                         NUMBER 13-13-00381-CV

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG


REVEREND RESHUNN D. CHAMBERS, TH.M,                                      Appellant,

                                          v.

AMERICAN HALLMARK INSURANCE
CO. OF TEXAS,                                                            Appellee.


                  On appeal from the 192nd District Court
                        of Dallas County, Texas.


                                     OPINION

  Before Chief Justice Valdez and Justices Rodriguez and Longoria
                    Opinion by Justice Rodriguez
      Appellant Reverend Reshunn D. Chambers, Th.M (Chambers) appeals the trial

court’s grant of summary judgment in favor of appellee, American Hallmark Insurance Co.
of Texas (Hallmark). 1 Chambers raises three issues on appeal challenging the trial

court’s grant of Hallmark’s “no cause of action” traditional motion for summary judgment

and Hallmark’s special exceptions. We reverse and remand in part and affirm in part.

                                        I.      BACKGROUND

        Chambers purchased a renter’s insurance policy (the Policy) from Hallmark that

went into effect on February 1, 2010. The insurance policy covered the premises at 502

S.W. 16th Street in Grand Prairie, Texas. Chambers paid $252.00 in premiums on the

Policy. On or about March 13, 2010, Chambers reported a loss of personal property

from the residence identified on the Policy. Chambers submitted his claim for coverage

with Hallmark. Hallmark claimed that the alleged theft was not a covered loss under the

Policy and denied the claim.

        On February 9, 2012, Chambers filed suit in the 192nd District Court of Dallas

County as a pro se litigant. Chambers’s original petition purported to allege claims for

negligence, violations of Chapters 541 and 542 of the Texas Insurance Code, and

violations of Chapter 17 of the Texas Business and Commerce Code (DTPA). 2 On

March 12, 2012, Hallmark filed its original answer and special exceptions to Chambers’s

petition. The trial court granted Hallmark’s special exceptions and required Chambers

to replead to: 1) “provide fair notice of the specific acts and violations alleged against

[Hallmark] under the Texas Insurance Code and Texas DTPA,” and 2) dismiss “any and


        1This case is before the Court on transfer from the Fifth Court of Appeals in Dallas pursuant to a
docket equalization order issued by the Supreme Court of Texas. See TEX. GOV'T CODE ANN. § 73.001
(West, Westlaw through 2013 3d C.S.).

        2 Chambers titled his pleadings as “complaints.”       To prevent confusion we shall refer to his
pleadings as “petitions” in conformity with the Texas Rules of Civil Procedure. TEX. R. CIV. P. 78.

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all claims against [Hallmark] that constitute negligent claim handling.” Chambers was

given thirty days to replead.

       Chambers did not file an amended petition within the thirty days provided by the

court. On June 12, 2012, Hallmark filed a motion to dismiss for want of prosecution. At

the hearing on Hallmark’s motion to dismiss, the trial court gave Chambers an additional

two weeks to file an amended petition in compliance with its order. Chambers then filed,

on June 27, 2012, a motion to vacate the court’s order granting Hallmark’s special

exceptions. The court never ruled on Chambers’s motion to vacate, and Chambers filed

an amended petition on July 11, 2012. Hallmark filed an amended answer and counter-

claim against Chambers alleging civil fraud, among other causes of action, and asserting

the affirmative defense of fraud.

       Hallmark again specially excepted to Chambers’s amended pleading. Chambers

then filed a second amended petition alleging claims pursuant to the Texas Insurance

Code and DTPA, and adding claims under the Texas Administrative Code pursuant to

section 21.203. Hallmark filed a traditional motion for summary judgment on Chambers’s

claims and on its counter-claims.

       In its motion, Hallmark sought summary judgment on the basis that Chambers had

failed to plead a cause of action. Hallmark also moved for summary judgment on its

affirmative defense of fraud and its counter-claims for fraud. Hallmark filed summary

judgment evidence consisting of Chambers’s deemed admissions, the deposition

excerpts of Chambers’s family members, Chambers’s “sworn proof of loss” and “affidavit

of property theft,” the general warranty deed for the premises, and an affidavit by


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Hallmark’s attorney on attorneys’ fees.                The evidence supported Hallmark’s fraud

counter-claim and its affirmative defense of fraud.

