                             In the
                        Court of Appeals
                Second Appellate District of Texas
                         at Fort Worth
                      ___________________________
                           No. 02-16-00050-CV
                      ___________________________

              RICHARD SEIM AND LINDA SEIM, Appellants

                                     V.

         ALLSTATE TEXAS LLOYDS AND LISA SCOTT, Appellees



                   On Appeal from the 141st District Court
                           Tarrant County, Texas
                       Trial Court No. 141-270531-14


                             Before the En Banc Court
      Memorandum Opinion on Remand and on En Banc Reconsideration
    by Justice Gabriel (joined by Justices Kerr, Birdwell, Bassel, and Womack)
Dissenting Memorandum Opinion on Remand and on En Banc Reconsideration by
                Chief Justice Sudderth (joined by Justice Pittman.)
                  MEMORANDUM OPINION ON REMAND
                  AND ON EN BANC RECONSIDERATION


      Appellants Richard and Linda Seim appeal from the trial court’s summary

judgment dismissing their contractual and extracontractual claims against their home

insurer and its adjuster, appellees Allstate Texas Lloyds and Lisa Scott, after the Seims’

claim for water damage to their home was denied. On original en banc submission,

we affirmed the trial court’s summary judgment and held that because the Seims’

expert’s two causation reports and supporting affidavit were effectively unsworn,

none raised a fact issue on any of the Seims’ claims. Seim v. Allstate Tex. Lloyds,

No. 02-16-00050-CV, 2017 WL 1738028, at *5–6 (Tex. App.—Fort Worth May 4,

2017) (en banc) (mem. op. on reconsideration) (“We are thus left with no sworn

evidence that the Seims’ loss occurred during the policy period.”) (hereinafter, Seim I),

rev’d, 551 S.W.3d 161, 166 (Tex. 2018) (per curiam). The Texas Supreme Court, in

reversing Seim I and remanding the appeal to this court, held that because Allstate and

Scott did not secure a ruling on their objections to the evidence regarding the form

defects, Allstate and Scott waived the objections.        551 S.W.3d at 163–64, 166

(hereinafter, Seim II).1 On remand, a panel of this court held that the Seims’ expert’s


      1
       Seim II additionally overruled two opinions from this court, which held that an
order granting a summary-judgment motion implicitly sustains the prevailing party’s
evidentiary objections. 551 S.W.3d at 164–66 (overruling Frazier v .Yu, 987 S.W.2d
607, 610 (Tex. App.—Fort Worth 1999, pet denied), and Blum v. Julian, 977 S.W.2d
819, 823–24 (Tex. App.—Fort Worth 1998, no pet.)).

                                            2
reports were conclusory and incompetent to raise a fact issue—a substantive defect

that requires no trial objection or ruling—scuttling the Seims’ claims against Allstate

and Scott. Seim v. Allstate Tex. Lloyds, No. 02-16-00050-CV, 2018 WL 5832106, at *6

(Tex. App.—Fort Worth Nov. 8, 2018) (mem. op.) (hereinafter, Seim III). We granted

the Seims’ motion for en banc reconsideration, withdrew the Seim III memorandum

opinion and judgment, and now hold that Allstate and Scott conclusively established

the affirmative defense of limitations, which was a ground asserted in their traditional

summary-judgment motion. See Tex. R. App. P. 49.7. Thus, we affirm the trial

court’s summary judgment on this legal basis.

                                I. BACKGROUND

                       A. CLAIMS FOR INSURANCE COVERAGE

       Clearly, the facts and procedural history surrounding this appeal have been

recited multiple times. Seim II, 551 S.W.3d at 162–63; Seim III, 2018 WL 5832106, at

*2–3; Seim I, 2017 WL 1738028, at *1–2.         But because those opinions did not

specifically address the grounds raised by Allstate and Scott in support of their

summary-judgment motion in the context of rule 166a, we will explore the facts

leading to the Seims’ suit against Allstate and Scott and their pleadings. Tex. R. Civ.

P. 166a(b)–(c), (i).

       The Seims’ home was allegedly damaged after three storms blew through the

Seims’ neighborhood in a five-year period: on April 13, 2007; April 9, 2008; and

May 8, 2012. The Seims filed claims with Allstate, which insured their home at the
                                           3
time of all three storms. Each storm occurred during and was governed by a different

and separate contract based on the effective date of each contract. The Seims’ claims

for   coverage—designated      claim    numbers     0102779105,     0112511373,     and

02450198152—were resolved in some manner.3 The Seims later alleged that they

“made the repairs as instructed by Allstate and had no issues of water ingress” after

the damage caused by the 2012 storm was repaired.

      Allstate again issued the Seims a home-insurance policy in a separate contract,

making coverage effective from April 27, 2013, through April 27, 2014. This contract

provided that during the coverage period, damage “caused by rain . . ., whether or not

driven by wind,” would not be covered “unless the direct force of wind or hail makes

an opening in the roof or wall and the rain . . . enters through this opening and causes

the damage.” The contract further provided that any cause of action or suit brought

against Allstate “must be started within two years and one day after the cause of

action accrues.” See generally Godoy v. Wells Fargo Bank, N.A., 575 S.W.3d 531, 533,




      2
        Throughout the opinion and after initially identifying each claim number in
full, we will refer to each claim by its last three numbers.
      3
        Claim number 105 was denied for rot damage because “rot damage to the
soffit on the small portion of the roof [was] not a covered peril in the policy” and
denied for roof replacement because the roof was repairable. It appears the Seims
received some payment from Allstate for the roof repairs. Claim number 373 resulted
in a partial payment for roof repairs. Claim number 815 resulted in two payments to
the Seims to repair the roof and to remediate mold damage to the home’s interior.

