                                 NO. 07-04-0056-CV

                            IN THE COURT OF APPEALS

                     FOR THE SEVENTH DISTRICT OF TEXAS

                                    AT AMARILLO

                                      PANEL E

                                 OCTOBER 6, 2005

                        ______________________________


                  RONALD J. HETTLER, ROBIN HETTLER, AND
                  CORNWALL INSURANCE AGENCY, INC. D/B/A
                HETTLER-BRENHOLTZ INSURANCE, APPELLANTS

                                          V.

          THE TRAVELERS LLOYDS INSURANCE COMPANY, APPELLEE


                      _________________________________

            FROM THE 72ND DISTRICT COURT OF LUBBOCK COUNTY;

             NO. 2001-513,481; HONORABLE BLAIR CHERRY, JUDGE

                        _______________________________

Before QUINN, C.J., and REAVIS, J. and BOYD, S.J.1


                                       OPINION


      Presenting five points of error, appellants Ronald J. Hettler, Robin Hettler, and

Cornwall Insurance Agency, Inc. d/b/a Hettler-Brenholtz Insurance (collectively the

Hettlers) contend the trial court erred in rendering summary judgment that appellee The

      1
      John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by
assignment.
Travelers Lloyds Insurance Company (Travelers) did not have the duty to provide the

Hettlers a defense in a suit brought by William David Brenholtz nor a duty to indemnify

them for damages awarded. The judgment also denied them any relief on their claims

under articles 21.21 and 21.55 of the Insurance Code, their breach of duty of good faith

and fair dealing claim, and their claim for attorney’s fees. By their first three points of error,

the Hettlers contend the trial court erred in determining Travelers had no duty to defend

Brenholtz’s complaints regarding (1) wrongful eviction,2 (2) libel and slander, and (3) denial

of use of property and, by the remaining two points they contend the trial court erred in (4)

applying the employment-related practices exclusion to exclude coverage and (5) holding

that Travelers had no duty to indemnify. 3 We affirm.


       Ronald J. Hettler and Brenholtz began doing business together as Hettler-Brenholtz

Insurance Agency on June 1, 1994, per an informal oral agreement.                   Ronald was

president, Brenholtz was vice-president, and Robin Hettler was an officer of the

corporation. On September 9, 1994, the agency obtained insurance coverage for three

years under a Commercial General Liability Policy issued by Travelers. Thereafter, on

November 20, 1996, Brenholtz prepared a summary of his version of the oral agreement

which was initialed by Brenholtz and signed by Ronald. Handwritten comments on the



       2
       The Hettlers’ amended petition does not include an allegation that Travelers had
the duty to defend any claim for wrongful eviction.
       3
       The Hettlers do not present a point of error contending the trial court erred in
awarding Travelers attorney’s fees in the amount of $21,367.35.

                                                2
November 20 summary indicated the parties contemplated it would be sent to an attorney.

On February 13, 1997, Ronald delivered to Brenholtz his last paycheck along with a

handwritten letter terminating his services as of Friday, the 14th stating “this isn’t working.”

By the letter, Ronald also requested Brenholtz to submit outstanding expenses for

reimbursement, and further proposed a purchase agreement.4


       Brenholtz promptly filed suit against the Hettlers and the corporation seeking

temporary relief. Then, as material here, by his amended petition, Brenholtz sought an

accounting and damages and alleged claims for breach of contract, fraud, conversion, and

interference with business relations. After Travelers declined to defend the Brenholtz suit,

the Hettlers proceeded with their defense and filed this action against Travelers seeking

damages for failure to defend and asserting claims under articles 21.21 and 21.55 of the

Insurance Code, breach of duty of good faith and fair dealing, and attorney’s fees.5 By its

first amended answer and counterclaim for declaratory judgment, Travelers asserted the

allegations in Brenholtz’s pleading did not require Travelers to defend the action and that

the affirmative allegations were not covered due to exclusions in the policy. Travelers also




       4
         Brenholtz’s summary of the oral agreement and Ronald’s letter were attached to
Brenholtz’s petition as exhibits. Among other things, the letter also stated Brenholtz was
no longer an employee, the staff had been instructed to deny him entry on the premises,
the locks had been changed, the police would be called if he showed up, and “[i]f you elect
not to take this offer, then I will instruct staff to run copies of files, and mail them or deliver
them to your home.”
       5
           The Hettlers did not seek a declaratory judgment.

