## In the Court of Appeals Second Appellate District of Texas

at Fort W o rth

___________________________ No. 02

- 21

- 00335

- CV

___________________________

On Appeal from the 431st District Court Denton County, Texas Trial Cou rt No. 21

- 8729

- 431

Before Sudderth, C.J.; Kerr and Birdwell, JJ. Memorand u m Op inion by Chief Justice Sudderth 

### J AMES 

### P IOT AND 

### M ARILEE 

### P IOT 

### , Appellants

V



### . A LLSTATE 

### V EHICLE AND 

### P ROPERTY 

### I NSURANCE 

### C OMPANY 

### , C HRIS 

### W HITMIRE 

### , AND 

### M ICHAEL 

### P ATTERSON 

### , Appellees2 MEMORANDUM OPINION
I. Introduction
After a pipe in their house sprung a leak , Ap pellants James Piot and Marilee
P iot filed a n insurance claim w ith their insurer, Appellee Allstate Vehicle and Property
Insuran ce Co mpan y . Both sides agree that the insurance policy limited a ny claim from a leak originating “ within or below t he slab or foundation of the dwel ling ” to $5,000

. The Piots contended that because the leak originate d above t h e foundation , they we re entit led to coverage for the full $6 11 , 116 policy limit , but after Allstate
determined that the leak orig inated below the home ’ s foundation , it paid the Piots only $5,000 on their claim

. The Piot s sued A l lsta t e fo r breach es of contrac t and the duty of good faith and
for violation s of the In surance Code and Deceptive Trade Practices Act

. They also

s ued Allstate and two of its i nsurance a djusters, Appellees C h ris Whitmire and
Mi cha el Patt e rs on , f

o r prom issory estoppel , assertin g that Whi tmire and Patterson
had to ld them that the cla im was covered to the f ull policy limit , and that based on those representations, t he Piots aut horized repairs with Regent Restoration , Inc

. 1 The Ap p ellees pr evai led on a traditional summary judgment, and the Piots now appeal, arguing in three issues that genuine issues of materia l fact concerning the leak ’ s source

1 Regent intervened in the lawsuit but is not a part y to this appeal.3

and the adjust ers ’ coverage statements should have pre cluded summary jud gment.
W e agree and re ver s e . II. T raditional Summar y Judgment In a summary judg ment case, the issue on appeal is whether the movant met its
summary judgm ent burden by establishing that no genuine i ssue of material fact exists
and that the movant is ent i tl ed t o judgment a s a matt er of law. T ex. R. Civ. P. 166a(c); Mann Frankfort Stei n & Lipp Advisors, Inc. v. Fielding , 289 S.W.3d 844, 848 (Tex. 2009). We review a summary judgment de novo. Traveler s Ins. Co. v. Joachim , 315 S.W.3d 860, 862 (Tex. 2010).
W e consi der the evid ence pre sented in the light most favorable to the
nonmovant, cre diting evidence favorable to the nonmovant if reasonable jurors could,
and disregarding evidence contrary to the nonmovant unless reason able jurors could

not. Ma n n Fran kfo r

t , 289 S.W.3d at 848

. We i nd ulge every reasonable inference and resolve any doubts in the nonmovant’s favor. 20801, Inc. v. Parker , 249 S.W.3d 392, 399 (Tex. 2008) . A defendant that conclusivel y nega t es at least one es se n tial e lem ent
of a plaintiff’s cause of action is entitl ed t o a su mmary judgment on that claim. Frost Nat’l Bank v. Fernandez

, 315 S.W.3d 494, 508

– 09 (Tex. 2010); see Tex. R. Civ. P. 166a(b), (c). To prevail on a t raditional summa ry jud g ment, the movant m us t produ ce conclusi v e evidence establishing its right to summ ar y judgment bef

ore the bu rde n shift s to the plaintiff to come forward with competent controverting evidence to raise
a fac t issue. See Van v. Peña , 990 S.W.2d 751, 75 3