                                           4
537–38 (Tex. 2019) (holding contractual waiver of statutory limitations period allowed

if specific and for a reasonable time).

       On August 13, 2013, a severe storm again hit the Seims’ neighborhood. The

Seims filed a claim with Allstate—claim number 0297959876—seeking coverage for

damages to their roof and in two rooms of their home that they asserted were caused

by hail and rain from this most recent storm.            Scott inspected the home on

September 10, 2013. During her inspection, she noticed some interior leaks, primarily

around the skylights in the great room and sunroom, but found no collateral damage

to the home’s exterior. Scott also inspected the tile roof and found no wind or hail

damage. Some of the tiles, however, had “thermal cracking,” and it was apparent that

prior repairs to the ridge line had been made. Scott did find a tile with a missing piece

that was next to a skylight. But because there was no opening in the roof caused by

wind or hail—“shingles off or hail so big that . . . it’s gone through and water can

penetrate”—Scott concluded that any new damage was not covered under the policy.

Scott did not inspect the attic, which she would do “sometimes,” because she had not

seen any damage to the roof caused by wind or hail. The same day as Scott’s

inspection, Allstate formally denied the claim and informed the Seims in the denial

letter that because “[t]here is no opening created by wind or hail that is causing the

roof to leak, . . . there is no coverage for the interior water damage.”




                                             5
                          B. TRIAL-COURT PROCEEDINGS

      The Seims filed suit against Allstate on February 11, 2014, regarding its actions

and inactions after the 2013 storm and its ultimate denial of the Seims’ claim for

coverage.4 They raised claims for unfair settlement practices, common-law fraud,

breach of contract, violations of the statutory prompt-payment-of-claims

requirements (PPC), and breach of the common-law duty of good faith and fair

dealing (GFFD).

      Two months later on April 15, 2014, the Seims filed a first amended petition

against Allstate, the Seims’ local insurance agent Maria Golseth, and Michael Pierce,

the inspector who assessed the damage to the Seims’ home after the 2007 storm. The

factual allegations were specifically limited to the named defendants’ actions and

inactions regarding claim number 105—the claim the Seims filed after the 2007 storm.

Indeed, the Seims exclusively referred to their “claim,” not “claims,” for coverage in

their factual allegations.5 Against Allstate, Maria, and Pierce, the Seims raised causes

of action for unfair settlement practices and fraud.      Against Allstate, the Seims

additionally alleged breach of contract, PPC violations, and breach of the duty of

GFFD.


      4
        The Seims did not refer to the claim at issue by number, but their factual
allegations and claims related solely to the 2013 storm—claim number 876.

      In their statements of their causes of action, the Seims attacked the named
      5

defendants’ actions regarding their “claims.”

                                           6
       Three weeks later on May 6, 2014, the Seims filed a second amended petition

against Allstate; Maria’s husband Chad (who the Seims alleged sold the Allstate policy

to them along with Maria); Pierce; and for the first time, Scott.          Their factual

allegations were limited to the claims they filed after the 2007, 2008, and 2012 storms

and specified only claim numbers 105, 373, and 815. Although Scott inspected the

property after the 2013 storm, the Seims alleged that Pierce and Scott “failed to

conduct reasonable investigations” only after the 2007, 2008, and 2012 storms. They

also alleged that Allstate “underpaid” based on “grossly deficient damage and cost of

repair estimates,” which led to the Seims’ inability to satisfactorily repair the damage

caused by the 2007, 2008, and 2012 storms. Against all named defendants, the Seims

raised claims for unfair settlement practices, violations of the Deceptive Trade

Practices Act (DTPA), common-law fraud, conspiracy to commit fraud, PPC

violations, and breach of the duty of GFFD. Against Allstate, the Seims additionally

alleged a claim for breach of contract. Allstate, Scott, and the Golseths answered the

second amended petition and raised the affirmative defense of limitations.6 See Tex.

R. Civ. P. 94.

       On April 13, 2015, almost a year after the Seims filed their second amended

petition, the Seims filed a notice of nonsuit of their claims against Pierce. See Tex. R.

Civ. P. 163. On October 5, 2015, Allstate, Scott, and the Golseths moved for partial

       6
        Service of process on Pierce by certified mail was never made, and a return of
service was not filed. See Tex. R. Civ. P. 103, 106(a)(2), 107(c).

                                           7
summary judgment regarding the claims in the second amended petition arising from

the 2007 and 2008 storms based on limitations. In the motion, they noted that

although the Seims’ original petition raised claims regarding the 2013 storm, “[a]ll

causes of action arising from this August 13, 2013 claim have been dismissed by

subsequent amendments.” See Tex. R. Civ. P. 65 (dictating pleading that is later

amended “shall no longer be regarded as a part of the pleading in the record of the

cause . . . unless it be necessary to look to the superseded pleading upon a question of

limitation”). Allstate, Scott, and the Golseths also filed separate summary-judgment

motions directed to the Seims’ claims arising from the 2012 storm, again noting that

all claims arising from the 2013 storm had been dismissed by operation of the first

and second amended petitions. On October 27, 2015, the Seims noticed their nonsuit

of their claims against the Golseths.

