by nondisclosure, and negligence.6 After a hearing, the trial court granted

AIG summary judgment without stating the reasons for its ruling.

                               Standard of Review

      We review a trial court’s summary judgment de novo. Valence Operating

Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005); Provident Life & Accident Ins.

Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003). In conducting our review, we take

as true all evidence favorable to the nonmovant, and indulge every reasonable

inference and resolve any doubts in the nonmovant’s favor. Valence Operating,

164 S.W.3d at 661; Provident Life & Accident Ins., 128 S.W.3d at 215. If a trial

court grants summary judgment without specifying the grounds for granting the

motion, we must uphold the trial court’s judgment if any of the asserted grounds

are meritorious. Beverick v. Koch Power, Inc., 186 S.W.3d 145, 148 (Tex. App.—

Houston [1st Dist.] 2005, pet. denied).

      A party seeking summary judgment may combine in a single motion a

request for summary judgment under the no-evidence standard with a request for

summary judgment as a matter of law. Binur v. Jacobo, 135 S.W.3d 646, 650

(Tex. 2004). When a party has sought summary judgment on both grounds and the


6
      Lombana does not challenge the trial court’s grant of summary judgment on her
      negligence claim.

                                          9
trial court’s order does not specify its reasons for granting summary judgment, we

first review the propriety of the summary judgment under the no-evidence

standard. See TEX. R. CIV. P. 166a(i); see Ford Motor Co. v. Ridgway, 135 S.W.3d

598, 600 (Tex. 2004). If we conclude that the trial court did not err in granting

summary judgment under the no-evidence standard, we need not reach the issue of

whether the trial court erred in granting summary judgment as a matter of law. See

Ford Motor Co., 135 S.W.3d at 600.

      To prevail on a no-evidence summary-judgment motion, the movant must

establish that there is no evidence to support an essential element of the

nonmovant’s claim on which the nonmovant would have the burden of proof at

trial. See TEX. R. CIV. P. 166a(i); Hahn v. Love, 321 S.W.3d 517, 523–24 (Tex.

App.—Houston [1st Dist.] 2009, pet. denied). The burden then shifts to the

nonmovant to present evidence raising a genuine issue of material fact as to each

of the elements challenged in the motion. Mack Trucks, Inc. v. Tamez, 206 S.W.3d

572, 582 (Tex. 2006); Hahn, 321 S.W.3d at 524.

      In a matter-of-law summary-judgment motion, the movant has the burden to

show that no genuine issue of material fact exists and the trial court should grant

judgment as a matter of law. See TEX. R. CIV. P. 166a(c); KPMG Peat Marwick v.

Harrison Cnty. Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999). A defendant

moving for summary judgment as a matter of law must conclusively negate at least

                                        10
one essential element of each of the plaintiff’s causes of action or conclusively

establish each element of an affirmative defense. Sci. Spectrum, Inc. v. Martinez,

941 S.W.2d 910, 911 (Tex. 1997). The motion must state the specific grounds

relied upon for summary judgment. TEX. R. CIV. P. 166a(c).

                                       Standing

      In her first issue, Lombana argues that the trial court erred in granting AIG

summary judgment on the ground that she lacked standing and capacity to sue AIG

because she is empowered by the Investment Trust and Texas law to take the

necessary actions to wind up the trust and complete distribution to the beneficiaries

after Dr. Lombana died and because she amended her petition to bring suit as

representative of the Descendent Trusts.        In its summary-judgment motion, AIG

argued that Lombana, as a matter of law, did not have standing to sue AIG because

the Investment Trust terminated per its terms upon Dr. Lombana’s death and it

could not have a justiciable interest in the outcome of the case. Lombana did

initially sue AIG in her capacity as “trustee of the Fernando Lombana Investment

Trust 10-6-98,” but she later amended her petition to sue in her capacity as the

trustee of the Descendant Trusts.7

      We review the question of standing de novo. See Mayhew v. Town of

Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998). A party must have both standing

7
      We note that a trust is an entity that can sue and be sued only through its personal
      representative. Ray Malooly Trust v. Juhl, 186 S.W.3d 568, 570 (Tex. 2006).
                                           11
and capacity to bring a lawsuit. Austin Nursing Ctr., Inc. v. Lovato, 171 S.W.3d

845, 848 (Tex. 2005). The focus in a standing issue is upon the question of

whether the party bringing the lawsuit has a sufficient relationship with it so that

there is a justiciable interest in the outcome. Id. Standing exists if the party

bringing the lawsuit is personally aggrieved by the alleged wrong. Nootsie, Ltd. v.

