author: TERRIE LIVINGSTON, Chief Justice.

text:
    Larry DICKINSON, Appellant, v. Mary DICKINSON, Appellee.
    No. 2-05-070-CV.
    Court of Appeals of Texas, Fort Worth.
    Aug. 31, 2010.

      J. Elaine Mosher, Mosher & Parker, P.L.L.C., Dallas, TX, for Appellant.
    Randall S. Boyd, Denton, TX, for Appel-lee.
    Panel: LIVINGSTON, C.J.; DAUPHINOT and WALKER, JJ.
   OPINION

TERRIE LIVINGSTON, Chief Justice.

Appellant Larry Dickinson appeals from the property division in a final divorce decree. In three issues, appellant contends that the trial court erred by (1) divesting him of his separate property remainder interest in California real property, (2) awarding appellee Mary Dickinson out-of-state real property over which the trial court had no jurisdiction, and (3) issuing a final decree that goes beyond the trial courts limited authority, granted by the United States Bankruptcy Court, to make a property division during the pen-dency of appellant’s Chapter 13 bankruptcy. We affirm in part and reverse and remand in part.

I. Background Facts

After filing for divorce, appellant filed a chapter 13 bankruptcy petition in the United States Bankruptcy Court for the Eastern District of Texas. The Bankruptcy Court ordered that the automatic stay be modified to allow the divorce to be finalized with respect to matters concerning “child support, custody, visitation and use of property.” The order further directed the trial court “to make recommendations to the Bankruptcy Court regarding child support and the division of community property.”

On August 20, 2004, a final hearing was held before the Honorable David Cleveland sitting as a visiting judge. The parties had only personal property to divide, with the exception of appellant, who is a cobeneficiary of a trust set up by his father before his death (the Trust). The evidence at trial showed that the corpus of the Trust consists of real property located in California. Dorothy M. Cawley has a life estate in this real property; upon her death or voluntary vacancy of the property, the trustee of the Trust must distribute the property in equal fifty percent shares to appellant and his sister. If appellant dies before Cawley’s life estate terminates, his share must be distributed to his sister or her issue as defined in the Trust.

On November 10, 2004, the trial court signed a decree granting the divorce and finding appellant at fault in the dissolution of the marriage. The trial court awarded appellee $500 per month in spousal support for twenty-four months, sixty percent of appellants future military pension benefits, and half of his military pension benefits that had been paid in the eighteen months before the decree was signed. The trial court recommended to the Bankruptcy Court that the parties community property be divided as follows: (1) each party would receive the personal property, bank accounts, and automobiles in his or her possession with the exception of the firearms, which were to be delivered to appellant, and the coin collection and dishes, which were to be delivered to ap-pellee; (2) appellee would receive half of the value of the Harley Davidson motorcycle; (3) appellee would receive half of appellant’s remainder interest in the real property in California; and (4) appellee would receive attorneys fees of $5,000 from appellant.

Appellant timely filed a motion for new trial, in which he contended that the trial court improperly awarded his separate property remainder interest in the California real property to appellee. The Honorable Judge L. Dee Shipman, presiding judge of the trial court, held a hearing on the motion for new trial, which he denied. Appellant filed a timely notice of appeal, but in an order dated December 6, 2005, we suspended the appeal because the bankruptcy was still pending and the Bankruptcy Court had not lifted the automatic stay for appeal. We reinstated this appeal on February 26, 2010 on appellant’s motion to reinstate, which indicated that the bankruptcy has been discharged.

II. Did Property Division Violate Automatic Stay?

We first address appellant’s third issue — in which he contends that the trial court did not have jurisdiction to effect a property division because the Bankruptcy Court’s order lifting the stay allowed the trial court only to make recommendations to the Bankruptcy Court — because our resolution of this issue implicates our authority to consider the merits of the first and second issues.

The filing of a bankruptcy petition triggers the automatic stay under the bankruptcy code. 11 U.S.C.A. § 362(a)(1) (West 2004 & Supp.2010); In re Sensitive Care, Inc., 28 S.W.3d 35, 38-39 (Tex.App.Fort Worth 2000, orig. proceeding). The automatic stay deprives state courts of jurisdiction over proceedings against the debtor, and any action taken against the debtor while the stay is in place is void and without legal effect. In re Sensitive Care, 28 S.W.3d at 39; see Kalb v. Feuerstein, 308 U.S. 433, 439, 60 S.Ct. 343, 346, 84 L.Ed. 370 (1940); Howell v. Thompson, 839 S.W.2d 92, 92 (Tex.1992). This is true regardless of whether a party or the state court learns of the stay before taking action against the debtor. In re Sensitive Care, 28 S.W.3d at 39. We strictly construe an order modifying the automatic stay. Stephens v. Hemyari, 216 S.W.3d 526, 529 (Tex.App.-Dallas 2007, pet. denied).

Here, the Bankruptcy Court lifted the stay so that the trial court could finalize matters regarding the “use of property” but also so that it could make “recommendations” regarding the property division. The trial court stated at the end of the prove-up that the “property division is a recommendation” to the Bankruptcy Court, and the decree states, immediately before listing the property to be divided, that “[t]he Court therefore makes the following recommendation to the Bankruptcy Court regarding the division of the property of the parties.” Thus, the trial court made clear that its property division was a recommendation to the Bankruptcy Court in accordance with that court’s order. Because the order lifting the stay specifically stated that the trial court was to make recommendations regarding the property division, the trial court’s property division in the decree did not violate the stay; therefore, it is not void. See Strader v. Burks, No. 04-05-00779-CV, 2006 WL 3497263, at *1 (Tex.App.-San Antonio Dec. 6, 2006, no pet.) (mem.op.) (construing order lifting stay and concluding that property division did not violate order lifting stay). We overrule appellant’s third issue.

III. Did Trial Court Improperly Award Appellee an Undivided One-Half Interest in Appellant’s Separate Property?

In his first issue, appellant contends that the trial court erred by divesting him of his separate property remainder interest in the real property in California.

Judicial Admission

Appellee objected to appellant’s introducing evidence of the Trust at trial, contending that appellant had judicially admitted that his remainder interest was community property by asking only for community property to be divided in his pleadings and by responding to discovery inquiring into the possible .existence of separate property with, “There is no separate property.... There is a trust.” Appellant argued that he had listed the Trust property as separate in his sworn inventory and appraisement. The trial court told appellee that it was neither sustaining nor overruling appellee’s objection and allowed appellant to introduce evidence of the Trust without stating whether or not it believed appellant had judicially admitted that the remainder interest was community property. Judge Shipman denied the motion for new trial on the ground that Visiting Judge Cleveland could have believed that appellant had judicially admitted that his remainder interest in the California real property was community property.

“Assertions of fact, not [pled] in the alternative, in the live pleadings of a party are regarded as formal judicial admissions.” Holy Cross Church of God in Christ v. Wolf 44 S.W.3d 562, 568 (Tex. 2001) (quoting Houston First Am. Sav. v. Musick, 650 S.W.2d 764, 767 (Tex.1983)); Commercial Structures & Interiors, Inc. v. Liberty Educ. Ministries, Inc., 192 S.W.3d 827, 835 (Tex.App.-Fort Worth 2006, no pet.). A judicial admission is a formal waiver of proof that dispenses with the production of evidence on an issue. Lee v. Lee, 43 S.W.3d 636, 641 (Tex.App.-Fort Worth 2001, no pet.). A judicially admitted fact is established as a matter of law, and the admitting party may not dispute it or introduce evidence contrary to it. Peck v. Peck, 172 S.W.3d 26, 31 (Tex.App.-Dallas 2005, pet. denied); Dutton v. Dutton, 18 S.W.3d 849, 853 (Tex.App.-Eastland 2000, pet. denied); Roosevelt v. Roosevelt, 699 S.W.2d 372, 374 (Tex.App.-El Paso 1985, writ dism’d).

This rule is based on the public policy that it would be absurd and manifestly unjust to permit a party to recover after he has sworn himself out of court by a clear and unequivocal statement. U.S. Fid. & Guar. Co. v. Carr, 242 S.W.2d 224, 229 (Tex.Civ.App.-San Antonio 1951, writ ref'd); see also Peck, 172 S.W.3d at 31; Lee, 43 S.W.3d at 641. Five conditions must have occurred for a party’s admission to be conclusive against him: (1) the declaration relied upon must have been made in the course of a judicial proceeding; (2) the declaration was contrary to an essential fact embraced in the theory of recovery or defense asserted by the party; (3) the statement was deliberate, clear, and unequivocal; (4) giving conclusive effect to the declaration would not run contrary to public policy; and (5) the declaration related to a fact upon which a judgment for the opposing party was based. Carr, 242 S.W.2d at 229; see also Peck, 172 S.W.3d at 31; Lee, 43 S.W.3d at 641-42.

Here, appellant’s statements in his pleadings and discovery were not unequivocal; they were, at best, ambiguous. Although his pleadings do not mention the division of separate property, separate property cannot be divided; it must be awarded to the party who holds the separate property interest. Eggemeyer v. Eggemeyer, 554 S.W.2d 187, 141-42 (Tex.1977); Barnard v. Barnard, 133 S.W.3d 782, 789 (Tex.App.-Fort Worth 2004, pet. denied). In addition, appellant’s statement in response to discovery that there is no separate property, there is a trust, could be interpreted as referring to appellant’s interest being subject to Cawley’s life estate in the property and not yet being ready for distribution to the remainder-men. Thus, we conclude and hold that appellant’s statements in his pleadings and in discovery were not judicial admissions that would prevent him from alleging that his remainder interest in the Trust property was separate property and from introducing evidence to prove its character as separate. See Regency Advantage Ltd. P’ship v. Bingo Idea-Watauga, Inc., 936 S.W.2d 275, 278 (Tex.1996); Sharma v. Routh, 302 S.W.3d 355, 366 n. 22 (Tex.App.-Houston [14th Dist.] 2009, no pet.) (op. on reh’g). We will review whether the trial court abused its discretion by awarding appellee a one-half undivided interest in the real property.

Standard of Review and Applicable Law

The trial court must divide the parties estate in a just and right manner, having due regard for each party’s rights. Tex. Fam.Code Ann. § 7.001 (Vernon 2006); Murff v. Murff, 615 S.W.2d 696, 698-99 (Tex.1981); Barnard, 133 S.W.3d at 787. We may not reverse a trial court’s property division absent an abuse of discretion. Murff, 615 S.W.2d at 698; Barnard, 133 S.W.3d at 787. Only community property may be divided, however; a court may not divest a party of his or her separate property. Eggemeyer, 554 S.W.2d at 141-42; Barnard, 133 S.W.3d at 789.