      The next day—October 28, 2015—the Seims filed a third amended petition

against Allstate and Scott, almost eighteen months after they had filed the second

amended petition. Their factual allegations were specifically limited to the damage to

their home arising from the 2013 storm and the handling of claim number 876. The

Seims acknowledged that they had “submitted claims to Allstate for damage to the

roof” before August 13, 2013, but in an about-face, they averred that they “made the

repairs as instructed by Allstate and had no issues of water ingress during the twelve

months leading up to the August 13, 2013 storm.” The Seims raised claims against

Allstate and Scott for unfair settlement practices, violations of the DTPA, fraud, and
                                           8
conspiracy to commit fraud. Against Allstate alone, they additionally raised claims for

breach of contract, PPC violations, and breach of the duty of GFFD. Allstate and

Scott answered the third amended petition and again pleaded the affirmative defense

of limitations.

       On November 3, 2015, Allstate and Scott moved for a no-evidence and

traditional summary judgment, primarily arguing that the Seims’ claims were time-

barred because they did not file their third amended petition until more than two

years after the 2013 claim was denied in September 2013.

       The Seims responded that their claims arising from the 2013 storm were not

time-barred because they related back to the date of their original petition—

February 11, 2014—which raised claims arising only from the damage caused by the

2013 storm. See Tex. Civ. Prac. & Rem. Code Ann. § 16.068 (providing amendment

to petition that changes facts or grounds of liability or defense in prior petition is not

subject to limitations “unless the amendment . . . is wholly based on a new, distinct, or

different transaction or occurrence”); accord Fed. R. Civ. P. 15(c) (providing for

relation back of amended pleading under certain circumstances, including adding a

claim that “arose out of the conduct, transaction, or occurrence [originally] set out”).

The Seims argued that the relation-back doctrine applied because the omission of the

2013 claims in their first and second amended petitions was inadvertent and because

relation back would not prejudice Allstate and Scott. They based their no-prejudice

argument on the fact that the case had proceeded as if the damages from all four
                                            9
storms had been at issue and because Allstate and Scott did not notify the Seims that

their first and second amended petitions did not raise claims directed to the 2013

storm:

         Plaintiffs did not realize at that time that the August 13, 2013 storm had
         been left out of the [first and second amended] petition[s]. The parties
         continued to conduct discovery and proceeded as though the claim
         related to the August 13, 2013, storm was still a part of this suit.
         Defendants did not raise any relevance objection to discovery relating to
         the claim based on the August 13, 2013 storm, and Defendants did not
         object when witnesses were deposed regarding that claim, or otherwise
         draw Plaintiff’s counsel’s attention to the fact that that claim had been
         omitted from the live pleadings. As far as Plaintiffs[’] counsel can tell,
         the first time Defendants’ counsel mentioned the absence of the claim
         based on the August 13, 2013 storm was in the fine print of a footnote
         to Defendants Chad Golseth, Maria Golseth[,] and Lisa Scott’s summary
         judgment motion filed on October 5, 2015. The October 5, 2015,
         summary judgment motion was based on a May 6, 2012, claim that was
         discussed in the First Amended Petition and the Second Amended
         Petition. The pre-2013 claims in those versions of the petition [i.e., the
         first and second amended petitions] had been included to show
         Plaintiffs’ prior dealings with Allstate leading up to the inadvertently
         omitted 2013 claim.

         The Seims also filed a motion to reinstate their claims arising from the 2013

storm because they had been “inadvertently dropped” and requested that the claims in

the third amended petition arising from the 2013 storm be considered timely as they

related back to the claims in their February 2014 original petition. The Seims pointed

out that the parties had conducted discovery relating to the 2013 storm after the

claims were not included in the first and second amended petitions “without any

objection from the Defendants.” Allstate and Scott objected to the motion to reinstate,


                                            10
asserting that the relation-back doctrine was inapplicable to save the Seims’ claims

stated in their third amended petition.

      The trial court held a hearing on Allstate and Scott’s summary-judgment

motion on December 17, 2015.7 On January 14, 2016, the trial court granted Allstate

and Scott’s traditional and no-evidence summary-judgment motion after reviewing

“the Motion, all supporting briefs and appendices, all responses, all competent

summary judgment evidence, and pleadings.” The trial court did not specify on which

grounds the summary judgment was based but did include language that all relief not

granted was denied.

                       C. APPELLATE-COURT PROCEEDINGS

      The Seims appealed the summary judgment on all but their fraud claims. As

we explained at the outset, we affirmed the trial court’s summary judgment, which was

reversed by the supreme court. Seim II, 551 S.W.3d at 163–64, 166. The supreme

court remanded the case to allow this court to address Allstate and Scott’s argument

that they were “still entitled to summary judgment on other grounds.” Id. at 166.

                                II. JURISDICTION

      An amicus curiae submitted a post-opinion, pre-mandate letter brief in the

supreme court, arguing that the appellate courts had no jurisdiction over the Seims’

appeal because the trial court’s summary-judgment order did not facially dispose of all


      7
       There is no reporter’s record from the hearing.

                                          11
parties and claims to the suit. The supreme court did not address this argument

before issuing its mandate.        On remand, another amicus curiae proffered a

“supplemental . . . submission” to this court, arguing that the earlier amicus curiae

brief received by the supreme court was correct: The absence of a signed, final

judgment dooms this court’s exercise of jurisdiction over the Seims’ appeal.