Williamson Cnty. Appraisal Dist., 925 S.W.2d 659, 661 (Tex. 1996). Capacity is

procedural in nature, and the focus in a capacity inquiry is upon the personal

qualifications of a party to litigate. Id. at 662. It is an issue that must be raised by

a verified pleading or it is waived. See TEX. R. CIV. P. 93(1), (2). A party may

lack standing because that party does not have a justiciable interest in the outcome

of a case, but still have capacity when the party has the legal authority to act.

Nootsie, 925 S.W.2d at 661.

      AIG correctly notes that the Investment Trust terminated upon Dr.

Lombana’s death. See TEX. PROP. CODE ANN. § 112.052 (Vernon 2011); Sorrel v.

Sorrel, 1 S.W.3d 867, 871 (Tex. App.—Corpus Christi 1999, no pet.). However,

the property code allows a settlor to provide in the trust instrument how property

may or may not be disposed of in the event of failure, termination, or revocation of

the trust. See TEX. PROP. CODE ANN. § 112.053 (Vernon 2011). Here, the express

terms of the Investment Trust state that “upon termination the remaining property

of this trust shall be distributed . . . [t]he proceeds of all life insurance policies on

                                           12
the Grantor’s life . . . shall be distributed to the Trustee of the trust . . . to be

administered and distributed to [the beneficiaries].”

      The legal title held by the trustees and the equitable title held by the

beneficiaries merged in the beneficiaries when Dr. Lombana died and the

Investment Trust terminated. During the existence of a trust, legal title to the res is

in the trustee and equitable title is in the beneficiaries. Shearrer v. Holley, 952

S.W.2d 74, 78 (Tex. App.—San Antonio 1997, no writ). Upon termination, legal

and equitable interests merge and the beneficiaries acquire full ownership interest

in the property. See id. However, trustees retain the powers necessary to wind up

the affairs of the trust or to distribute the trust property in accordance with the

terms of the trust. TEX. PROP. CODE ANN. § 112.052; cf. Nowlin v. Frost Nat’l.

Bank, 908 S.W.2d 283, 289 (Tex. App.—Houston [1st Dist.] 1995, no writ);

RESTATEMENT (SECOND) OF TRUSTS § 344 (1959).

      Here, the Descendant Trusts are beneficiaries of the Investment Trust. AIG

does not question that the Descendant Trusts have both standing and capacity in

this lawsuit with Lombana acting as the legal representative of the Descendant

Trusts. As beneficiaries of the Investment Trust, the Descendant Trusts each have

a sufficient relationship with the lawsuit so that there is a justiciable interest in the

outcome. See Lovato, 171 S.W.3d at 848. As trustee of each of the Descendant

Trusts, Lombana has standing in this lawsuit. Accordingly, we hold that the trial

                                           13
court erred in granting summary judgment for AIG on the ground that Lombana

lacked standing.

      We sustain Lombana’s first issue.

                               Breach of Contract

      In her second issue, Lombana argues that the trial court erred in granting

AIG summary judgment on her breach-of-contract claim because she presented

evidence raising genuine issues of material fact precluding summary judgment.

She asserts that the Policy was existing and in force at the time of Dr. Lombana’s

death and AIG breached the contract by failing and refusing to pay the Policy

benefits and sending correspondence to the wrong address.

      In its motion, AIG asserted that Lombana had no evidence of “a valid

contract upon which [she] is basing this claim,” “performance by [her] under the

contract,” or “breach of contract by [AIG].” AIG argued that because the payment

of premiums was a “condition precedent to the establishment of liability of the

insurer” and Lombana had failed to pay the premiums, the Policy had terminated

prior to the death of Dr. Lombana. AIG also argued that, as a matter of law, it had

not breached the contract by not sending the reinstatement correspondence to the

correct address because no provision of the Policy required it to send such

correspondence, and, regardless, it did not send the correspondence to the wrong

address.

