           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                           United States Court of Appeals
                                                                                    Fifth Circuit

                                                                                FILED
                                      No. 08-50507                          February 16, 2009
                                    Summary Calendar
                                                                         Charles R. Fulbruge III
                                                                                 Clerk
CECILIA GARZA-TREVINO

                                                    Plaintiff-Appellant
v.

NEW ENGLAND FINANCIAL

                                                    Defendant-Appellee




                    Appeal from the United States District Court
                         for the Western District of Texas
                              USDC No. 1:07-CV-495


Before JOLLY, BENAVIDES, and HAYNES, Circuit Judges.
PER CURIAM:*
       Plaintiff Cecilia 1 Garza-Trevino appeals the district court’s adverse
summary judgment on her breach of contract, fraud, and bad faith claims
against her former insurer, New England Financial.                    Finding no error, we
affirm.



       *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
       1
        Although spelled differently in the district court’s opinion, this is the correct spelling
of Garza-Trevino’s first name.
                                  No. 08-50507

                                        I.
      This appeal arises from a dispute regarding Garza-Trevino’s eligibility for
“Total Disability” benefits under an insurance policy issued by New England.
The policy defined “Total Disability” as follows:
      “Total Disability” means that because of Injury or Sickness:
            a. You are unable to perform the important duties of Your
            occupation; and
            b. You are not engaged in any other gainful occupation; and
            c. You are receiving a Physician’s Care
      The policy was in effect on August 17, 2001 when Garza-Trevino was
involved in a car accident. At that time, she was working as an architect on a
contract basis and undergoing treatment for cancer. Garza-Trevino did not call
paramedics or go to the hospital for treatment immediately after the accident;
rather she finished running an errand and then returned to work.
      On August 20, 2001, Garza-Trevino sought treatment for back pain from
a chiropractor in Austin, Texas named Cynthia Schade, D.C.           During her
treatment with Dr. Schade, Garza-Trevino self-reported the frequency and
severity of her pain. On May 6, 2002, approximately eight months after the
accident, Garza-Trevino reported that her back condition was eighty percent
better. On her last day of treatment, Garza-Trevino reported that the severity
of her back pain was a one on a scale from one to ten (ten being the most severe).
After Garza-Trevino’s last treatment, Dr. Schade noted that Garza-Trevino
“reports to be approximately 90% better.”
      On October 8, 2002, Garza-Trevino notified New England that she was
filing a disability claim under the policy. The next day, in accordance with the
policy provisions regarding proof of loss, New England sent Garza-Trevino a
disability insurance claim form to complete, which included an attending
physician’s statement. The attending physician’s statement required a doctor’s



                                        2
                                  No. 08-50507

certification that Garza-Trevino’s injury prevented her from performing the
major functions of her occupation.
      Prior to notifying New England of her intent to file a claim under the
policy, Garza-Trevino had already sought a second opinion and additional
treatment options from George Tipton, M.D. After conducting a comprehensive
examination, Dr. Tipton concluded that Garza-Trevino was not totally disabled
from her profession. He reiterated his conclusions in a letter dated October 15,
2002. In the letter, Dr. Tipton refused to complete Garza-Trevino’s attending
physician’s statement because he did not believe that she was totally disabled.
Dr. Tipton specifically noted that Garza-Trevino did not need to devote full-time
to “healing” and that her treatment and rehabilitation could be completed while
she continued to practice her profession.     In a later deposition, Dr. Tipton
admitted that he was not a disability determination specialist and that he did
not know the primary job functions of an architect. Dr. Tipton stood by his
initial conclusion, however, that the severity of Garza-Trevino’s back injury did
not totally disable her from her work as an architect.
      By letter dated March 3, 2003, New England informed Garza-Trevino that,
based on the information received to date, it was unable to accept her claim for
disability benefits. The letter informed Garza-Trevino that she had 180 days to
file an appeal and submit any new information pertaining to her claim.
According to the letter, the failure to file an appeal within 180 days would cause
New England’s denial of Garza-Trevino’s claim to become final.
      On March 2, 2007, almost four years after New England’s denial of her
disability claim, Garza-Trevino filed this lawsuit against New England. Garza-
Trevino alleged that her injury had kept her from working as an architect from
October 2001 to September 2002. She asserted claims for fraud, bad faith, and
breach of contract.