        After hearing the arguments of the parties, the trial court issued an order granting

Hallmark’s motion for summary judgment on all grounds but fraud.3 Hallmark then non-

suited its counter-claim for fraud against Chambers. The court vacated its previous order

and re-issued a final judgment that disposed of all claims before the court.

        This appeal followed.

                                    II.     PRESERVATION OF ERROR

        Chambers complains of three issues on appeal: 1) summary judgment was not

appropriate on the affirmative defense of fraud; 2) summary judgment was not appropriate

on Chambers’s pleadings, and 3) the court erred when it granted Hallmark’s special

exceptions on Chambers’s original petition. As a threshold matter, Hallmark contends

that Chambers failed to preserve error on his appellate issues.4

        In Chambers’s second issue, he is challenging the legal sufficiency of the trial

court’s order granting Hallmark’s motion for summary judgment on his pleadings. The

Texas Supreme Court has noted that a non-movant is not required to object to the legal

sufficiency of a traditional motion for summary judgment to raise a complaint on appeal.

Cimarron Hydrocarbons Corp. v. Carpenter, 143 S.W.3d 560, 562 (Tex. App.—Dallas



        3   In its brief, Hallmark states that the trial court “clearly denied” summary judgment on the basis of
their affirmative defense of fraud. Hallmark made the following representation in its brief: “if the [c]ourt
had found in favor of Hallmark on its affirmative defense of fraud, then it would likewise have found in favor
of Hallmark on the counter-claim involving fraud . . . which it clearly did not.”

         4 Because Hallmark’s affirmative defense of fraud was not a ground on which the trial court based

its order granting the summary judgment, there can be no error on that basis on appeal. We will not reach
Chambers’s first issue.
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2004, pet. denied) (citing McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 341

(Tex. 1993)).      Hallmark’s contention that Chambers was required to bring forth

competent summary judgment evidence misstates the burden of proof in a traditional

motion for summary judgment. See TEX. R. CIV. P. 166a(b); Tello v. Bank One, 218

S.W.3d 109, 118–19 (Tex. App.—Houston [14th Dist.] 2007, no pet.); see also Medlock

v. Comm’n for Lawyer Discipline, 24 S.W.3d 865, 870 (Tex. App.—Texarkana 2000, no

pet.). Chambers’s issue on appeal challenging the legal sufficiency of the trial court’s

grant of summary judgment is properly before this Court.5

       In Chambers’s third issue, he challenges the trial court’s grant of Hallmark’s special

exceptions. To preserve error, Chambers was required to object to the ruling on the

special exceptions before the trial court and properly raise the issue before this Court on

appeal. See Mowbray v. Avery, 76 S.W.3d 663, 678 (Tex. App.—Corpus Christi 2002,

pet denied); Gomez v. Tex. Windstorm Ins. Ass’n, No. 13-04-598-CV, 2006 WL 733957,

at *12 (Tex. App.—Corpus Christi March 23, 2006, pet. denied) (mem. op.); see also TEX.

R. APP. P. 33.1. Chambers filed a “Motion to Vacate Order on Defendant’s Special

Exception” after the court issued its order granting Hallmark’s special exceptions.

Because Chambers objected to the trial court about its ruling on Hallmark’s special

exceptions, we find that Chambers’s motion to vacate was sufficient to preserve error in

the trial court.   See TEX. R. APP. P. 33.1(c). Chambers’s third issue is properly before

this Court.