      Even though the trial court did not include express finality language that the

order disposed of all parties and claims and was, therefore, final and appealable, the

order in actuality disposed of all parties and claims that were before the trial court. See

In re Elizondo, 544 S.W.3d 824, 827–28 (Tex. 2018) (per curiam) (orig. proceeding)

(holding if summary-judgment order lacks finality language, appellate court may look

to the record to determine whether order actually disposed of all claims and parties);

Lehmann v. Har-Con Corp., 39 S.W.3d 191, 205–06 (Tex. 2001) (“[W]e conclude that

when there has not been a conventional trial on the merits, an order or judgment is

not final for purposes of appeal unless it actually disposes of every pending claim and

party or unless it clearly and unequivocally states that it finally disposes of all claims

and all parties. . . . Nothing in the order [here] indicates that it is a final judgment,

and it did not dispose of all pending claims and parties.” (emphases added)). The

Seims, Allstate, and Scott were the only parties before the trial court at the time of the

summary-judgment order. Allstate and Scott moved for summary judgment on each

of the Seims’ claims against them in their combined motion, which was granted by the

trial court; there were no counterclaims, cross-claims, or third-party claims at issue.
                                            12
See McFadin v. Broadway Coffeehouse, LLC, 539 S.W.3d 278, 283–84 & n.3 (Tex. 2018)

(“If [the order] disposes of every remaining issue in a case, it does not lack finality for

purposes of appeal merely because it recites that it is partial, refers to only some of the

parties or claims, or lacks Mother Hubbard language.”); Lehmann, 39 S.W.3d at 192–93

(holding summary-judgment order final “if and only if either it actually disposes of all

claims and parties then before the court, regardless of its language, or it states with

unmistakable clarity that it is a final judgment as to all claims and all parties”

(emphasis added)). We conclude that the summary-judgment order was final for

purposes of appeal even though it did not contain express finality language. See

McFadin, 539 S.W.3d at 283–84.

      III. PROPRIETY OF SUMMARY JUDGMENT: LIMITATIONS

       As we recognized, the trial court did not state upon what grounds its summary-

judgment order was based. Accordingly, we must affirm the summary judgment if

any of the grounds raised by Allstate and Scott were meritorious. See W. Invs., Inc. v.

Urena, 162 S.W.3d 547, 550 (Tex. 2005).

                            A. LIMITATIONS ARGUMENTS

       In their traditional summary-judgment motion directed to the third amended

petition, Allstate and Scott argued that because the Seims had abandoned their claims

tied to the 2013 storm by eliminating them from the first and second amended

petitions, the Seims’ reassertion of those claims in the third amended petition

rendered them time-barred. See Tex. R. Civ. P. 65 (providing amended pleading
                                            13
supersedes prior pleading, and prior pleading is no longer part of the record, unless

superseded pleading is relevant to answer limitations question). See generally Tex. R.

Civ. P. 166a(i) & 1997 cmt. (authorizing party without burden of proof to move for

no-evidence summary judgment); Zamora v. Tarrant Cty. Hosp. Dist., 510 S.W.3d 584,

589 (Tex. App.—El Paso 2016, pet. denied) (“[L]imitations is an affirmative defense

that may only be raised on traditional and not no-evidence summary[-]judgment

review.”). They contended that the Seims’ claims for breach of contract and for

violations of the insurance code’s PPC requirements against Allstate were governed by

the two-year-and-one-day period dictated by the insurance contract, which accrued

when Allstate denied claim number 876 on September 10, 2013. Allstate and Scott

also asserted that any extracontractual claims for violations of the statutory

settlement-practices requirements, the DTPA, the PPC requirements, and the

common-law duty of GFFD were governed by a two-year statutory limitations period,

which accrued when Allstate denied claim number 876. See Tex. Bus. & Com. Code

Ann. § 17.565; Tex. Civ. Prac. & Rem. Code Ann. § 16.003(a); Tex. Ins. Code Ann.

§ 541.162.

      In their summary-judgment response, motion to reinstate, and first appellate

issue, the Seims did not assert that a different limitations period applied or that the

accrual date was not September 10, 2013. Instead, the Seims argued that any claims

based on damage from the August 13, 2013 storm in the third amended petition

related back to the date of the February 2014 original petition, which was filed well
                                          14
within the limitations periods asserted by Allstate and Scott. See Tex. Civ. Prac. &

Rem. Code Ann. § 16.068; cf. Am. Petrofina, Inc. v. Allen, 887 S.W.2d 829, 831 (Tex.

1994) (applying relation-back concept of section 16.068 to inadvertently omitted

parties). They further asserted that Allstate and Scott did not show that they would be

prejudiced if the claims related back to the date of the original petition. The Seims

attached to their summary-judgment response the affidavit of their attorney in which

he swore that the omission of any claims tied to the 2013 storm from the Seims’ first

and second amended petitions had been inadvertent and that he “reasserted” the

claims arising from the 2013 storm shortly after he noticed the error.

