Full opinion text
MAJORITY OPINION ON REHEARING EVA M. GUZMAN, Justice. We grant appellants’ motion for rehearing, deny as moot their motion for rehearing en banc, withdraw our opinions of April 17, 2008, and substitute this majority-opinion on rehearing. This multi-issue appeal arises from a dispute between an insurance broker and his clients as a result of the marketing and sale of several insurance policies. Appellants Environmental Procedures, Inc. and Advanced Wirecloth, Inc. (the “Insureds”) contend the trial court erred in (a) granting partial summary judgment in favor of the insurance broker, the company that employed him, and the owner of that company on the Insureds’ claims arising from the appellees’ alleged negligence, negligent misrepresentation, and violations of former article 21.21 of the Texas Insurance Code; (b) directing a verdict on the Insureds’ claims for breach of fiduciary duty; (c) failing to render judgment in the Insured’s favor regarding their claims under section 101.201 of the Texas Insurance Code; (d) excluding from evidence two issues of a trade publication; and (e) enjoining the Insureds and their counsel from further use or disclosure of certain documents obtained through discovery in another case. We conclude that the trial court erred in granting partial summary judgment; thus, we reverse the trial court’s judgment in part and remand the Insureds’ claims of negligence and violations of article 21.21 of the Texas Insurance Code. Additionally, we conclude that the trial court’s non-disclosure order was void ab initio, and thus, we dismiss as moot the Insureds’ appeal from this order. In all other respects, we affirm the trial court’s judgment. I. Factual And Procedural Background Appellant Environmental Procedures, Inc. d/b/a Sweco Oilfield Services (“EPI”) operated as a tool rental and oilfield service company; its subsidiary, appellant Advanced Wirecloth, Inc. (“Wirecloth”), manufactured screens used in the oil industry. At the time of the events in question, the respective headquarters for EPI and Wirecloth (collectively, “the Insureds”) were located in Texas. The Insureds’ agent or broker was appellee George Gui-dry (“Guidry”), who was employed by ap-pellee Dwight W. Andrus Insurance, Inc. (the “Agency”) in Louisiana. Appellee Dwight W. Andrus, III (“Andrus”) was the owner of the Agency. Guidry presented insurance proposals and presentations to the Insureds in Texas and delivered the relevant policies or cover notes there. Although Guidry sold surplus-lines coverage to the Insureds, he was not licensed to do so in Texas. A. The Insurance Policies In 1991, Guidry obtained insurance, effective October 1, 1991 through September 30, 1992, for the Insureds through British-American Insurance Group Ltd. (“British American”). The coverage consisted of a commercial general liability (“CGL”) policy with a limit of $1 million for any one accident or occurrence and an umbrella policy with a $3.5 million limit for any one accident or occurrence. Coverage under the 1991 British American CGL policy was apportioned among seven insurers, and the responsibility for the coverage limits under the umbrella policy was shared among twenty-eight insurers. Guidry provided the Insureds with cover notes reflecting this coverage. In November 1992, Guidry renewed the coverage on the British American CGL policy. He provided the Insureds with a cover note showing that this coverage was divided among three insurers. A few weeks later, British American sent cover notes to the Agency showing excess CGL coverage for the Insureds apportioned among eleven insurers and $5 million in umbrella coverage provided by Ocean Marine Indemnity Company Limited. These policies were effective from October 1, 1992 through September 30,1993. In 1993 and 1994, Guidry obtained the Insureds’ CGL and umbrella insurance from Lexington Insurance Company. Under the terms of the Lexington policies, the limits of coverage were reduced by the costs of defense. B. The Underlying Litigation In the summer of 1994, Wirecloth notified Guidry that it had been sued by a competitor, Derrick Manufacturing Corporation, who alleged various patent and trademark violations, as well as other violations of Texas common law and the Texas Business and Commerce Code. Guidry forwarded this information to British American. In the summer of 1995, the Insureds, among others, again were sued by this competitor for similar alleged violations of a second patent. These lawsuits (the “Derrick litigation”) were subsequently consolidated. The Insureds notified Guidry of the second suit, and Guidry forwarded the information to Lexington. Although Lexington appointed defense counsel under a reservation of rights in April 1996, the Insureds continued to pay most of their own defense costs. In September 2001, Vareo, L.P., a subsidiary of National Oilwell Vareo, a successor in interest to the Insureds, paid approximately $15 million to settle the Derrick litigation. By this time, the Insureds had incurred approximately $17 million in attorneys’ fees. Lexington paid a fraction of the Insureds’ defense costs, but did not contribute funds to settle the Derrick litigation. Within a week of the settlement, Lexington filed a declaratory judgment action against the Insureds seeking a coverage determination (the “Coverage Suit”). Additional insurers were later added to the suit. The Insureds reached a number of settlement agreements with British American and several other insurers. Regarding the coverage procured through British American, there were no settlements with the insurers securing the 1991-1992 CGL and umbrella policies, but the Insureds settled with all of the insurers providing coverage under the 1992-1993 CGL and umbrella policies. Between these two extremes, the Insureds reached settlement agreements with some, but not all, of the insurers securing the 1992-1993 excess CGL policy. The Insureds settled their claims against Lexington in the Coverage Suit at the same time as they settled claims asserted against Lexington in this suit. C. This Suit The Insureds filed the instant suit against Guidry, the Agency, and Andrus (collectively, the “Brokers”) on August 29, 2003 (the “Filing Date”), asserting claims against the