Property possessed by either spouse during or on the dissolution of the marriage is presumed to be community property. See Tex. Fam.Code Ann. 3.003(a) (Vernon 1998); Barnard, 133 S.W.3d at 789. Whether property is community or separate is determined by the facts that give the property its character, and the party who asserts that property is his or her separate property must prove its separate character with clear and convincing evidence. See Tex. Fam.Code Ann. 3.003(b); Barnard, 133 S.W.3d at 789; Boyd v. Boyd, 131 S.W.3d 605, 612 (Tex.App.-Fort Worth 2004, no pet.).

To overcome the presumption of community property, the burden is on the spouse claiming certain property as separate to trace and clearly identify the claimed separate property. Estate of Hanau v. Hanau, 730 S.W.2d 663, 667 (Tex.1987); Barnard, 133 S.W.3d at 789-90. Tracing involves using evidence showing the time and means by which the spouse originally obtained possession of the property to establish the separate origin of the property and how the spouse claimed the asset. Boyd, 131 S.W.3d at 612; Ganesan v. Vallabhaneni, 96 S.W.3d 345, 354 (Tex.App.-Austin 2002, pet. denied). The characterization of property is determined by the inception of title to the property. Boyd, 131 S.W.3d at 612. Inception of title occurs when a party first has a right of claim to the property by virtue of which title is finally vested. Sharma, 302 S.W.3d at 360.

The Texas constitution provides that property a spouse acquires after marriage by gift or devise is that spouse’s separate property. Tex. Const, art. XVI, § 15; Tex. Fam.Code Ann. § 3.001(2); Sharma, 302 S.W.3d at 360.

Analysis

The evidence at trial showed that appellant’s father was the settlor, trustee, and initial beneficiary of the Trust, which was fully revocable before his death. But when appellant’s father died, Cawley’s life estate vested, as did appellant’s and his sister’s remainder interests. Thus, appellant’s remainder interest in the real property Trust corpus was obtained by devise. See Cleaver v. Cleaver, 935 S.W.2d 491, 493 (Tex.App.-Tyler 1996, no pet.).

Appellee contends that the economic interest in the increase in value of the Trust corpus constitutes community property. Generally, when separate property produces income that is acquired by a spouse, the income is community property. Lipsey v. Lipsey, 983 S.W.2d 345, 350 (Tex.App.-Fort Worth 1998, no pet.). However, an increase in value of an item of separate property is an inherent part of the item, which cannot be separated from it. Id.; see Jensen v. Jensen, 665 S.W.2d 107, 109 (Tex.1984). There was no evidence that appellant was entitled to receive, or that he did receive, any income from the Trust during the marriage; his only interest is the remainder interest in the real property, which he was not entitled to until his father’s death and which was subject to Cawley’s life estate. See Sharma, 302 S.W.3d at 361-64 (discussing various courts of appeals’ approaches to characterizing trust income during marriage as community or separate). Rather, appellant’s interest in the real property is separate property obtained by devise; thus, the property’s increase in value cannot be separated from the property itself for purposes of dividing the marital estate. See Lipsey, 983 S.W.2d at 350.

In Currie v. Currie, the San Antonio Court of Appeals held that because the appellee was not entitled to receive any income or corpus from a testamentary trust unless and until he survived the life beneficiary, he had not acquired any community property from the trust. 518 S.W.2d 386, 389 (Tex.Civ.App.-San Antonio 1974, writ dism’d). Similarly, because appellant is not entitled to any distribution of the Trust corpus until Cawley’s death or voluntary vacancy of the real property— which had not occurred at the time of trial — his remainder interest cannot be characterized as community property. See id.; see also Cleaver, 935 S.W.2d at 493.

Accordingly, appellant showed by clear and convincing evidence that his remainder interest in the Trust corpus was obtained by devise and is, thus, separate property that the trial court was not entitled to award to appellee. The trial court abused its discretion by mischaracterizing appellants remainder interest as community property and awarding an interest in part of the real property to appellee. We sustain appellant’s first issue.

Conclusion

We affirm the part of the trial court’s judgment granting the divorce. But having sustained appellants first issue, we reverse and remand for a new property division. See Barnard, 133 S.W.3d at 790.

DAUPHINOT, J., concurs without opinion.

      . At the motion for new trial hearing, appellant's counsel clarified that the sworn inventory listed an "[inherited trust,” and the trial court read from appellant’s response to appel-lee’s request for disclosures, "Petitioner is a beneficiary of the trust; however, the trust property is part of a life estate and is not ready for distribution under the terms of the trust agreement.”

      . Because appellant’s first issue is dispositive, we need not address his second issue. See Tex.R.App. P. 47.1; Horsley-Layman v. Adventist Health Sys./Sunbelt, Inc., 221 S.W.3d 802, 809 (Tex.App.-Fort Worth 2007, pet. denied).


source: Caselaw Access Project

license: Public Domain

text:
    Glenda and Larry RICE, Appellants, v. METROPOLITAN LIFE INSURANCE COMPANY, Appellee.
    No. 2-09-248-CV.
    Court of Appeals of Texas, Fort Worth.
    Aug. 31, 2010.

      Russell S. Rice, Arlington, TX, for Appellants.
    Linda G. Moore, K & L Gates LLP, Dallas, TX, for Appellee.
    PANEL: LIVINGSTON, C.J.; DAUPHINOT and GARDNER, JJ.
   OPINION

TERRIE LIVINGSTON, Chief Justice.

In this life insurance dispute, appellants Glenda and Larry Rice raise ten points to appeal the trial court’s order granting the traditional and no-evidence summary judgment motion of appellee Metropolitan Life Insurance Company (MetLife). We affirm in part and reverse and remand in part.

Background

Underlying facts

Glenda purchased group universal life (GUL) insurance for herself and a life insurance rider for her husband Larry, as her dependant, from MetLife through a plan offered by her employer, Avon Products, Inc. Larry’s rider provided $50,000 in coverage. Glenda retired from Avon in March 2003.

MetLife sent a letter dated May 10, 2003 that was addressed to Glenda and described her insurance options upon retirement. The letter contained information in its upper right corner, under the title of “Coverage Information as of 5/10/2003,” about the amount of Glenda’s own coverage and of Larry’s coverage (described specifically in the letter at $50,000). It then stated in part,

You’ve worked for many years to ensure a solid financial future. Now it’s time to relax and let us keep a promise that we made to you when you enrolled for Group Universal Life insurance. You trusted MetLife to provide a flexible life insurance benefit that would meet a lifetime of protection needs. Now, at this very important stage of your life, we’d like to continue to offer you a menu of coverage options. Most likely, your coverage needs have changed since you first enrolled for GUL. The enclosed brochure and options sheet explains the options now available to you.
Please review these options carefully. Please note that your current coverage will remain effective while you assess your choices.... To choose an option, simply complete the attached election form, sign where indicated, and return to MetLife in the envelope provided....
We look forward to continuing to serve your needs and help you keep your promises. Again, congratulations and our best wishes during your retirement!

The election form explained Glenda’s coverage options: (1) “CONTINUE MY GUL COVERAGE,” (2) “ELECT A PAID-UP BENEFIT,” (3) “ELECT A METLIFE ANNUITY,” or (4) “SURRENDER YOUR COVERAGE & RECEIVE YOUR CASH FUND BALANCE.” Glenda initially sent MetLife a fax in which she chose the fourth option, but later on the same day that she sent the first fax, after speaking with a MetLife employee named Summer, Glenda sent another fax stating that she wanted to continue her coverage under the first option. The second fax that Glenda sent stated in part, “I just discussed my decision to retain my coverage with Summer, your customer service associate. She has assured me my coverage will neither lapse nor be cancelled.”

The certificate of insurance for Glenda’s group life insurance plan states that term life insurance for dependants ends on the date of the employee’s retirement. However, for about two and a half years after Glenda’s retirement, MetLife continued to bill and accept quarterly premium payments for both Glenda’s coverage and Larry’s rider coverage. Glenda received a “Group Universal Life Report” for the period of January to December 2005 that mentioned Larry’s $50,000 in. coverage.

In July 2005, MetLife discovered that it had billed the Rices for Larry’s coverage since Glenda’s retirement in 2003, so in the latter part of 2005, MetLife stopped billing the Rices for that coverage without notice to Glenda. When Glenda received the bill for the final quarter of 2005, she saw for the first time that MetLife had stopped billing for Larry’s coverage. When she called MetLife in December 2005, Met-Life’s employee, Angelica Ridge, explained to her that MetLife did not cover term life insurance for dependants under the Avon group policy upon an employee’s retirement and that Larry’s coverage had been canceled “effective July 2005.” Glenda told Angelica that no one notified her of Larry’s coverage cancellation. Despite this, according to Glenda, Angelica told her that the premiums that Glenda had paid for Larry’s coverage would not be refunded and that Larry’s coverage was in place through July 2005.

Procedural history

The Rices filed claims against MetLife for bad faith, breach of contract, violation of the Texas Deceptive Trade Practiees-Consumer Protection Act (DTPA), violation of chapter 541 of the insurance code, money had and received (based on the nonreturn of the Rices’ premium payments for Larry’s coverage), promissory estoppel, breach of fiduciary duty, and fraud by nondisclosure. MetLife filed, in one document, a traditional and no-evidence motion for summary judgment on all of the Rices’ claims. The court granted the motion in its entirety without specifying reasons for doing so. The Rices filed their notice of this appeal.

The Trial Court’s Order Granting MetLife’s Summary Judgment Motion

In their first nine points, the Rices argue that the trial court erred by granting MetLife’s traditional and no-evidence summary judgment motion against their various claims.

Standards of review

Traditional summary judgment motions

A defendant who conclusively negates at least one essential element of a cause of action is entitled to summary judgment on that claim. IHS Cedars Treatment Ctr. of DeSoto, Tex., Inc. v. Mason, 143 S.W.3d 794, 798 (Tex.2004). Once the defendant produces sufficient evidence to establish the right to summary judgment, the burden shifts to the plaintiff to come forward with competent controverting evidence that raises a fact issue. Van v. Pena, 990 S.W.2d 751, 753 (Tex.1999).

We review a summary judgment de novo. Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex.2009). We consider the evidence presented in the light most favorable to the nonmovant, crediting evidence favorable to the nonmovant if reasonable fact-finders could and disregarding evidence contrary to the nonmovant unless reasonable factfinders could not. Id. 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). We must consider whether reasonable and fair-minded factfinders could differ in their conclusions in light of all of the evidence presented. See Wal-Mart Stores, Inc. v. Spates, 186 S.W.3d 566, 568 (Tex.2006); City of Keller v. Wilson, 168 S.W.3d 802, 822-24 (Tex.2005).