– 5 4 (Tex. 1 999).4 II I
. Analysis
A. Breach of Contract Claim
The Piots con tend in the ir first issue that the trial court erred by granting summary judgment on their breach of contract claim against Allstate. We ag ree.
In its motion for sum mary ju d gment, Allstate a rgu e d tha t th e leak had originated below the foundation, th us pre cluding the Piots ’ b reach of contract claim

. In support , Allstate at tached an affidavit f rom a clai ms ana lyst stating that the company had deter mined t h e leak ’ s below

- found a tion or ig in based on “ information glea ned during the claim investigation process ” and a repor t from Am erican Leak Detection (ALD) stati ng tha t th e leak had origin ated below the foundation

. W e first note t hat the burde n s of pro of imposed upon the Piots and Allsta te
differ depending on the stage at which adjudicat ion is sought

. To prevai l at trial on the m e r its on t heir breach of contract action against A llstate, the Piots would bear the
burd en to p r ove th at the lea k ori g in ated a b ove, not b elow , the ir home ’s foundation

. But for Allstate to prevail on the breach of contract action by way of its trad itional

m otion for summary judgment , the burden was on All state to conclusively disprove
that the leak o r

iginat ed a bove the f

o undat i o n. 2 To that end, Allstate produced a single

2 All state conten ded a t trial , and it contends on appeal , t h at its summary judgment evidence c o nclusivel y negate d the Piot s ’ conte n t ion that t h e l e ak orig

inated ab ove the fo und ation b y conclusively proving the o pposite, i.e., that the lea k originated below the foundation

. See City of K eller v. Wilson , 168 S.W.3 d 802, 814

– 15 (Tex. 200 5) ( discussing , generally, the concept of legally i n sufficien t evi d ence on a vital fact issue wh en the opposite of the vital fact is proven as a matter of law)

. As5

piece of summary ju dgment evidence

— the inspecti on report by ALD sta ting that t he origin of the leak was located below the slab foundatio n . 3 Assuming , wit hout holding,
that this sing

le report rose to the level of conclusive pro of sufficient to support a

t raditional summary judgment motion, the Piot s impea ched that evidenc e with

te st imony fro m Derrick J. Hahn, on e of the Piot s ’ atto r neys, who testi fied that the
autho r of the ALD report ad mitted to Hahn that he had not inspected the property to
determine the so ur ce of the leak:
5. I spoke with Mr. Gonzales with regard to the specific s tatement in his report that t he lea k was “ [b]elo w slab. ”
6. I inqui red of M r. Gon zales as to wha t methodol ogy he employed to make the determination th at the lea k was below the slab versus above the slab. I learned from my conversation with Mr. Gonzalez t hat he di d not actually perf orm any insp ection t o make a specif ic determinat ion as to whether the leak was below the sl ab or above the slab. I l earned from Mr. Gonzalez that th e reference to

“ [b] elow slab ” was merely his opinion.
7. I inquired of Mr. Gon zale s as to whether his rep ort could be correc t ed to accuratel y reflect tha t he d id not actually p erform an

discussed be low, however, the “ conclusive proof ” t hat Allstate reli es upon was not conclusive at all

. Its relia bility was impeached , thus cr e a t ing doub t as t o a fac t issue that m ust be r esolved in the Piots ’ favor on summary jud gment review. See id

. at 820 ( noting that jurors may even disregard testimony from a disinteres ted witness that ha s not been i mpeach ed , and a reviewing court mu st “ ass u m e they di d so i n favor of their ver dict, and disreg ard it in the course of legal sufficiency review ” )

.