        5 Chambers only addresses his causes of action under the DTPA and Texas Insurance Code on

appeal, therefore only those causes of action are preserved for appellate review. See Young v. City of
Dimmitt, 787 S.W.2d 50, 50 (Tex. 1990).
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                 III.    SUMMARY JUDGMENT ON CHAMBERS’S PLEADINGS

       A.     Standard of Review for Summary Judgment on the Pleadings

       A movant may file a motion for summary judgment that, instead of proving or

disproving facts, shows the non-movant has no viable cause of action or defense based

on the non-movant's pleadings. See generally Helena Lab. Corp. v. Snyder, 886 S.W.2d

767, 768–69 (Tex. 1994) (per curiam); Hansler v. Nueces County, No. 13-99-00583-CV,

2001 WL 997350, at *2 (Tex. App.—Corpus Christi May 3, 2001, no pet.) (mem. op.)

(stating that summary judgment can be used to establish that the nonmovant has not pled

a viable cause of action). Summary judgment based on a pleading deficiency may be

proper if a party has had an opportunity, by special exception, to amend and fails to do

so, or files an additional defective pleading. Natividad v. Alexsis, Inc., 875 S.W.2d 695,

699 (Tex. 1994); Gallien v. Washington Mut. Home Loans, Inc., 209 S.W.3d 856, 866

(Tex. App.—Texarkana 2006, no pet.). A review of the pleadings in such case is de

novo, with the reviewing court taking all allegations, facts, and inferences in the pleadings

as true and viewing them in a light most favorable to the pleader. Natividad, 875 S.W.2d

at 699 (noting that the focus of the review is on the non-movant’s pleadings at the time of

the summary judgment).

       If the plaintiff, after amending its petition in response to an order sustaining special

exceptions, still fails to plead a valid claim, the trial court may grant summary judgment

on the pleadings. Gross v. Davies, 882 S.W.2d 452, 454 (Tex. App.—Houston [1st Dist]

1994, writ denied) (citing Greater S.W. Office Park, Ltd. v. Tex. Commerce Bank Nat'l

Ass'n, 786 S.W.2d 386, 388 (Tex. App.—Houston [1st Dist.] 1990, writ denied)). When


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a motion for summary judgment is directed solely to a petition, the reviewing court must

take every factual allegation in the petition as true. Anders v. Mallard & Mallard, Inc.,

817 S.W.2d 90, 93 (Tex. App.—Houston [1st Dist.] 1991, no writ). If a liberal construction

of the petition to which the motion for summary judgment is directed reveals a valid claim,

the judgment on the petition should be reversed.         Id.   We will affirm the summary

judgment only if the pleadings are legally insufficient. Natividad, 875 S.W.2d at 699.

       B.     Applicable Law

       Texas follows a “fair notice” standard for pleading, in which courts assess the

sufficiency of pleadings by determining whether an opposing party can ascertain from the

pleading the nature, basic issues, and the type of evidence that might be relevant to the

controversy.” Low v. Henry, 221 S.W.3d 609, 612 (Tex. 2007); see also TEX. R. CIV. P.

47(a) (original pleading shall contain short statement of cause of action sufficient to give

fair notice of the claim involved), 45(b) (pleading shall consist of a statement in plain and

concise language of the plaintiff's cause of action; the allegation is not objectionable

“when fair notice to the opponent is given by the allegations as a whole”). “Rule 45 does

not require that the plaintiff set out in his pleadings the evidence upon which he relies to

establish his asserted cause of action.” Dallas Area Rapid Transit v. Morris, 434 S.W.3d

752, 760–61 (Tex. App.—Dallas 2014, pet denied) (quoting Paramount Pipe & Supply

Co. v. Muhr, 749 S.W.2d 491, 494–95 (Tex. 1988)).

       The purpose of the fair notice requirement is to give the opposing party information

sufficient to enable it to prepare a defense. Horizon/ CMS Healthcare Corp. v. Auld, 34

S.W.3d 887, 897 (Tex. 2000). A court will look to the pleader's intent “and the pleading


                                             7
will be upheld even if some element of a cause of action has not been specifically alleged.”

Morris, 434 S.W.3d at 761 (quoting Roark v. Allen, 633 S.W.2d 804, 809 (Tex.1982)).

       C.     Analysis

       Chambers’s second issue challenges the trial court’s grant of Hallmark’s summary

judgment on his pleadings.          Hallmark had previously filed special exceptions

complaining that Chambers failed to state a claim on which relief could be granted.

