Lynnette Januzi v. American Modern Property and Casualty Insurance and Melissa Ann Workman

NO. 12-24-00016-CV

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

LYNNETTE JANUZI, § APPEAL FROM THE 241ST
APPELLANT

V. § JUDICIAL DISTRICT COURT

AMERICAN MODERN PROPERTY
AND CASUALTY INSURANCE AND § SMITH COUNTY, TEXAS
MELISSA ANN WORKMAN,
APPELLEE
MEMORANDUM OPINION

Lynette Januzi appeals from the trial court’s order granting summary judgment against
her and in favor of American Modern Property and Casualty Insurance (AMCI) and Melissa Ann
Workman. In two issues, she asserts the trial court erred in considering deemed admissions and
there is more than a scintilla of evidence to support her claims. We affirm.

BACKGROUND
In March 2019, Januzi obtained an insurance policy from her agent, Workman, through
AMCI. The policy has a $300,000 policy limit, a $5,000 deductible, and a $75,000 sublimit for
water damage. On August 16, 2019, Januzi reported a loss due to a plumbing failure that
occurred on August 12 and resulted in water damage. AMCI acknowledged the claim on August
17, and an independent adjuster inspected the property on August 21. Based on the independent
adjuster’s report, AMCI issued payment totaling $13,546.43, which represented a $9,912.73
payment for the dwelling and a $3,633.70 payment for personal property. Januzi learned her
claim was approved on August 29. AMCI informed Januzi that she should discuss the required
repairs with her contractor. She was also informed that should the contractor determine the funds
inadequate, he should prepare an itemized breakdown for AMCI for approval and additional
payment.
Januzi hired Fisher Contracting on October 29 and provided AMCI with a copy of
Fisher’s proposal totaling $26,640. AMCI issued additional payments to pay contractors and
various damages making the total disbursement $36,226.66 as of December 4. AMCI also made
several disbursements for Januzi’s additional living expenses totaling $14,310. Fisher ceased
working on the property and filed a notice of lien on Januzi’s home claiming that it only received
$8,800 of the $26,400 contract. A subsequent inspection revealed substantially the same
damages previously discovered and some previously damaged items were repaired.
AMCI continued to pay Januzi’s additional living expenses until March 2020. AMCI
explained, via letter, that the payments ceased based on AMCI’s view of the policy terms and
Januzi’s payment disputes and firing of her contractors. AMCI continued to reserve its rights and
advised Januzi to continue providing information. AMCI requested additional information on
July 13 and July 20. When Januzi did not comply with its requests for information, AMCI
notified her that the claim was considered “inactive.” In July 2021, AMCI received a quote for
repairs and remodeling totaling $93,087. AMCI offered an additional payment in September,
and a check was issued on January 11, 2022. On January 22, AMCI notified Januzi that the last
payment constituted the balance of the water damage limit.
Januzi took issue with the $75,000 water damage limit, claiming she was unaware of the
sublimit. She further claims that AMCI failed to adequately evaluate and pay her claim. Januzi
also believes that her agent failed to provide a policy providing sufficient coverage and that there
is a conspiracy between the agent and insurance company to underpay claims. She filed suit
against both AMCI and Workman in April 2023 asserting multiple causes of action: breach of
contract, breach of the duty of good faith and fair dealing, violations of the Deceptive Trade
Practices Act, violations of the Prompt Payment Act, unfair insurance practices, common law
fraud, conspiracy, negligence, negligent misrepresentation, and negligent hiring, supervision, and
management. As part of the discovery process, AMCI and Workman sent Januzi requests for
admissions. Although Januzi responded to other discovery requests, she did not respond to the
admissions request.

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In November, AMCI and Workman filed a traditional and no evidence motion for
summary judgment, emphasizing that Januzi failed to respond to the admissions and that they are
considered deemed admitted. Januzi responded and included affidavits and estimates as
evidence of her claim. She also addressed the deemed admissions stating, “the Court retains
discretion to allow Plaintiff to withdraw or amend admissions deemed because of failure to
timely respond . . . Defendant ignores this possibility and prematurely claims victory.” Januzi
did not request the admissions be withdrawn or amended. Ultimately, the trial court granted the
motion for summary judgment and dismissed Januzi’s claims. This appeal followed.