No-evidence summary judgment motions

After an adequate time for discovery, the party without the burden of proof may, without presenting evidence, move for summary judgment on the ground that there is no evidence to support an essential element of the nonmovant’s claim or defense. Tex.R. Civ. P. 166a(i). The motion must specifically state the elements for which there is no evidence. Id.; Timpte Indus., Inc. v. Gish, 286 S.W.3d 306, 310 (Tex.2009). The trial court must grant the motion unless the nonmovant produces summary judgment evidence that raises a genuine issue of material fact. See Tex.R. Civ. P. 166a(i); Hamilton v. Wilson, 249 S.W.3d 425, 426 (Tex.2008).

Like our review of traditional summary judgment motions, when reviewing a no-evidence summary judgment, we examine the entire record in the light most favorable to the nonmovant, indulging every reasonable inference and resolving any doubts against the motion. Sudan v. Sudan, 199 S.W.3d 291, 292 (Tex.2006). And also like traditional motions, we review a no-evidence summary judgment for evidence that would enable reasonable and fair-minded factfinders to differ in their conclusions. Hamilton, 249 S.W.3d at 426 (citing City of Keller, 168 S.W.3d at 822). We credit evidence favorable to the non-movant if reasonable factfinders could, and we disregard evidence contrary to the non-movant unless reasonable factfinders could not. Timpte Indus., Inc., 286 S.W.3d at 310 (quoting Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex.2006)). If the nonmovant brings forward more than a scintilla of probative evidence that raises a genuine issue of material fact, then a no-evidence summary judgment is not proper. Smith v. O’Donnell, 288 S.W.3d 417, 424 (Tex.2009).

Breach of contract

In their third point, the Rices contend that the trial court erred by granting summary judgment against their breach of contract claim. Insurance policies are contracts. Barnett v. Aetna Life Ins. Co., 723 S.W.2d 663, 665 (Tex.1987); see Market Ins. Co. v. Muzyka, 293 S.W.3d 380, 385-86 (Tex.App.-Fort Worth 2009, no pet.) (describing various principles of contract interpretation that apply to insurance policies). “The elements of a breach of contract claim are (1) the existence of a valid contract, (2) performance or tendered performance by the plaintiff, (3) breach of the contract by the defendant, and (4) resulting damages to the plaintiff.” Fieldtech Avionics & Instruments, Inc. v. Component Control.Com, Inc., 262 S.W.3d 813, 825 (Tex.App.-Fort Worth 2008, no pet.) (citing Harris v. Am. Prot. Ins. Co., 158 S.W.3d 614, 622-23 (Tex.App.-Fort Worth 2005, no pet.)).

MetLife has not expressly argued that the certificate of insurance does not qualify as a valid contract or that the Rices did not perform under that contract. Rather, MetLife moved for summary judgment on the grounds that (1) there was no evidence that it breached the contract because its termination of Larry’s coverage upon Glenda’s retirement was mandated by the terms of the certificate of insurance and (2) the Rices have not suffered damages.

The Rices contend that MetLife waived its termination of Larry’s coverage under the certificate of insurance when it accepted premiums for two and a half years and represented in writing after Glenda’s retirement that Larry had coverage. Furthermore, they contend that the “correspondence and the associated oral and written exchanges between MetLife and [Glenda] in May of 2003 is ... an extension of the original policy or a new contract implying the same terms.” In Met-Life’s motion for summary judgment, it stated, “Mistakenly, and to the benefit of Mr. Rice, MetLife kept coverage in place and continued to charge group premiums for the dependent coverage until July 2005 when the mistake was discovered.”

MetLife relies on Ulieo Casualty Company v. Allied Pilots Association to contend that coverage under the policy cannot be expanded by the waiver or es-toppel doctrines. 262 S.W.3d 773, 775-87 (Tex.2008). In Ulico, the Texas Supreme Court considered whether an insurer’s claims-made liability insurance policy (requiring notification during the policy period to the insurer of a claim against the insured) could be extended by those doctrines to cover a suit against the insured by a third party that was filed within the policy period but was not reported to the insurer until after the policy expired. Id. at 775-77. In that case, although the insured had untimely reported the claim against it, the insurer reviewed the claim and sent the insured a letter stating that the insured’s defense costs would be paid. Id. at 775-76. Thus, the insured pursued its defense, but when the insured’s counsel submitted a $635,000 bill for costs incurred while defending the insured, the insurer sought a declaratory judgment to determine that it did not owe the costs under the policy. Id. at 776.

At the trial of the insurer’s declaratory judgment case, the jury decided that the insurer had agreed to pay the insured’s defense costs separately from the insurer’s original policy with the insured, had waived its right to assert that the policy did not cover the costs, and was estopped from asserting that the policy did not cover the costs. Id. The trial court set aside the jury’s finding that the insurer agreed to pay the costs apart from the policy but entered judgment as to the jury’s waiver and estoppel findings. Id.We affirmed the trial court’s judgment. Id. at 776-77.

In reversing our decision, the supreme court noted that when a policy covers risks for a certain time period (such as the certificate of insurance does here by ending Larry’s term insurance on the date of the Glenda’s retirement), “the time of the event allegedly triggering coverage is a precondition to coverage and is not considered a defensive matter to be pleaded and proved by the insurer. The insurer has neither a ‘right’ nor a burden to assert noncoverage of a risk or loss. Id. at 778 (citation omitted). Then, the court explained that it had

addressed the question of whether the contractual coverage of an insurance policy can be expanded by waiver or estoppel over seventy years ago in Washington National Insurance Co. v. Craddock, 130 Tex. 251, 109 S.W.2d 165 (Tex.1937). In that case, Craddock, the insured, was entitled to weekly indemnity payments if he became incapacitated from an accidental injury. The policy specifically excepted gunshot wound injuries from coverage. Craddock accidentally shot himself with a pistol, submitted a claim, and the insurer started paying weekly benefits. After making eleven payments, the insurer stopped paying because the injury was not covered. Craddock sued. In his pleadings Craddock acknowledged that the policy specifically excepted injuries from gunshot wounds from coverage. Craddock claimed that he told the company’s agent and filed his claim showing he was injured by a gunshot, yet the insurer paid weekly benefits. The issue and this Court’s answer were straightforward:
[B]ut he alleged further that the company having paid him 11 weeks’ indemnity for an accidental injury produced by a gunshot wound, had waived this condition of the policy, and was therefore bound and obligated to pay him the remaining 93 weekly installments, and was estopped from denying its liability by virtue of such waiver. He alleged also that he had gone to considerable expense in securing and preparing claims and proof of injury.
... The question presented is not whether the act of the insurance company in making payments would constitute a waiver of its right to forfeit the policy on account of some breach by the insured of its terms, but is whether a contractual liability may be created by a waiver. By its policy the insurance company did not assume any liability for the risk declared upon and no consideration moved to it after the accident for the assumption of such liability. The insured seeks to create that liability by invoking the doctrine of waiver. The doctrine cannot be made to serve that purpose.

Id. at 778-79 (some citations omitted).

Thus, conforming to its Craddock decision, the supreme court in Ulico held that waiver and estoppel cannot be used to rewrite an insurance policy and expand coverage. Id. at 781, 787; see also Metro Allied Ins. Agency, Inc. v. Lin, 304 S.W.3d 830, 836 (Tex.2009) (stating that the “law is clear that misrepresentations about insurance coverage cannot, under the doctrine of estoppel, expand coverage provided in an insurance policy”); Tex. Farmers Ins. Co. v. McGuire, 744 S.W.2d 601, 603 (Tex.1988) (op. on reh’g) (stating that waiver and estoppel “have consistently been denied operative force to change, rewrite and enlarge the risks covered by a policy.”). And in harmony with Ulico, Texas courts had previously held that an insurer’s acceptance of premiums does not create coverage through the waiver or es-toppel doctrines. See, e.g., Great Am. Reserve Ins. Co. v. Mitchell, 335 S.W.2d 707, 708 (Tex.Civ.App.-San Antonio 1960, writ ref d) (holding that when a life insurance policy said that coverage terminated when an employee reached the age of sixty-five, the insurer’s acceptance of premiums after the insured reached that age did not create coverage by waiver or estoppel).

Accordingly, under the binding precedent of Ulico, we cannot agree with the Rices that MetLife’s acceptance of premiums or its other actions create a fact question as to whether the termination-upon-retirement clause of the certificate of insurance — the original contract between the parties — was negated or rewritten because of waiver or estoppel.

The Rices also argue that MetLife should be liable for breach of the original insurance contract because it did not issue a personal policy to Larry or give Larry an application for such a policy upon the termination of his rider coverage in March 2003. The portion of the certificate of insurance relating to riders states that MetLife would “issue a personal policy of life insurance ... to a Dependent if that Dependent applie[d] for it in writing during” the “31 day period after the date the Dependent Term Insurance on that Dependent ends” because of the employee’s retirement. Although the certificate of insurance does not expressly state that Met-Life must issue a personal policy apart from a timely application or even that Met-Life was required to inform the Rices about their ability to apply for a personal policy, the Rices essentially contend that MetLife’s giving them a fair opportunity to convert Larry’s rider coverage into individual coverage is an implied term of the certificate. In a related argument, they also assert that MetLife was required to provide notice that Larry’s rider coverage had been canceled because notice of cancellation was an implied term of the certifí-cate.

We must usually look only to the written contract to determine the obligations of parties, and it is typically not proper for us to imply terms that contradict a contract’s express language. See Universal Health Servs., Inc. v. Renaissance Women’s Group, P.A., 121 S.W.3d 742, 747 (Tex.2003). In other words, courts “cannot make contracts for [the] parties.” HECI Exploration Co. v. Neel, 982 S.W.2d 881, 888 (Tex.1998) (quoting Gulf Prod. Co. v. Kishi, 129 Tex. 487, 493, 103 S.W.2d 965, 968 (1937)). Thus,

A covenant will not be implied unless it appears from the express terms of the contract that “it was so clearly within the contemplation of the parties that they deemed it unnecessary to express it,” and therefore they omitted to do so, or “it must appear that it is necessary to infer such a covenant in order to effectuate the full purpose of the contract as a whole as gathered from the written instrument.”

Neel, 982 S.W.2d at 888 (emphasis added) (quoting Danciger Oil & Ref. Co. v. Powell, 137 Tex. 484, 490, 154 S.W.2d.632, 635 (1941)); see Fielding, 289 S.W.3d at 850. An implied covenant “must rest entirely on the presumed intention of the parties as gathered from the terms as actually expressed in the written instrument itself.” Universal Health Servs., Inc., 121 S.W.3d at 748 (emphasis added).