Brokers for negligence, gross negligence, negligent misrepresentation, fraud, breach of fiduciary duty, and violations of article 21.21 of the Texas Insurance Code. The Insureds also asserted claims under section 101.201 of the Texas Insurance Code (hereinafter “Unauthorized Insurance” claims), alleging that British American was an “unauthorized insurer,” that the Brokers assisted in the procurement of the British American policies, and that the Brokers therefore were liable for the unpaid amount of the claims covered under the terms of the British American policies. In addition, the Insureds alleged that Andrus negligently supervised Guidry, that Andrus operated the Agency as a sham to perpetrate a fraud, and that the Agency was Andrus’s alter ego. Finally, the Insureds invoked the discovery rule and the doctrine of estoppel, alleging that they first learned of the misconduct when Guidry’s deposition was taken in the Coverage Suit. 1.Partial Summary Judgment The Brokers filed a motion for partial summary judgment based on a limitations defense. In their motion, the Brokers asserted that the Insureds’ claims for negligence, negligent supervision, negligent misrepresentation, and violations of article 21.21 of the Texas Insurance Code were barred by the two-year statute of limitations. In support of the motion, the Brokers attached a letter dated May 12, 1999 from Lexington’s attorney to the Insureds’ attorney, in which Lexington’s attorney stated, “Under the terms of the Lexington primary policies, the defense costs reduce the applicable limits of insurance.” The Brokers also relied on a letter from Lexington dated December 10, 2000, in which Lexington’s counsel asserted that the two-year limitations period applied to the Insureds’ claims of negligence, negligent supervision, negligent misrepresentation, and violations of article 21.21 of the Texas Insurance Code. The Insureds responded and filed special exceptions on December 8, 2004. The motion for partial summary judgment was submitted without oral argument on February 7, 2005. Less than two weeks before the submission date, the Brokers filed a reply accompanied by additional evidence, and less than a week later, the Insureds filed a surreply, objections, and a motion to strike the Brokers’ summary-judgment motion on the grounds that it was set for submission after the summary-judgment hearing deadline specified in the trial court’s docket control order. During a telephone conference on February 9, 2005, the trial court denied the Insureds’ motion to strike, and on March 18, 2005, the trial court granted the Brokers’ motion for partial summary judgment. 2. Non-Disclosure Order A few days before the trial court granted partial summary judgment, Lexington filed a “Motion to Enforce Confidentiality Agreement and for Entry of Protective Order.” No evidentiary hearing was held, and the trial court signed an order granting the motion on April 5, 2005 (hereinafter the “Non-Disclosure Order”). This order barred the Insureds, their attorneys, and additional non-parties from using or disclosing, in this case or in any other proceeding, certain depositions and personnel files obtained in the Coverage Suit. 3. Trial and Judgment About a month after entry of the NonDisclosure Order, the case was tried to a jury. As a defense to the Unauthorized Insurance Claims, the Brokers asserted that the insurance in question had been independently procured. Before the case was submitted to the jury, the trial court granted the Brokers’ motion for directed verdict as to the Insureds’ breach-of-fiduciary-duty claims. The jury returned a verdict in favor of the Brokers as to the Insureds’ claims of fraud by misrepresentation and fraud by nondisclosure. The jury also found that the 1991 and 1992 British American cover notes were independently procured, and pursuant to the instructions in the jury-charge, answered no further questions regarding the Insureds’ Unauthorized Insurance Claims. The trial court rendered judgment on the verdict and denied the Insureds’ motions for judgment notwithstanding the verdict and for new trial. II. Issues Presented The Insureds present the following six compound issues for review. • First, they challenge the partial summary judgment on the grounds that (a) the motion did not address the 1991 and 1992 placements, (b) limitations on the 1993 and 1994 placements did not begin to run more than two years before suit was filed, and (c) the motion was not supported by evidence that the Insureds knew or should have known about the Brokers’ violations of article 21.21 of the Insurance Code more than two years before they filed suit. • Second, the Insureds argue that they raised fact issues regarding the existence of a formal or an informal fiduciary relationship with the Brokers, and thus, the trial court erred in granting the Brokers a directed verdict on the Insureds’ claims for breach of fiduciary duty. In a subsidiary argument, the Insureds contend that there is a presumption that their injury was inherently undiscoverable because a fiduciary relationship exists; therefore, the statute of limitations was tolled. • Third, the Insureds assert that the trial court erred in failing to grant their motion for judgment notwithstanding the verdict concerning their claims under the Unauthorized Insurance Act because the evidence conclusively established that the only exception to liability invoked by the Brokers did not apply. • Fourth, the Insureds argue that the trial court committed harmful error in sustaining the Brokers’ hearsay objections to the Insureds’ offer of two issues of Surplus Lines Reporter & Insurance News as evidence. • Fifth, the Insureds assert that the jury’s award of attorneys’ fees must be reversed and the claim remanded. • Sixth, the Insureds complain about the Non-Disclosure Order, in which the trial court granted Lexington’s motion to enforce a confidentiality agreement that had been reached in the Coverage Suit. The Insureds argue that the Non-Disclosure Order is an injunction that expired upon entry of final judgment, or alternatively, the order is void due to procedural defects. In addition, Lexington moved to dismiss the appeal of this issue and to designate certain items in the record for in camera review. Both motions were carried with the case. III. Analysis A. Brokers’ Motion for Partial Summary Judgment 1. Standard of Review In a traditional motion for summary judgment, if the movant’s motion and summary-judgment evidence facially establish the movant’s right to judgment as a matter of law, the burden shifts to the nonmovant to raise a genuine, material fact issue sufficient to defeat summary judgment. M.D. Anderson Hosp. & Tumor Inst. v. Willrich, 28 S.W.3d 22, 23 (Tex.2000). In our de novo review of a trial court’s summary judgment, we consider all the evidence in the light most favorable to the nonmovant, crediting evidence favorable to the non-movant if reasonable jurors could, and disregarding contrary evidence unless reasonable jurors could not. Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex.2006). The evidence raises a genuine issue of fact if reasonable and fair-minded jurors could differ in their conclusions in light of all of the summary-judgment evidence. Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 755 (Tex.2007). 2, Challenged Claims At the time the Brokers moved for partial summary judgment, the Insureds’ live pleading included claims of negligence based on certain conduct by Guidry. The Insureds asserted claims of negligent supervision and gross negligence against An-drus and the Agency for the same conduct. In addition, the Insureds claimed that the Brokers negligently and falsely represented that they were obtaining the best possible insurance at the lowest possible price; falsely represented terms and conditions of the insurance they procured; and failed to disclose material terms of the insurance coverage. The foregoing claims were asserted under both the common law and article 21.21 of the Texas Insurance Code. In particular, the Insureds alleged that the Brokers violated subsections (2), (5), and (11) of section 4 of former article 21.21 of the Texas Insurance Code. All of these claims were included in the partial summary judgment and incorporated in the final judgment. 3. The Summary-Judgment Evidence Our first challenge in this case has been to identify the evidence comprising the summary-judgment record. See Arredondo v. Rodriguez, 198 S.W.3d 236, 239 n. 1 (Tex.App.-San Antonio 2006, no pet.) (“We will not consider evidence that the trial court itself did not consider.”). The Insureds assert that the evidence attached to the Brokers’ reply is not properly part of the summary-judgment record because it was filed without leave of court less than 21 days before the February 7, 2005 summary-judgment hearing. The Brokers, on the other hand, argue that the reply evidence was timely because it was filed more than 21 days before a hearing held on March 18, 2005. Unfiled discovery may be used in support of a motion for summary judgment if copies, appendices, or a notice containing specific references to the material are filed and served on all parties, together with a statement of intent to use such material, at least 21 days before the hearing. Tex. R. Civ. P. 166a(d). It is well-established, however, that unless there is a basis in the record to conclude that untimely material was filed with leave of court, we presume that the trial court did not consider it. Thus, we cannot ascertain the exact contents of the summary-judgment evidence without first determining the date on which the motion was submitted. Due to the somewhat unclear record before us, this determination requires a discussion of the record and procedural background in greater detail than otherwise would be required, a. Notice Notice of a summary-judgment hearing must be in writing. See Tex. R. Civ. P. 166a(c) (motion and any supporting affidavits “shall be filed and served at least twenty-one days before the time specified for hearing”) (emphasis added); Tex. R. Civ. P. 21a (methods of serving notices required by the Texas Rules of Civil Procedure). In the record, we find an “Amended Notice of Oral Hearing on Defendants’ Motions for Summary Judgment” which was filed on December 22, 2004. The first paragraph of the Notice states that the motion is set for oral hearing on Monday, January 31, 2005 at 1:30 p.m. Below the attorney’s signature, however, is a handwritten, unsigned note, “to RESET to 2/7/05[.]” We find no other written notice of a hearing date for this motion in the record. Moreover, the parties do not dispute that the motion was submitted without oral argument on February 7, 2005. b. Proceedings of February 9, 2005 The trial court held a telephone conference on February 9, 2005 during which the Brokers’ motion for partial summary judgment was discussed. In addition, the parties and the trial court discussed the Insureds’ motions to strike the Brokers’ summary-judgment motion on the grounds that the Brokers set the motion for submission after a deadline specified in the court’s docket control order. During this conference, the Brokers argued that the summary-judgment motion was timely because it was originally filed before the date reflected in the docket control order, but had been reset to a date after the deadline. Notably, both the parties and the trial court acknowledged on February 9, 2005 that the motion for partial summary judgment had been submitted and was under submission at that time. The conversation between the parties and the trial court proceeded in pertinent part as follows: Court: I looked at /all's file, and it was very active, so I thought I would just call you and get an agenda of what you thought was on the submission docket for this past Monday or previous to that that you don’t think I’ve ruled on yet. Insureds: Very well, Your Honor. I have a list in front of me. And — and—and [Brokers’ counsel], you might want to check this off as I work through it. I have the following as motions not ruled on:.... Insureds: And then we have Plaintiffs’ motion to strike defendants’ motions for summary judgment! Court: Hold on. Say that again. Insureds: Plaintiffs’ motion to strike defendants’ motions for summary judgment. It’s basically saying the/re out of time — out of — on your docket control order. And then we have the following that was set for February 7 — yeah. This past Monday. — Defendants’ motion to strike Plaintiffs’ pleadings for failure to comply with Court’s order. Defendants’ no-evidence motion for partial summary judgment as to alter ego and sham to perpetrate a fraud. Defendants’ traditional motion for partial summary judgment as to Plaintiffs’ claims premised upon alleged misrepresentation regarding policy provisions. Defendants’ traditional and no-evidence motion for partial summary judgment as to Plaintiffs claims for breach of fiduciary duty. Defendants’ traditional motion for partial summary judgment that Plaintiffs’ negligence and 21.21 claims are time-barred. ... That is a lot, but that’s what’s set, Your Honor. I — I would only point out that — that—that the summary judgment motions that have been set — all of those are the subject of Plaintiffs’ motion to strike as being set outside the time period set forth in your docket control order entered June 26, 2004. Court: [To counsel for the Brokers] How does that list comport with your list? Brokers: I was checking them off as fast as I could, Judge. I — I believe he’s right. Court: Well, I can tell you that I’m not ready to rule on any summary judgment. I have been without a law clerk for a little while, and we’re just getting back up to speed. So if those summary judgments were set this week, do not expect a ruling this week, but as soon as I can. Court: Then the bases to strike the summary judgments is you believe they’re beyond the deadline set in the original scheduling order? Insureds: Yes, Your Honor. It — they— I have a scheduling order entered 6/26/2004, and it says summary judgment motions not subject to interlocutory appeal must be set by December 20, '04. Court: All right. Insureds: And — and these were all set after that. Actually, some were set before and taken down on the day of argument, and then they tried to reset them. One of the motions dealing with limitation has been substantially altered from when it was originally filed, but anyway, that — that’s your drop-dead date. Court: Now, then, the summary judgment motion and motion to strike the summary judgment motions. Court: I’m talking about a motion to strike Defendants’ motions for summary judgment, I thought. The basis was— Insureds: Untimely designation— Court: — untimely— Insureds: — listed— Court: All right. Insureds: Okay. Court: So is that true, and is that something for which the defendants are seeking leave? Brokers: Judge, they were all filed— with the exception of one, which I’ll address later, they were all filed before the DCO cutoff. There was some case law that came out on a Friday before the hearing I thought was really important, and we asked to pass those — that particular hearing and then have them reset. And then I think the other side objected. They wanted, like, another 21 days or something like that. To make a long story short, they’ve been out there since, I think, November, and — you know, so — [ ] Court: Okay. I will work up these summary judgments, but no more. Insureds: Your Honor — there’s—there’s one, in particular, Your Honor. They — they filed a sur-reply to a motion for summary judgment that we’d already responded to, adding a ton of new evidence that was never in their motion, and — and—well, you’ll see the — you’ll see the responses when you see that. But you can’t move for summary judgment on two pieces of correspondence, get a reply, then file a sur-reply adding a ton [of] evidence that you don’t even have 21 days to respond to. Court: So you are telling me that you filed motions for summary judgment before the dead — the deadline? Brokers: Yes, Judge. The only one that was filed after the deadline was the one-satisfaction rule.... Court: All right. Well, I will look at that. I may or may not rule on it. All the others, I will rule on. I can’t tell you when, but as soon as I can get up to speed. So that takes — the motion to strike motion for summary judgment is, basically, denied. Court: I think we got through our list. So I haven’t signed any orders. If anybody wants me to sign an order— I’ve taken some notes, and it’s all on the record. And then I’ll see y’all at the bond hearing on February 25th, at which time, I may be able to give you a time when I might ... have looked at your summary judgments because I’ve got some new clerks starting that will help me move that paper. (emphasis added). In sum, all parties understood at the conclusion of this conference on February 9, 2005 that the Brokers’ motion for partial summary judgment was submitted without oral argument on February 7, 2005. The trial court stated that it would “work up” the motion and rule on it. Nevertheless, the Brokers did not seek leave to file additional summary-judgment evidence or raise additional grounds for summary judgment less than 21 days before the submission date. As the Brokers characterized these events, “[the Brokers] reset the summary judgment hearing for February 7, 2005.... Twelve days before the hearing, the [Brokers] answered the special exceptions, filed additional evidence which proved that the claim was time[-]barred, and otherwise replied to [the Insureds’] response.” c. Status Conference of March 18, 2005 The dispute concerning the submission date — and thus, the timeliness of the reply evidence — arises from the manner in which the trial court announced the ruling on the motion on March 18, 2005. At a status conference more than five weeks after the motion for partial summary judgment was submitted, the trial court stated as follows: I called this party today for a status conference.... All of the motions that are pending that are based on untimeliness for documents that have been filed over 30 days will be denied, and those pleadings, those expert lists, et cetera, will be allowed to stand, but this is not an opportunity to open up any other deadlines for any other purposes. And then the big news for today — you know that I have put on this morning’s submission docket, on the Court’s motion, the motion for summary judgment on the statute of limitations, and I have reviewed that, and I am granting that motion. That goes — as to negligence, negligent misrepresentation, negligent supervision, and Article 21.21.