      Allstate and Scott countered in both the trial court and this court that section

16.068 could not save the claims in the Seims’ third amended petition from the time-

bar because (1) any allegations arising from the 2013 storm and claim number 876

were voluntarily dismissed by operation of rule 65 when the Seims filed their first and

second amended petitions, which both occurred more than a year before the third

amended petition was filed, and (2) the Seims’ causes of action in their third amended

petition did not arise from the same transaction or occurrence alleged in their first and

second amended petitions. Allstate and Scott concluded, therefore, that the causes of

action arising from the 2013 storm and claim number 876 did not relate back to the

February 2014 original petition for limitation purposes. See Clary Corp. v. Smith,

949 S.W.2d 452, 459 (Tex. App.—Fort Worth 1997, pet. denied).


                                           15
                             B. STANDARD OF REVIEW

      We review the trial court’s summary judgment de novo, considering all grounds

presented to the trial court and preserved on appeal. See Provident Life & Accident Ins.

Co. v. Knott, 128 S.W.3d 211, 215–16 (Tex. 2003). We are to take as true all competent

evidence favorable to the Seims, and we indulge every reasonable inference and

resolve any doubts in their favor. See Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211, 215

(Tex. 2002). Allstate and Scott were entitled to summary judgment on the affirmative

defense of limitations if they conclusively proved all elements of that defense. See

Tex. R. Civ. P. 166a(b)–(c); Frost Nat’l Bank v. Fernandez, 315 S.W.3d 494, 508 (Tex.

2010); Chau v. Riddle, 254 S.W.3d 453, 455 (Tex. 2008) (per curiam); Diversicare Gen.

Partner, Inc. v. Rubio, 185 S.W.3d 842, 846 (Tex. 2005). A matter is conclusively

established if ordinary minds cannot differ as to the conclusion to be drawn from the

evidence. Triton Oil & Gas Corp. v. Marine Contractors & Supply, Inc., 644 S.W.2d 443,

445 (Tex. 1982). If Allstate and Scott conclusively established a limitations bar, the

Seims were then required to proffer summary-judgment proof raising a fact issue in

avoidance of the statue of limitations. See Diversicare, 185 S.W.3d at 846; Palmer v.

Enserch Corp., 728 S.W.2d 431, 435 (Tex. App.—Austin 1987, writ ref’d n.r.e.).

                                  C. APPLICATION

      The Seims did not dispute that the applicable limitations periods were those

asserted by Allstate and Scott, that the accrual date was September 10, 2013, or that

their third amended petition was filed more than two years after the accrual date.
                                          16
Thus, Allstate and Scott conclusively proved their affirmative defense. See generally

Childs v. Haussecker, 974 S.W.2d 31, 44 (Tex. 1998) (“[T]he commencement of the

limitations period may be determined as a matter of law if reasonable minds could not

differ about the conclusion to be drawn from the facts in the record.”).

      The burden then shifted to the Seims to raise a material fact issue regarding an

avoidance theory based on the filing date of the original petition. See KPMG Peat

Marwick v. Harrison Cty. Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999); Brewster v.

Columbia Med. Ctr. of McKinney Subsidiary, L.P., 269 S.W.3d 314, 317 (Tex. App.—

Dallas 2008, no pet.). The Seims relied on the relation-back doctrine in section 16.068

to assert that the claims in the third amended petition related back to the date of the

original petition for limitations purposes. They did not dispute that their first and

second amended petitions did not raise any allegation or claim regarding the 2013

storm and claim number 876; but they asserted that the omission was inadvertent,

allowing relation back to save their claims in the third amended petition from the

operation of the applicable limitations periods.

      The Seims’ causes of action in their third amended petition against Allstate and

Scott were similar to those previously raised in their superseded original petition

against Allstate and related solely and exclusively to the 2013 storm and claim number

876. And as we noted previously, the Seims specifically alleged in their third amended

petition that any damage from the prior three storms—the subject of their first and

second amended petitions—had been fully addressed such that there had been no
                                           17
damage to the home for twelve months before the 2013 storm. The 2007 storm was

the sole focus of the first amended petition, and the second amended petition raised

allegations only regarding the 2007, 2008, and 2012 storms. The allegations and

claims arising from the 2013 storm and claim number 876 in the original petition were

clearly omitted from the first and second amended petitions. The Seims do not

dispute any of these facts.

      What is in dispute is the import of these facts and the Seims’ assertions of

inadvertence to the application of the relation-back doctrine:

      If a filed pleading relates to a cause of action, cross action, counterclaim,
      or defense that is not subject to a plea of limitation when the pleading is
      filed, a subsequent amendment or supplement to the pleading that
      changes the facts or grounds of liability or defense is not subject to a
      plea of limitation unless the amendment or supplement is wholly based
      on a new, distinct, or different transaction or occurrence.

Tex. Civ. Prac. & Rem. Code Ann. § 16.068. A different transaction or occurrence

under section 16.068 is a set of facts that gives rise to the cause of action sued upon.

See Brewster, 269 S.W.3d at 316–18. Here, each storm occurred on a different date,

each resulting insurance claim was governed by a separate and distinct insurance

contract, and each claim was resolved differently. Because the first three storms and

resulting claim numbers were separate occurrences or transactions from the 2013

storm, the first and second amended petitions operated to dismiss or abandon any

claim tethered to the 2013 storm and claim number 876 raised in the original petition.