Under these standards, we cannot conclude that MetLife’s giving the Rices notice of their opportunity to gain individual coverage for Larry after Glenda’s retirement or sending them official notice of the cancellation of Larry’s original coverage are implied terms of the certificate of insurance. As gathered from the written instrument itself — the certificate of insurance — and not from MetLife’s actions, Larry’s original coverage explicitly ended upon Glenda’s retirement, and the Rices therefore had to apply for a personal policy for Larry within thirty-one days after her retirement. Because the certificate of insurance particularly described these conditions, we conclude that MetLife’s sending notice of the conditions after Glenda retired was neither “clearly within the contemplation of the parties” nor “necessary ... to effectuate the full purpose of the contract.” See Neel, 982 S.W.2d at 888; see also Hartland v. Progressive County Mut. Ins. Co., 290 S.W.3d 318, 324 (Tex.App.-Houston [14th Dist.] 2009, no pet.) (“A notice of cancellation is not required when a policy expires under its own terms.”). While it may seem reasonable to require such additional notice as an implied term of the certificate of insurance under the circumstances of this case, “[i]t is not enough to say that an implied covenant is necessary in order to make the contract fair.” Neel, 982 S.W.2d at 889; see Universal Health Servs., Inc., 121 S.W.3d at 748.

We also cannot agree with the Rices that MetLife’s providing an application form for a personal insurance policy for Larry is an implied term of the original certificate of insurance. Although the Rices question how they were supposed to apply for a personal policy without an “application form” that was provided by Met-Life, the certificate of insurance does not require any particular form; it places the burden on the dependant to apply for a personal policy “in writing” during the application period. The Rices have not cited any authority holding that an insurance company has an implied contractual duty to supply an “application form” in a similar circumstance.

For all of these reasons, we overrule the Rices’ third point to the extent that their breach of contract claim rests on a breach of the original certificate of insurance; we conclude that the Rices have not presented more than a scintilla of evidence to support that claim.

On the other hand, we conclude that the evidence creates a genuine fact question regarding whether MetLife breached a new, separate agreement regarding Larry’s coverage. As we have explained,

Under Texas law, the requirements of a valid contract are: (1) an offer; (2) an acceptance in strict compliance with the terms of the offer; (3) a meeting of the minds; (4) each party’s consent to the terms; and (5) execution and delivery of the contract with the intent that it be mutual and binding. Consideration is also a fundamental element of a valid contract.

Hubbard v. Shankle, 138 S.W.3d 474, 481 (Tex.App.-Fort Worth 2004, pet. denied) (citation omitted); see Burges v. Mosley, 304 S.W.3d 623, 629 (Tex.App.-Tyler 2010, no pet.) (“For a contract to exist, there must be an offer, acceptance, and consideration.”); Domingo v. Mitchell, 257 S.W.3d 34, 39 (Tex.App.-Amarillo 2008, pet. denied).

To determine whether an offer and acceptance and thus a “meeting of the minds” occurred, we use an objective standard, “considering what the parties did and said, not their subjective states of mind.” Domingo, 257 S.W.3d at 39 (citing Komet v. Graves, 40 S.W.3d 596, 601 (Tex.App.-San Antonio 2001, no pet.)); see Paciwest, Inc. v. Warner Alan Props., LLC, 266 S.W.3d 559, 568 (Tex.App.-Fort Worth 2008, pet. denied); Angelou v. African Overseas Union, 33 S.W.3d 269, 278 (Tex.App.-Houston [14th Dist.] 2000, no pet.) (“Unexpressed subjective intent is irrelevant.”). “[V]aluable and sufficient consideration for a contract may consist of either a benefit to the promisor or a loss or detriment to the promisee. Thus when a promisee acts to his detriment in reliance upon a promise, there is sufficient consideration to bind the promisor to his promise.” Jennings v. Radio Station KSCS, 708 S.W.2d 60, 61 (Tex.App.-Fort Worth 1986, no writ); see Frequent Flyer Depot, Inc. v. Am. Airlines, Inc., 281 S.W.3d 215, 224 (Tex.App.-Fort Worth 2009, pet. denied), cert. denied, — U.S. -, 130 S.Ct. 2061, 176 L.Ed.2d 414 (2010).

In Ulico, the supreme court upheld the trial court’s decision to disregard the jury’s determination that the parties had entered into a separate agreement for the payment of the insured’s defense costs. Ulico, 262 S.W.3d at 789-90. The supreme court reasoned that there was no consideration for such a separate agreement; the insured did not present any evidence that the insurer received a benefit in exchange for continuing payment of the costs or that the insured suffered a detriment by undertaking an obligation, surrendering a legal right, changing whether it would have paid the costs based on the insurer’s representation that it would pay them, or otherwise acting in a different way because the insurer agreed to pay the costs. Id.

Unlike in Ulico, the Rices suffered a detriment because Glenda continued to pay premiums for Larry’s coverage for more than two years while relying on MetLife’s representations that he had coverage, and she averred in her affidavit that because of “MetLife’s cancellation of the policy after 2⅛ years and the state of [Larry’s] health,” she was unable “to now obtain coverage” for him. Also, MetLife received the premiums and kept them for several years although it eventually repaid them. Thus, reviewing the record in the light most favorable to the Rices, we conclude that the evidence raises a genuine issue of material fact about whether the Rices gave consideration for a new agreement with MetLife regarding Larry’s coverage.

Similarly, we also hold that the evidence raises a genuine issue of material fact on the remaining elements of the formation of a new contract and on a breach of that contract. The evidence, when viewed objectively rather than subjectively (in other words, when looking at what the parties actually said in their 2003 exchanges and disregarding MetLife’s 2005 contention that it was merely mistaken when it represented that Larry maintained coverage), presents a genuine fact issue on offer, acceptance, meeting of the minds, and delivery of the contract with the intention that it be mutual and binding. Particularly, the evidence shows the following: (1) in May 2003, MetLife sent a letter to Glenda that gave her the option of continuing her coverage, (2) Glenda responded to the letter by informing MetLife that she wanted to retain the coverage, (3) MetLife’s employee, Summer, told Glenda that the coverage “would neither lapse nor be can-celled,” (4) Glenda paid premiums for her own coverage and for Larry’s coverage multiple times after May 2008, and (5) MetLife responded by sending a report to Glenda that confirmed Larry’s coverage.

Also, the evidence creates a genuine fact issue on a breach of the new, separate contract and resulting damages because MetLife later stopped billing for Larry’s premiums and told Glenda that Larry did not have coverage, and Glenda could not obtain other coverage for Larry after the cancellation of the policy. See El Paso Prod. Co. v. Valence Operating Co., 112 S.W.3d 616, 621 (Tex.App.-Houston [1st Dist.] 2003, pet. denied) (op. on reh’g) (explaining that a repudiation of a contract comprises a breach of it); Bmnb v. Inter-Comp Techs., L.L.C., 64 S.W.3d 123, 125 (Tex.App.-Houston [14th Dist.] 2001, no pet.) (same).

For these reasons, indulging every reasonable inference in the Rices’ favor, we hold that the trial court erred by granting MetLife’s no-evidence summary judgment motion against the Rices’ breach of contract claim because there is more than a scintilla of probative evidence to support the Rices’ theory that MetLife breached a new agreement regarding Larry’s coverage. See Smith, 288 S.W.3d at 424; Sudan, 199 S.W.3d at 292. Thus, we sustain the Rices’ third point to the extent that it rests on their argument that MetLife breached a new contract for the coverage.

Duty of good faith and fair dealing

In their second point, the Rices claim that the trial court erred by granting summary judgment against their bad faith (breach of the duty of good faith and fair dealing) claim. Texas courts have long recognized a common law duty of good faith and fair dealing in insurance relationships. Vandeventer v. All Am. Life & Cas. Co., 101 S.W.3d 703, 722 (Tex.App.-Fort Worth 2003, no pet.); see Arnold v. Nat’l County Mut. Fire Ins. Co., 725 S.W.2d 165, 167 (Tex.1987). An insurer breaches the duty of good faith and fair dealing when it “wrongfully cancels an insurance policy without a reasonable basis” and the insurer “knew or should have known of that fact.” Union Bankers Ins. Co. v. Shelton, 889 S.W.2d 278, 283 (Tex.1994) (explaining that the “insurer’s ability to unilaterally cancel an insurance policy and the insured’s inability to prevent cancellation demonstrates a great disparity in bargaining power between the two parties”); see Columbia Universal Life Ins. Co. v. Miles, 923 S.W.2d 803, 811 (Tex.App.-El Paso 1996, writ denied); Hopkins v. Highlands Ins. Co., 838 S.W.2d 819, 827 (Tex.App.-El Paso 1992, no writ).

The Rices contend that MetLife is liable for bad faith because it canceled Larry’s coverage retroactively in 2005 when there was no reasonable basis for the cancellation and initially refused to refund premiums. We have held that the evidence raises a genuine fact issue about whether the parties formed a contract in May 2003 that gave Larry new coverage. Accordingly, we conclude that there is more than a scintilla of evidence that MetLife wrongfully canceled Larry’s new coverage without a reasonable basis and knew or should have known of that fact. The evidence shows that MetLife told Glenda that her coverage would neither lapse nor be canceled, continued to accept premiums for Larry’s coverage for over two years, confirmed to the Rices after 2003 through a Group Universal Life Report that Larry still had coverage, and then canceled the coverage while telling her that it was in place through July 2005 (which is inconsistent with MetLife’s claim that the coverage expired in March 2003 upon Glenda’s retirement and that Larry did not obtain new coverage through the parties’ communications).

We conclude that a genuine issue of material fact exists to preclude the trial court’s decision to grant summary judgment against the Rices on their bad faith claim. We therefore sustain the Rices’ second point.

Promissory estoppel

In their fourth point, the Rices argue that the trial court erred by granting summary judgment against their promissory estoppel claim. The Rices alleged in their petition that by “continuing to accept premium payments ..., [MetLife] promised [the Rices] that [Met-Life] would continue to provide insurance as long as the premiums were paid.” They also asserted that they relied on MetLife’s alleged promise by continuing to pay the premiums and by not seeking alternate insurance for Larry. MetLife moved for summary judgment against the Rices’ promissory estoppel claim on the ground, among others, that it did not make any promise that Larry’s coverage would last forever. The Rices responded by directing the trial court to, among other documents, MetLife’s May 10, 2003 letter.

Although estoppel based on an insurer’s misrepresentations may not be used to expand coverage contractually, an insurer’s actions can result in it being es-topped from refusing to “make its insured whole” for “any damages [the insured] sustains because of the insurer’s actions.” Ulico, 262 S.W.3d at 782, 787. “If a prom-isee has reasonably and detrimentally relied on an otherwise unenforceable promise, he may have a cause of action for promissory estoppel.” MCN Energy Enters., Inc. v. Omagro de Colombia, L.D.C., 98 S.W.3d 766, 774 (Tex.App.-Fort Worth 2003, pet. denied); see In re Weekley Homes, L.P., 180 S.W.3d 127, 133 (Tex.2005) (orig. proceeding) (explaining that when “a promisor induces substantial action or forbearance by another, promissory estoppel prevents any denial of that promise if injustice can be avoided only by enforcement”).