[ ] (emphasis added). Significantly, the trial court did not withdraw the pending summary-judgment motion from its earlier submission. Thus, in evaluating the statement emphasized above, we cannot disregard the undisputed — and conflicting — fact that the motion was submitted more than five weeks earlier and had remained continuously under submission since that time. Taken literally, the trial court’s verbal announcement cannot be reconciled with the fact that the motion for partial summary judgment was already under submission. In addition, the trial court’s statement conflicts with the Texas Rules of Civil Procedure requiring written notice of a summary-judgment hearing. The Insureds alerted the trial court that the motion was already under submission and attempted to clarify the identification of documents that had already been committed to the trial court’s review. Compounding the problem, however, the trial court’s materials at the March 18, 2005 status conference were incomplete: Insureds: May I hear from you again— I — I was not listening as closely as I should have. — exactly what have you granted the summary judgment on? Court: I’ll give you a copy of this order. Insureds: Okay. Your Honor, may I also ask— Court: Uh-huh. Insureds: Did you — in terms of all the pleadings that were before you, did you — did you have — there was a motion that was filed. We filed a response to it. Then there was a reply that added a bunch of new evidence, and then we filed a reply to that objecting to it. Has all that been considered? Do we — I just want to make sure you had complete briefing. Court: Now, let’s see. I had this. I had this. I had that; although, that doesn’t seem to be a file-stamped copy of that. Insureds: The motion— Court: I had — and—well, that’s different. ... I have motions for continuance going back the other way, but it’s not a response to — in this folder, that’s all I have that speaks to that. Insureds: So you don’t have our reply [sic] to their motion for summary judgment.[] All — all—what—what you have is their motion for summary judgment, no reply by us, their reply to our reply, and our sur-reply to their reply. Court: Okay. And so— Insureds: So we’re — you’re missing our response. Court: Which was filed when? Insureds: It would’ve been filed ... February 7th, Your Honor. Clerk: It’s probably in that stack. Court: Okay. Well, hang on a second .... See if [the law clerk] can find it. Insureds: Okay. And— Court: I’ll certainly— Special Master: In— Court: Yeah. Special Master: — the notebooks they provided me, I know I’ve got it. Court: Okay. I’m going to make sure. Insureds: And — and Your Honor, there’s also — we filed a document called Plaintiffs’ special exceptions and response to their motion for summary judgment. Court: And that’s not something you just — I’ve seen this— Insureds: Yeah. Court: — before. Insureds: And we would need a— Court: But didn’t they then file their reply, basically, in answer to your special exceptions? I mean — and your special exceptions were, basically, “I don’t understand”? Insureds: Our — our special exceptions were — were, basically, this: How can you, you know, say that — for example, part of our fraud claim is that they represented — the Sovereign was one of our insurers — okay?—which—and we didn’t even find out the [sic] Sovereign had gone out of business — one of the 21.21 claims was that the Sovereign was represented to be one of our insurers, and we didn’t even know the Sovereign had gone out of business until — as you know, we were into that Lexington case for years. Court: Right. Well, let me just say— and I’m happy to look back at anything that I may not have had in this blue file. Although, that doesn’t mean I’ve never read it; it just isn’t in this file. And I will tell you that under Texas law, anyway, the Supreme Court and the appellate courts have rarely found there to be situations in which the facts are inherently undiscovera-ble....[ ] I think I’ve taken into consideration everything that you have. The only thing that might be a little fuzzy is what facts go to what cause of action .... Insureds: Your Honor — I know that you have to run, but — but I just want to make sure that — that I have— Court: I will re — I will relook at those things, but I would not get my hopes up that I’m going to change my mind. As you know, that doesn’t happen frequently. Insureds: I — I—and I know not to try the Court’s patience in that regard. Would you at least allow us to — to file a motion to ask you to consider a certain— Court: You can always file a motion to reconsider — it’s always put on the submission docket. Insureds: Okay. Okay. Court: — and I will do that. Insureds: Have you overruled our special exceptions? Court: Did you have an order? Insureds: No. We had an order granting them.[ ] Go ahead and— Court: Okay. I — I have not overruled your special exceptions because I assumed that this reply that — again, this is not a file-marked copy, which — I believe somewhere in the body of the reply — said because of the special exceptions, we’re filing this to clear things up for you.[ ] Insureds: But — but the problem is that that was filed with less than 10 days [sic] before the submission date.[] Court: Right. Insureds: And we’re entitled to 21 days. Court: Okay. I bet it was more than 21 days before March 18th. Insureds: It’s true but it was not 21 days before the submission date, which is the date on which we filed our sur-reply— Court: That’s— Insureds: — to that— Court: You know— Insureds: — reply. Court: I mean, that’s — that’s—that’s great, and the fact that the Court has, on its own motion, set this — March 18th as a hearing date, with — which is less than 21 days — that may give you an appeal point. I don’t know. Insureds: Well, I’m trying the case to win it, not for appeal, Your Honor. But— Court: You know— Insureds: But— Court: A win’s a win. Insureds: May we — may we — may we— Court: A win’s a win. If you want to do some — you know, if you want to have a motion to reconsider— Insureds: May we? Court: You know, since we’re — since we’re going to be in trial here together for quite some time, I don’t mind— I don’t mind reading it. Insureds: Thank you. (emphasis added). Thus, the Insureds repeatedly reminded the trial court that the summary-judgment motion was already under submission at the time of the status