                                                3
sought a declaratory judgment for no duty to defend and for attorney’s fees. As is material

here, the pleadings of the parties included the following contentions:


                Hettler                                           Travelers

Travelers had a duty to defend                   Brenholtz’s allegations do not present a
Brenholtz’s claims of fraud, conversion,         claim for an accidental occurrence, but
and interference with business                   constitute intentional and expected acts.
relationships.
                                                 Brenholtz’s allegations do not implicate
Asserted article 21.21 claims.                   “property damage” or “bodily injury” as
                                                 defined in the policy.
Asserted article 21.55 claims.
                                                 The events asserted by Brenholtz arise
Breach of duty of good faith and fair            from the termination of his employment.
dealing.

Claim for attorney’s fees.                                      Counterclaim

                                                 Declaratory judgment that Travelers owed
                                                 no duty to defend and indemnify.

                                                 Relevant policy      provisions   exclude
                                                 coverage.

                                                 No duty to defend or indemnify.

                                                 Claim for attorney’s fees.


       After Travelers filed its traditional motion for summary judgment, the Hettlers filed

their motion for partial summary judgment. Grounds for each included the following:




                                             4
                Hettler                                          Travelers

Asserted the following allegations per            No duty to defend.
Hettler’s letter triggered the duty to
defend (summarized):                              No coverage based on policy definition of
                                                  “personal injury.”
Hettler’s letter of February 13, 1997,
terminating employment and advising that          Exclusion     for    employment-related
staff would be instructed not to allow            practices.
Brenholtz on the premises, that the locks
would be changed, and the police would            Travelers owed no duty to defend
be called.                                        Hettler’s claims under articles 21.21 and
                                                  21.55 and his claims for breach of duty of
Brenholtz was intentionally and forcibly          good faith and fair dealing have no merit.
denied access/possession of his
customer files.                                   No duty to indemnify.

Wrongfully retaining Brenholtz’s files
constituted conversion of property.

Denial of access to files deprived
Brenholtz of the ability to carry on his
business and wrongfully denied him the
opportunity to carry on customer
relations.


       On May 2, 2003, after considering competing motions for summary judgment, the

trial court signed an interlocutory order that Travelers had no duty to defend the Hettlers

under the policy and had no duty to indemnify them for any sums of money awarded

against them. The order also denied the Hettlers’ claims under articles 21.21 and 21.55

and for good faith and fair dealing and declared Travelers had no duty to defend or

indemnify the Hettlers. Then, following a nonjury determination on the merits, the trial court




                                              5
signed its judgment that Travelers recover attorney’s fees in the amount of $21,367.35 on

January 13, 2004.6


                                  Standard of Review


      In reviewing a summary judgment, we must apply the standards established in

Nixon v. Mr. Property Management, 690 S.W.2d 546, 548-49 (Tex. 1985), which are:


      1. The movant for summary judgment has the burden of showing that there
      is no genuine issue of material fact and that it is entitled to judgment as a
      matter of law.
      2. In deciding whether there is a disputed material fact issue precluding
      summary judgment, evidence favorable to the nonmovant will be taken as
      true.
      3. Every reasonable inference must indulged in favor of the nonmovant and
      any doubts resolved in its favor.