                                          14
       Insurance policies are contracts and are controlled by the same general rules

that govern contract construction. See Barnett v. Aetna Life Ins. Co., 723 S.W.2d

663, 665 (Tex. 1987); Columbia Cas. Co. v. CP Nat’l., Inc., 175 S.W.3d 339, 343

(Tex. App.—Houston [1st Dist.] 2004, no pet.). The elements of a valid contract

are (1) an offer, (2) an acceptance, (3) a meeting of the minds, (4) each party’s

consent to the terms, and (5) execution and delivery of the contract with the intent

that it be mutual and binding. See Prime Prods., Inc. v. S.S.I. Plastics, Inc., 97

S.W.3d 631, 636 (Tex. App.—Houston [1st Dist.] 2002, pet. denied). To establish

a valid contract, a plaintiff must prove that the parties agreed on all of the essential

terms of the contract and the essential terms were sufficiently certain so as to

define the parties’ legal obligations. See Nickerson v. E.I.L. Instruments, Inc., 874

S.W.2d 936, 939 (Tex. App.—Houston [1st Dist.] 1994, writ denied). To establish

a claim for breach of contract, a plaintiff must prove (1) the existence of a valid

contract between the plaintiff and the defendant, (2) the plaintiff’s performance or

tender of performance, (3) the defendant’s breach of the contract, and (4) the

plaintiff’s damages as a result of the breach. See Prime Products, 97 S.W.3d at

636.

       When entered, on January 28, 2003, the Policy constituted a legal contract

between AIG and Lombana as trustee of the Investment Trust. See Columbia Cas.

Co., 175 S.W.3d at 343. By its terms, the Policy required Lombana as trustee of

                                          15
the Investment Trust and acting as premium payor to make premium payments at

regular intervals. The Policy further provided in pertinent part as follows:

      [A]ny premium, after the first, not paid on or before its due date will
      be in default. Each due date will be the date of default. . . . A 31 day
      grace period . . . is allowed for the payment of each premium, after the
      first. This Policy will stay in force during this period. If the premium
      is not paid before the end of the grace period, insurance will end and
      this policy will lapse.

      As a matter of law, the insurance provided by the Policy “end[ed]” and was

not “in force” after the end of the grace period. See MacIntire v. Armed Forces

Benefit Ass’n, 27 S.W.3d 85, 89 (Tex. App.—San Antonio 2000, no pet.) (stating

that when grace period passes without payment of defaulted premium, insurance

policy lapses and terminates); P.M. Baker v. Penn. Mut. Life Ins. Co., 617 S.W.2d

814, 816 (Tex. Civ. App.—Houston [14th Dist.] 1981, no writ). Moreover, by its

express terms, the lapsed Policy terminated upon the death of Dr. Lombana.

      An insurance policy constitutes a contract for the period of time that is

covered in the contract. See Hartland v. Progressive Cnty. Mut. Ins. Co., 290

S.W.3d 318, 322 (Tex. App.—Houston [14th Dist.] 2009, no pet.); Zuniga v.

Allstate Ins. Co., 693 S.W.2d 735, 738 (Tex. App.—San Antonio 1985, no writ);

Harrington v. Aetna Cas. & Sur. Co., 489 S.W.2d 171, 176 (Tex. App.—Waco

1972, writ. ref’d n.r.e.). Thus, the Policy insured Dr. Lombana’s life only during

the policy period. And, for an insurance contract to be renewed, the insurer’s



                                         16
renewal offer must be accepted by the insured completely and unequivocally.

Hartland, 290 S.W.3d at 322.

      It is well settled that the payment of premiums is a condition for acceptance

of an insurance contract, necessary for contract formation. See id. Thus, under

Texas law, the payment of premiums is a condition precedent to the existence of

liability of the insurer. See id.; Walker v. Federal Kemper Life Assur. Co., 828

S.W.2d 442, 449 (Tex. App.—San Antonio 1992, writ denied). If an insured fails

to meet the condition of premium payment, the policy expires. Southland Life Ins.

Co. v. Hopkins, 244 S.W. 989, 990 (Tex. Comm’n App. 1922, judgm’t adopted)

(holding that failure to pay premium “would ipso facto terminate all liability”

under insurance policy); Hartland, 290 S.W.3d at 322; Walker, 828 S.W.2d at 447;

Zuniga, 693 S.W.2d at 738. Here, Lombana presented no evidence that she paid

the premium due on April 28, 2008 or at any time during the thirty-one day grace

period that followed. In fact, Lombana admitted that she did not pay the premium

and acknowledged that the Policy had lapsed for nonpayment of the premium as of

April 28, 2008.