conference. Within a week, the Insureds argued the same grounds in their Motion for Reconsideration. d.Order Granting Summary Judgment In the meantime, the trial court signed the order granting summary judgment. In the order, the trial court stated, “Having considered the Motion and Response and the arguments of counsel, the Court is of the opinion that the Motion is well[-]founded and should be GRANTED.” Notably, the trial court did not include the Brokers’ reply among the list of items considered. And, although the Brokers later filed an untimely motion for modification of the judgment to indicate that the trial court considered their reply, the Brokers did not argue that the trial court’s statements at the March 18, 2005 status conference reset the submission date on the motion and rendered their reply timely. Instead, they argued that the reply was timely because the trial court denied the Insureds’ motion to strike. This argument, however, is without merit. See Dixon v. E.D. Bullard Co., 138 S.W.3d 373, 376 n. 2 (Tex.App.-Houston [14th Dist.] 2004, pet. granted, judgm’t vacated w.r.m.) (the denial of a motion to strike is not the equivalent of leave to file the contested evidence). The trial court did not grant the motion. e. Motion for Reconsideration On April 5, 2005, the trial court heard argument on the Insureds’ motion for reconsideration and concluded: I’m not yet convinced to change my ruling on the negligence causes of action. ... And by the way, even though no one really mentioned it, I’m not going to consider the statute of limitations arguments that were in your reply. I’m going to limit it to the matter of law that you raised in your initial motion. So I’m going to take care of that.... (emphasis added). Although the Insureds did not devote any of their time at this hearing to their argument that the motion for summary judgment was submitted on February 7, 2005 and the reply evidence therefore was untimely, this issue was briefed in their motion for reconsideration. Thus, we understand the trial court’s statement as a response to the arguments presented in the Insureds’ briefing. f. Reply Evidence Untimely Reviewing all of the foregoing, we conclude, for several reasons, that the Brokers’ motion for partial summary judgment was submitted to the trial court on February 7, 2005, and the untimely evidence attached to the Brokers’ reply is not part of the summary-judgment record. First, the record establishes that the motion for summary judgment was submitted on February 7, 2005; this fact was confirmed by the parties on February 9, 2005. The Brokers do not contend that the motion was ever withdrawn from submission prior to its disposition, nor have we found any evidence in the record that this occurred. Consequently, the trial court’s statement purporting to simultaneously set and rule on the motion in a single sentence cannot be given full effect. Cf. Int’l Ins. Co. v. Herman G. West, Inc., 649 S.W.2d 824, 826-826 (Tex.App-Fort Worth 1988, no writ) (setting aside summary judgment that was “[i]n [one] breath ... set and heard instanter all in one fell swoop”). Neither the Brokers nor we have located precedent in which a trial court, acting silently and sua sponte, has withdrawn a pending summary-judgment motion from consideration only to surprise the parties by spontaneously resubmitting the motion when the parties appeared for a status conference. In addition, the trial court stated at the hearing on the motion for reconsideration that it did not consider the statute-of-limitations arguments contained in the reply. Because the Brokers moved for partial summary judgment on the ground that the Insureds’ claims were barred by limitations, further timely elaboration of the same grounds would have been properly considered by the trial court. Indeed, because the Brokers moved for partial summary judgment solely on the ground that the Insureds’ claims were barred by the two-year statute of limitations, this was the only basis for summary judgment that the trial court could properly consider. See McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 339 (Tex.1993) (plurality op.) (“The motion for summary judgment must itself state specific grounds on which judgment is sought.... The motion for summary judgment must stand or fall on the grounds it specifically and expressly sets forth.... ”). Thus, if the true submission date were March 18, 2005, then the Brokers’ reply would have been timely, and the trial court properly could have considered the statute-of-limitations argument contained in the reply. But if, as we conclude, the motion was submitted on February 7, 2005, then the reply evidence offered in support of the limitations argument was untimely, and thus, properly excluded from consideration. Our conclusion that the trial court did in fact decline to consider this evidence is consistent with the order on the judgment, in which the trial court stated that the motion and response were considered, but did not mention the reply. See K-Six Television, Inc. v. Santiago, 75 S.W.3d 91, 96 (Tex.App.-San Antonio 2002, no pet.). In K-Six Television, the non-movant filed responses to separate motions for traditional and no-evidence summary judgment, followed by an untimely amended response to the no-evidence motion. Id. Upon review, the Fourth Court of Appeals noted that, in its order on each motion, the trial court recited that it considered the response, but did not state that it considered the amended response. Id. The appellate court’s refusal to consider the amended response accorded with the unrebutted presumption that the trial court did not consider a response that was filed late without leave to do so. See id. Here, too, the language of the order on the motion for partial summary judgment supports the presumption that the trial court did not consider the reply evidence that was filed late and without leave of court. And although permission to file a late response may be reflected in a “separate order,” “a recital in the summary judgment,” or an oral ruling contained in the reporter’s record of the summary-judgment hearing, none of those are present here. On this record, we decline to hold that the presumption that the trial court did not consider late-filed evidence has been rebutted by the trial court’s statement that it “put on this morning’s submission docket, on the Court’s motion, the motion for summary judgment on the statute of limitations....” 