                            NUMBER 13-12-00645-CV

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI – EDINBURG

CHRISTOPHER HENNEN
AND MISTY HENNEN,                                                 Appellants,

                                       v.

ALLSTATE INSURANCE
COMPANY,                                                            Appellee.


                    On appeal from the 235th District Court
                          of Cooke County, Texas.


                           MEMORANDUM OPINION
                Before Justices Garza, Benavides, and Perkes
                   Memorandum Opinion by Justice Garza
       Appellants, Christopher and Misty Hennen (the “Hennens”), appeal a final

summary judgment entered in favor of appellee, Allstate Insurance Company

(“Allstate”). We affirm.
                                          I. ANALYSIS1

       The Hennens contend that the trial court erred in granting Allstate’s no-evidence

motion for summary judgment. See TEX. R. CIV. P. 166a(i).

A. Standard of Review

       We review summary judgments de novo. Alejandro v. Bell, 84 S.W.3d 383, 390

(Tex. App.—Corpus Christi 2002, no pet.).              A no-evidence summary judgment is

equivalent to a pretrial directed verdict, and we apply the same legal sufficiency

standard on review. Zapata v. Children's Clinic, 997 S.W.2d 745, 747 (Tex. App.—

Corpus Christi 1999, pet. denied).          “We must review the record in the light most

favorable to the nonmovant, indulging every reasonable inference and resolving any

doubts against the motion.” Buck v. Palmer, 381 S.W.3d 525, 527 (Tex. 2012). If the

nonmovant produces evidence to raise a genuine issue of material fact, summary

judgment is improper. See TEX. R. CIV. P. 166a(i); Buck, 381 S.W.3d at 527 n.2 (“The

ultimate question is simply whether a fact issue exists.”).

B. Grounds for Summary Judgment

       In its motion, Allstate argued, among other things, that it was entitled to a no-

evidence summary judgment on the following grounds:

       The plaintiffs can present no evidence of the damages sought against
       Allstate for the alleged lack of cooperation cause of action. The Hennen’s
       [sic] allege that as a result of Allstate’s refusal to allow access to its expert
       Mark Babb that they settled their claim for 1/5th of its true value of
       $200,000. No trial was held. The Hennens voluntarily chose to settle their
       claim for $40,000. They can present no evidence that their claim against
       Direct TV was worth $200,000 nor can it [sic] provide any evidence that it
       [sic] would have prevailed and recovered a judgment of $200,000 (or any
       other amount for that matter) against Direct TV. There is simply no
       1
           This case is before this Court on transfer from the Second Court of Appeals in Fort Worth
pursuant to an order issued by the Texas Supreme Court. See TEX. GOV'T CODE ANN. § 73.001 (West
2005).
                                                 2
       evidence of damages as a result of Allstate’s alleged refusal to share its
       expert Mark Babb.

       Further, the Hennens can present no evidence of extreme emotional
       distress, loss of income, or destruction of their credit reputation as to their
       bad faith claims.

C. Response by the Hennens

       In their response, the Hennens argued as follows:

       [D]uring December 2010, Allstate, for some unknown reason, except to
       harass . . . [the Hennens], prohibited cause-of-fire experts to testify in a
       lawsuit filed by . . . [the Hennens] against the parties responsible for
       causing the fire which destroyed the home of . . . [the Hennens]. That suit
       was filed by . . . [the Hennens] to mitigate their damages in this suit and
       since Allstate refused to make a claim against those third parties on behalf
       of . . . [the Hennens]. Such acts and omissions were the direct cause of . .
       . [the Hennens] being required to settle their claim in that lawsuit for a sum
       of at least $160,000.00 less than what was recoverable. Contrary to
       Allstate’s assertion of who prohibited the expert from testifying, a
       representative of Allstate named Lisa Susman made this decision.

The Hennens attached documents to their response that they describe as

follows:

       1. Copy of e-mail from Mark Babb, the engineer employed by Allstate to
          determine cause of fire on March 5, 2006;

       2. Copy of statement furnished by Carol DeBorde, employee of Ken
          Blanton Insurance Agency, Allstate’s agent;

       3. Copy of time-line statement of [the Hennens] . . . concerning the fire
          which destroyed their home and subsequent events;

       4. Copy of Allstate’s Response to . . . [the Hennens’] Request for
          Disclosure;

       5. Letter dated March 3, 2007 from Misty Hennen to Brian White.

D. Discussion

       Allstate’s motion covered the only two claims alleged by the Hennens: (1) lack of

cooperation; and (2) bad faith. We will address each in turn.
                                             3
       First, as to lack of cooperation,2 the Hennens contend that they sustained at least

$160,000 in damages because they settled their claim against Direct TV for $40,000;

however, in their response, they did not point out any evidence regarding the actual

value of the claim. See Johnson v. Brewer & Pritchard, P.C., 73 S.W.3d 193, 207 (Tex.

2002) (“To defeat a motion made under paragraph (i), the respondent is not required to

marshal its proof; its response need only point out evidence that raises a fact issue on

the challenged elements.”). On its own, the Hennens’ assertion that the claim was

worth at least $200,000 is conclusory and speculative and therefore no evidence. See

Natural Gas Pipeline Co. of Am. v. Justiss, 397 S.W.3d 150, 158 (Tex. 2012)

(recognizing that “an owner’s conclusory or speculative testimony will not support a

judgment”) (quotations omitted).         Accordingly, the trial court did not err in granting

summary judgment on this basis.

       Second, with respect to bad faith,3 the Hennens contend that they sustained

damages from the “destruction of their credit reputation”; however, in their response, the

Hennens did not discuss the destruction of their credit reputation or point out any

evidence of such damages. See Johnson, 73 S.W.3d at 207. Nor did they discuss or

point out any evidence of extreme emotional distress or loss of income.                      See id.

Accordingly, the trial court did not err in granting summary judgment on this basis.




       2
          The parties disagree about whether Texas law recognizes such a cause of action, but to the
extent that it does, the parties agree that damages would be an essential element of the claim.
Accordingly, for purposes of this appeal, we will assume without deciding that Texas law recognizes a
cause of action for failure to cooperate.
       3
         See Provident Am. Ins. Co. v. Castaneda, 988 S.W.2d 189, 193 n.13 (Tex. 1998) (“A breach of
the common-law duty of good faith and fair dealing inherent in the dealings between an insurer and its
insured must be the proximate, rather than producing, cause of damage.”).
                                                  4
      We overrule this issue. Furthermore, it is unnecessary to decide the other two

issues the Hennens raise challenging the traditional grounds for summary judgment

argued in Allstate’s motion because the trial court’s judgment must be upheld based on

the no-evidence grounds we have already discussed. See TEX. R. APP. P. 47.1.

                                     II. CONCLUSION

      The judgment of the trial court is affirmed.




                                                ___________________________
                                                DORI CONTRERAS GARZA
                                                Justice

Delivered and filed the
5th day of September, 2013.




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