“The elements of promissory estoppel are: (1) a promised[] (2) foreseeability of reliance on the promise by the promisor, and (3) substantial detrimental reliance by the promisee.” Hubbard, 138 S.W.3d at 482; see MCN Energy Enters., Inc., 98 S.W.3d at 774. Although promissory estoppel is normally a defensive theory, it may' serve as a substitute for an unsuccessful breach of contract claim. See Wheeler v. White, 398 S.W.2d 93, 97 (Tex.1965); Medistar Corp. v. Schmidt, 267 S.W.3d 150, 163 (Tex.App.-San Antonio 2008, pets, denied).

We have held that the Rices’ breach of contract claim, to the extent that it rests on MetLife’s breaching the certificate of insurance and does not rest on MetLife’s breaching a subsequent contract between the parties, cannot succeed as a matter of law because despite MetLife’s actions, Larry’s coverage under the certificate of insurance was not extended past Glenda’s retirement. Because there was no contract for Larry’s original coverage under the certificate of insurance past March 2003, promissory estoppel may apply to MetLife’s representation of that coverage if a factfinder determines that the parties did not later enter into a new contract for the coverage. See Doctors Hosp. 1997, L.P. v. Sambuca Houston, L.P., 154 S.W.3d 634, 636 (Tex.App.-Houston [14th Dist.] 2004, pet. abated) (stating that “Texas courts have held that promissory estop-pel becomes available to a claimant only in the absence of a valid and enforceable contract”); Secure Comm, Inc. v. Anderson, 31 S.W.3d 428, 431 n. 3 (Tex.App.-Austin 2000, no pet.) (“[P]romissory estoppel and breach of contract may be mutually exclusive causes of action.”); see also Wheeler, 398 S.W.2d at 94, 97 (holding that a plaintiff could recover on a promissory estoppel theory when pled as an alternative to breach of contract).

MetLife’s letter to Glenda represented under a heading of “Coverage Information” that as of May 10, 2003, the face amount of Glenda’s “Spouse Term” coverage was $50,000. The letter notified Glenda, “[Y]our current coverage will remain effective while you assess your choices,” and it told her that MetLife wanted to “keep a promise” that it had made to her.

Glenda’s affidavit says that about three weeks after the date of MetLife’s letter, MetLife’s employee, Summer, told Glenda that her coverage on the policy would neither lapse nor be canceled. It also explains that Glenda “regularly received bills from MetLife entitled ‘Group Universal Life Payment Notice’ and a ‘Group Universal Life Report’ both stating the $50,000 coverage for [Larry] was included.” Glenda submitted the 2005 “Group Universal Life Report” as evidence; that report, under the heading of “Beginning Values 12/31/04,” states, “Spouse Rider Face Amount: 50,000.00.”

We conclude that when viewed in the light most favorable to the Rices, this evidence creates a genuine issue of material fact as to whether MetLife made a promise to continue Larry’s coverage and whether it was foreseeable to MetLife that the Rices would rely on that promise. See Tex.R. Civ. P. 166a(c). Although MetLife argues that the language related to the four insurance options that were presented to Glenda in May 2005 on the election form concerns only Glenda’s coverage and does not explicitly mention Larry’s coverage, for the reasons stated above, we conclude that a genuine fact issue exists as to whether MetLife represented that both Glenda’s and Larry’s coverage would be extended if she chose the first option that was labeled “CONTINUE MY GUL COVERAGE.”

MetLife argues that the Rices’ promissory estoppel claim fails because Glenda was deemed to know the terms contained in the certificate of insurance, including the term that Larry’s coverage ended upon her retirement. We have noted that a named insured is presumed to have read its policy and to know the policy’s contents. Jenkins v. State & County Mut. Fire Ins. Co., 287 S.W.3d 891, 897 (Tex.App.-Fort Worth 2009, pet. denied). However, the Texas Supreme Court has held that this presumption may be overcome by proof that the insured did not know the policy’s contents when it was accepted. Colonial Sav. Ass’n v. Taylor, 544 S.W.2d 116, 119 (Tex.1976) (quoting Fireman’s Fund Indem. Co. v. Boyle Gen. Tire Co., 392 S.W.2d 352, 355 (Tex.1965)); see Ins. Network of Tex. v. Kloesel, 266 S.W.3d 456, 476 (Tex.App.-Corpus Christi 2008, pet. denied); Union Nat. Bank of Little Rock v. Moriarty, 746 S.W.2d 249, 250-51 (Tex.App.-Texarkana 1987, writ denied) (explaining that an “insured is allowed to rely on the knowledge and expertise of the insurer”).

The evidence shows that the Rices paid premiums for Larry’s coverage for over two years after Glenda retired and that Angelica Ridge had to explain to Glenda in 2005 that Larry no longer had coverage because Glenda thought that a quarterly bill’s omission of a premium charge for his coverage “was a mistake.” Viewed in the light most favorable to the Rices, this evidence creates a genuine fact issue as to whether the Rices had knowledge of the term of the certificate of insurance that caused Larry’s original coverage to expire. Therefore, we cannot agree with MetLife that for summary judgment purposes, the Rices are deemed to know the contents of their policy or that their promissory estop-pel claim must fail on that basis.

We also agree with the Rices’ statement that under the circumstances in this ease, it would be unreasonable to charge them -with knowing and following the terms of the certificate of insurance when MetLife, which issued the certificate, did not even follow its own terms for over two years by continuously accepting quarterly premiums for Larry’s coverage after Glenda’s retirement. Finally, even if the Rices actually knew about the term of the certificate that ended Larry’s coverage upon Glenda’s retirement or were charged with constructive knowledge of that term, Met-Life’s acts that occurred after her retirement gave them a reason to believe that MetLife was either altering or not enforcing that term and that Larry’s coverage had been extended despite the term.

For these reasons, we hold that, indulging all inferences in the Rices’ favor, the trial court erred by granting MetLife’s summary judgment motion on the Rices’ promissory estoppel claim. We sustain the Rices’ fourth point.

DTPA

In their fifth point, the Rices argue that the trial court erred by granting summary judgment against their DTPA claim. In the trial court, MetLife moved for summary judgment on that claim on the ground that there was no evidence of it.

False, misleading, or deceptive acts or practices

The DTPA creates a cause of action when a consumer suffers from “[flalse, misleading, or deceptive acts or practices in the conduct of any trade or commerce.” Tex. Bus. & Com.Code Ann. § 17.46(a). Such “acts or practices” include “representing that goods or services have ... characteristics ... which they do not have” and “representing that an agreement confers or involves rights, remedies, or obligations which it does not have or involve.” Id. § 17.46(b)(5), (12); see Commonwealth Lloyds Ins. Co. v. Downs, 853 S.W.2d 104, 116 (Tex.App.-Fort Worth 1998, writ denied).

To prevail on a DTPA claim, a plaintiff must prove that the defendant’s misrepresentation was the producing cause of the plaintiffs injuries. Tex. Bus. & Com.Code Ann. § 17.50(a); Alexander v. Turtur & Assocs., Inc., 146 S.W.3d 113, 117 (Tex.2004); Main Place Custom Homes, Inc. v. Honaker, 192 S.W.3d 604, 616 (Tex.App.-Fort Worth 2006, pet. denied). Producing cause requires that the defendant’s act be both a cause-in-fact and a “substantial factor” in causing the injuries. Honaker, 192 S.W.3d at 616. The plaintiff must also prove that it relied on the defendant’s misrepresentation to its detriment. Tex. Bus. & Com.Code Ann. § 17.50(a)(1)(B).

The Rices contend that MetLife’s May 10, 2003 letter, Glenda’s phone conversation with Summer, and MetLife’s prolonged acceptance of premiums create a genuine fact dispute about whether Met-Life engaged in false, misleading, or deceptive acts because it misrepresented that all of the terms of her original insurance policy, including Larry’s coverage, would be continued if she elected to do so. We agree.

MetLife’s letter explicitly stated that as of May 2003, Larry had $50,000 in coverage. It then told Glenda that the “current coverage would remain effective” and appeared to give her the option to continue that coverage by continuing to “pay the same rates as when [she was] an active employee.” We hold that under the relevant no-evidence summary judgment standards, this evidence and the other evidence detailed above creates a fact issue about whether MetLife misrepresented the continuation of Larry’s coverage, precluding summary judgment on that part of the Rices’ DTPA claim. See Tex.R. Civ. P. 166a(i); Lennar Corp. v. Great Am. Ins. Co., 200 S.W.3d 651, 700 (Tex.App.-Houston [14th Dist.] 2006, pets, denied) (op. on reh’g) (relating that an insurer’s affirmative misrepresentation that creates an insured’s mistaken belief about coverage may be actionable under the DTPA); State Farm Fire & Cas. Co. v. Gros, 818 S.W.2d 908, 912-13 (Tex.App.-Austin 1991, no writ) (holding that an insurer was liable under the DTPA for misrepresenting the terms of an insurance policy).

MetLife asserts, however, that if there was a misrepresentation, it cannot be a producing cause of the Rices’ injuries and the Rices could not have detrimentally relied on it because (1) Larry had an opportunity to purchase a personal policy form MetLife in December 2005 but failed to do so and (2) the Rices’ premiums for Larry’s coverage have been returned to them with interest (after they filed their lawsuit). But even if. we consider MetLife’s evidence to support its no-evidence summary judgment motion, that evidence does not conclusively establish that MetLife gave Larry an opportunity to purchase a personal policy in December 2005. Angelica Ridge’s affidavit does not indicate that she expressly told Glenda that she could purchase a personal policy for Larry. And while the affidavit states that Angelica told Glenda in December 2005 that she would “request a conversion notice” based on Glenda’s “cancelled spouse rider” and asserts that such a notice was mailed to Glenda, Glenda’s affidavit states that she never received any notice of the cancellation of Larry’s coverage and that Angelica told her that an agent would contact her about purchasing a personal policy but that she was never contacted by an agent.