      Because Lombana did not pay the Policy premium, the condition for

acceptance of the contract was not met. See Walker, 828 S.W.2d at 447; Viking

Cnty. Mut. Ins. Co. v. Jones, No. 05-91-01815-CV, 1992 WL 211068, at *3 (Tex.

App.—Dallas Aug. 31, 1992, no writ) (mem. op., not designated for publication)

                                        17
(offer by insurer to renew insurance contract must be accepted completely and

unequivocally by insured to constitute new contract); Zuniga, 693 S.W.2d at 738

(renewal policy never came into existence because insured did not make payments

in accordance with policy terms); So. Farm Bureau Cas. Ins. Co. v. Davis, 503

S.W.2d 373, 377 (Tex. App.—Amarillo 1973, writ ref’d n.r.e.) (offer for renewal

of auto insurance could not come to fruition until premium was paid); Trinity

Universal Ins. Co. v. Rogers, 215 S.W.2d 349, 352 (Tex. App.—Dallas 1948, no

writ) (contract not completed when insured did not indicate acceptance of renewal

policy). Thus, by its own terms, the Policy lapsed and the insurance “end[ed]”

when Lombana failed to pay the premiums by the end of the thirty-one day grace

period. See Hopkins, 244 S.W. at 990; Hartland, 290 S.W.3d at 322; Walker, 828

S.W.2d at 447; Zuniga, 693 S.W.2d at 738.

      In sum, because Lombana failed to pay the requisite premiums as per the

terms of the Policy, the Policy lapsed, the insurance ended, and the Policy

terminated upon the death of Dr. Lombana on April 30, 2009. Dr. Lombana’s life

had not been insured since April 29, 2008, for just over twelve months prior to his

date of death. Therefore, Lombana cannot establish an essential element of her

breach of contract claim, i.e., the existence of a valid contract. Accordingly, we

hold that the trial court did not err in granting AIG summary judgment on

Lombana’s claim for breach of contract.

                                          18
      We overrule Lombana’s second issue.

                             Waiver and Estoppel

      In her fourth and fifth issues, Lombana argues that the trial court erred in

granting AIG summary judgment on her claim for promissory estoppel because she

presented evidence that “AIG made representations to her and remained silent on

other matters [AIG] would later claim were necessary for reinstatement of a lapsed

policy.”   Lombana further argues that AIG is estopped and has waived its

argument that her non-payment of premiums caused the Policy to terminate

because of AIG’s “course of dealing of repeatedly sending late payment offers,” by

accepting her late payment of the Policy premiums in 2010 and keeping the

payment for an extended period of time, and by violating the terms of the Policy

including its “multiple failures to change the Policy contact information and send

the reinstatement forms.”

      The elements of a claim for promissory estoppel are: (1) a promise; (2)

foreseeability of reliance on the promise by the promisor; and (3) substantial

detrimental reliance by the promisee. Leach v. Conoco, Inc., 892 S.W.2d 954, 959

n. 2 (Tex. App.—Houston [1st Dist.] 1995, writ dism’d w.o.j.).          Although

promissory estoppel is normally pleaded as a defense, it may be asserted by a

plaintiff, as here, as an affirmative ground for relief. Fertic v. Spencer, 247

S.W.3d 242, 250 (Tex. App.—El Paso 2007, pet. denied). If a valid contract exists

                                       19
covering the alleged promise, a plaintiff cannot recover under promissory estoppel.

See id.; Subaru of Am., Inc. v. David McDavid Nissan, Inc., 84 S.W.3d 212, 226

(Tex. 2002) (the doctrine of promissory estoppel presumes that no contract exists);

Fortune Prod. Co. v. Conoco, Inc., 52 S.W.3d 671, 684 (Tex. 2000) (allowing for

no recovery under a quasi-contract or unjust enrichment theory where a valid

express contract covers the disputed subject matter). Here, because a contract

governed the terms under which AIG would pay insurance proceeds to the

Investment Trust following Dr. Lombana’s death, promissory estoppel does not

apply.

         “Waiver by custom and estoppel are the same concept.” MacIntire, 27

S.W.3d at 89 (quoting Blanton v. John Hancock Mut. Life Ins. Co., 345 F. Supp.

168, 170 (N.D. Tex. 1971), aff’d per curium, 463 F.2d 421 (5th Cir. 1972)).