Chambers amended his petition, attaching his original petition as an exhibit. At that time

the court noted that Chambers’s pro se pleading was still defective and was “offensive to

this [c]ourt.” The court went on to tell Chambers that his pleadings were not amended

properly. Chambers was instructed to “[r]efine [his] pleadings, refile [sic] your lawsuit in

a way that can sustain or overcome [Hallmark’s] challenge.”

       On August 13, 2012, Chambers filed his second amended petition. This petition

specifically pled the portions of the DTPA and the Texas Insurance Code that Chambers

contended Hallmark violated with sufficient facts to put Hallmark on notice of the

allegations against it. Additionally, Chambers complied with the trial court order and did

not replead his claim for negligence. We determine that Chambers made a “good faith”

effort to replead his claims to state a valid cause of action in compliance with the trial

court’s order. See Humphreys v. Meadows, 938 S.W.2d 750, 753 (Tex. App.—Fort

Worth 1996, writ denied) (explaining that if the plaintiff makes a good faith effort to amend

after special exceptions, the defendant is required to specially except to the amended

pleadings); but see Ford v. Performance Aircraft Servs., 178 S.W.3d 330, 336 (Tex.

App.—Fort Worth 2005, pet. denied) (recognizing that a plaintiff’s right to cure is not


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unlimited).

       Because the trial court had previously granted Hallmark’s special exceptions,

Hallmark’s motion for summary judgment was an appropriate procedural tool to address

continuing deficiencies. See Friesenhahn v. Ryan, 960 S.W.2d 656, 658 (Tex. 1998).

Because Hallmark did not specially except to the second amended petition we will

construe the petition liberally in favor of Chambers. See Dallas Area Rapid Transit v.

Morris, 434 S.W.3d 752, 761 (Tex. App.—Dallas 2014, pet. denied) (stating that “in the

absence of special exceptions, a petition will be construed liberally in favor of the

pleader”). We will determine whether Chambers’s live pleading states a claim upon

which relief could be granted.

       Chambers’s second amended petition included a section titled “Statement of

Factual Allegations,” in which he pled the following relevant facts:

          Hallmark is an insurance company that writes homeowner’s and renter’s
           insurance policies in the State of Texas through a network of insurance
           company agents that are appointed as its agents. Virtually all policies
           sold by Defendant to homeowners or renters are single premium policies
           where the entire period of insurance coverage, . . . is paid for in one or
           more payments and policy is underwritten and placed into full force and
           effect.

          In selling single premium homeowner’s insurance policies, Defendant
           represents that if an insured’s underlying debt is paid off early or their
           insurance terminates, Defendant will refund the unearned portion of the
           homeowner’s insurance premium.

          Defendant has refused or failed to promptly refund unearned portions of
           the homeowner’s insurance premiums to insured and has unlawfully
           retained these premiums, unjustly enriching itself.

          Defendant maintains business policies and practices that require
           insureds to fulfill conditions not required by their insurance policies or by


                                              9
           law as a precondition to obtaining refunds of unearned homeowner’s
           insurance premiums paid to Defendant by insured.

          Defendant has totally failed to establish procedures that are sufficient to
           ensure that it will receive timely notification from claims filed by insured
           to the extent that the claims department had terminated homeowner’s
           policy when insured has initiated a claim of loss and property is no longer
           insured as a direct result of the loss.

          Defendant delegates premium intake and refund functions to its agents
           and/or claims adjusters, but Defendant grossly fail[s] to implement any
           meaningful audit procedures to ensure that it[s] agents and/or claims
           adjusters are making timely refunds owed to insureds.

Chambers also titled sections of his second amended petition “Texas Deceptive Trade

Practices—Consumer Protection Act Violations” and “Texas Insurance Code Violations”

where he set forth the portions of the statutes of which he was complaining. 6

               1.      Chambers’s DTPA Claims

       The facts pled by Chambers, which we take as true for the purpose of this review,

alleged that Hallmark represented that unearned premiums would be returned in the

event of early policy termination. For instance, Chambers alleged that Hallmark violated

the DTPA by “representing that a contract agreement confers or involves rights, remedies,

or obligations which it does not have, nor intend to have, or which are prohibited by law.” 7

TEX. BUS. & COMM. CODE § 17.46(b)(12). Chambers alleged that he paid the premium in

full and that his insurance terminated before the expiration of the policy period.