      When both parties move for summary judgment, each party must conclusively

establish it is entitled to judgment as a matter of law, Guynes v. Galveston, 861 S.W.2d

861, 862 (Tex. 1993). Neither party can prevail simply by the other party's failure to

discharge its burden. Tigner v. First National Bank of Angleton, 153 Tex. 69, 264 S.W.2d

85, 87 (Tex. 1954). If the trial court grants one summary judgment and denies the other,

the appellate court may render the judgment the trial court should have rendered. Jones

v. Strauss, 745 S.W.2d 898, 900 (Tex. 1988). Where, as here, the order granting


      6
       The Hettlers did not challenge by point of error the judgment of the trial court
denying their claims under artices 21.21 and 21.55, and their good faith and fair dealing
claim or the award of attorney’s fees to Travelers.

                                           6
summary judgment does not specify the grounds on which the trial court relied for its ruling,

summary judgment will be affirmed on appeal if any of the theories advanced are

meritorious. Carr v. Brasher, 776 S.W.2d 567, 569 (Tex. 1989); Allstate Ins. Co. v. Hicks,

134 S.W.3d 304, 307 (Tex.App.–Amarillo 2003, no pet.).


                                       Duty to Defend


       An insurer’s duty to defend the insured is determined by applying the “eight corners”

rule, under which we look only to the pleadings and the insurance policy to determine

whether the duty to defend exists. Cluett v. Medical Protective Co., 829 S.W.2d 822, 829

(Tex.App.--Dallas 1992, writ denied). The duty to defend is not affected by the facts of the

case ascertained before, during, or after the suit, and we do not consider the truth or falsity

of the allegations in the underlying pleadings. Culllen/Frost Bank v. Commonwealth

Lloyd’s, 852 S.W.2d 252, 255 (Tex.App.--Dallas 1993, writ denied). The duty to defend

arises if the factual allegations against the insured, when fairly and reasonably construed,

state a cause of action potentially covered by the policy.           Id.   In determining the

applicability of provisions of the policy, we focus on the facts alleged in Brenholtz’s petition

that show the origin of the damages, not the legal theories asserted for recovery and

indulge a liberal interpretation of the meaning of those allegations. See id. at 141-42. Any

doubt as to whether the complaint states a covered cause of action is resolved in the

insured’s favor. Cullen/Frost Bank, 852 S.W.2d at 255. However, we do not look outside




                                               7
the pleadings or imagine factual scenarios which might trigger coverage. Nat. Union Fire

v. Merchants Fast Motor Lines, Inc., 939 S.W.2d 139, 142 (Tex. 1997).


       The issues for determination in the trial court were framed by the pleadings of the

parties. Murray v. O & A Express, Inc., 630 S.W.2d 633, 636 (Tex. 1982). By our analysis,

we will consider the points of error in the context of the theory on which the case was tried

in the trial court and on issues that were preserved and presented for review. American

Mut. Liability Ins. Co. v. Parker, 144 Tex. 453, 191 S.W.2d 844, 848 (1946).


       By point of error one, the Hettlers contend the trial court erred in determining that

Travelers had no duty to defend Brenholtz’s wrongful eviction complaint. We disagree.

Although they alleged in the trial court that Travelers had the duty to defend based on

claims of fraud, conversion, and interference with business relationships, here, however,

they only contend that the duty to defend existed under the wrongful eviction coverage of

the policy.


       Under coverage B pertaining to personal injury, the policy provides coverage for

“wrongful eviction.” Otherwise stated, coverage does not extend to just any eviction but,

where applicable, applies only to cases alleging a wrongful eviction. As material here, the

policy provides coverage for the wrongful eviction from “room, dwelling, or premises that

a person occupies by or on behalf of its owner, landlord, or lessor.”7 The Hettlers argue



       7
           See Section V - Definitions, 10. c.

                                                 8
the letter to Brenholtz “purporting to terminate” his employment and informing him the staff

would be instructed to deny him entry on the premises, the locks would be changed, and

the police would be called if he showed up at the office ”triggered” the “wrongful eviction”

coverage. However, there are no allegations in Brenholtz’s petition asserting any rights in

any “room, dwelling, or premises,” co-tenancy, joint leasehold, or otherwise. In Decorative

Center of Houston v. Employers Casualty Co., 833 S.W.2d 257, 261 (Tex.App.–Corpus

Christi 1992, writ denied), the court held this provision was intended to cover only landlord-

tenant situations. The facts relied on by the Hettlers to trigger this coverage do not suggest

that Brenholtz claimed a superior right of occupancy, an interest in the premises, or his

denial of access to the premises. See Patel v. Northfield Insurance Company, 940 F.Supp.