See, e.g., id. (concluding medical conduct leading to skin ulcers was separate transaction

                                           18
from conduct leading to claims based on cardiac care; thus, cardiac claims did not

relate back to date of petition raising skin-ulcer claims); cf. Murthy v. Abbott Labs.,

847 F. Supp. 2d 958, 980–81 (S.D. Tex. 2012) (finding relation back to date of initial

pleadings under federal rule 15 because added breach-of-contract claim was “rooted

in [Murthy’s] participation in the Abbott study and her subsequent development of

cancer” and “shares the same actors and the same underlying operative facts”); In re

Hochheim Prairie Farm Mut. Ins. Ass’n, 296 S.W.3d 907, 912 (Tex. App.—Corpus

Christi–Edinburg 2009, orig. proceeding) (recognizing claims regarding three separate

insurance policies were severable). The relation-back doctrine does not revive a

dismissed claim that is later refiled. See Rodriguez v. Crutchfield, 301 S.W.3d 772, 775

(Tex. App.—Dallas 2009, no pet.) (citing Clary Corp., 949 S.W.2d at 459); Delhomme v.

Comm’n for Lawyer Discipline, 113 S.W.3d 616, 621 (Tex. App.—Dallas 2003, no pet.)

(citing Clary Corp., 949 S.W.2d at 460).

      By failing to include any factual allegations or causes of action attached to the

2013 storm and claim number 876 in their first and second amended petitions, the

Seims dismissed or abandoned any claim directed to the separate occurrence of the

2013 storm, the separate transaction of claim 876, and the separate transaction of the

insurance contract in effect on the date of the 2013 storm. See Tex. R. Civ. P. 65;

Amerigroup Tex., Inc. v. True View Surgery Ctr., L.P., 490 S.W.3d 562, 570 (Tex. App.—

Houston [14th Dist.] 2016, no pet.); J.M. Huber Corp. v. Santa Fe Energy Res., Inc.,

871 S.W.2d 842, 844 (Tex. App.—Houston [14th Dist.] 1994, writ denied).
                                           19
Accordingly, the Seims’ claims wholly tethered to the 2013 storm and claim number

876 asserted in the third amended petition do not relate back to the date of the

original petition for limitations purposes because the Seims’ claim specifically

implicating the 2013 storm and claim number 876 arose from a different transaction

or occurrence than the prior three storms and claim numbers 105, 373, and 815,

which were the sole focus of the first and second amended petitions. Cf. Stewart Info.

Servs. Corp. v. Great Am. Ins. Co., 997 F. Supp. 2d 650, 667–68 (S.D. Tex. 2014)

(holding under federal rule 15, breach-of-contract claim related back to filing date of

misrepresentation claim “relating to the same contract” (emphasis added)).

       The allegations in the third amended petition were more than mere expansions

of the grounds of liability based on the same occurrence or transaction challenged in

the first and second amended petitions. See Chavez v. Anderson, 525 S.W.3d 382, 387

(Tex. App.—Houston [14th Dist.] 2017, no pet.); Nolan v. Hughes, 349 S.W.3d 209,

214 (Tex. App.—Dallas 2011, no pet.); see also First State Bank & Trust Co. of Rio

Grande City v. Ramirez, 126 S.W.2d 16, 18 (Tex. [Comm’n Op.] 1939). In their third

amended petition, the Seims wholly alleged a separate and distinct transaction—the

denial of claim 876—than they did in their first and second amended petitions—

actions and inactions surrounding claim numbers 105, 373, and 815. Even though the

Seims alleged causes of action arising only from the 2013 storm and claim number

876 in their original petition, that earlier filing date does not carry forward to the third

amended petition under the relation-back doctrine because the allegations in the
                                            20
original petition were dismissed and abandoned by the first and second amended

petitions. See Tex. Disposal Sys. Landfill, Inc. v. Waste Mgmt. Holdings, Inc., 219 S.W.3d

563, 588 (Tex. App.—Austin 2007, pet. denied) (op. on reh’g).

      We recognize that the supreme court has applied the relation-back doctrine to

save claims against parties who were inadvertently omitted in an amended pleading,

but those parties were added to claims that arose from the same transaction or

occurrence challenged in the superseded pleading. Am. Petrofina, 887 S.W.2d at 831;

see also Samara Portfolio Mgmt., LLC v. Zargari, No. 13-17-00049-CV, 2018 WL 2979847,

at *7 (Tex. App.—Corpus Christi–Edinburg June 14, 2018, pet. denied) (mem. op.)

(concluding DTPA claim related back to date of earlier filed claims because although

DTPA claim “changed the grounds of liability, [it] was not wholly based on a new,

distinct, or different transaction or occurrence”); Woodruff v. Wright, 51 S.W.3d 727,

731, 733 (Tex. App.—Texarkana 2001, pet. denied) (discussing American Petrofina and

noting that “since all of [the plaintiffs’] claims were identical, the factual claims made

in the petition were not affected by the omission of the particular plaintiff” and that

because “the claims were all identical . . . even if the omission of a plaintiff was an

accident, the defendants were not harmed by read[]ing that plaintiff [in]to the case”);

Hendricks v. Thornton, 973 S.W.2d 348, 366–67 (Tex. App.—Beaumont 1998, pet.

