In the

Court of Appeals

Second Appellate District of Texas

at Fort Worth

___________________________

No. 02-21-00088-CV

___________________________

On Appeal from the 67th District Court

Tarrant County, Texas

Trial Court No. 067-319936-20

Before Sudderth, C.J.; Kerr and Walker, JJ.

Memorandum Opinion by Justice Walker

MARIA ROBLES, J.A., AND JOSE ALMAGUER VAZQUEZ, Appellants

V.

COX INSURANCE GROUP, LLC AND OLD AMERICAN COUNTY MUTUAL,

Appellees
2

MEMORANDUM OPINION

Appellants Maria Robles, J.A. (a minor),1and Jose Almaguer Vazquez challenge

the trial court’s granting of summary judgment in favor of Appellees Cox Insurance 

Group, LLC and Old American County Mutual2in an automobile-insurance-recission

case. Appellants argue that summary judgment was improper because three issues of

fact existed as to whether or not Robles made misrepresentations on her application 

for insurance with Cox. We affirm the trial court’s judgment.

I. BACKGROUND

A. UNDISPUTED FACTS

On August 11, 2020, Robles’s minor son, J.A., was driving Robles’s automobile

when he was involved in a traffic accident. J.A. was unlicensed and provided to the 

responding police officer an insurance policy issued by Old American County Mutual

under policy number ****80.3 

The application for policy number ****80, which Robles signed electronically

on January 22, 2020, sought a one-month automobile insurance policy from Cox. On 

1

J.A. is identified in the appellate record by initials only.

2The record reflects that Cox is a Texas managing general agent of Old 

American and is authorized to underwrite and provide non-standard automobile

insurance policies on Old American’s behalf. See Tex. Ins. Code Ann. § 4053.001.

3For privacy reasons, we have redacted the policy number, but it is reflected 

fully in the record. 
3

the application, Robles listed herself and Vazquez as the only household drivers and 

answered “no” to the following questions:

(1) “Are there any residents of the household age[d] [fourteen] [and] over who 

are not listed as drivers or as excluded drivers?” and

(2) “Does anyone else regularly drive your vehicle (other than those listed?).”

Robles certified with her electronic signature that the answers to these 

questions were true and correct and that she understood them to be given to induce 

Cox into issuing the policy. Further, the policy documents, which Robles also

acknowledged by electronic signature, stated that Cox could void the policy in the 

event of a material misrepresentation made on the application. 

Upon receipt of the completed application, Cox issued the policy to Robles. 

The policy was subsequently renewed seven times and was in effect on the day of 

J.A.’s accident. 

While investigating the accident, a Cox representative spoke with Robles, who 

provided J.A.’s birthdate.

4

 Robles further stated that J.A. had always lived in her 

household but that she did not include his name on the 2020 application “because he 

was a minor.” Cox concluded that Robles had made material misrepresentations on 

her application and rescinded her policy. 

4For privacy reasons we have omitted J.A.’s birthdate, but it is reflected in the 

record. Based on the birthdate provided by Robles, J.A. would have been at least

fourteen years old on January 22, 2020. 
4

B. PROCEDURAL HISTORY

In their original petition, Appellees sought a judicial declaration from the trial 

court that the policy had been properly rescinded due to material misrepresentations

made by Robles on the policy application. Appellees then filed a motion for summary 

judgment on the grounds that Robles made two material misrepresentations on the

application: (1) answering “no” when asked if any household residents aged fourteen 

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

asked if any other person regularly drove her automobiles. 

Appellants’ summary judgment response contended that Robles had originally

obtained an insurance policy from a company identified as “ACCC,” and that the 

policy was subsequently transferred to Cox. This precluded summary judgment, they 

argued, because Robles had never directly applied for insurance with Cox and, 

therefore, could not have made a misrepresentation to Cox. 