4. Brokers’ Failure to Disprove Application of Discovery Rule At a minimum, grounds for summary judgment must be mentioned in the motion. Roberts v. Sw. Tex. Methodist Hosp., 811 S.W.2d 141, 145-46 (Tex.App.-San Antonio 1991, writ denied). Thus, we cannot affirm summary judgment for reasons not expressed in the motion, even if the evidence would support judgment on that basis. See id. (“When a motion for summary judgment asserts grounds A and B, it cannot be upheld on grounds C and D, which were not asserted, even if the summary judgment proof supports them and the responding party did not except to the motion.”). a. Failure to Prove Dates on Which Claims Accrued Here, the Brokers challenged the Insureds’ claims of negligence, negligent supervision, negligent misrepresentation, and violations of article 21.21 of the Texas Insurance Code on the sole ground that these claims are baired by limitations, and the trial court acknowledged that it did not consider the limitations arguments stated in the Brokers’ reply. On this record, we conclude that the Brokers failed to conclusively establish their right to summary judgment on these claims. A defendant moving for summary judgment on limitations grounds has the burden to prove the date on which the cause of action accrued. KPMG Peat Marwick v. Harrison County Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex.1999). Generally, the determination of this date is a question of law. Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 221 (Tex.2003). In most cases, a cause of action accrues and the statute of limitations begins to run when a wrongful act causes a legal injury, even if the fact of injury is not immediately discovered. Id.; Franco v. Slavonic Mut. Fire Ins. Ass’n, 154 S.W.3d 777, 789 (Tex.App.-Houston [14th Dist.] 2004, no pet.) (citing Moreno v. Sterling Drug, Inc., 787 S.W.2d 348, 351 (Tex.1990)). But, if the discovery rule applies and has been invoked by the plaintiff, a defendant moving for summary judgment on the affirmative defense of limitations has a “dual burden.” The defendant then must not only conclusively prove when the cause of action accrued, but also must establish, as a matter of law, that there is no genuine issue of material fact about when the plaintiff discovered, or in the exercise of reasonable diligence should have discovered, the nature of its injury. KPMG Peat Marwick, 988 S.W.2d at 748; Burns v. Thomas, 786 S.W.2d 266, 267 (Tex.1990). Here, the Brokers’ motion for partial summary judgment is directed at only half of their burden. Although the Insureds invoked the discovery rule in their pleadings, the Brokers did not assert in their motion that the discovery rule is inapplicable. Instead, the Brokers argued and offered evidence that the Insureds knew, by May 12, 1999, that the two Lexington primary policies were wasting policies. As the Insureds point out, this evidence failed to establish the date of accrual of any of their negligence claims — even those arising from the Brokers’ placement of the two primary Lexington CGL policies. Likewise, the Brokers did not argue or demonstrate that the discovery rule is inapplicable to the Insureds’ claims pursuant to article 21.21 of the Insurance Code. See Tex. Ins. Code Ann. art. 21.21, § 16(d) (Vernon Supp.2001) (“All actions under this Article ... must be commenced within two years after the person bringing the action discovered or, in the exercise of reasonable diligence, should have discovered the occurrence of the unfair method of competition or unfair or deceptive act or practice.”). b. No Subsequent Findings Render Error Harmless Relying on Progressive County Mutual Insurance Co. v. Boyd, the Brokers respond that any error in the partial summary judgment was harmless because evidence offered at trial proved that the Insureds’ claims were time-barred. See 177 S.W.3d 919, 921 (Tex.2005) (per cu-riam) (noting that “a trial court’s erroneous decision to grant summary judgment can be rendered harmless by subsequent events in the trial court”). Because this argument applies somewhat differently to the various insurance policies, we discuss the 1991 and 1992 placements separately from the 1993 and 1994 policies. (i) 1991 and 1992 Placements At the outset, we note that the facts of Boyd, on which the Brokers rely, differ significantly from those presented here. In Boyd, a jury found that the insured lacked coverage for the asserted claim; thus, the insurer had no liability on the insured’s extracontractual claims as a matter of law, and the Boyd court held that any error in granting the summary judgment was harmless. Id. at 921-23. Here, the Insureds filed suit against their Brokers, and neither the trial court nor the jury made findings concerning coverage under the 1991 or 1992 placements. Thus, unlike the circumstances presented in Boyd, there are no findings to measure against the summary judgment to determine if error in the judgment was harmless. The Brokers next contend that, to recover under article 21.21, the Insureds were required to prove that the British American insurers failed to pay a covered claim. According to the Brokers, the Insureds failed to meet this burden of proof at trial. But this argument is also unavailing. Because the trial court granted summary judgment as a matter of law on the Insureds’ claims under this provision, these claims were not litigated at all. Thus, no findings were made or rulings rendered concerning coverage under these placements. (a) No Proof of Settlement The Brokers also argue that contribution by the British American insurers to the settlement of the underlying claim establishes, as a matter of law, that the British American insurers did not fail to pay a covered claim. Contrary to the Brokers’ suggestion, however, the record does not establish that all of the British American insurers contributed to the settlement of the Derrick litigation, or that the Insureds settled their coverage claims against all of the British American insurers. Thus, even assuming without deciding that the