3 O n appeal, Al l state focuses primarily upon the Piot s ’ lack of summary ju dgment evidence proving that the leak o rig inated above the foundation , but t hat puts t h e c a r t befor e the horse . Allsta te , not the Piots, bore the initial burden . Allstate was required to bring c onclu sive pr o of to negate the Piot s ’ clai m that the leak ori ginated above the f

oundation.6

inspection to make a specif ic determination as to w hether the leak w as below the slab or abo ve the slab.
8. I learn ed from Mr. Gonzale s that the co mpany pol icy prohibited hi m from chang ing any language in his reports once they are written.
9. I further inquired of Mr. Go n zales as to whether company pol icy also prevente d him from m aking changes to the report to correct inaccurate statement s. I learn ed from M r. Gonzales that the company policy did prohibit su ch change s. Alls tate did not obj ect to Hahn ’s affidavi t , nor did it obtain a r uling excluding it. See
T ex. R

. E vid. 802 (pro viding that “[i]nadmissible hearsay admitted wit hout objec tion
may no t be deni ed probative val ue merely b ecause i t is hearsay ”)

. On appeal , Allstate argues that Hahn ’ s affidav it “ presents no evidence that the leak originated ab ove the foundation, which wa s the one c ritical fact the Piots had to
establish to avoi d summary j udg ment. ” But Allstat e ’ s arg u ment reverse s t he burden
of proof. Because , at the t ra ditional summary judgment sta ge, Allstate bore the
burden to conclusively negat e the Piot s ’ contention that the leak originated above the foundation, the Piots did not hav e to “ esta bl ish ” that t he leak did originate a bove the
foun dation to avoid summar y ju dgment; t he y only had to raise a fact issue as to
Allstate ’ s contention that the leak did not originate above the foundation. 4 And

4 Allstate did not file a no

- evidence motion f o r summary judg

m ent, whi ch would have shif

ted the bu rden to the Piots to p ro duce more than a scintilla of evidence to pro ve that the leak ’ s source was abov e the f oundat ion. See Tex . R. Civ. P. 166a( i ) ( allowing a party , without presenting evidence, to file a no

- evid e nce summary judgment motion , which p laces the burden of proof on the nonmovant to produce7

impeach ment of the sole piec e of eviden ce that Al ls tate offere d to co n clus ively dispr ove the Piots ’ contention that the l e ak ori g inate d above the foundation was

su fficient to defeat Allstate ’ s motion

. Allstate reli ed exclusively on the report that Gonzales created , 5 and the Piots

cou ntered with probative ev idence that , if be l ieved, would sh ow that Gonza les ’ s conclusion as to the source o f the l eak was unfounded. On sum mary judgment, t he
trial court was not at liber ty to disregard this evidence

. Cf

. City of Keller

, 168 S.W.3d at
813 ( statin g th at in a le gal suffic i ency review , a court “ cannot disregard contrary

ev idence showi ng the witne ss was unqualifie d to give an opin ion ” or th at the expert ’ s opinion e vidence was based on unfounded assumptions ). Hahn ’s affidavit cast doubt

on the reliabili ty of the re por t ’ s con c lusion that t h e leak originated below t he
foundati on, and that do ubt must be resolved in the Piots ’ favor. See Van , 990 S.W.2d
at 753

. P roof is conclusive “ only if reasonable people could not differ in their
conclusions. ” Cit

y of Keller , 168 S .W.3d at 816

. Based on the summary judgm ent evidenc e here, a reasonable fa ctf inder cou ld have either accepted the ALD report as

true or re jected the repor t as unfounded ; thus , a material issue of fact was presented

evidence raisin g a genui ne issue of material fact as to the element or elements chal lenged

).