The only summary judgment evidence provided by Appellants was an affidavit 

from Robles, which substantively read in full:

I submitted my joint application for insurance to ACCC in 2013. The 

application never asked me about our children. The application only 

asked if there would be another authorized driver. My oldest son was 

seventeen at the time we submitted the application, and he was not 

licensed and was not able to drive. The child in question to this lawsuit

was only eight years old at the time I applied for insurance. I have never 

received correspondence in any form from Old American County 

Mutual. 
5

The trial court granted Appellees’ motion for summary judgment without

specifying the grounds for its decision. Appellants filed a motion to reconsider, which 

was denied. This appeal followed. 

II. STANDARD OF REVIEW AND APPLICABLE LAW

A. STANDARD OF REVIEW

We review a summary judgment de novo. Travelers Ins. v. Joachim, 315 S.W.3d 

860, 862 (Tex. 2010). We consider the evidence presented in the light most favorable 

to the nonmovant, crediting evidence favorable to the nonmovant if reasonable jurors

could and disregarding evidence contrary to the nonmovant unless reasonable jurors 

could not. Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 

(Tex. 2009). We indulge 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 plaintiff is entitled to summary judgment on a cause of action if it 

conclusively proves all essential elements of the claim. See Tex. R. Civ. P. 166a(a), (c); 

MMP, Ltd. v. Jones, 710 S.W.2d 59, 60 (Tex. 1986). Once the plaintiff produces 

evidence entitling it to summary judgment, the burden shifts to the defendant to 

present controverting evidence that raises a fact issue. City of Hous. v. Clear Creek Basin 

Auth,, 589 S.W.2d 671, 678 (Tex. 1979); Kinnard v. United Reg’l Health Care Sys., 

194 S.W.3d 54, 57 (Tex. App.—Fort Worth 2006, pet. denied). When the trial court’s 

judgment does not specify which of several grounds proposed in a summary judgment 

motion was dispositive, “we must affirm the summary judgment if any of the theories
6

presented to the trial court and preserved for appellate review are meritorious.” 

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

B. APPLICABLE LAW

The Texas Insurance Code allows an insurer to avoid an insurance policy due 

to false statements on policy applications if it is shown that “the matter 

misrepresented: (1) was material 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). Additionally, the Supreme Court of Texas has long held that an insurer 

must prove five elements to be entitled to avoidance of an insurance policy on 

misrepresentation grounds: (1) the making of the representation; (2) the falsity of the 

representation; (3) reliance thereon by the insurer; (4) the intent to deceive on the part 

of the insured making the same; and (5) the materiality of the representation. Mayes v. 

Mass. Mut. Life Ins., 608 S.W.2d 612, 616 (Tex. 1980); see Medicus Ins. v. Todd, 

400 S.W.3d 670, 678–79 (Tex. App.—Dallas 2013, no pet.) (discussing the interplay 

between Mayes and § 705.004).

III. APPLICATION

We are asked in this appeal to answer a narrow question: Did Appellants raise a

genuine issue of material fact related to whether Robles made a misrepresentation on 

the 2020 application with Cox? Appellants contend that three such issues were raised: 

whether (1) Robles was actually asked about additional household residents aged 

fourteen years or older; (2) Robles misrepresented J.A.’s age; and (3) J.A. qualified as a 
7

“Regular Driver.” Because we hold on issues one and two that no issues of fact were 

raised, we need not consider issue three.

5 Tex. R. App. P. 47.1; see Provident Life &

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

A. APPELLANTS FAILED TO RAISE AN ISSUE OF FACT AS TO WHETHER

ROBLES WAS ASKED ABOUT HOUSEHOLD RESIDENTS OVER FOURTEEN

Appellants argue that Robles’s affidavit raised a fact issue as to whether Robles

was asked on the 2020 application about additional household residents over the age 

of fourteen. They contend that, if Robles was never asked this question, she could 

not have made the alleged misrepresentation. 

In support of their motion for summary judgment, Appellees attached a copy 

of the 2020 application signed electronically by Robles,

6 which included this question

and Robles’s answer of “no.” The burden, then, was on the Appellants to present

competent evidence that raised an issue of fact as to whether Robles was actually 

asked the question. See City of Hous., 589 S.W.2d at 678.

5Because we overrule Appellants’ first two issues, no complaint remains as to 

whether Appellees conclusively proved that Robles made a material misrepresentation

when she stated that there were no other household residents aged fourteen or older. 

