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

at Fort Worth

_______________________ ____
No. 02

- 21

- 00088

- CV

______ _ ________ ____________

On Appeal from the 67th Dis trict Court Tarrant County, Texas Trial Court No. 067

- 319936

- 20

Before Sudder th, C.J.; Kerr and Walker, JJ

. M emorandum Opinion by Justice Wal ker 

### M ARIA 

### R OBLES 

### , J.A., AND 

### J OSE 

### A LMAGUER 

### V AZQUEZ 

### , Appellant s

V



### .

C OX 

### I NSURANCE 

### G ROUP 

### , LLC AND 

### O LD 

### A MERICAN 

### C OUNTY 

### M UTUAL 

### , A ppellees2 MEMORANDUM OPINION
Appellant s Maria Roble s , J.A. (a minor), 1 and Jose Almaguer Vazquez challen ge

the trial co urt ’ s granting of sum mary judgment in favor o f Appellees Cox Insurance
Group, LLC and Old American County M utual 2 in a n automobile

- insurance

- recissi o n

case

. Appellants argue that summary judgment was improper because three i s sues o f

fact exist ed as to whe ther or not Robles made misrepresen tation s on her application

for insurance with Cox

. We affirm the tri a l court ’ s judgment.

I. B ACKGROUND

A. U NDISPUTED F ACT S

O n A u gust 11, 2020, Robles ’ s min or son , J.A. , was driving Robles ’ s a utomobile

when he was invo lved in a traffic accident. J.A. was unlicensed a nd provide d to the
responding po l ice offi cer a n in surance policy issued by Old American Count y Mutual
under policy number **** 80. 3

T he application for policy number ** ** 80
, which Robles signed elec tronica lly
on January 22, 2020, sought a one

- month aut omobile insurance policy from C ox

. On

1 J.A. is identifi ed in the appellat e record by i nitials o nly.

2 The record reflects that Cox is a Texas managing gene ral a gent of Old American and is authorized to underwrit e a nd provide non

- standard automob il e insurance policies on Old American ’ s behal f

. See Tex. Ins. Code Ann. § 4053. 001

.

3 Fo r privac y reasons , we have redacted the policy number, but it is reflected fully in the record.3

the applica tion, Robles list ed he rself and Vazquez as the only household drivers and

answered “ no ” to the following questions:
(1) “ Are there any residents o f the househ old age [d] [fourteen] [and] o ver wh o

are not l isted as drivers or as excluded drivers? ” and
(2) “ D oes anyone else regularly drive your vehicle (ot her than those l isted?)

. ”

Robles certified with her elec tronic signa ture th at the answers to th ese

que stion s were true and corr ect an d that sh e understood t hem to be given to induce

Cox into issuing the policy. Fu r ther, t he policy documents, which Robles al so

ackno wledge d by electronic signature, stated that Cox could void the policy in the

even t o f a material misrep rese ntatio n made on t he app lication.
Upon receipt of the completed application
, Co x issued the polic y to Ro bles.

The policy was subsequently renewed seven times and was in effect on the day of
J.A. ’ s accid ent.

While investi gating th e a cciden t , a Cox representative spoke with Roble s , who
provided J.A. ’ s birthda te

. 4 Robles further stat ed that J. A. had always lived in her

house hold but that she did not include his name on t he 2020 applicat i on “ be caus e he

was a min or. ” Co x conclud ed th at Robles h a d made material misrepresent ations on

her applicati on and rescinded her policy

.