5 In its br ief on appeal , Alls t ate also points to the estimate pre p a red by SW AT Pl umb ing, LLC as evidence t ha t “ also in di cated the lea k originated below the foundation , ” but t he SWAT invoice makes no mention o f the s ource of the leak.8

for a fa ctfinder to re solve

. B eca use a fact i ssue existed as to t h e s ingle chall enged
eleme nt of the Piot s ’ breach of contract action against Allstate, th e trial court erred by granting Allstate ’ s traditional motion for summary judgment on th is ground

. We sustai n the Piots ’ first iss u e.
B. Ext rac ontra c tual Claims In their second issue, the Piots c o ntend that the t rial c our t erred b y g ranting summary judgment on their extracontractual claims against Allstate. We agree.
Allstate ’ s attack on the Piot s ’ ext racontractual claims i s premised on t h e

assu mption that summary judgment was appropr iate on the Piots ’ brea ch of contra ct
claim . In its summary judgment motion, Allstate argued that the absence of any
breach of contract claim foreclosed recovery o n the ext ra contractual claims

. B ut b ecause we have held that the trial c ourt erred by granting sum mary judg ment on the
Piots ’ breach of contract claim , Allstate ’ s argument with regard to the extracontractual
claims must fail. W e sustain the P iots ’ second issue

. C. Pr omissory E stoppel Claim
In their third iss ue, the Piots co ntend tha t the trial court erred by grantin g Appellee s ’ 6 summary judgment motion on the Piots ’ promissory estoppel claim. We
agree.

6 A lls tate, Whitmire , a nd Patterson filed a join t motion fo r summary j udgme nt and did not dif

ferentiate as to wh ich Appellees we re attacking the Piots ’ promissory estoppel cause of acti on .9

T he elements of the Piot s ’ pro missory estoppel claim are : (1) W hitmire an d
Patterson made a promise to the Pi ots; (2) the Piots re asonably and substantially reli ed upon the promise to their detriment; and (3) the Piots ’ reliance was foreseeabl e . See
S p icer v. Maxus Hea l

thcare Partners

, LLC , 61 6 S.W.3d 59, 12 2

– 23 (Te x. App.

— Fort
Wo rt h 2020, no pet.) (op. on re h ’ g)

. Th us, for A ppellees to prevail on their tra ditional motion for summary judgment on the Piots ’ promissory estoppel claims , they must
concl usively disprove one of these elements. T h e sum mary jud gmen t motion does

not speci f ically identify which elemen t it ch al lenges

. 7 But based upon the arguments

an d the evidence on which the motion relies, we assume that Appellees conten d that they conclusi vely disproved the first element, that a p r omise was made.
In their moti on and o n appeal, Appellees argue tha t the P io ts had al ready

contr acted with Re gent before meeting with the adjusters ; that the adjusters did not and could not make coverage represe ntations ; that Whitmire discla imed any
rep r esent ation of cove rage by provid ing a wr i tten “ zero ” estimate ; th at a ny
repr es entations by Patters on were made after Regent had completed the repairs ; that
the P iots could not recover funds t hey were not en titled to under the policy ; and that
no considera t

ion s upported any promise allegedly made by either adjuste r
. In supp ort

o f the arg ument, Appe llees point to the following chronology of events:

7 A tradit ional summary judgment mot ion must state the grounds on which i t is made. Tex. R. Civ. P. 1 66a(c). As a gene r al r ule, t he granting of a motion that f ai ls to e xpre ssly state the grounds constitutes reversible error. See G&H Towing Co. v. Magee , 347 S.W.3d 2 93, 297 (Tex. 2011) ( “ Summ ary judgments, however, may only be g r anted upon grounds expressly asserte d in the su m mary ju dgment motion

. ” )

.10

• Plaintiffs communicated with Regent prior to providing Allstate with notice of the Claim on December 17, 2 019;

• P laintiffs entere d into a r epair con tra ct with Regent o n December 18 , 201 9;

• Whitm ire inspected the Property with Plaintiff and [the Regent representative] present on December 19, 2019;

• Whitmire pr epared a “ zero ” estimate dated December 20, 2019;

• ALD i nspect ed the Proper ty and prepared a repo rt of fin di ngs d ated December 27, 2019;

• Re gent ’ s completed repair invoices a re dated December 31, 2019; and

• Patterson inspected the Property and prepared an estimate on January 2, 2020. [

