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IN THE COUNTY COURT AT LAW NUMBER TWO
EL PASO COUNTY, TEXAS
DONALD L. THOMPSON,
Plaintiff, Pro-Sevs. Cause No. 94-12,817
ALLSTATE INSURANCE COMPANY
and ROBERT WILSON,
DefendantsCITATIONS AND AFFIDAVITS IN SUPPORT OF AMENDED MOTION TO SET ASIDE PARTIAL SUMMARY JUDGMENT
TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW the Plaintiff DONALD L. THOMPSON and offers the following citations and attached affidavits in support of Amended Motion To Set Aside Partial Summary Judgment, as requested by said Court.
Partial Summary Judgment was not proper at this stage of the litigation due to the fact that Plaintiff had not, and still has not, been allowed any type of discovery as evidenced by Plaintiff's Motion To Compel Discovery filed March 03, 1998, along with Plaintiff's statement concerning Requests For Discovery.
Plaintiff has not been allowed even nominal discovery, and this court should have rendered its decision on Partial Summary Judgment based upon deposition transcripts, interrogatory answers, the pleadings, admissions, affidavits, and other discovery responses. All of which mean, proper discovery.
The Partial Summary Judgment should be set aside since Plaintiff shows that there is a genuine issue as to a material fact. Defendants conclude that the cause of action accrued on their first denial of claim and Plaintiff contends that the cause of action accrued on Defendants final denial of claim which was one week before the filing of this suit and was the cause of this suit being filed by Plaintiff.
The trial court may not grant summary judgment by default against the nonmovant (Plaintiff) for failing to respond to the motion when the movant's summary judgment proof is legally insufficient. See City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979). The defense affidavit filed with defendants Motion for Partial Summary Judgment states no facts within their personal knowledge to which they would be competent to testify to establish when Plaintiff's cause of action accrued; rather the affidavit merely states the conclusion that the cause of action accrued on April 8, 1992 instead of November 1994, which was the date of final demand and denial of claim, as shown by the Plaintiff.
Since Plaintiff shows an ambiguity, Partial Summary Judgment is improper because the ambiguity is a fact issue that the fact finder must resolve at trial. Coker v. Coker, 650 S.W.2d 391, 394 (Tex. 1983).
In deciding whether there is a disputed material fact issue precluding Partial Summary Judgment, evidence favorable to the non-movant (Plaintiff) will be taken as true. Every reasonable inference must be indulged in favor of the non-movant (Plaintiff), and any doubts resolved in its favor. Nixon v. Mr. Property Mgmt. Co., 690 S.W.2d 546, 549 (Tex. 1985). If conflicting inferences may be drawn from an affidavit filed by the Plaintiff, in opposition to Defendants Motion for Partial Summary Judgment, a fact issue is presented. Randall v. Dallas Power & Light Co., 752 S.W.2d 4, 5 (Tex. 1988); Green, 883 S.W.2d at 297.
The standard of review in summary judgment is well established. Tex. R. Civ. P. 166a(c); see McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 341 (Tex. 1993); Black v. Victoria Lloyds Ins. Co., 797 S.W.2d 20, 23 (Tex. 1990); Nixon v. Mr. Property Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985); Gaines v. Hamman, 163 Tex. 618, 626, 358 S.W.2d 557, 563 (1962); Gulbenkian v. Penn, 151 Tex. 412, 416, 252 S.W.2d 929, 931 (1952). The movants for summary judgment have the burden of proving all essential elements of their causes of action or defenses as a matter of law. Victoria Lloyds, 797 S.W.2d at 27. Conflicting or ambiguous evidence gives rise to genuine issues of fact. Ellert v. Lutz, 930 S.W.2d 152, 155 (Tex. App.--Dallas 1996, no writ); McDaniel v. Continental Apartments Joint Venture, 887 S.W.2d 167, 172 (Tex. App.--Dallas 1994, writ denied). Conflicting evidence in this suit is evidenced by Plaintiff's Original Petition, Plaintiff's Amended Petitions, Plaintiff's Request For Admissions, and attached affidavits. Murray v. San Jacinto Agency, Inc., 800 S.W.2d 826, 829 (Tex. 1990), Murray held that when an insurer wrongfully denies coverage, the denial is the injury producing event. The cause of action accrues when the insurance company "unreasonably fails to pay an insured under the policy." Murray, 800 S.W.2d at 829. Plaintiff cites this case because of the fact that even after the malicious criminal prosecution of Plaintiff, (in which Defendants were actively and maliciously instrumental in procuring), was terminated in Plaintiff's favor, Defendants then unreasonably failed to pay Plaintiff under the policy and wrongfully denied claim, November 1994, one week before filing of this suit.
This court's duty is to determine if there are any material fact issues to try, which Plaintiff prays that he has shown. It is not to weigh the evidence or determine its credibility and try the case on affidavits.
With this in mind, Plaintiff prays that this court look at this supporting material, Plaintiff's Supporting Declaration, and the Amended Motion to Set Aside Partial Summary Judgment and grant same.
Respectfully submitted,
___________________________________ Donald L. Thompson, Plaintiff, Pro-Se
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