                                        3
                                 No. 08-50507

      After conducting some discovery, New England filed a motion for summary
judgment on each of Garza-Trevino’s claims. In support of its motion, New
England relied heavily on the conclusions of Dr. Schade and Dr. Tipton. Garza-
Trevino did not file a motion for continuance in response to New England’s
summary judgment motion.        Rather, she filed a response on the merits,
attaching an appendix containing just twelve exhibits.        The only medical
information contained in those exhibits related to Garza-Trevino’s treatment by
Dr. Schade and Dr. Tipton. Nothing in those exhibits opined that she was totally
disabled from her profession.
      Without holding a hearing, the district court granted New England’s
motion for summary judgment and entered a final judgment in its favor. The
court found that Garza-Trevino failed to proffer evidence raising a fact issue on
her breach of contract claim and that her fraud claim failed because the record
contained no material misrepresentation of fact. The court also found Garza-
Trevino’s bad faith claim barred by Texas’s two-year statute of limitations.
      After Garza-Trevino filed a notice of appeal, she filed a motion for
sanctions in the district court, alleging that New England failed to serve her
with three pleadings. The district court denied that motion, finding that New
England’s failure to serve the documents resulted from inadvertence rather than
any bad faith.
                                       II.
      Garza-Trevino raises numerous challenges on appeal: she contends that
she had an absolute right to a hearing on New England’s summary judgment
motion; she challenges the substance of the district court’s summary judgment
ruling and the district court’s order denying her motion for sanctions; and she
asks the court to grant her motion to supplement the record on appeal with
documents that the district court did not have before it and therefore did not
consider.

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                                      No. 08-50507

       We review the district court’s grant of summary judgment de novo,
applying the same standards as the district court. Fabela v. Socorro Indep. Sch.
Dist., 329 F.3d 409, 414 (5th Cir. 2003). Summary judgment is appropriate if
there is no genuine issue of material fact and the moving party is entitled to
judgment as a matter of law. F ED. R. C IV. P. 56(c). The moving party always
bears the initial burden of informing the district court of the basis for its motion
and identifying those portions of the “pleadings, the discovery and disclosure
materials on file, and any affidavits” which it believes reveal the absence of a
genuine fact issue. Id.; Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The
burden then shifts to the nonmoving party to “produce evidence or designate
specific facts showing the existence of a genuine issue for trial.” Frank v. Xerox
Corp., 347 F.3d 130, 135 (5th Cir. 2003) (citation omitted). Although doubts and
reasonable inferences must be resolved in favor of the nonmoving party, the
nonmovant’s conclusory allegations and unsubstantiated assertions will not
defeat summary judgment. Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th
Cir. 1994) (en banc).
       Contrary to Garza-Trevino’s assertions, parties in this circuit do not have
an absolute right to an oral hearing on summary judgment motions. Johnson
v. United States, 460 F.3d 616, 619, n.2 (5th Cir. 2006); Daniels v. Morris, 746
F.2d 271, 275 (5th Cir. 1984).2 Many federal district courts resolve all summary
judgments without oral hearing; the decision about whether to hold an oral
hearing is left to the sound discretion of the district court. Moreover, the lack
of an oral hearing did not deprive Garza-Trevino of the opportunity to proffer




       2
         Garza-Trevino relied upon state court decisions from California. The district court
here was governed by the Federal Rules of Civil Procedure, not those of California. Thus, the
cases she cites on this point are inapposite.