denied) (applying relation-back doctrine to omitted claim that was based on same

transaction or occurrence as prior, superseded claims because defendants were not

prejudiced by the repleaded claim). Allstate was put on notice that it was defending
                                           21
its actions regarding the 2013 storm and claim 876 by the Seims’ original petition. But

in the next three months, the Seims twice amended their petition to remove any

reference to the 2013 storm and claim number 876 and to focus solely on the three

prior storms and claim numbers 105, 373, and 815. The Seims did not amend their

petition for a third time to again attack only the conduct surrounding the 2013 storm

and claim number 876 until almost eighteen months later, after Allstate, the Golseths,

and Scott mentioned the dismissal by abandonment in their summary-judgment

filings. The Seims failed to give fair notice to Allstate and Scott that their conduct

surrounding a separate transaction or occurrence was still at issue after that conduct

was dismissed from the Seims’ two subsequent amended petitions.            See Brewster,

269 S.W.3d at 319–20.

      The Seims assert that the claims in their first and second amended petitions

were alleged merely to show their “prior dealings with Allstate leading up to the

inadvertently omitted 2013 claim.” But nothing about the 2013 storm or Allstate’s

subsequent denial of claim number 876 was included in the first or second amended

petition; the Seims’ allegations in their first and second amended petitions were

specifically tied only to claim numbers 105, 373, and 815 with no reference to claim

number 876; and there is no indication in the first or second amended petition that

the facts surrounding claim numbers 105, 373, and 815 were merely contextual to

support an undisputedly omitted allegation regarding claim number 876. To the

contrary, the Seims alleged in their third amended petition that all needed repairs were
                                          22
made after the 2007, 2008, and 2012 storms such that no water damage occurred in

the year before the 2013 storm.

       The Seims contend in their reply brief that the identical language of their claims

tethered to the 2013 storm and claim number 876 in the original and third amended

petitions mandates application of the relation-back doctrine. But the cases they cite

either do not support their position or are distinguishable. CHRISTUS Health and

Walker directly support the precept that later-added claims based on separate

transactions or occurrences do not relate back to the date of an earlier filed petition

even if they are similarly worded. CHRISTUS Health Gulf Coast v. Carswell, 505 S.W.3d

528, 537–39 (Tex. 2016) (concluding healthcare-liability claim based on actions taken

after patient’s death did not relate back to date prior healthcare-liability claim was filed

because prior claim was based on actions taken before patient’s death, claims were

separate in time, claims were based on “facts different and distinct,” and claims

involved different occurrences); Walker v. Presidium, Inc., 296 S.W.3d 687, 694–95 (Tex.

App.—El Paso 2009, no pet.) (holding contractual and extra-contractual claims based

on denial of uninsured-motorist benefits did not relate back to filing date of claims

based on rental-agreement transaction because “the rental transaction and accident are

separate from Hertz’s failure to pay insured motorist benefits”). This is the principle

we apply today.

       Hunicke, a case decided under the labor code, did apply the relation-back

doctrine to save one voluntarily dismissed claim that was later re-alleged. Hunicke v.
                                            23
Seafarers Int’l Union, No. 14-12-00199-CV, 2013 WL 2444634, at *6 (Tex. App.—

Houston [14th Dist.] June 4, 2013, pet. denied) (mem. op.). Hunicke voluntarily

dismissed one of her three employment-discrimination claims then realleged that

claim in her first amended petition after discovering her employer’s alleged spoliation.

Id. at *1–2. Our sister court held that because the first amended petition was based

on the same transaction and occurrence as the remaining claims in the original

petition and, thus, her voluntary dismissal did not put Hunicke in the position of one

who had not filed suit on the same transaction or occurrence, the relation-back

doctrine applied to the claim re-alleged in the first amended petition. Id. at *6. This

holding was based on the conclusion that at the time of the first amended petition, the

original petition remained “valid.” Id. Those are not our facts, making Hunicke inapt.

      The Seims also argue that the omission of any claim tied to claim number 876

was inadvertent, as shown by their attorney’s affidavit, and that there is no evidence

that Allstate would be prejudiced by the application of the relation-back doctrine.

This argument appears to be an attempt to invoke the supreme court’s holding in

American Petrofina that the omission of one plaintiff out of more than 1,100 named

plaintiffs in the seventh amended petition did not show “an intent to non-suit” that

sole plaintiff because there was no evidence that the defendants were not given fair

notice and because “the omission of Fazio seems to have been inadvertent.”

887 S.W.2d at 830–31; see also Allen v. Am. Petrofina, Inc., 837 S.W.2d 415, 420 (Tex.

App.—Beaumont 1992) (“These four named plaintiffs were omitted, deleted or
                                          24
dropped through inadvertence apparently. Since the plaintiffs number more than

1100, such inadvertence or mistake is understandable and excusable.”), aff’d in part &

rev’d in part, 887 S.W.2d at 831. See generally Cudd Pressure Control, Inc. v. Sonat Expl. Co.,

74 S.W.3d 185, 188 (Tex. App.—Texarkana 2002, pet. denied) (discussing when

omission is inadvertent and does not operate to dismiss omitted parties based on the

specific facts of the case, but noting “such practices . . . cause . . . confusion . . . [and]

expense”). But as the supreme court has also recognized, the relation-back test asks

“whether the cause of action alleged in the amended petition is ‘wholly based upon

and grows out of a new, distinct or different transaction and occurrence.’” Leonard v.