As to MetLife’s second argument, the Rices concede that MetLife has returned money equal to the premiums that they paid for Larry’s coverage after Glenda’s retirement. However, we conclude that the evidence presented by the Rices still creates a fact issue on detrimental reliance. Glenda’s affidavit concludes by stating, “Due to MetLife’s cancellation of the policy after 2½ years and the state of my husband[’]s health, it is not within my family’s financial means to now obtain coverage for my husband.” Indulging every inference in the Rices’ favor, we hold that this statement adequately relates that the passage of time associated with MetLife’s allegedly wrongful acts (in which the Rices thought that Larry had coverage when he did not) deprived the Rices of the opportunity to obtain coverage elsewhere. See Sudan, 199 S.W.3d at 292. Thus, we hold that the statement comprises more than a scintilla of evidence of the Rices’ detrimental reliance on MetLife’s representation to Glenda even if, as MetLife argues, the statement does not use the words “rely” or “reliance” but instead uses the word “cancellation.” See Smith, 288 S.W.3d at 424.

For these reasons, we conclude that the trial court erred by granting MetLife’s summary judgment motion against the part of the Rices’ DTPA claim that alleges that MetLife engaged in false, misleading, or deceptive acts or practices, and we sustain the Rices’ fifth point to that extent.

Unconscionability

Next, the Rices assert that the trial court erred by granting MetLife’s summary judgment motion against their DTPA unconscionability claim. To maintain a claim for unconscionability under the DTPA, a plaintiff must prove that it suffered from an act or practice that, to the plaintiffs detriment, took advantage of its lack of knowledge, ability, experience, or capacity to a grossly unfair degree. See Tex. Bus. & Com.Code Ann. §§ 17.45(5), .50(a)(3); Bradford v. Vento, 48 S.W.3d 749, 760 (Tex.2001) (“Unconscionability under the DTPA is an objective standard for which scienter is irrelevant.”). To prove an unconscionable action or course of action, a plaintiff must show that the resulting unfairness was glaringly noticeable, flagrant, complete, and unmitigated. Ins. Co. of N. Am. v. Morris, 981 S.W.2d 667, 677 (Tex.1998).

MetLife moved for summary judgment on the Rices’ unconscionability claim on a no-evidence basis. The evidence that the Rices presented, viewed in the light most favorable to them, shows that MetLife represented that Larry had coverage when the Rices did not know that he did not have coverage under the certificate of insurance, accepted premiums for the alleged noncoverage for over two years and did not properly refund them until after the Rices filed their motion for new trial, never sent the Rices written notice of the termination of Larry’s coverage when it said that it would, told Glenda that an agent would contact her about purchasing a personal policy for Larry when an agent never did so, and therefore left the Rices without an opportunity to obtain coverage for Larry through MetLife or elsewhere (unless the parties’ exchanges created new coverage for Larry in May 2003). We conclude that these facts comprise more than a scintilla of evidence of unconsciona-bility under the standard above and therefore preclude summary judgment. See Tex.R. Civ. P. 166a(i); Smith, 288 S.W.3d at 424. Thus, we sustain the remaining portion of the Rices’ fifth point.

Insurance code

In their sixth point, the Rices assert that the trial court erred by granting MetLife’s summary judgment motion against their insurance code claim. The Rices pled that MetLife violated chapter 541 of that code because it misrepresented “the insurance policy by making untrue statements of material fact in regard to the policy” and by failing “to disclose material facts in regard to coverage.”

The insurance code creates a cause of action for damages caused by an insurer’s misrepresenting the terms or benefits of an insurance policy or by an insurer’s engaging in an act “specifically enumerated in Section 17.46(b), Business & Commerce Code, as an unlawful deceptive trade practice.” Tex. Ins.Code Ann. § 541.151; see id. § 541.051(1). We have held that the Rices provided more than a scintilla of evidence that MetLife misrepresented the terms or benefits of Larry’s coverage and that the Rices’ detrimental reliance on that misrepresentation caused them damages by precluding their opportunity to obtain coverage elsewhere. Thus, for the same reasons that we sustained the Rices’ fifth point, we also sustain their sixth point and hold that the trial court erred by granting MetLife’s summary judgment motion as to the Rices’ claim under the insurance code.

Breach of fiduciary duty

In their seventh point, the Rices contend that the trial court erred by granting summary judgment against their breach of fiduciary duty claim. MetLife moved for summary judgment on the basis that there is no evidence that it had a fiduciary duty to the Rices.

Where the underlying facts are undisputed, determination of the existence and breach of a fiduciary duty is a question of law that is exclusively within the province of the court. Meyer v. Cathey, 167 S.W.3d 327, 330 (Tex.2005).

As we have explained,

Due to its extraordinary nature, the law does not recognize a fiduciary relationship lightly. Therefore, whether such a duty exists depends on the circumstances.
Fiduciary duties may arise from formal and informal relationships and may be created by contract.... A person is justified in placing confidence in the belief that another party will act in his best interest only where he is accustomed to being guided by the judgment or advice of the other party and there exists a long association in a business relationship as well as personal friendship. Thus, the relationship must exist prior to and apart from the agreement that is the basis of the suit.

Cotten v. Weatherford Bancshares, Inc., 187 S.W.3d 687, 698 (Tex.App.-Fort Worth 2006, pet. denied) (emphasis added and footnotes omitted); see Meyer, 167 S.W.3d at 331 (explaining that there must be a “special relationship of trust and confidence” to create a fiduciary relationship in an ordinary business transaction). An insurer does not generally have a fiduciary duty toward its insured. See E.R. Dupuis Concrete Co. v. Penn Mut. Life Ins. Co., 137 S.W.3d 311, 318 (Tex.App.-Beaumont 2004, no pet.) (citing Wayne Duddlesten, Inc. v. Highland Ins. Co., 110 S.W.3d 85, 96 (Tex.App.-Houston [1st Dist.] 2008, pet. denied)); Garrison Contractors, Inc. v. Liberty Mut. Ins. Co., 927 S.W.2d 296, 301 (Tex.App.-El Paso 1996), aff'd, 966 S.W.2d 482 (1998); cf. Berry v. First Nat’l Bank of Olney, 894 S.W.2d 558, 560 (Tex.App.-Fort Worth 1995, no writ) (holding that a bank did not automatically have a fiduciary relationship with its customers and that the customers therefore had the burden to respond to the bank’s summary judgment motion by providing evidence of specific facts showing a special relationship).

Glenda said in her affidavit, “I have been a customer of MetLife on several occasions throughout my life....” The Rices have not directed us to any other evidence concerning their relationship with MetLife apart from the coverage at issue in this case. We hold that Glenda’s sole statement in her affidavit does not constitute more a scintilla of evidence that the Rices had a special relationship of confidence and trust with MetLife to create a fiduciary relationship. See Crim Truck & Tractor Co. v. Navistar Int’l Transp. Corp., 823 S.W.2d 591, 595 (Tex.1992) (explaining that “[njeither is the fact that the relationship has been a cordial one, of long duration, evidence of a confidential relationship”), superseded by statute on other grounds as stated in Subaru of Am., Inc. v. David McDavid Nissan, Inc., 84 S.W.3d 212, 225-26 (Tex.2002). Thus, we hold that the trial court properly granted summary judgment against the Rices’ breach of fiduciary duty claim, and we overrule their seventh point.

Fraud by nondisclosure

In their eighth point, the Rices contend that the trial court erred by granting summary judgment against their fraud by nondisclosure claim. They alleged in their amended petition that Met-Life had a duty to disclose the termination of Larry’s coverage but did not.

Fraud by nondisclosure is a subcategory of fraud. Schlumberger Tech. Corp. v. Swanson, 959 S.W.2d 171, 181 (Tex.1997). “As a general rule, a failure to disclose information does not constitute fraud unless there is a duty to disclose the information.... Whether such a duty exists is a question of law.” Bradford, 48 S.W.3d at 755.

The Rices asserted in the trial court that MetLife had a duty to disclose the termination of Larry’s coverage under the certificate of insurance solely because the Rices allegedly had a confidential relationship with MetLife. See World Help v. Leisure Lifestyles, Inc., 977 S.W.2d 662, 670 (Tex.App.-Fort Worth 1998, pet. denied) (explaining that a “party has an affirmative duty to disclose where there is a confidential or fiduciary relationship”). For the same reasons as those discussed above, we hold that the evidence presented by the Rices is insufficient to raise a material fact dispute about a confidential relationship between the Rices and MetLife. Therefore, we hold that the trial court did not err by granting MetLife’s summary judgment motion on the Rices’ fraud by nondisclosure claim, and we overrule the Rices’ eighth point.

Damages

In their ninth point, the Rices argue that the trial court improperly granted MetLife’s summary judgment motion on the ground that they did not present any evidence of damages. The Rices pled that they were entitled to recover the following damages: (1) “[l]oss of coverage under the policy amounting to $50,000,” (2) “[l]oss of opportunity to obtain affordable alternative coverage,” (3) “[l]oss of premiums paid to [MetLife],” and (4) “mental anguish damages.”

We have held that the evidence raises a genuine fact issue about whether the parties entered into a contract in May 2003 for Larry’s coverage. Accordingly, we hold that there is a genuine fact issue about whether the Rices lost the value of that coverage if MetLife wrongfully canceled it, and we sustain the Rices’ ninth point to that extent.

The Rices have not responded to Met-Life’s contention that they presented no evidence of mental anguish damages. Also, the Rices admit that the premiums paid for Larry’s coverage have been refunded. Thus, we overrule the Rices’ ninth point to the extent that the trial court’s order precludes those damage theories. See Haire v. Nathan Watson Co., 221 S.W.3d 293, 302 (Tex.App.-Fort Worth 2007, no pet.) (affirming the trial court’s decision to grant summary judgment as to claims that were not challenged on appeal).

However, we conclude that the final. statement in Glenda’s affidavit (that because of MetLife’s actions and the state of Larry’s health, the Rices could not obtain alternative coverage for him) comprises some evidence of the Rices’ remaining damage theory — loss of the “opportunity • to obtain affordable alternative coverage.” Thus, we hold that the trial court could not properly grant summary judgment on that ground.

For these reasons, we sustain the Rices’ ninth point to the extent that it regards damages related to the loss of their coverage and the loss of their opportunity to obtain affordable alternative coverage. We overrule their ninth point to the degree that it relates to damages for mental anguish or the return of premium payments.

The Trial Court’s Denial of The Rices’ Motion for New Trial

In their tenth point, the Rices contend that the trial court erred by denying their motion for new trial based on newly discovered evidence that MetLife had deducted premiums from Glenda’s cash fund account rather than correctly returning them. Whether to grant a new trial because of newly discovered evidence “is within the discretion of the trial court. To determine whether a trial court abused its discretion, we must decide whether the trial court acted without reference to any guiding rules or principles; in other words, whether the act was arbitrary or unreasonable.” Hutson v. Ton-County Props., LLC, 240 S.W.3d 484, 490-91 (Tex.App.Fort Worth 2007, pet. denied) (footnote omitted). The party who seeks a new trial on the ground of newly discovered evidence must show: (1) the evidence has come to light after trial, (2) it was not owing to want of due diligence that the evidence did not come to light sooner, (3) the new evidence is not cumulative, and (4) the evidence is so material that it would likely produce a different result if a new trial were granted. Id. at 491.