Thus, it is immaterial whether Appellees conclusively proved that Robles made an 

additional misrepresentation as to J.A.’s status as a regular driver. See Tex. R. App. 

P. 47.1; Provident Life & Acc. Ins. Co., 128 S.W.3d at 216.

6The genuineness of Robles’s electronic signature was never questioned, and 

Texas law provides that such signatures have full legal effect and enforceability. Tex. 

Bus. & Com. Code Ann. § 322.007.
8

Robles’s affidavit, however, is wholly silent concerning the 2020 application—it

neither affirms nor denies she completed it. Instead, it attests only to facts concerning 

a separate application from 2013 submitted by Robles to a company she refers to as 

“ACCC” and states that, in that application, she was never asked about children in the 

household. It is true that Appellants asserted in their summary judgment response that 

they never submitted an application to Cox, but this assertion is not supported by 

Robles’s affidavit, and her response itself is not competent summary judgment 

evidence. Id. at 678 (“Pleadings do not constitute summary judgment proof.”); see

Rhodes v. Interfirst Bank Fort Worth, 719 S.W.2d 263, 264 (Tex. App.—Fort Worth 1986, 

no pet.) (explaining that summary judgment responses are not competent summary 

judgment evidence).

Additionally, Appellants conceded in their appellate brief that the 2020 

application “was completed via a phone call between Appellants and a representative 

of Appellees.” We accept this fact as true. See Tex. R. App. P. 38.1(g) (requiring in 

civil cases that appellate courts accept as true the facts stated in an appellant’s brief 

unless contradicted by another party). It is also undisputed that, at the accident scene,

J.A. produced an Old American insurance policy bearing the same policy number as

that found on the 2020 application. These facts further establish that Robles

completed the 2020 application, to include answering all questions therein.

Relatedly, to the extent that Appellants contend that they were unaware of the 

questions asked in the 2020 application, the law presumes otherwise because it is 
9

undisputed that Robles signed the application. In re Int’l Profit Assocs., 286 S.W.3d 921, 

923 (Tex. 2009) (“[A] party who signs a document is presumed to know its contents,”

(quoting In re Lyon Fin. Servs., 257 S.W.3d 228, 232 (Tex. 2008) (orig. proceeding))); cf.

Odom v. Ins. Co. of Pa., 455 S.W.2d 195, 199 (Tex. 1970) (“[T]he rule is well recognized 

that where . . . an application for insurance is attached to and made a part of the 

policy and is accepted and retained by the insured, the insured is conclusively 

presumed to have knowledge of its contents and to have ratified any false statements 

therein.”).

Thus, we conclude that Appellants failed to raise a genuine issue of fact as to 

whether Robles was asked about household residents over the age of fourteen, and we 

overrule their first issue.

B. APPELLANTS FAILED TO RAISE AN ISSUE OF FACT AS TO J.A.’S AGE

Appellants next argue that they raised an issue of fact as to whether J.A. was 

fourteen years old at the time the 2020 application was completed. Through an 

affidavit of one of its representatives, Appellees established that J.A. was fourteen 

years old when Robles completed the 2020 application. Once again, it was incumbent

on Appellants to offer competent summary judgment evidence that raised an issue of 

fact as to J.A.’s age. See City of Hous., 589 S.W.2d at 678.

Appellants again point to Robles’s affidavit as supportive of their argument, but 

we fail to see how any attestations therein raised a question about J.A.’s age at the 

time the 2020 application was completed. If anything, Robles’s statement that J.A. 
10

was eight years old when the 2013 application was submitted supports the contention

that he was at least fourteen in 2020 when Robles submitted her application to Cox. 

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

to J.A.’s age at the time the 2020 application was completed and overrule their second

issue. 

IV. CONCLUSION

Having overruled Appellants’ first and second issues, we need not address their 

third issue. See Tex. R. App. P. 47.1. Accordingly, we affirm the trial court’s 

judgment. 

/s/ Brian Walker

Brian Walker

Justice

Delivered: January 20, 2022