DEEMED ADMISSIONS
In her first issue, Januzi asserts that the trial court improperly considered the “deemed
admissions” because they were not filed with the trial court and were contradicted by evidence.
Standard of Review and Applicable Law
Once an action is filed, a party may serve written requests for admissions that can
encompass “any matter within the scope of discovery, including statements of opinion or of fact
or of the applications of law to fact . . .” TEX. R. CIV. P. 198.1; Marino v. King, 355 S.W.3d 629,
632 (Tex. 2011) (per curiam). If the opposing party does not serve responses to the admissions
requests within thirty days, the matters in the requests are deemed admitted against the party
without the necessity of a court order. TEX. R. CIV. P. 198.2(c); Marino, 355 S.W.3d at 633. Any
matter admitted or deemed admitted is conclusively established unless the court, on motion,
permits withdrawal or amendment of the admission. TEX. R. CIV. P. 198.3; Boulet v. State, 189
S.W.3d 833, 836 (Tex. App.—Houston [1st Dist.] 2006, no pet.) (citing Marshall v. Vise, 767
S.W.2d 699, 700 (Tex. 1989)).
We review a trial court’s ruling on a motion to withdraw deemed admissions for an abuse
of discretion. See Wheeler v. Green, 157 S.W.3d 439, 443 (Tex. 2005) (per curiam) (“We
recognize that trial courts have broad discretion to permit or deny withdrawal of deemed
admissions, but they cannot do so arbitrarily, unreasonably, or without reference to guiding rules
or principles.”). Withdrawal of deemed admissions is permitted upon a showing of good cause
and a finding by the trial court that (1) the party relying upon the deemed admissions will not be
unduly prejudiced, and (2) presentation of the merits of the action will be served. TEX. R. CIV. P.

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198.3; Marino, 355 S.W.3d at 633. The party seeking withdrawal of the deemed admissions has
the burden to establish good cause. Boulet, 189 S.W.3d at 836.
The Texas Supreme Court has held that, under special circumstances, a party may bring a
request to withdraw deemed admissions for the first time in a motion for new trial. See Wheeler,
157 S.W.3d at 442; see also Marino, 355 S.W.3d at 632–33 (holding that trial court erred in
denying pro se appellant opportunity to withdraw deemed admissions, in spite of fact that she
never formally made such request before trial court, because her “argument and pending
motions” filed prior to rendition of summary judgment provided evidence of good cause and lack
of prejudice). However, the supreme court has also held “the equitable principles allowing these
arguments to be raised in a motion for new trial do not apply if a party realizes its mistake before
judgment and has other avenues of relief available.” Wheeler, 157 S.W.3d at 442 (citing
Carpenter v. Cimarron Hydrocarbons Corp., 98 S.W.3d 682, 686 (Tex. 2002)); see also
Unifund CCR Partners v. Weaver, 262 S.W.3d 796, 798 (Tex. 2008) (holding that summary
judgment motion put appellant on notice of deficiency of his response to requests for admissions,
and, thus, appellant knew of his mistake before judgment but failed to respond, thereby waiving
his right to challenge deemed admissions).
Application
Januzi contends on appeal that (1) requests for admission must be formally presented to
the court when used as summary judgment evidence, (2) requests for admission must be filed
separately for the trial court to consider them deemed admitted, (3) the certificate of service
does not specify the method by which the requests were served, which she contends vitiates them
being deemed admitted, (4) the admissions are outside the scope of permissible discovery and
are merits preclusive, and (5) the controverting evidence attached to her summary judgment
response resulted in AMCI and Workman waiving their reliance on the deemed admissions.
We first note that Januzi did not present any of these issues to the trial court. To preserve
a complaint for appellate review, there must be a timely, specific objection and a ruling by the
trial court. TEX. R. APP. P. 33.1. The same is true in summary judgment proceedings. TEX. R.
CIV. P. 166a(c) (“Issues not expressly presented to the trial court by written motion, answer or
other response shall not be considered on appeal as grounds for reversal.”); see LendingHome
Funding Corp. v. Tuesday Real Estate, LLC, No. 05-20-00071-CV, 2021 WL 6124319, at *12