4 For privacy reasons we have omitted J.A. ’ s birthdate, but it i s reflected in the record. B a sed on the birthdate provi d ed by Robles, J.A. w oul d have been at least fou rteen years old on January 2 2 , 2020.4 B. P ROCEDURAL H ISTORY

In their ori ginal petition, Appellees sought a judicial declaration from t he trial

c o urt that the policy had been p roperly r es cinde d due t o material m isrepresentation s
made by Robles on the policy application. Appel lees then filed a motion for summary
judgment on the grounds that Robles made two material misrepresent a tions on t h e
appl icatio n: (1) answer ing “ n o ” w hen as ked i f any household r esidents age d fourteen

or older were not listed as drivers or excluded driver s , and (2) answering “ no ” when

asked if any other person regularly drove h er automobiles

. App e llant s ’ su m mary j udgment respo n se conten d ed that R ob les h ad orig inally

obtained an insurance po licy from a comp any identified as “ ACC C
, ” and that the
policy was subsequently transferred to Cox. This precluded summary judgment, they
argued, becau s e Robles had never direc t ly applied for insurance with Cox and
,
th erefo re, could not have ma de a misrepr esentation to Cox.
The only summary judg ment evidence provided by Appellants was an affidavit

from Robles
, which substantively read in full:

I submitted my joint app lica tion for insur ance to ACCC in 2013. The appli cation ne ver a sked m e about our childre n. The application only asked if there would be another authorized driver. My oldes t son was seventeen at the time we submitted t he applicat i on, and he was not licen sed and was not able to dr ive. The chil d in quest ion to this lawsuit

was o nl y ei ght y ears ol d at the tim e I appli ed for insurance. I have never received correspondence in any form from Old American County Mutual.5

The trial court grant e d Appellee s ’ mo tion for summ ary judgment w i t h o u t

s p e c i f y i n g t h e g r o u n d s f

o r i t s d e c i s i o n

. A p pellants filed a motion to reconsider, which

was denied

. This appeal followed

.

II. STANDARD OF REVIEW AND APPLICABLE LAW

A. S TANDARD O F R EVIEW

We review a sum mar

y judgment de novo. Tra vele rs Ins. v . Jo achim , 315 S.W.3d

860 , 86 2 (Tex. 2 0 10). We cons ider the evidenc e presented in the light most favorable
to the nonmovant, crediting evidence favorable to the nonmovant if reasonable juror s could and disregarding evi dence contrary to th e no nmov ant unles s re asona ble jurors

could not

. Mann F

r ankfort Stein & Lipp Advisors , Inc. v. Fi eld ing , 289 S.W.3d 844, 848
(Tex. 2009). We indulge every reasonable inference and resolve any doubts in the

n o nmovant’s favor. 20801, In c. v. Parker , 249 S. W.3d 392 , 399 (Te x. 2 008).
A plaintiff i s en titled to summary judgm ent on a cause o f action if it

c onclusively proves all essential elements of the claim. See Tex. R. Civ. P. 166a(a), (c);
MMP, Ltd. v. Jon e s

, 710 S.W.2d 59, 60 (Te x. 1986). On ce the pla inti ff p roduces

e vide nce e ntitling it to s umma ry judg me n t, the burden shifts to the d efendant to

present controverting evidence that raises a fact issue. City of Hous

. v. Clear Creek B asin

Auth , , 5 89 S.W.2d 6 71, 678 (Tex. 1979) ; Kin nar d v. United R e

g ’ l He alth Car

e Sys

. ,

1 94 S .W.3d 54, 57 (Tex. Ap p.

— F ort W or th 2006
, pet. de nied)

. W hen the trial court ’ s judgment doe s not specify which of several grounds proposed in a summary judgment

motion was dispositive, “ w e must affirm the summary judgment if any of the theor ies6

presented to the tr ial cour t and pre serv ed fo r appellate re vi ew a re meri to r i ous. ”

Prov ident Life & Acc. Ins. v. Knott , 128 S.W.3d 211, 216 (Tex. 2003).