“Waiver is the intentional relinquishment of a right actually known, or intentional

conduct inconsistent with claiming that right.” Ulico Cas. Co. v. Allied Pilots

Ass’n, 262 S.W.3d 773, 778 (Tex. 2008). The elements of waiver are: (1) an

existing right, benefit, or advantage held by a party; (2) the party’s actual

knowledge of its existence; and (3) the party’s actual intent to relinquish the right

held or intentional conduct that is inconsistent with the right. Id.

         Lombana further asserts that she presented “sufficient evidence of an

agreement to waive requirements to reinstate other than the payments of the

                                          20
premium” and she entered into an “agreement” with AIG on January 22, 2009 in

which she was “reassured . . . that the Policy was still in force, and had no

requirements other than payment of the reinstatement premium.” In support of her

position, Lombana relies on Equitable Life Assurance Society v. Ellis, 147 S.W.

1152 (Tex. 1912). She argues that she should not be held to any additional

reinstatement requirements because the parties’ “past dealing,” along with the

January 22, 2009 “agreement,” eliminated any other requirements for

reinstatement. Lombana asserts that to hold otherwise would be to “attach a

condition that the proposal itself did not impose.” See Ellis, 147 S.W. at 1157.

      In Ellis, after the expiration of the grace period for the policy in question, the

insured was involved in active and continuous back-and-forth written negotiations

regarding the payment of premiums, changing the premium due dates, and

discussing a loan using the policy as security so that the insured could pay the

premiums. 147 S.W. at 1155–56. These negotiations were conducted by “a

general officer of the company,” the “superintendent of its extension and loan

department” through the cashier of a local office, who had the requisite authority to

so negotiate. Id. at 1153, 1155–56. The court concluded that the fact that the

insurer was willing to offer the insured a loan on the policy showed that the insurer

believed that the policy possessed value, noting “[i]t is unbelievable that this

company would have been offering to make a loan and take as security for it

                                          21
something that it recognized and held to be defunct and void and incapable of

possessing any value.” Id. at 1156. By acting as if the policy had value, the

insurer showed that it “desired to be understood as willing to forego its right of

forfeiture and continue the policies in force as security for its loan and as

protection upon Ellis’ life.” Id. at 1157. In other words, the insurer acted as if the

policy had “continued validity,” and its negotiations with the insured evidenced a

waiver of conditions of reinstatement that were contained in the policy itself. Id.

      Lombana asserts that AIG waived termination of the Policy, even after the

death of Dr. Lombana, noting that in Ellis the insurer had made an offer to the

insured to reinstate the policy in question and the offer was still open at the time of

his death. Id. at 1158 (“As the question of waiver is to be determined by the

company’s conduct and not by any failure by Ellis to act in the premises . . . that

the transaction was not so completed by Ellis did not relieve its act of its force as

an affirmative evidence of waiver, or at least as tending to establish it.”). Lombana

argues that because AIG never rescinded or withdrew the AIG call representative’s

January 22, 2009 “agreement” to reinstate the Policy, it was “still operative,

despite [Dr. Lombana’s] death, for a reasonable period.” And she asserts that she

raised a fact question as to whether she responded to AIG’s waiver of additional

requirements in a reasonable fashion based on AIG’s failure to update the contact

information, AIG’s failure to forward the reinstatement forms to the Wirt Road

                                          22
address and fax, and the fact that she was dealing with Dr. Lombana’s final illness

and death.

      Here, however, the express terms of the Policy prohibit the type of

“agreement” that Lombana asserts the AIG call representative made with her on

January 22, 2009. The Policy expressly states that it “may not be changed, nor any

of [AIG’s] rights or requirements be waived, except in writing by one of our

authorized officers.” (Emphasis added.)

      Moreover, AIG took no further action after it sent notification of termination

of the Policy on June 27, 2008. There were no written communications with Dr.

Lombana or with Lombana as trustee for the Investment Trust demonstrating that

AIG believed that the Policy had “continued validity” or value. The summary-

judgment evidence shows that when Lombana telephoned the AIG call center on

January 22, 2009, she was told that she had to “reinstate” the Policy because it had

lapsed seven months earlier on April 28, 2008. Lombana presented no evidence

that AIG negotiated with her or treated the Policy as if it was still in force after Dr.

