                               Fourth Court of Appeals
                                      San Antonio, Texas
                                 MEMORANDUM OPINION

                                         No. 04-17-00814-CV

                                          Terry GRANGER,
                                              Appellant

                                                 v.

                 THE TRAVELERS HOME AND MARINE INSURANCE CO.,
                                   Appellee

                     From the County Court at Law No. 10, Bexar County, Texas
                                  Trial Court No. 2014CV03227
                           Honorable David J. Rodriguez, Judge Presiding

Opinion by:       Patricia O. Alvarez, Justice

Sitting:          Sandee Bryan Marion, Chief Justice
                  Marialyn Barnard, Justice
                  Patricia O. Alvarez, Justice

Delivered and Filed: December 12, 2018

AFFIRMED

           Terry Granger appeals a summary judgment dismissing her breach of contract and common

law fraud causes of action against The Travelers Home and Marine Insurance Company. We

affirm the trial court’s judgment.

                                            BACKGROUND

           Granger purchased a Renter’s Insurance Policy from Travelers (the Policy). The Policy

provided coverage against personal property loss caused by theft. The Policy included the

following relevant language:
                                                                                   04-17-00814-CV


                             SPECIAL PROVISIONS - TEXAS

                                    Section I – Conditions

       2. Your Duties After Loss. In case of a loss to covered property, we have no duty
          to provide coverage under this policy if the failure to comply with the following
          duties is prejudicial to us. These duties must be performed either by you, an
          “insured” seeking coverage, or a representative of either.
              ...
          e. Cooperate with us in the investigation of a claim;
              ...
          g. As often as we reasonably require:
              (1) Show the damaged property;
              (2) Provide us with records and documents we request and permit us to make
                  copies; and
              (3) Submit to examination under oath, while not in the presence of another
                  “insured”, and sign the same;
          ...
       9. Suit Against Us. No suit or action can be brought against us unless there has
          been full compliance with all of the terms under Section I of this policy. Action
          brought against us must be started within two years and one day after the cause
          of action accrues.

       While the Policy was in force, Granger submitted a claim for coverage for the loss of

personal property from an alleged burglary of her rental residence. After Granger’s claim was

made, Travelers notified Granger she was required to complete a proof of loss, provide

documentation of the stolen property, and submit to an examination under oath. Granger failed to

respond to Travelers’s requests. On January 19, 2011, Travelers sent Granger a letter closing her

claim. On October 13, 2014, Granger filed her lawsuit against Travelers alleging breach of

contract.

       Travelers filed a motion for summary judgment as a matter of law alleging that Granger’s

breach of contract claims were barred by the Policy’s “two years and one day” limitations

condition. Subsequently, Granger amended her petition to include a common law fraud claim by

which she claimed that her landlord, who she alleges was also an agent for Travelers, falsely


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represented to her that the limitations period for filing any insurance claim was four years.

Travelers responded by amending its motion for summary judgment to address both the breach of

contract and the common law claims. The trial court granted Travelers’s motion for summary

judgment on both claims.

       This appeal followed.

                                    STANDARDS OF REVIEW

       “We review a trial court’s grant of summary judgment de novo.” Frost Nat’l Bank v.

Fernandez, 315 S.W.3d 494, 508 (Tex. 2010); accord Joe v. Two Thirty Nine Joint Venture, 145

S.W.3d 150, 157 (Tex. 2004).

A.     Traditional Motion

       “A traditional summary judgment motion is properly granted where a defendant

conclusively negates at least one essential element of a [plaintiff’s] cause of action.” Henkel v.

Norman, 441 S.W.3d 249, 251 (Tex. 2014) (per curiam); accord Fernandez, 315 S.W.3d at 508;

see TEX. R. CIV. P. 166a(c).

B.     No-Evidence Motion

       We review a no-evidence summary judgment using a legal sufficiency standard. King

Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750–51 (Tex. 2003); see also TEX. R. CIV. P. 166a(i).

“When reviewing [either a no-evidence or a traditional motion for] summary judgment, we take

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

resolve any doubts in the nonmovant’s favor.” Joe, 145 S.W.3d at 157; accord Strandberg v.

Spectrum Office Bldg., 293 S.W.3d 736, 738 (Tex. App.—San Antonio 2009, no pet.). If the

nonmovant’s summary judgment evidence contains “more than a scintilla of probative evidence

to raise a genuine issue of material fact,” the trial court may not properly grant the no-evidence

motion. Smith v. O’Donnell, 288 S.W.3d 417, 424 (Tex. 2009).