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(Tex. App.—Dallas Dec. 28, 2021, no pet.) (mem. op.) (“[A]s this issue was not presented to or
adjudicated by the trial court, we cannot consider this new argument.”).
In addition, Januzi has yet to request the deemed admissions be withdrawn or amended.
She certainly had notice of the deemed admissions because she addressed them in her summary
judgment response. As such, she waived her opportunity to challenge their validity. See Weaver,
262 S.W.3d at 798 (holding that summary judgment motion put appellant on notice of deficiency
of his response to requests for admissions; thus, appellant knew of his mistake before judgment
but failed to respond, thereby waiving his right to challenge deemed admissions).
Januzi is also incorrect in her interpretation of Texas Rule of Civil Procedure 166a(c).
She contends that the admissions were not before the trial court because they were not separately
filed in accordance with the rule. The rule specifically states the following:

The judgment sought shall be rendered forthwith if (i) the deposition transcripts, interrogatory
answers, and other discovery responses referenced or set forth in the motion or response, and (ii)
the pleadings, admissions, affidavits, stipulations of the parties, and authenticated or certified
public records, if any, on file at the time of the hearing, or filed thereafter and before judgment
with permission of the court, show that, except as to the amount of damages, there is no genuine
issue as to any material fact and the moving party is entitled to judgment as a matter of law on the
issues expressly set out in the motion or in an answer or any other response.

TEX. R. CIV. P. 166a (emphasis added). Therefore, because the requests for admissions were
attached to the motion for summary judgment, the trial court could properly consider them. And
a court order is not necessary for them to be deemed admitted. TEX. R. CIV. P. 198.2(c).
Januzi is also incorrect in her claim that her controverting evidence vitiated her deemed
admissions. Once a request is deemed admitted, a responding party cannot introduce proof to
controvert them. Vise, 767 S.W.2d at 700; Masterson v. Hogue, 842 S.W.2d 696, 697 (Tex.
App.—Tyler 1992, no writ). Thus, the deemed admissions were the controlling evidence before
the trial court at the hearing on the motion for summary judgment, and the court could not
properly have considered affidavits that attempted to controvert those admissions. Beasley v.
Burns, 7 S.W.3d 768, 770 (Tex. App.—Texarkana 1999, pet. denied); Goss v. Bobby D. Assocs.,
94 S.W.3d 65, 71-72 (Tex. App.—Tyler 2002, no pet.).
Because the trial court could properly consider the deemed admissions, we overrule
Januzi’s first issue.
SUMMARY JUDGMENT
In her second issue, Januzi contends fact issues exist precluding summary judgment.