Lombana had died.

      Regardless, AIG could not have waived termination of the Policy after the

death of its insured. See MacIntire, 27 S.W.3d at 90. Because the lapsed Policy

had terminated when Dr. Lombana died, there was no contract to reinstate. See id.




                                          23
      Lombana further argues that the performance of the condition precedent of

payment of premiums was excused because AIG prevented her performance by

various actions. However, she presented no evidence that AIG prevented her

performance. After her initial request on January 22, 2009 for forms to reinstate

the lapsed Policy, she, despite asserting that she never received the forms, made no

further request of AIG for the forms. And there is no evidence that AIG did

anything to prevent Lombana from paying the Policy premiums to reinstate the

Policy before the death of Dr. Lombana. In fact, she did not contact AIG again

until after Dr. Lombana’s death on April 30, 2009.

      Lombana did not present evidence creating a question of material fact

regarding her payment of premiums, any excused nonpayment, or waiver or

estoppel based on negotiations with AIG demonstrating that AIG recognized the

continued validity of the policy.     Similarly, Lombana points to no evidence

demonstrating that AIG actually in any way prevented her from paying the Policy

premiums. Accordingly, we hold that the trial court did not err in granting AIG

summary judgment on Lombana’s claim for promissory estoppel.

      We overrule Lombana’s fourth and fifth issues.




                                        24
          Breach of Oral or Implied Contract to Reinstate the Policy

       In her third issue, Lombana argues that the trial court erred in granting AIG

summary judgment on her claims for breach of oral or implied contract to reinstate

the Policy because she presented evidence to establish fact issues on these claims.

      Lombana asserts that AIG entered into a new oral contract to reinstate the

Policy during her January 22, 2009 telephone conversation with the AIG call

center representative.   However, she presented no evidence that the AIG call

representative had any authority to enter into such an oral contract with her, nor did

she present evidence of the parties’ “mutual assent” or meeting of the minds. See

David J. Sacks, P.C. v. Haden, 266 S.W.3d 447, 450 (Tex. 2008) (stating that “[a]

meeting of the minds is necessary to form a binding contract”).

      Moreover, according to Lombana’s own testimony, she believed that she had

to make a premium payment before the Policy would be reinstated. As previously

discussed, Lombana provided no evidence that she made any such premium

payment before the death of Dr. Lombana. Thus, even if Lombana and the AIG

call representative had entered into an oral or implied contract to reinstate the

Policy, Lombana did not perform her obligation under the oral contract to pay the

Policy premium so that the Policy would be reinstated.




                                         25
      Accordingly, we hold the trial court did not err in granting AIG summary

judgment on Lombana’s claims for breach of an oral or implied contract to

reinstate the policy.

      We overrule Lombana’s third issue.

                   Texas Insurance Code and DTPA Violations

      In her sixth, seventh, eighth, and ninth issues, Lombana argues that the trial

court erred in granting AIG summary judgment on her claims against AIG for

violations of the Texas Insurance Code and the DTPA because she presented

evidence that AIG failed to conduct a reasonable investigation into whether she

entered into a contract to reinstate the Policy, the AIG call representative made

affirmative representations and omitted material facts during the January 22, 2009

telephone call, and AIG failed to timely pay benefits due under the Policy.

      Having concluded that the Policy had lapsed prior to, and had terminated

upon, the death of Dr. Lombana, and Lombana provided no evidence that an oral

or implied contract was entered into during her January 22, 2009 telephone call

with the AIG call representative, we further conclude that there is no basis for

Lombana’s claims that AIG violated the Texas Insurance Code or the DTPA. See

Walker, 828 S.W.2d at 453; Shindler v. Mid–Continent Life Ins. Co., 768 S.W.2d

331, 334–35 (Tex. App.—Houston [14th Dist.] 1989, no writ). Accordingly, we




                                        26
hold that the trial court did not err in granting AIG summary judgment on

Lombana’s claims that AIG violated the Texas Insurance Code and DTPA.

      We overrule Lombana’s sixth, seventh, eighth, and ninth issues.

                              Good Faith and Fair Dealing

      In her tenth issue, Lombana argues that the trial court erred in granting AIG

summary judgment on her claim that AIG violated its common law duty of good

faith and fair dealing because evidence of reinstatement of the Policy and her

payment of premiums in 2010 made AIG’s liability “reasonably clear.”