B. A PPLICABLE L

AW

The Texas Insurance Co d e allows a n insurer to a void an insurance policy du e

to false statemen ts o n policy applicat ion s if it is shown that “ the m att er

misre presen ted : ( 1) was materi al to the risk; or (2) contributed to the contingency or

event on which the policy became due and payable

. ” Tex. Ins. Code Ann.
§ 705.004(b)

. Add it

ionally, t he Supr em e Court of T exas has lon g hel d that an insurer

must pro ve five elements to be entitled to avoidance of a n insurance policy on
misrepresentation g rounds: (1) the making of the represent a tion; (2) the falsity of the

rep resentation; ( 3) re liance thereon by t he i ns urer ; (4) the i nte nt to deceive on the pa r t

of th e insure d making the same ; and (5) the materiality of the representation. May e s v.

Mass

. Mut. Life Ins.
, 608 S.W.2d 612, 616 (Tex

. 1980); see Medicus Ins. v. Todd
,

400 S.W.3d 670
, 6 78

– 79 (Tex. App.

— Da llas 2013
, n o pet.) ( dis cussi ng the interplay

b e tween M

ay e s and § 705.004

)

.

I II. A PPLICATION

We are ask ed in thi s appeal to answer a narrow question : Did App ellan ts raise a
genuine is s ue of mater ial fact re lated to whether Robles made a misrepresentation on

the 2020 applicat

ion with Cox ? Appellants c onten d t hat thr ee such issu es were r aised :

whether ( 1 ) Robles was actua lly asked about add itional household res ident s aged
fourteen years or older ; (2) Robles m isr epresented J.A. ’ s age; and (3) J.A. qualifie d as a7

“ R egul ar D river

. ” Because we hold on iss u es one and two that no issu es of fact were

raised
, we need not consider issue three

. 5 Tex . R. App. P . 47.1; se e Pro v ident Life &

Acc. Ins. Co.
, 128 S.W.3d at 216

.

A

. A PPELLANTS F AILED TO R AISE A N I SSUE O F F ACT AS TO W HETHER R OBLES W

AS A SKED ABOUT H OUS EH OLD R ESIDENTS O VER F OURT EE N
Appell ants argue that Robles ’ s affidavit rai sed a fact issue as t o whether Robles

was asked on the 2020 application about additional ho usehold residents over the age

of fourte en

. They conte nd that, if Robles was never asked th is question, she could

n o t ha ve made the allege d m isrep resentation.

I n support of their motion for summary judgment, A ppellees attached a copy

of the 2020 app lication signed electron ically by Robles
, 6 which included this question

and Robles ’ s answ er o f “ no

. ” The bur den, t hen
, w as on the Appellants to present

co m petent evidence t hat raise d an issue of fac t as t o wh ether Robles was act ually

a sked the question

. See City of Hous

. , 5 89 S.W.2d at 678

.

5 Because we overrule Appellants ’ first two issues, no complaint remains as to whether Appellees conclusi v ely proved that Robles ma de a material misr epresentation when she state d tha t t here w ere no other ho us ehold res i dents a ged fourteen or older

. Thus, it is immaterial whether Appellees con clusively prov ed that Robles made an additional misrepresent ation as to J.A. ’ s status as a regula r driver

. See Tex. R. App. P

. 47.1 ; Pro v

ident Life & Ac

c. I ns. Co.
, 128 S.W.3d at 216

.

6 The genuineness of Robles ’ s electronic signature was never questioned, and Texas law provides that such signature s have full legal effect and en forceability. Tex. Bus. & Com. Code Ann. § 322.007

.8

Roble s ’ s affi davit
, however, is wholly silent c oncernin g t he 2020 appli cation

— it

n e ithe r af firms n or denies she compl e ted it

. Instead, it attes t s only to fac ts concerning

a separate applic ation fro m 2013 submit ted by Robles to a company she refer s to as

“ ACCC ” an d state s that
, in th at application, she was nev er asked a bout c hildren in t he

household

. I t is true tha t Appellants as sert ed in thei r summary judgment response tha t
they ne ver subm itted an application to Cox
, b ut t his assertion is not supported by

R obles ’ s af

f idav it
, and her response it self is n ot co m pet ent sum mary j udgment

evid ence

. I

d

. at 678 ( “ Pleadings do no t constitute su mmary judgment proof. ” ); see

Rh odes v. I nterfirst Bank Fort Worth , 719 S.W.2d 263, 264 (Tex. App.