       6  Chambers’s code citations contained errors; however, we do not find that the citation errors
precluded Hallmark from understanding the substantive allegations against it. See, e.g., CKB & Assocs.,
Inc. v. Moore McCormack Petro., Inc., 809 S.W.2d 577, 586 (Tex. App.—Dallas 1991, writ denied).

       7 Chambers also alleged violations of Texas Business and Commerce Code section 17.46 (b)(5).

See TEX. BUS. & COMM. CODE ANN. § 17.46(b)(5) (West, Westlaw through 2013 3d C.S.) (representing that
goods or services have characteristics, uses, or benefits which they do not have).

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Chambers further alleged that Hallmark refused to refund the unearned portion of his

premium in violation of the policy, and that such action was unlawful. The specific facts

in the second amended petition, taken in conjunction with the alleged statutory violations,

provide fair notice of Chambers’s DTPA claims. See Low v. Henry, 221 S.W.3d at 612;

see also TEX. R. CIV. P. 47(a). The trial court erred in entering summary judgment on

Chambers’s pleadings against Hallmark under the DTPA.

               2.      Claims under the Texas Insurance Code

       We likewise find that Chambers’s pleadings, liberally construed, state claims for

violations of the Texas Insurance Code.                  Chambers pled that Hallmark made

misrepresentations regarding the rental policy he purchased.8 Specifically, Chambers

complained Hallmark misrepresented that he would receive a refund of any unearned

premiums paid on the policy.                Chambers alleged Hallmark violated sections

541.051(1)(B), 541.052; and 541.061 of the Texas Insurance Code. Those statutes

make misrepresentations by an insurer, directly or through advertising, actionable. See

TEX. INS. CODE ANN. §§ 541.051, 052, .061 (West, Westlaw through 2013 3d C.S.).

Because Hallmark moved for traditional summary judgment on the pleadings, we take the

facts plead by Chambers as true and do not address the merits of his claims.

       Employing a liberal reading of the pleadings—as required by the Texas Rules of

Civil Procedure and case law—Chambers expressly pled that Hallmark made at least two




         8 Chambers cited section 1153 of the Texas Insurance Code in his fact section discussing policy

refunds. TEX. INS. CODE. ANN. § 1153.202 (West, Westlaw through 2013 3d C.S.) While we agree with
Hallmark that section 1153 is wholly inapplicable to Chambers’s claims, we note that Chambers set forth
sufficient facts, without reference to section 1153, to maintain his cause of action.

                                                  11
representations. First, Chambers alleged that Hallmark represented that if the insurance

terminated prior to the end of the policy period, then Hallmark would refund the unearned

portion of the premium paid. Chambers noted that he did not receive his refund and that

Hallmark failed to ensure its representatives made timely refunds. Second, Chambers

pled that Hallmark maintained business policies and practices that required insureds to

fulfill conditions not required by the wording in the policies or the law in order to obtain

refunds. These statements were sufficient to plead a claim under the Texas Insurance

Code. We find that Chambers’s pleadings comply with the fair notice provisions and

were sufficient to allow Hallmark to determine the nature, basic issues, and type of

evidence relevant to the controversy. The trial court erred in entering summary judgment

on Chambers’s pleadings against Hallmark under the Texas Insurance Code. See Low,

221 S.W.3d at 612.

              3.     Chambers’s Coverage Claim

       Chambers also contends that the trial court erred in granting summary judgment

on his coverage claim. Chambers’s original petition contained allegations that could

have conceivably constituted a coverage claim; however, those allegations were not

included in Chambers’s second amended petition. Amended pleadings supersede and

supplant previous pleadings.      Smith Detective Agency & Nightwatch Serv., Inc. v.

Stanley Smith Sec., Inc., 938 S.W.2d 743, 747 (Tex. App.—Dallas 1996, writ denied).