I ndentation a lte red

. ] According to Appelle es , t hese facts, whic h they cha racteriz e as “ u nd isp uted , ”
render the Piots ’ version of the events “ patently inaccu ra te. ” G iven the chronology
th at Appellee s re ly upon, they reason that “ neither Whitmire nor Patterson could have

a uthorized reco very of full dwe l ling po lic y limits as alleg ed. ” But this analy sis misses the mark. For pro missory estop pel purposes, the question is not whether th ey could have authorized full dwelling policy cov erage up to $ 600, 116.00 , bu t rather whether they did repre sent t o the Pio ts t h at the w ater damage would be fully covered up to that amount

. In other wor ds, Whitmi re and Patterson
could have lied, or they could have exceeded their authority , and neither scenario would negate this el e ment of the Piots ’ promissory estoppel cl aim

.11

A p pellees argue that Whitmire and Patterson “ cou ld not have a dvised [the
Piot s] that the los s was ‘ fully cov ered under the Policy up t o the policy limit of $ 611,1 16.00 , and they could not have ‘ approved ’ rep a irs and remediation at the
Pro perty ” beca use Wh it m ire did not have the necessary information to make that
determination

. Fur thermore, knowing that the leak had originated below the
fo un dation, Patterson “ could not have promised m ore than an amount sanctioned by
the Pol icy. ” But t his ignores t he Pio ts ’ s ummary judgment evidence that Whitm ire
and Pat tterson ac tually did make these representations

. I n Ja mes Piot ’ s aff

idavi t , he averred that

• he hired Regent to provide an estimate ;

• Whitmire insp e cted the leak at his home on December 19 ;

• Whitmi re tol d b ot h James and the Regent repairma n that “ the los s w a s fully
covered under the Policy up to the policy limit of $611,116.00 ” ;

• James told Whit mire that “ Regent won ’ t proceed without your approval ” ;

• Whitmire acknowle d ged t hat he was aware that Regent woul d n ot proce ed
withou t his approval and that he ag ree d at t hat time “ to pay to Re gent their quoted amount fo r making the repair s ” and direc ted th e Regent representative

to “ send its bills/ repair invoices directly to Defendant Allst ate for payment ” ;12

• A bout th ree w eeks later, o n January 2, Patterson came to Jam es ’ s h ome an d
informed him that “ there was coverage for up to $611, 000 .00 (the p olicy limit),
for r epairi ng the damage, less depreciation and the deductible ” ;

• Pat terson told Jam e s tha t “ he had reviewed and appr oved the estim ate from Reg ent ” ; and

• H ad Ja mes known that Al lstate was limiting coverage to $5,000 he “ would not have authorized Regent to make repai rs totaling in excess of $ 20,000, and
addition al r epairs tota ling in exce ss of $8 0,000. ” Notably, J ames did not contend that Whitmire ’ s and Patterson ’ s s tatements to
him and the Regent representative were true. James simply state d that th o se
repres entations w ere made and that he relied upon th o se representation s to hi s d et riment

. Without belaboring th e su mmary judgment standar d of review as set forth
abo ve in our breach of contract analysis, suffice it to say that o n this evidence a fact
iss ue exists . At trial a jury would be free to believe either the Piots ’ ve r sion of events ( i.e., that Whit mire and P at terso n represen ted to James that Allstate would co ver the repairs up to the $ 611,116 policy limit ) o r Appellees ’ version of events tha t no such representations were made

. Because a fact i ssue exists as to whet h er t hese representations were made , the

t r i al co urt erred by granting summary judgment on the Piots ’ promissory estoppel
cause of action. We sustain the Piots ’ third issue.13 I V
. Con cl usion Having sustained all three of the Piots ’ issues on appeal, we re v erse and
remand. Tex. R. App . P. 43.2( d)

. /s/ Bonnie Sudderth
Bonn ie Sudderth Chief Ju st ice
Delivered: Augus t 11, 2022