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                                      ORDER OF DISCUSSION

       Travelers filed a traditional motion for summary judgment on the issue of limitations on

the breach of contract claim, and both a traditional and a no-evidence motion for summary

judgment on the common law fraud claim. For convenience, we will first address the defense of

issue of limitations period pertaining to the breach of contract claim. Then, we will address the

common law fraud claim.

                                  BREACH OF CONTRACT CLAIM

A.     Arguments

       In her first issue, Granger argues that the Policy’s “two-years-and-one-day” limit is not

supported by consideration.     Granger contends that the uncontroverted summary judgment

evidence shows she did not receive consideration for her relinquishment of the four-year

limitations period defined in section 16.051. See TEX. CIV. PRAC. & REM. CODE ANN. § 16.051.

Accordingly, Granger insists, the two-years-and-one-day limitation does not apply to her and her

lawsuit against Travelers is not barred.

       Travelers argues that Granger’s contention fails because payment of the premium by the

policyholder is consideration for all of the Policy’s terms and conditions.

       We agree with Travelers.

B.     Applicable Law

       Generally, the limitations period for a breach of contract cause of action is “four years after

the day the cause of action accrues.” See TEX. CIV. PRAC. & REM. CODE ANN. § 16.051; Stine v.

Stewart, 80 S.W.3d 586, 592 (Tex. 2006); Cody Texas, L.P. v. BPL Expl., Ltd., 513 S.W.3d 522,

534 (Tex. App.—San Antonio 2016, pet. denied); Jett v. Trucker Ins. Exch., 952 S.W.2d 108, 109

(Tex. App.—Texarkana 1997, no writ). “However, parties to a transaction may agree to the time

in which a person must file suit on a given cause of action.” Jett, 952 S.W.2d at 109 (citing Culwell

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                                                                                     04-17-00814-CV


v. St. Paul Fire & Marine Ins. Co., 79 S.W.2d 914 (Tex. Civ. App.—Eastland 1935, writ dism’d);

Taylor v. Nat’l Life & Accident Ins. Co., 63 S.W.2d 1082 (Tex. Civ. App.—Amarillo 1933, writ

dism’d)). In the context of insurance policies, “[i]nsurance provisions that limit the time within

which to file a suit to two years and a day are valid and binding.” Id. (citing Bazile v. Aetna Cas.

& Sur. Co., 784 S.W.2d 73, 74 (Tex. App.—Houston [14th Dist.] 1989, writ dism’d)).

C.     Analysis

       Under Jett, the Policy’s limitation provision of two years and one day to file a cause of

action against Travelers is valid and binding. See id. Granger, however, argues that because there

is no consideration paid for the two-years-and-one-day limitation under the Policy, that provision

is not legally binding and enforceable.       Although Granger provides no authority for that

proposition, she claims that her affidavit, in which she states that she did not receive additional

consideration for the forfeiture of the four-year statute of limitations, is uncontroverted evidence

of that fact. We disagree.

       In her affidavit, Granger testified as follows:

       Travelers did not give me any discount from the costs/premium for the policy, nor
       any monetary or other kind of compensation as consideration for my relinquishment
       of the four (4) year statute of limitations time period in which to file a breach of
       contract lawsuit against Travelers. I did not receive any independent consideration
       from Travelers for the shorten[ed] limitations period of two (2) years and a day
       contained in the policy.

       In the same affidavit, Granger testified she paid the premium for the renter’s policy and

that Travelers issued the Policy. Under the “Agreement” heading in the Declarations portion of

the Policy, Travelers agreed to “provide the insurance described in this policy in return for the

premium and compliance with all applicable provisions of this policy.”

       The Policy’s language is unambiguous, and we construe it as a matter of law. See First

Bank v. Brumitt, 519 S.W.3d 95, 105 (Tex. 2017) (“When a contract’s language is unambiguous,


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                                                                                      04-17-00814-CV


courts must ‘construe the contract as a matter of law.’” (quoting Coker v. Coker, 650 S.W.2d 391,

393 (Tex. 1983))). We conclude the premium Granger paid was consideration for all provisions

contained in the Policy, including the two-years-and-one-day limitation provision.

       Accordingly, Granger’s argument that additional consideration for the reduction in the

limitations period was necessary fails as a matter of law.