                                             5
                                    No. 08-50507

evidence showing the existence of a genuine fact issue.3                Garza-Trevino
responded to New England’s summary judgment motion on the merits and filed
additional evidence that she claimed raised a fact issue; at no point did she
request a continuance to seek additional discovery or further medical evaluation.
Thus, Garza-Trevino had a full and fair opportunity to present her summary
judgment evidence to the district court.
      The district court granted summary judgment on Garza-Trevino’s breach
of contract claim because she failed to offer any evidence that she was totally
disabled as defined by the policy. On appeal, Garza-Trevino does not explain
how the summary judgment evidence raises a fact issue on the question of total
disability. Rather, she spends most of her brief attempting to discredit Dr.
Tipton. Even in the absence of Dr. Tipton’s medical reports, however, the record
remains devoid of evidence that Garza-Trevino was “Totally Disabled.” Where,
as here, the nonmovant would bear the burden of proof at trial, she may not
simply rest on her pleadings in response to a summary judgment motion but
must come forward with evidence to raise a fact issue on her claim. See Celotex
Corp. v. Catrett, 477 U.S. 317, 322 (1986)(“[T]he plain language of Rule 56(c)
mandates the entry of summary judgment, after adequate time for discovery and
upon motion, against a party who fails to make a showing sufficient to establish
the existence of an element essential to that party’s case, and on which that
party will bear the burden of proof at trial.”). There is no requirement that the
moving party file affidavits negating the plaintiff’s claim.               Id. at 323.
Accordingly, summary judgment on Garza-Trevino’s breach of contract claim
was proper.




      3
        Garza-Trevino has not explained what she would do at a hearing that she could not
do in written form. She would not have been permitted to introduce live testimony at a
summary judgment hearing.

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                                 No. 08-50507

      An actionable claim for fraud requires, among other things, a material
false representation. In re FirstMerit Bank, N.A., 52 S.W.3d 749, 758 (Tex.
2001). The district court granted summary judgment on Garza-Trevino’s fraud
claim because there was no summary judgment evidence raising a fact issue on
this element. Garza-Trevino’s second amended complaint appears to allege
fraud based on three things: (1) the fact that Unum Provident Corporation
rather than New England processed Garza-Trevino’s disability claim; (2) the
fact that the policy is entitled “Disability Income Policy” but requires proof of
“Total Disability”; and (3) the policy’s requirement that claimant’s submit proof
of loss forms, which includes an attending physician’s statement. Garza-Trevino
has not pointed to any summary judgment evidence revealing a false
representation by New England related to these things. The policy is silent on
which entity processes disability claims, clearly defines “Total Disability,” and
requires proof of loss forms. Accordingly, summary judgment on Garza-Trevino’s
fraud claims was proper.
      The district court found Garza-Trevino’s bad-faith breach of contract
claims barred by the applicable statute of limitations. Under Texas law, a bad
faith claim must be brought within two years of the date on which the cause of
action accrues. Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 221
(Tex. 2003). Any bad faith claim related to New England’s alleged breach of the
policy accrued, at the latest, on August 30, 2003 – the date on which New
England’s denial of Garza-Trevino’s disability claim became final.       Garza-
Trevino did not file suit until March 2007. Thus, her claims are barred as a
matter of law.
      Garza-Trevino also contends that she suffered prejudice when New
England invoked ERISA preemption as a defense in its answer. New England
did not rely upon its ERISA preemption defense in filing the summary judgment



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                                 No. 08-50507

motion at issue. Thus, this argument does not call into question the propriety
of the rulings that Garza-Trevino is challenging in this appeal.
      Garza-Trevino also challenges the district court’s denial of her sanctions
motion, which we review for abuse of discretion.      Jackson Marine Corp. v.
Harvey Barge Repair, Inc., 794 F.2d 989, 992 (5th Cir. 1986). Garza-Trevino’s
motion was based on New England’s purported failure to serve her with its first
amended answer, its advisory regarding trial before United States Magistrate
Judge, and its reply in support of its motion for summary judgment. The record
provides some evidence that New England’s failure to serve Garza-Trevino with
these documents resulted from inadvertence and confusion with respect to
whether Garza-Trevino was using the ECF Filing System rather than any bad
faith on the part of New England. The district court did not abuse its discretion
in concluding that inadvertence, rather than bad faith, was the cause of the
service failure and that this failure did not prejudice Garza-Trevino.
      Finally, Garza-Trevino has filed a motion for leave to amend or
supplement the record on appeal with numerous documents that she did not file
with the district court. The motion is denied. Our review in this appeal is
limited to the summary judgment record before the district court. See, e.g.,
Topalian v. Ehrman, 954 F.2d 1125, 1132 n.10 (5th Cir. 1992).
                                      III.
      The district court’s grant of summary judgment for New England and
denial of Garza-Trevino’s sanctions motion is AFFIRMED. Garza-Trevino’s
motion for leave to supplement the record on appeal is DENIED. New England’s
motion to strike Garza-Trevino’s appendix in support of brief is DENIED as
MOOT.




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