When Chambers amended his pleadings and did not reassert his coverage claim, he

effectively non-suited that claim. See FKM P’ship v. Bd. of Regents of the Univ. of

Houston Sys., 255 S.W.3d 619, 633 (Tex. 2008) (discussing non-suit by amended


                                            12
petition). Chambers therefore did not have any pleadings before the trial court on his

coverage issue, and it was not included in the summary judgment.

      We sustain Chambers’s second issue as to his claims brought pursuant Chapter

17 of the Texas Business and Commerce Code and Chapter 541 of the Texas Insurance

Code. We overrule Chambers’s issue as it applies to his coverage claim.

                              IV.    SPECIAL EXCEPTIONS

      By his third issue, Chambers complains that the trial court abused its discretion

when it sustained Hallmark’s special exceptions to his original petition.       The court

ordered Chambers to 1) provide fair notice of the specific acts and violations alleged

against Hallmark under the Texas Insurance Code and the DTPA, and 2) dismiss any

and all claims against Hallmark that constitute negligent claim handling. Chambers did

amend his pleadings to comply with the court’s order.

      A.     Standard of Review & Applicable Law

      The purpose of special exceptions is to inform the opposing party of defects in its

pleadings so it can cure them, if possible, by amendment. Auld, 34 S.W.3d at 897. The

trial court has broad discretion to sustain special exceptions and order more definite

pleadings as a particular case may require. See Hubler v. City of Corpus Christi, 564

S.W.2d 816, 820 (Tex. Civ. App.—Corpus Christi 1978, writ ref'd n.r.e.). The standard

of review of a trial court's dismissal upon special exceptions is de novo on the legal

question of whether the pleading stated a cause of action.        Krupicka v. White, 584

S.W.2d 733, 737 (Tex. Civ. App.—Tyler 1979, no writ).

      The trial court has wide discretion in ruling on special exceptions and its action in


                                           13
sustaining them, where it grants leave to amend, will not be disturbed on appeal in the

absence of an abuse of discretion. Portugal v. Jackson, 647 S.W.2d 393, 394 (Tex.

App.—Waco 1983, writ ref’d n.r.e.). A trial court abuses its discretion if it: 1) reaches a

decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of

law; 2) fails to correctly analyze or apply the law; or 3) acts without reference to any

guiding rules or principles. Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992) (orig.

proceeding).

       The party complaining of the pleadings must identify the particular part of the

pleading challenged and point out the particular defect, omission, obscurity, duplicity,

generality, or other insufficiency. See TEX. R. CIV. P. 91; Muecke v. Hallstead, 25 S.W.3d

221, 224 (Tex. App.—San Antonio 2000, no pet.). General allegations that the petition

is vague, indefinite, or does not state a cause of action are not sufficient to identify the

defect. Spillman v. Simkins, 757 S.W.2d 166, 168 (Tex. App.—San Antonio 1988, writ

dism’d). If the special exception is not specific, it is a prohibited general demurrer and

should be overruled. TEX. R. CIV. P. 90; Spillman, 757 S.W.2d at 168.

       B.      Analysis

       Hallmark’s special exceptions were filed with its original answer. It set out the

paragraphs of Chambers’s original pleading that it excepted to and identified the defective

portions of the pleading.    See Spillman, 757 S.W.2d at 168. Specifically, Hallmark

excepted to the “Noncompliance with Texas Insurance Code: Unfair Settlement Practice

and the Prompt Payment of Claims” section and the “Negligence” section of Chambers

petition. See id. Hallmark requested the court order Chambers to replead to state the


                                            14
alleged acts and omissions Hallmark committed that entitled Chambers to damages.

Hallmark’s exceptions were specific and were not a prohibited general demurrer. See

id.

      The trial court did not abuse its discretion sustaining Hallmark’s special exceptions.

We overrule Chambers’s third issue.

                                   IV.    CONCLUSION

      We reverse and remand on Chambers’s DTPA and Texas Insurance Code claims

and affirm as to the remainder of the judgment.



                                                               NELDA V. RODRIGUEZ
                                                               Justice

Delivered and filed the
11th day of June, 2015.




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