D.     Lack of Consideration Argument Fails

       Because Granger’s premium payments were consideration for all the Policy’s provisions,

including the two years and one day limitation period, and Granger filed her suit more than two

years and one day after Travelers denied her claim, Granger’s cause of action for breach of contract

is, as a matter of law, barred by the Policy’s limitation period. See TEX. R. CIV. P. 166a(c); Henkel,

441 S.W.3d at 251. We overrule Granger’s first issue.

                                      COMMON LAW FRAUD

       We next address Granger’s issue that the trial court erred in granting summary judgment

on her fraud claims against Travelers. Because Travelers filed no-evidence and traditional motions

for summary judgment, we review the no-evidence motion first. See Ford Motor Co. v. Ridgway,

135 S.W.3d 598, 600 (Tex. 2004). If the no-evidence motion was properly granted, we need not

address the traditional motion. See id.

A.     Pleadings, Summary Judgment Evidence

       In her last amended petition, Granger alleged the following:

           Defendant’s agent, who was also Plaintiff’s landlord at the time that the policy
       was sold to her, and after the theft occurred and during the claims process,
       represented to Plaintiff that the limitation for filing any claims was four (4) years.
       Defendant’s representation to Plaintiff was material because Plaintiff was not
       informed of the two (2) year[s] and a day limitation imposed by the contract at any
       time because had she been timely informed of the 2 year[s] and a day limitation
       period, she would have filed her lawsuit within the contractual period specified in
       the contract with [T]raveler’s Insurance Company. Defendant’s representation to
       Plaintiff was a false statement of fact. Defendant made the false representation

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        knowing it was false to Plaintiff. Alternatively, Defendant made the false
        representation recklessly, as a positive assertion, and without knowledge of its
        truth. Defendant intended for Plaintiff to rely on or had reason to expect Plaintiff
        would act in reliance of the false representation. Plaintiff justifiably relied on
        Defendant’s false representation when Defendant stated to Plaintiff that the
        limitation for filing claims was four (4) years.

     Granger’s affidavit filed as summary judgment evidence states as follows:

            2. When I purchased my renter’s insurance policy from The Travelers Home
        and Marine Insurance Company . . . , I met with Christopher Detweiler an agent of
        Travelers and informed him that I wanted to purchase renter’s insurance. Mr.
        Detweiler, Traveler’s agent[,] spoke to me about the renter’s insurance policy.
        During such conversation, Mr. Detweiler told me that under the policy there was a
        four (4) [year] statute of limitations. I relied on Mr. Detweiler’s representation
        regarding the four (4) years limitations in making my decision to purchase the
        renter’s insurance from Travelers. . . .

            3. Even after my losses, I spoke with Mr. Detweiler and at no time did he state
        I had only two (2) years and a day following the denial of my claim in which to
        bring a lawsuit challenging the denial. It is clear that Mr. Detweiler made the false
        representation recklessly, as a positive assertion, to induce me to buy a policy from
        Travelers. I relied upon Mr. Detweiler’s representation that the statute of
        limitations was four (4) years. Mr. Detweiler’s false representation directly and
        proximately caused injury to me, which resulted in damages.

        As summary judgment evidence, Travelers filed the Policy, which shows the agent as The

Solutions Group. The Policy does not make any reference to Detweiler. Travelers also produced

part of Granger’s deposition testimony in which she admitted that she had no personal knowledge

of the relationship, if any, between Detweiler and Travelers.

B.      Arguments

        Granger argues that the trial court erred in granting Travelers’s motion because the

evidence shows that Detweiler, as Travelers’ insurance agent, represented to her that the policy

had a four-year statute of limitations. Granger insists Detweiler had apparent authority to bind

Travelers, and she relied on Detweiler’s material representation when she purchased the Policy.

Therefore, Granger concludes, her cause of action for fraud should not have been summarily

dismissed by the trial court.

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       Travelers argues that any representation made by Detweiler is not binding on Travelers

because there is no evidence of apparent authority; that is, there is no evidence that it authorized

Detweiler to act on its behalf. Travelers concludes that because there is no evidence of apparent

authority, it was entitled to judgment on both its no-evidence and traditional motions.

C.     Applicable Law

       1.      Common Law Fraud Claim

       “A common law fraud claim requires ‘a material misrepresentation, which was false, and

which was either known to be false when made or was asserted without knowledge of its truth,

which was intended to be acted upon, which was relied upon, and which caused injury.’” Zorrilla

v. Aypco Constr. II, LLC, 469 S.W.3d 143, 153 (Tex. 2015) (quoting Formosa Plastics Corp. USA

v. Presidio Eng’rs & Contractors, Inc., 960 S.W.2d 41, 47 (Tex. 1998)).

       2.      Agency

           An agency is the consensual relationship between two parties where one, the
       agent, acts on behalf of the other, the principal, and is subject to the principal’s
       control. An agency relationship will not be presumed, and the party asserting the
       relationship has the burden to prove its existence. In proving the existence of an
       agency relationship, it is essential to show that the alleged princip[al] has both the
       right (1) to assign the agent’s task, and (2) to control the means and details of the
       process by which the agent will accomplish the assigned task.