995, 1001-02 (N.D. Tex. 1996). Also, Brenholtz did not allege facts which, if true, would

render any eviction wrongful. The Hettlers’ first point of error is overruled.


       By their second point, the Hettlers contend the trial court erred in determining that

Travelers had no duty to defend Brenholtz’s claims of libel and slander. We disagree. We

commence our analysis of this point by reviewing the denial of coverage in National Union

Fire. 939 S.W.2d at 139. The Court there held that an allegation that the driver negligently

discharged a firearm injuring the plaintiff did not trigger the carrier’s duty to defend. In its

analysis, the Court carefully noted that even given a liberal interpretation, no duty to defend

was triggered because the pleadings did not allege the injury was caused by an accident

resulting from the use of a covered auto.



                                               9
       The law of libel has been codified in sections 73.001-.006 of the Texas Civil Practice

& Remedies Code Annotated (Vernon 2005). In a libel action, the first question for

determination is whether the words used are reasonably capable of a defamatory meaning

which is a question of law. Granada Biosciences, Inc. v. Barrett, 958 S.W.2d 215, 222

(Tex.App.--Amarillo 1997, pet. denied). Brenholtz did not allege any facts nor describe the

alleged statements which the Hettlers suggest are reasonably capable of a defamatory

meaning. Disregarding the conclusions of defamation, slander, libel, and invasion of

privacy, Brenholtz’s allegation that the Hettlers contacted his customers at a time when he

was unable to obtain access did not contain the text of any statements made, defamatory

or otherwise. Point of error two is overruled.


       By their third point, the Hettlers contend the trial court erred in determining that

Travelers had no duty to defend the Brenholtz’s denial of use of property claim. By their

reply brief, the Hettlers concede the property damage issue is not before this Court.

Accordingly, their third point is overruled.


       By the fourth point, the Hettlers contend the trial court erred in applying the

employment-related practices exclusion. However, our disposition of their first two points

pretermits our consideration of this point.




                                               10
                                       Duty to Indemnify


       By their fifth point, the Hettlers assert error by the trial court in holding that Travelers

had no duty to indemnify them. We disagree. The duty of an insurance carrier to defend

a suit is separate and distinct from the duty to indemnify. Utica Nat. Ins. Co. v. American

Indemnity, 141 S.W.3d 198, 203 (Tex. 2004). Also, a party seeking indemnity has the

burden to prove coverage if the insurer contests coverage. Id. By its counterclaim, among

other things, in addition to seeking a declaration that it did not have the duty to defend

Brenholtz’s suit, Travelers also sought a determination that it did not have the duty to

indemnify the Hettlers for any damages awarded. Relying on the jury’s findings supporting

a judgment in favor of Brenholtz against the Hettlers, Travelers sought summary judgment

that it had no duty to indemnify the Hettlers. However, the Hettlers did not file any

objection or response to the ground asserting no duty to indemnify.


       Issues not expressly presented to the trial court by written response or otherwise,

may not be considered on appeal as grounds for reversal. Tex. R. Civ. P. 166a(c);

McConnell v. Southside School Dist., 858 S.W.2d 337, 341 (Tex. 1993), Moreover, the

Hettlers do not support their contention by argument or authorities as required by Rule

38.1(h) of the Texas Rules of Appellate Procedure. See also Howell v. Murray Mortg. Co,

890 S.W.2d 78, 81 (Tex.App.--Amarillo 1994, writ denied ). Point of error five is overruled.


       Accordingly the judgment of the trial court is affirmed.



                                                     Don H. Reavis
                                                       Justice

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