      Having concluded that the Policy had lapsed, the insurance had ended prior

to the death of Dr. Lombana, and the Policy terminated upon his death, we further

conclude that AIG did not breach a contractual duty to Lombana by denying her

claim as the trustee of the Investment Trust, and, thus, AIG could not, as a matter

of law, have acted in bad faith. See Republic Ins. Co. v. Stoker, 903 S.W.2d 338,

341 (Tex. 1995). Accordingly, we hold that the trial court did not err in granting

AIG summary judgment on Lombana’s claim that AIG violated the common law

duty of good faith and fair dealing.

      We overrule Lombana’s tenth issue.

                       Fraud and Fraud by Nondisclosure

      In her eleventh issue, Lombana argues that the trial court erred in granting

AIG summary judgment on her claim that AIG committed fraud or fraud by

                                        27
nondisclosure because she presented evidence that AIG had “voluntarily disclosed”

some information about reinstatement of the Policy to her, but failed to disclose

additional requirements. She asserts that the parties had a “special relationship,”

requiring disclosure of “any additional requirements [AIG] would impose to

reinstate” the Policy, and AIG had a duty to disclose “the whole truth concerning

what it would require to reinstate the Policy.” In its summary-judgment motion,

AIG argued that Lombana’s claim for fraud and fraud by nondisclosure failed as a

matter of law due to a lack of justiciable reliance and because she provided no

evidence of a material misrepresentation, made with knowledge of its falsity or

without knowledge of the truth upon which AIG intended that she rely.

      In order to recover on an action for fraud, a party must prove that: (1) a

material representation was made; (2) the representation was false; (3) when the

speaker made the representation, he knew it was false or made it recklessly without

knowledge of the truth as a positive assertion; (4) the speaker made it with the

intention that it should be acted upon by the party; (5) the party acted in reliance

upon it; and (6) the party thereby suffered injury. Soluntioneers Consulting, Ltd. v.

Gulf Greyhound Partners, Ltd., 237 S.W.3d 379, 385 (Tex. App.—Houston [14th

Dist.] 2007, no pet.).

      Fraud by nondisclosure is a subcategory of fraud. Id. Failure to disclose

information is actionable only when there is a duty to disclose. Id. The duty to

                                         28
disclose may arise: (1) when the parties have a confidential or fiduciary

relationship; (2) when one party voluntarily discloses information; (3) when one

party makes a representation which gives rise to the duty to disclose new

information that the party is aware makes the earlier representation misleading or

untrue; or (4) when one party makes a partial disclosure and conveys a false

impression, which gives rise to the duty to speak. Id. Whether such a duty exists

is a question of law. Bradford v. Vento, 48 S.W.3d 749, 755 (Tex. 2001).

      In regard to Lombana’s assertion that she had a “special relationship” with

AIG that required disclosure of any additional requirements for reinstatement of

the Policy, we note that an informal fiduciary relationship, which may arise from

“a moral, social, domestic or purely personal relationship of trust and confidence,”

is generally called a “confidential relationship.” Associated Indem. Corp. v. CAT

Contracting, Inc., 964 S.W.2d 276, 287 (Tex. 1998). A confidential relationship

exists in cases in which “‘influence has been acquired and abused, in which

confidence has been reposed and betrayed.’” Id. (quoting Crim Truck & Tractor

Co. v. Navistar Int’l Transp. Corp., 823 S.W.2d 591, 594 (Tex. 1992)). However,

an insurer generally does not have a fiduciary relationship giving rise to a duty to

an insured. See Rice v. Metro. Life Ins. Co., 324 S.W.3d 660, 678–79 (Tex.

App.—Fort Worth 2010, no pet.). Here, Lombana has presented no evidence that

she had a confidential or fiduciary relationship with AIG.

                                         29
      Likewise, Lombana presented no evidence that the AIG call representative

made a material misrepresentation during the January 22, 2009 telephone

conversation with her with knowledge of its falsity, or that the AIG call

representative made a misrepresentation with the intent that Lombana rely on it.

      Accordingly, we hold that the trial court did not err in granting AIG

summary judgment on Lombana’s claim for fraud and fraudulent nondisclosure.

                                   Conclusion

      We affirm the judgment of the trial court.




                                             Terry Jennings
                                             Justice

Panel consists of Justices Jennings, Brown, and Huddle.




                                        30