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Standard of Review
Because summary judgment is a question of law, a trial court’s summary judgment
decision is reviewed de novo. See Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex.
2005); Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003);
McMahon Contracting, L.P. v. City of Carrollton, 277 S.W.3d 458, 467–68 (Tex. App.–Dallas
2009, pet. denied). The standard of review for a traditional summary judgment motion pursuant
to Texas Rule of Civil Procedure 166a(c) is threefold: (1) the movant must show there is no
genuine issue of material fact and he is entitled to judgment as a matter of law; (2) in deciding
whether there is a disputed, material fact issue precluding summary judgment, the court must
take as true evidence favorable to the nonmovant; and (3) the court must indulge every
reasonable inference from the evidence in favor of the nonmovant and resolve any doubts in the
nonmovant’s favor. See TEX. R. CIV. P. 166a(c); Nixon v. Mr. Prop. Mgmt. Co. Inc., 690 S.W.2d
546, 548–49 (Tex. 1985); Montgomery v. Kennedy, 669 S.W.2d 309, 311 (Tex. 1984);
Hightower v. Baylor Univ. Med. Ctr., 251 S.W.3d 218, 221–22 (Tex. App.–Dallas 2008, pet.
struck). We are not required to ascertain the credibility of affiants or to determine the weight of
evidence in the affidavits, depositions, exhibits, and other summary judgment proof. See
Gulbenkian v. Penn, 252 S.W.2d 929, 932 (Tex. 1952); Palestine Herald-Press Co. v. Zimmer,
257 S.W.3d 504, 508 (Tex. App.–Tyler 2008, pet. denied).
Further, all theories in support of or in opposition to a motion for summary judgment
must be presented in writing to the trial court. See TEX. R. CIV. P. 166a(c). If the trial court’s
order granting summary judgment does not specify the grounds relied on for its ruling, we will
affirm it if any of the theories advanced are meritorious. State Farm Fire & Cas. Co. v. S.S.,
858 S.W.2d 374, 380 (Tex. 1993).
Additionally, after an adequate time for discovery, a party without the burden of proof at
trial may move for summary judgment on the ground that there is no evidence of one or more
essential elements of a claim or defense. See TEX. R. CIV. P. 166a(i). Once a no evidence motion
has been filed in accordance with Rule 166a(i), the burden shifts to the nonmovant to bring forth
evidence that raises a fact issue on the challenged evidence. See Macias v. Fiesta Mart, Inc.,
988 S.W.2d 316, 317 (Tex. App.–Houston [1st Dist.] 1999, no pet.). We review a no evidence
motion for summary judgment under the same legal sufficiency standards as a directed verdict.
King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750–51 (Tex. 2003). A no evidence motion is

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properly granted if the nonmovant fails to bring forth more than a scintilla of probative evidence
to raise a genuine issue of material fact as to an essential element of the nonmovant’s claim on
which the nonmovant would have the burden of proof at trial. See id. at 751. If the evidence
supporting a finding rises to a level that would enable reasonable, fair-minded persons to differ
in their conclusions, then more than a scintilla of evidence exists. Id. Less than a scintilla of
evidence exists when the evidence is so weak as to do no more than create a mere surmise or
suspicion of a fact, and the legal effect is that there is no evidence. See id.
Analysis
Januzi asserted multiple causes of action against AMCI and Workman. Those included
breach of contract, unfair settlement practices, misrepresentation of material facts, fraud,
negligence, breach of the duty of good faith and fair dealing, and a failure to investigate her
claim. 1 All of Januzi’s claims are rooted in her assertions that AMCI failed to adequately pay her
claim and inform her of the policy limits, and that she should have had higher insurance limits.
Therefore, if AMCI paid the policy limits in accordance with the policy, and Januzi knew the
policy’s terms and approved the coverage amounts, then Januzi’s claims against AMCI fail. In
addition, if Januzi consented to the policy terms, her claims against Workman also fail. Both
payment under the policy and Januzi’s consent formed the basis of AMCI’s and Workman’s
traditional motion for summary judgment.
In their motion, AMCI and Workman specifically relied on the following deemed
admissions:
Admit that you signed the application for the insurance policy attached as Exhibit A (Signed
Homeowner Application).

Admit that you authorized and approved the insurance coverage amounts stated in the application
for insurance.

Admit you never had any written communication with Melissa Workman regarding the need for
additional coverage amounts.

Admit that you fired Fisher Construction while they were performing the work.

Admit that the insurance carrier did not hire Fisher Construction.

Admit that you hired Fisher Construction.

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Januzi also asserted causes of action for violation of the prompt payment act, failure to timely
acknowledge her claim, conspiracy, and negligent hiring, supervision, and management. However, Januzi either
concedes there is no evidence to support these claims or does not point to any evidence in support of them in her
brief.

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Admit that you were aware of the water damage limit at the time you signed the application for the
insurance policy found in Exhibit A (Signed Homeowner Application).