Texaco, Inc., 422 S.W.2d 160, 163 (Tex. 1967).

       In American Petrofina, the plaintiffs’ claims against the defendants were wholly

based on the same transactions or occurrences—“wrongful death and survival claims

by numerous plaintiffs against numerous defendants.” 887 S.W.2d at 829. In this

instance, the claims in the first and second amended petitions, while similar to the

types of claims raised in the original and third amended petitions, are grounded in

completely separate occurrences or transactions. Allstate and Scott were not put on

notice that the 2013 storm and claim number 876 were at issue until eighteen months

after the Seims’ claims implicating that occurrence had been dismissed by their

undisputed abandonment.

       We decline to ignore the effect of the plain language of section 16.068 merely

because counsel swears he did not intend to dismiss any claim tied to the 2013 storm
                                              25
and claim number 876 when the first and second amended petitions plainly, clearly,

and specifically pleaded for relief predicated only on three earlier and separate storms

and the resulting three insurance claims for coverage under three different contracts.

This lack of fair notice to Allstate and Scott was clearly prejudicial. Cf. Kissman v.

Bendix Home Sys., Inc., 587 S.W.2d 675, 677 (Tex. 1979) (“Kissman’s trial pleadings do

not give fair notice of a claim for reasonable and necessary cost of repairs. The

variance between the pleadings and proof is substantial, misleading, and

prejudicial. . . .”).

        The fact that Allstate and Scott did not notify the Seims during discovery or at

any point before their motions for summary judgment that the claims regarding the

2013 storm and claim number 876 had been dismissed or abandoned by operation of

the first and second amended petitions does not show that Allstate and Scott would

not be prejudiced by the application of the relation-back doctrine. Allstate and Scott

had no responsibility to inform the Seims how to plead their case, to notify them of

the dismissal by abandonment, or to alert them that their discovery requests sought

information not directly relevant to the three prior claims for insurance coverage. Cf.

Tex. R. Civ. P. 192.3(a) (“It is not a ground for objection [to discovery] that the

information sought will be inadmissible at trial if the information sought appears

reasonably calculated to lead to the discovery of admissible evidence.”);8 In re Meador,


       We note the Seims’ deposition questions to Scott that have been provided to
        8

us involved her actions during her inspection of the Seims’ home after the 2013
                                       26
968 S.W.2d 346, 352 (Tex. 1998) (orig. proceeding) (“If a lawyer received privileged

materials because the opponent inadvertently produced them in discovery, the lawyer

ordinarily has no duty to [sua sponte] notify the opponent or voluntarily return the

materials.”).

                                     D. SUMMARY

       The Seims’ claims in their third amended petition were based on a separate

transaction or occurrence than the claims in their first and second amended petition.

Although their original petition solely raised claims rooted in the same transaction or

occurrence at issue in the third amended petition, the failure to include those claims in

the first and second amended petitions operated to abandon and thus dismiss any

claims attached to that distinct transaction or occurrence. The relation-back doctrine

cannot revive these dismissed claims for limitations purposes. Accordingly, the claims

in the Seims’ third amended petition based on a separate and distinct transaction or


storm, but some were in the context of her usual inspection practices, which could
arguably be relevant to any attack on how the Seims’ prior coverage claims were
adjusted as raised in the first and second amended petitions. This undercuts the
Seims’ argument that Allstate and Scott failed to raise a relevance objection to their
discovery requests. See Tex. R. Civ. P. 192.3(a). In any event, Allstate and Scott had
no duty to raise a discovery objection or “draw [the Seims’] attention” to the
abandonment before they moved for summary judgment. Cf. K.B. Video & Elecs., Inc.
v. Naylor, 847 S.W.2d 401, 408 (Tex. App.—Amarillo 1993, writ denied) (“The
mistaken conclusion of appellant’s president and its counsel that no further steps . . .
were necessary was a mistake not attributable to appellee or any official functionary.”);
Thomason v. Freberg, 588 S.W.2d 821, 825 (Tex. App.—Corpus Christi 1979, no writ)
(“[I]t is clear that . . . counsel has no official duty to apprise opposing counsel of the
entry of a judgment.”).

                                           27
occurrence than the transactions and occurrences sued upon in their prior two

pleadings are time-barred because they were filed more than two years after the

undisputed accrual date. See, e.g., CHRISTUS Health, 505 S.W.3d at 537–39. The

Seims therefore failed to raise a fact issue on their avoidance theory to Allstate and

Scott’s conclusively established affirmative defense of limitations.

                                 IV. CONCLUSION

      The trial court’s summary judgment may be upheld on the legal basis of

limitations raised by Allstate and Scott in the trial court and again on appeal, and we

overrule the Seims’ first appellate issue refuting Allstate and Scott’s limitations

defense. We need not address the other legal bases raised by Allstate and Scott in

seeking summary judgment or the Seims’ second appellate issue seeking reversal on

the basis of alleged fact issues regarding their affirmative claims for relief. See Urena,

162 S.W.3d at 550; see also Tex. R. App. P. 47.1. We affirm the trial court’s summary

judgment. See Tex. R. App. P. 43.2(a).


                                                       /s/ Lee Gabriel

                                                       Lee Gabriel
                                                       Justice

Delivered: July 30, 2019




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