In their motion for new trial, the Rices conceded that before MetLife filed its motion for summary judgment, its counsel had given them $2,152.17 for the apparent return of the premiums (and six percent interest) that they had paid for Larry’s coverage since Glenda’s retirement. But the Rices alleged that MetLife had wrongfully removed the money from Glenda’s cash fund account instead of actually refunding it. MetLife filed a response to the motion for new trial, the trial court held an evidentiary hearing, MetLife filed a supplemental response, and the trial court denied the motion.

MetLife’s supplemental response establishes that the premium payments had not been properly refunded to the Rices at the time of the trial court’s summary judgment decision. However, the response shows that as of July 2009, Glenda’s cash fund account had been fully and correctly replenished by MetLife to its pre-with-drawal amount.

The Rices argue that the improper refund that had occurred at the time that MetLife’s summary judgment motion was filed “caused [the Rices] to not defend ... the cause of action Money Had and Received, and amounted to a fraud on the court.” They contend that a different result would occur because the trial court “would be able to judge the case without considering the false affidavits” of MetLife that stated that the premiums had been properly refunded.

We cannot agree with the Rices’ assertion that their newly discovered evidence fe so material that it would likely produce a different result. As to the Rices’ money had and received claim, which is based solely on the nonreturn of the premium payments for Larry’s coverage, the evidence established that at the time the trial court denied the Rices’ motion for new trial, those payments had been correctly refunded to them. Thus, the Rices would not be able to obtain a different result on that claim. See Everett v. TK-Taito, L.L.C., 178 S.W.3d 844, 860 (Tex.App.-Fort Worth 2005, no pet.) (“Money had and received is an equitable action that may be maintained to prevent unjust enrichment when one person obtains money, which in equity and good conscience belongs to another.”).

Similarly, as to the Rices’ other claims, if the trial court based all or part of its decision to grant MetLife’s summary judgment motion on the fact that MetLife had correctly refunded the premium payments, its decision was not likely to change. By the time the trial court denied the Rices’ motion for new trial, those payments had been correctly refunded. Finally, although the Rices assert that MetLife perpetuated a fraud on the court, MetLife’s supplemental response to the Rices’ motion for new trial shows that MetLife’s delay in correctly refunding the premium payments was caused by inadvertent computer errors.

For these reasons, we hold that the evidence that the Rices attached to their motion for new trial is not so material that it would likely produce a different result if a new trial were granted and that the trial court therefore did not abuse its discretion by denying the motion. See Hutson, 240 S.W.3d at 490-91. We overrule the Rices’ tenth point.

Conclusion

Having overruled the Rices’ first, third (in part), seventh, eighth, ninth (in part), and tenth points, we affirm the trial court’s summary judgment order to the extent that it grants MetLife’s summary judgment motion as to (1) the Rices’ breach of contract claim concerning their theories about the breach of the certificate of insurance that created Larry’s original coverage, (2) the Rices’ claims for breach of fiduciary duty and fraud by nondisclosure, and (3) the Rices’ damage theories of loss of premiums and mental anguish. However, having sustained the Rices’ second, third (in part), fourth through sixth, and ninth (in part) points, we reverse the trial court’s order to the extent that it grants MetLife’s summary judgment motion as to (1) the Rices’ breach of contract claim as limited to their theory about the breach of a new, separate agreement for Larry’s coverage beginning in May 2003, (2) the Rices’ bad faith, promissory estoppel, DTPA, and insurance code claims, and (3) the Rices’ damage theories regarding their loss of coverage and loss of opportunity to obtain alternate coverage. As limited to the portions of the trial court’s order that we reverse, we remand this case for further proceedings.

      . During discovery, Glenda admitted that she received the certificate; her admission does not indicate when she received it.

      . The Group Universal Life Report shows the values of the coverage and details financial activity related to the coverage.

      .MetLife later corrected the effective date of the cancellation of Larry’s coverage retroactively to March 2003 (the month of Glenda’s retirement). According to MetLife, it discovered its billing mistake in a records audit. MetLife’s representative Mark Money swore, "[T]he dependent spouse coverage must be manually changed in the system. When Mrs. Rice retired she continued her life insurance coverage and was billed on a quarterly basis. Mistakenly[,] MetLife's system was not manually changed to end the dependent spouse coverage billing.”

      . See Tex. Bus. & Com.Code Ann. §§ 17.41-.63 (Vernon 2002 & Supp. 2009).

      . See Tex. Ins.Code Ann. §§ 541.001-.454 (Vernon 2009).

      . Waiver is the intentional relinquishment of a right actually known or intentional conduct inconsistent with claiming that right; estop-pel prevents one party from misleading another to the other’s detriment or to the misleading party’s own benefit. Id. at 778.

      . The Rices have asserted that MetLife’s failure to exercise its option to terminate the policy upon Glenda’s retirement, its written affirmation of coverage two months after Glenda’s retirement, and its acceptance of premiums for over two years amounted to a waiver of the option. But the certificate of insurance does not state that MetLife has an option to terminate upon Glenda's retirement; it states that "Dependent Term Insurance will end ” upon retirement. [Emphasis added.]

      . The Rices discuss the waiver and estoppel doctrines in their first point, in which they contend that the trial court erred by not applying those doctrines to this case. To the extent that the Rices rely on their discussion of waiver and estoppel in their first point to assert that their claims dependent on the parties’ contract should succeed because Larry’s original coverage was extended by an alteration of the certificate of insurance, we overrule the Rices’ first point for the reasons discussed above.

      . We recognize that MetLife has stated that it gave Larry an opportunity to apply for a personal policy in 2005. In MetLife’s summary judgment motion, it stated that it did so "as a courtesy.” Because the parties’ original insurance contract could not be changed through waiver or estoppel to end Larry’s original coverage on any date other than Glenda’s retirement, MetLife was not contractually required to extend the personal policy conversion period that was conditioned on Glenda's retirement.

      . Craddock is likewise distinguishable because in Craddock, the insured did not argue that a new contract had been created but only that the coverage of his contract with the insurer had been changed by waiver, and the supreme court stated that "no consideration moved” to the insurer after the gunshot accident for an assumption of liability. 130 Tex. at 252-55, 109 S.W.2d at 165-67. Similarly, the insured in Mitchell relied only on waiver and estoppel and did not contend that a new contract had been created. 335 S.W.2d at 707.

      . MetLife relies on the fact that the option that Glenda chose in response to MetLife’s May 2003 letter stated, "CONTINUE MY GUL COVERAGE.” But we conclude that Met-Life's letter may reasonably be read to also give Glenda the option of continuing Larry's coverage because the top right-hand corner of the letter specifically showed that his coverage was still effective, the letter told Glenda that her "current coverage [would] remain effective,” and it stated she would continue to pay the same premium rates (which included Larry's premium) as she had when she was employed with Avon.

      . We note that MetLife’s brief indicates its belief that the parties had the authority to enter into a new agreement for coverage after the coverage originally terminated upon Glenda's retirement. Specifically, MetLife concedes in its brief that “[although [Glenda’s] retirement date was in 2003 and [Larry’s] right to convert the group dependent life coverage to an individual policy had expired ..., MetLife extended the conversion option.”

      . MetLife did not expressly label its summary judgment motion as to the Rices’ promissory estoppel claim as traditional or no-evidence. We will treat the motion as a traditional motion because a no-evidence motion must specify the elements of a claim for which there is no evidence. See Tex.R. Civ. P. 166a(i).

      . A "promise” is a "manifestation of an intention to act ... in a specified manner, conveyed in such a way that another is justified in understanding that a commitment has been made.” Black’s Law Dictionary 1332 (9th ed. 2009).

      . MetLife does not expressly challenge the reliance element in the portion of its brief related to the Rices' promissory estoppel claim; we will address the Rices’ reliance on MetLife’s representation of Larry’s coverage below when we analyze the trial court's decision to grant summary judgment on some of the Rices' other claims.

      . MetLife also argues in response to some of the Rices' other points that they were deemed to know the contents of their policy. For the same reasons that we decline to accept Met-Life’s reasoning as to the Rices’ promissory estoppel claim, we also decline to do so as to those points.

      .MetLife contends that the "crux of [the Rices’] claims under the DTPA is MetLife's alleged wrongful termination ... as opposed to misrepresentations.” But the Rices' appellate brief and their summary judgment response show that they base their DTPA claims on MetLife's May 2003 letter, MetLife’s conversation with Glenda, and MetLife’s acceptance of quarterly premium payments.

      . The parties agreed during oral argument that the premium payments have now been properly refunded to the Rices.

      . The supreme court has held that courts may not consider evidence that is attached to a movant's no-evidence summary judgment motion unless the evidence “creates a fact question.” Binur v. Jacobo, 135 S.W.3d 646, 651 (Tex.2004); see Garcia v. State Fann Lloyds, 287 S.W.3d 809, 816 (Tex.App.-Corpus Christi 2009, pet. denied).

      . We have held that a duty to disclose may arise from circumstances unrelated to a confidential or fiduciary relationship between the parties. See Citizens Nat’l Bank v. Allen Rae Invs., Inc., 142 S.W.3d 459, 477 (Tex.App.Fort Worth 2004, no pet.) (op. on reh’g). However, issues that are not presented to the trial court “shall not be considered on appeal as grounds for reversal.” Tex.R. Civ. P. 166a(c); see Head v. U.S. Inspect DFW, Inc., 159 S.W.3d 731, 740 n. 6 (Tex.App.-Fort Worth 2005, no pet.).

      . MetLife moved for summary judgment on the ground that its actions did not cause damages generally; MetLife did not assert that the Rices had to present evidence of a particular amount of damages.

      . The cash fund account — labeled by MetLife as the "Accumulation Fund” — includes money from premium payments in excess of the cost of the insurance. Glenda swore in an affidavit,
      The cash-fund account was funded with money [she] had paid in to cover future premiums, and was not at all related to prior premiums [she] had paid. It ... became obvious to me that MetLife had taken my own money ... and sent it to me to make me believe that they had actually refunded the premiums....