Admit that the water damage limit under the policy is $75,000.

Admit that Defendant paid the water damage limit of $75,000.

Admit that you hired numerous plumbers during the pendency of the claim.

Admit that Exhibit B, Dream Maker Bath & Kitchen Estimate, included numerous repairs not
associated with the water damage claim.

Admit you requested all kitchen appliances be replaced due to dry wall dust from the contractors
you hired.

Admit that you replaced items and made upgrades to the insured property that were not part of the
water damage claim.

Admit that Dream Maker Bath & Kitchen provided an estimate for a remodel to the insured
property.

Admit that you hired Riley Construction to prepare an estimate.

Admit that you wanted Riley Harris Construction to replace all items previously installed by your
prior contractors.

Admit the majority of the damages to the insured property were caused by the contractors you
hired.

Admit that you want your insured property remodeled.

Admit that you never hired Riley Harris Construction to perform repair work.

Admit the tile shower, toilet and vanity in the master bath were not damaged by the water leak
made the basis of this water damage claim.

Admit that you paid for the tile shower, toilet and vanity in the master bath out of the insurance
proceeds from the water damage claim.

Admit water damage limits of $75,000 were paid under the Policy by 1-20-22.

Admit that Smith County appraised the insured property for 2023 at $122,115.

Admit that Smith County appraised the insured property for 2019 at $92,004.

These admissions establish that Januzi was aware of the policy limits when she purchased her
homeowner’s policy from Workman and that those limits include a $75,000 sublimit for water
damage. They also establish that AMCI made payments totaling that $75,000 limit.
Januzi’s claims against AMCI for breach of contract, misrepresentation of material facts,
unfair settlement practices, breach of the duty of good faith and fair dealing, and a failure to
investigate her claim are based on her assertion that she should have been paid more than

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$75,000 for her claim. She asserts that because her damages exceed the $75,000 she was paid,
AMCI has not fulfilled its duty as her insurer. However, in her deemed admissions, Januzi
concedes that the water damage limit in the policy is $75,000 and that AMCI paid those limits.
And Januzi cannot offer any evidence to the contrary. See Beasley, 7 S.W.3d at 770.
Januzi’s causes of action against Workman for negligence, fraud, and negligent
misrepresentation are rooted in her accusation that Workman, an insurance agent, represented
that the policy “covered her needs fully” and that “she had the correct coverage.” Januzi argues
that the water damage limit is inadequate and she was unaware of the limit until after she made
her claim. In the deemed admissions, Januzi admits that she authorized and approved the
insurance amounts stated in her application, that she knew of the water damage limit at the time
she signed the insurance application, and that the water damage limit is $75,000. She further
admits that she did not communicate any need for additional coverage to Workman. Therefore,
the evidence establishes that Januzi was aware of and consented to the policy limits prior to her
insurance claim, and Januzi cannot offer any conflicting evidence. See id.
For these reasons, we conclude that the evidence establishes that AMCI complied with
the policy terms and paid the policy limits in accordance with the policy, as well as Januzi’s
knowledge and consent to the policy terms. Thus, the trial court did not err in granting summary
judgment. We overrule Januzi’s second issue.

DISPOSITION
Having overruled Januzi’s first and second issues, we affirm the trial court’s judgment.

BRIAN HOYLE
Justice

Opinion delivered August 29, 2024.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

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COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

AUGUST 29, 2024

NO. 12-24-00016-CV

LYNNETTE JANUZI,
Appellant
V.
AMERICAN MODERN PROPERTY AND CASUALTY INSURANCE AND MELISSA
ANN WORKMAN,
Appellee

Appeal from the 241st District Court
of Smith County, Texas (Tr.Ct.No. 23-0874-C)

THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
It is therefore ORDERED, ADJUDGED, and DECREED that the
judgment of the court below be in all things affirmed, and that all costs of this appeal are
hereby adjudged against the Appellant, Lynette Januzi, for which execution may issue, and that
this decision be certified to the court below for observance.
Brian Hoyle, Justice.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.