Schultz v. Rural/Metro Corp. of N.M.-Tex., 956 S.W.2d 757, 760 (Tex. App.—Houston [14th Dist.]

1997, no writ) (citations omitted); see Thomason v. Collins & Aikman Floorcoverings, Inc., No.

04-02-00870-CV, 2004 WL 624926, at *4 (Tex. App.—San Antonio Mar. 31, 2004, pet. denied)

(mem. op.).

       3.      Apparent Authority

       “To establish apparent authority, one must show that a principal either knowingly permitted

an agent to hold itself out as having authority or showed such lack of ordinary care as to clothe the

agent with indicia of authority.” NationsBank, N.A. v. Dilling, 922 S.W.2d 950, 952–53 (Tex.

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                                                                                     04-17-00814-CV


1996) (citing Ames v. Great S. Bank, 672 S.W.2d 447, 450 (Tex. 1984)). On review, we “may

consider only the conduct of the principal leading a third party to believe that the agent has

authority in determining whether an agent has apparent authority.” Id. at 953 (citing Sw. Title Ins.

Co. v. Northland Bldg. Corp., 552 S.W.2d 425, 428 (Tex. 1977)).

       “[O]ne seeking to charge the principal through apparent authority of an agent must

establish conduct by the principal that would lead a reasonably prudent person to believe that the

agent has the authority that he purports to exercise.” Biggs v. U.S. Fire Ins. Co., 611 S.W.2d 624,

629 (Tex. 1981); accord Dilling, 922 S.W.2d at 953. “The principal must have affirmatively held

out the agent as possessing the authority or must have knowingly and voluntarily permitted the

agent to act in an unauthorized manner.” Dilling, 922 S.W.2d at 953 (citing Douglass v. Panama,

Inc., 504 S.W.2d 776, 778–79 (Tex. 1974)).

D.     Analysis

       Granger claims that Detweiler is Travelers’s agent and that his alleged fraud is imputable

to Travelers. The only evidence of Detweiler’s apparent authority that Granger presented was her

affidavit’s conclusory assertion that Detweiler was Travelers’s agent. Contra Ryland Group, Inc.

v. Hood, 924 S.W.2d 120, 122 (Tex. 1996) (“Conclusory affidavits are not enough to raise fact

issues.”). Granger provides no factual foundation for her assertion. Specifically, Granger fails to

state how she learned that Detweiler was Travelers’s agent, whether Detweiler sold or negotiated

the Policy, or how Travelers controlled Detweiler. See Gonzales v. Shing Wai Brass & Metal

Wares Factory, Ltd., 190 S.W.3d 742, 746 (Tex. App.—San Antonio 2005, no pet.) (“A

conclusory statement is one that does not provide the underlying facts to support the conclusion,

and is insufficient to create a question of fact to defeat summary judgment.”). For these reasons,

Granger’s affidavit is conclusory and not proper summary judgment evidence. See Ryland Group,

924 S.W.2d at 122; Gonzales, 190 S.W.3d at 746.

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                                                                                      04-17-00814-CV


       Assuming arguendo that Granger’s testimony is proper summary judgment evidence,

Granger failed to produce any summary judgment evidence that an agency relationship existed

between Granger and Travelers. There is no evidence that Travelers assigned Detweiler to present

the Policy to Granger or to explain its conditions, especially the limitations condition, to her. See

Schultz, 956 S.W.2d at 760. There is no evidence that Travelers controlled Detweiler’s tasks. See

id. There is likewise no evidence that Travelers permitted Detweiler to hold himself as an agent

with authority to explain the limitations portion of the Policy or that it knowingly or voluntarily

permitted Detweiler to misstate the limitations period to file a claim against Travelers. See id.

       Faced with a no-evidence motion, Granger failed to meet her burden to present some

evidence that established that Detweiler had apparent authority to act for Travelers. See Ridgway,

135 S.W.3d at 600. Having concluded that Travelers’s no-evidence motion for summary judgment

on the common law fraud was properly granted by the trial court, we need not address Travelers’s

traditional motion for summary judgment. See id.

E.     Apparent Authority Argument Fails

       There is no evidence that any alleged fraud on Detweiler’s part can be imputed to Travelers

under the theory of apparent authority. We overrule Granger’s second issue.

                                           CONCLUSION

       Having overruled both of Granger’s issues, we affirm the trial court’s order.

                                                   Patricia O. Alvarez, Justice




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