      ... In short, I had to pay MetLife for life insurance that MetLife says never existed, and then I had to pay myself for the refund of my premiums.


author: CHARLES BLEIL, Senior Justice (Retired). LEE ANN DAUPHINOT, Justice,

text:
    Scott Marcus SNELL, Appellant, v. The STATE of Texas, State.
    No. 2-09-277-CR.
    Court of Appeals of Texas, Fort Worth.
    Aug. 31, 2010.
    The Matlock Law Firm PC and M. Shawn Matlock, Fort Worth, TX, for Appellant.
    Joe Shannon, Jr., Criminal District Attorney, Charles M. Mallín, Chief Appellate Section, and Debra Ann Windsor, Sheila Wynn and Kevin Harris, Assistant District Attorneys for Tarrant County, Fort Worth, TX, for Appellee.
    PANEL: DAUPHINOT and McCOY, JJ.; and CHARLES BLEIL (Senior Justice, Retired, Sitting by Assignment).
   OPINION

CHARLES BLEIL, Senior Justice (Retired).

Appellant Scott Marcus Snell appeals from his conviction by a jury for the offense of robbery by threats. The issue on appeal is whether the trial court erred by failing to give a requested spoliation instruction to the jury. We resolve this issue in favor of the State and affirm the trial court’s judgment.

David Smith arranged to meet Brandi Harper, who had advertised herself as a prostitute, at a hotel in Arlington. When he met her in the hotel room, he noticed that she seemed nervous. After he gave her the agreed amount of money, they sat and talked for a few minutes. When someone knocked on the door to the room a few minutes later, Harper told Smith to go in the bedroom and she opened the door.

Two men, Sherbrodrick Holloman and Russell Francis, came into the bedroom looking for Smith. The men told Smith that he was in trouble because Harper was underage. They also threatened him and demanded his wallet, car keys, and phone.

Holloman and Harper left with Smith’s credit cards, driver’s license, and car, then drove to Wal-Mart where they bought a laptop and an X-Box 360. Francis stayed at the hotel to guard Smith. While Harper and Holloman were gone, Appellant and Rodney Braswell, arrived. Appellant brought with him what looked to be crack cocaine and he, Braswell, and Francis smoked it.

When Holloman and Harper came back, they started to give Smith’s things back to him and let him go. Appellant said no and told them he wanted money. Harper said that Smith had been through enough, but Appellant insisted. He and Braswell told Smith to come with them to get some money or they would beat him and leave him in a ditch.

Braswell drove Appellant and Smith to a nearby Valero convenience store. They took Smith inside and had him withdraw $800 from an ATM. They also had him charge food, prepaid cell phone minutes, and cigarettes. Crystal Jones, the clerk, thought the men were acting oddly. She noticed that Appellant appeared aggressive and that he and Braswell were having a good time, while Smith looked scared. Jones asked Smith if he was okay, and he said that he was not. As the trio left the store, she held up the phone and pantomimed to Smith whether she should call for help. He nodded yes.

Jones called 9-1-1 to seek help and to report these events. A short time later, police saw the men in a car and pulled them over. When they pulled Smith out of the car, he told the police what had happened. Police found over $600 in Appellant’s shoe. The next day they found the items from Wal-Mart in the room where Smith, Holloman, and Francis were staying.

Jones testified that the store had a video surveillance system and that she had reviewed the videotape. Grand Prairie Police Detective Heath Wester reviewed the videotape with the store’s manager. He asked for the videotape, and the manager told him that corporate security would provide a copy. Later he learned that someone with the company, not anyone at the local store, deleted the contents on the videotape.

The defense requested that the court give the jury a spoliation instruction as a result of the deleted content on the tape. The court overruled the objection and denied the requested instruction.

We now turn to the questioned presented. Did the trial court err by not giving the spoliation instruction?

Appellant’s issue is whether the trial court erred by not including a spoliation instruction. He relies principally on the analysis set out in Pena v. State, 226 S.W.3d 634 (Tex.App.-Waco 2007), rev’d on other grounds, 285 S.W.3d 459 (Tex.Crim.App.2009). This court has declined to follow Pena and has held that to show a violation of the Texas Due Course of Law provision, an appellant must show that the State acted in bad faith. See Salazar v. State, 298 S.W.3d 273, 277-79 (Tex.App.Fort Worth 2009, pet. ref'd); see also Pachecano v. State, 881 S.W.2d 537, 542-43 (Tex.App.-Fort Worth 1994, no pet.) (implying that if appellant were entitled to a spoliation instruction, he would have to show that the destroyed evidence was material and that he was significantly prejudiced at trial by its loss, as well as bad faith by the State). Here, there is no claim of bad faith on the part of the State.

We conclude that there was no error and affirm the trial court’s judgment.

DAUPHINOT, J. filed a concurring opinion.

LEE ANN DAUPHINOT, Justice,

concurring.

I write separately because I believe that the majority should more fully explain why the destruction of the videotape that would show what occurred during the robbery did not require reversal for the denial of a spoliation instruction.

Appellant timely requested preservation of the best evidence of what occurred during the robbery and of the degree of his culpability. Only the police, not Appellant, could seize evidence at the crime scene. Although Appellant could have subpoenaed the videotape, there was no trial date, hearing, or deposition schedule that would have justified a subpoena. At trial, the State elicited evidence of the contents of the.videotape, and, because the videotape had been destroyed, Appellant was unable to challenge the accuracy of the testimony.

I agree with Appellant that the State had a duty to preserve the videotape. The State should have seized and preserved the videotape. But the police were unaware that the videotape would be destroyed and did not themselves ever have possession of the videotape. Appellant has not claimed that the State destroyed or encouraged others to destroy the videotape or that the State even knew that others would destroy it. Appellant also does not ask us to hold that the trial court erred by allowing the detective to testify to the contents of the videotape. Thus, that issue is not before this court.

Is spoliation the same as failure to preserve the evidence? If not, Appellant was not entitled to a spoliation instruction because no party, either directly or indirectly, destroyed the videotape. The Texas Supreme Court has defined spoliation as “an evidentiary concept that allows ‘the factfinder to deduce guilt from the destruction of presumably incriminating evidence.’ ” Because there was no showing in the trial court that the State caused or knowingly allowed the videotape to be destroyed, Appellant was not entitled to a spoliation instruction.

I therefore respectfully concur in the result only.

      . The requested instruction was the following:
      You may take note of the fact that the State had learned of the existence of the videotape that recorded the Diamond Shamrock location involving the victim and the Defendant. Such a videotape is, as a matter of law, material evidence and that had the videotape been available for the jury to review, it may have exculpated the Defendant regarding the alleged victim’s actions and the Defendant's intent. The fact that the State lost or failed to preserve the videotape, the Defendant, therefore, did not have an opportunity to review and present the evidence to you, the jury. The fact that the State lost or failed to preserve the video does not in and of itself require you to acquit the Defendant. It is, however, one factor for you to consider in your deliberations. If after consideration of all the proof you find that the State failed to gather or preserve evidence, the contents or quality of which are at issue and the production may or may not have been a benefit to the Defendant, you may infer that the absent evidence would be favorable to the Defendant.

      . Although not precedential, these are illustrative of the same principle. See Moore v. State, No. 74,059, 2004 WL 231323, at *4 (Tex.Crim.App. Jan. 14, 2004) (not designated for publication) (holding that the trial court did not err by refusing a requested spoliation instruction when the record did not show that the item possessed exculpatory value to appellant before it was destroyed, nor bad faith by the police in its destruction); Payne v. State, No. 02-09-00100-CR, 2010 WL 1730857, at *2-4 (Tex.App.-Fort Worth Apr. 29, 2010, no pet.) (mem. op., not designated for publication) (applying Salazar and holding that requested spoliation instruction was properly denied).

      . See Tex.Code Crim. Proc. Ann. art. 18.01 (Vernon Supp.2009).

      . Cire v. Cummings, 134 S.W.3d 835, 843 (Tex.2004) (citing Trevino v. Ortega, 969 S.W.2d 950, 952 (Tex.1998)).


author: Justice MOSELEY.

text:
    In re Stewart McCRAY, Relator.
    Nos. 05-10-00994-CV, 05-10-00995-CV.
    Court of Appeals of Texas, Dallas.
    Oct. 6, 2010.
    Kevin R. Fuller, Koons, Fuller, Vanden Eykel & Robertson, P.C., Lupe Valdez, Dallas County Sheriff, Dallas, TX, for Others.
    Charles H. Robertson, Robertson & Railsback, Michelle May O’Neil, Ashely Bowline Russell, O’Neil Attorneys Family Law, Dallas, TX, for Relator.

      Diana S. Friedman, Diana S. Friedman, P.C., Dallas, TX, for Real Party in Interest.
    Before Justices MOSELEY, LANG, and MYERS.
   OPINION

Opinion by

Justice MOSELEY.

Before the Court are relator’s petitions for habeas corpus relating to the trial court’s August 4, 2010, orders of contempt and writs of commitment. Among other issues, relator complains that he was wrongfully denied a jury trial. We agree with relator. Accordingly, we grant the writs of habeas corpus, set aside the orders of contempt and writs of commitment, and order relator discharged.

Prior to the start of his criminal contempt proceeding, relator requested a jury trial. The trial court denied the request because real party in interest stated that she was not seeking more than six months in jail or more than a $500 fíne. After he was found guilty of contempt and ordered to serve multiple six month sentences, relator filed these petitions. The Court requested responses from real party in interest and from the trial judge. Real party in interest filed a response, stating she no longer opposed relator’s petitions. Relator then filed a motion for sanctions against real party in interest. Our review of the record does not reflect that real party in interest committed any sanctiona-ble offenses in her responses to the petitions or otherwise, so we DENY the motion for sanctions.

The orders signed by the trial court did not clearly state that the jail terms imposed by the court were to be served concurrently. Accordingly, relator was sentenced to more than six months in jail and was entitled to a trial by jury. See Ex parte Sproull, 815 S.W.2d 250, 250 (Tex.1991). We need not address relator’s other arguments in his petitions for writ of habeas corpus.

Therefore, we GRANT habeas corpus relief and VACATE the writ of commitment and written order dated August 4, 2010, entitled Order Holding Stewart Phillip McCray in Contempt for Failure to Pay Court Ordered Payments, Granting Judgment, and for Commitment to County Jail, issued by the 255th District Court of Dallas County, Texas, styled In the Matter of the Marriage of Stewart Phillip McCray and Nikki Slaughter McCray. We further VACATE the writ of commitment and written order dated August 4, 2010, entitled Order Holding Respondent in Contempt for Failure to Pay Child Support, Granting Judgment, and for Commitment to County Jail, issued by the 255th District Court of Dallas County, Texas, styled In the Matter of the Marriage of Stewart Phillip McCray and Nikki Slaughter McCray. We ORDER that relator Stewart McCray be unconditionally released and discharged from the custody of the Sheriff of Dallas County pursuant to those same writs of commitment and written orders.

Our review of the record does not reflect that real party in interest committed any sanctionable offenses in her responses to the petitions or otherwise, so we DENY the motion for sanctions.