— Fort Worth 1986
,

no p et.) ( explaining tha t summary judg ment responses are not c o mpe tent summar y
j udgment evi dence )

.
A dditionally
, Appe llants concede d in their appellate brief that the 2020
applicati on “ was completed via a phone call between Appellants and a re pr esentati ve
of Appelle es

. ” W e accept th is fact as tr ue

. See Tex. R

. App. P. 38.1( g) (requ iring in

civ il cases that appell ate courts accept a s true th e facts stated in an a ppellant ’ s brief
unless contradicted by another party)

. It is al so undis puted t hat
, at the accident scene,
J.A. produ ced an Ol d American insurance p oli c y bea rin g the same po licy number as

that found on the 20 20 application

. Thes e facts further establish that Robles
completed the 2020 application
, to include answering all qu estions therein.
Relatedly , to t he ex tent that Appellants contend that t he y w ere un awa re of the
questi on s asked i n the 2020 ap pli cation, the law presumes otherwise because it is9

undisputed that Robles signed the application

. In re Int ’ l Profit Assocs. , 286 S.W.3d 9 21,

9 23 (Tex. 2009 ) ( “ [

A ] party who signs a document is pres um ed to know its co nten ts , ”
(quo ting In re L

yon Fin. S erv

s. , 25 7 S.W.3d 228, 232 (Tex. 200 8 ) (orig . proce eding) ) ) ; cf.
Odom v. Ins. Co. of P

a. , 455 S.W.2d 195, 199 (Tex. 1970 ) ( “ [T]he rule is well recognized

that where . . . an applicati o n for insurance is attached to and m a de a part of the
policy a nd is accept ed and retained b y the ins ured, the insured is conclusively
presumed to have knowledge of its cont ents and to have ratified any false statements

therein

. ” )

. Thus, we concl ude that A p pellants faile d to raise a genuine is sue of fact a s to

wheth er Robl es was asked about house hold resi dents over the age of fourteen
, an d we

overrule their first issue.

B. A PPELLANTS F AILED TO R AISE AN I SSUE OF F ACT AS TO J .A. ’ S A GE
Appellants next argue t hat they raised a n issu e of fa ct a s t o whether J.A

. was

fourte en years old at the time the 2020 a pplicat ion was completed. Through an

affidavit of one of its repre senta ti ves , Appellees established that J.A. was fourteen
years old whe n Robles com pleted the 2020 appli cation

. Once again
, it wa s incum bent

o n Appellants to offer co mpetent summary judgment evidence t hat r aise d an issue of

fac t as to J.A. ’ s age

. See City of Hous

. , 5 89 S.W.2d at 6 78

. Appellants again point to Roble s ’ s affid avit as supporti ve of their argument , but

we fail to see ho w any attest a tions ther ei n r ais e d a qu estion about J.A. ’ s a ge at the

time the 2020 application was complet ed

. I f anything
, Robles ’ s statement th at J.A.10

was eight years old when th e 2013 application was sub mitted supports the contention

that he was at le as t fou rteen in 2020 w hen Ro ble s submitted her application to Cox.

Therefore, we conclude that Appellants failed to raise a genuine issue o f fact as

to J.A. ’ s age at the t

ime the 2020 application was completed and overrule their second

issue

.
IV. CO N CLUS ION

Havin g overrul ed Ap pellant s ’ first and second issues, we need not address their

th ird issue

. See Tex. R. App. P . 47.1

. Accord ingly , w e affirm the trial court ’ s jud g ment.

/s/ Br ian Walker

Brian Walker Justice

Delivered : January 20 , 202 2