Insureds’ claims against the Brokers arising under article 21.21 in connection with the 1991 and 1992 placements would be extinguished if all of the British American insurers contributed to the settlement and the Insureds released their claims against all of these insurers, these facts have not been established on the record. (b) “One Satisfaction Rule” Argument Not Preserved In a related argument, the Brokers contend that the Insureds’ claims against them are barred by the “one satisfaction rule.” Under this rule, nonsettling defendants may claim a credit based on the damages for which all tortfeasors are jointly liable and for which the plaintiffs have already received payment. See Crown Life Ins. Co. v. Casteel, 22 S.W.3d 378, 391 (Tex.2000). The Brokers argue that the Insureds’ settlements with some of the insurers effectively relieved the Brokers of liability, if any, arising from their sales to the Insureds. The Brokers, however, have not established the applicability of the “one-satisfaction rule” as a matter of law; thus, we cannot affirm the judgment on this basis. For example, in their settlements with Lexington Insurance Company, American International Group, Inc., Risk Specialists Companies, Inc., Southern Risk Specialists, Inc., Landmark Ins. Co., and American International Specialty Lines Insurance Company in connection with policies 5535615, 5108647, 200499, 200501, and AH9900384, the Insureds expressly reserved their claims against the Brokers. The Insureds similarly reserved their claims against the Brokers when settling the liability, if any, of the British American insurers under policies 92BAGL145, 92BA519, and 92BA236, effective in 1992-93. In their briefing, however, the Brokers make no distinction between settlement agreements that contain such reservations and those that do not. See Tex. R. Afp. P. 38.1(h); 38.2(a). In sum, we conclude that the trial court’s error in granting summary judgment concerning the 1991 and 1992 placements was not rendered harmless by subsequent events demonstrated in the record. We therefore reverse the portion of the judgment concerning the Insureds’ claims of negligence, negligent supervision, negligent misrepresentation, and violation of article 21.21 of the Insurance Code arising in connection with the 1991 and 1992 British American placements. (ii) The 1993 and 1994 Placements As previously discussed, the Brokers asserted that the Insureds’ claims for negligence, negligent misrepresentation, negligent supervision, and violations of article 21.21 accrued on May 12,1999, when Lexington’s attorney first notified the Insureds that defense costs reduced their insurance limits. The correspondence from Lexington on which the Brokers rely only addresses coverage under Lexington’s primary policies; none of the correspondence addresses the Lexington umbrella policies. Thus, the Brokers have failed to conclusively establish their right to summary judgment regarding the umbrella policies. Regarding the Lexington CGL policies, the Insureds responded that limitations concerning the 1998 and 1994 placements did not begin to run until the day Lexington denied coverage or the day the Insureds became liable to pay a judgment or settlement in excess of policy limits, because the mere potential exhaustion of primary policy limits before judgment or settlement was not an injury-producing event. Generally, the injury-producing event in a first-party insurance claim occurs when an insurer unreasonably fails to pay an insured under the policy. Murray v. San Jacinto Agency, Inc., 800 S.W.2d 826, 829 (Tex.1990). The Brokers acknowledged this proposition in their motion, arguing that “all facts required for a cause of action existed no later than when the Lexington policy limits were exhausted, and not when the ... declaratory judgment action regarding coverage was resolved at a later date.” Nevertheless, the Brokers’ motion was not supported by evidence establishing that the limits of the Lexington policies were exhausted more than two years before the Insureds filed suit. On appeal, the Brokers argue that because the Insureds are charged with knowledge of the policies’ contents, the challenged claims against Lexington accrued on the dates in 1993 and 1994 on which the Insureds purchased the respective policies. In support of this argument, the Brokers rely on Mauskar v. Hardgrove, No. 14-02-00756-CV, 2003 WL 21403464 (Tex.App.-Houston [14th Dist.] June 19, 2003, no pet.) (mem.op.) (holding that limitations on an insured’s claims of negligent procurement, negligent misrepresentation, and violations of the Insurance Code and Deceptive Trade Practices Act began to run when insured purchased life insurance coverage, and the discovery rule did not apply because the nature of the injury was not inherently undiscoverable). But see All-Tex Roofing, 73 S.W.3d at 415-16 (holding that insured’s causes of action against a broker for negligence and DTPA violations based on the broker’s actions in placing insurance with an insolvent insurer did not accrue until the insurer should have paid a claim but failed to do so). In Mauskar, it was undisputed that the insured would have discovered the misrepresentations by reading the policies; the summary-judgment evidence demonstrated that the insured received written descriptions of the policies, but simply failed to read them. Mauskar, 2003 WL 21403464, at *3. But here, as in All-Tex, the insolvency of the insurers was not evident from any policies, cover notes, or descriptions received by the Insureds. Moreover, reading the policies or the cover notes would not reveal that Guidry was not licensed to sell surplus-lines policies in Texas, or that better insurance was available. Thus, the facts of this case are readily distinguishable from those in Mauskar and more closely resemble the facts in All-Tex. For the reasons discussed above, we conclude that the trial court erred in granting partial summary judgment on the grounds and summary-judgment evidence presented. On this record, the Brokers have failed to conclusively establish that the Insureds’ claims of negligence, negligent supervision, negligent misrepresentation and violations of section 21.21 of the Texas Insurance Code are time-barred. We therefore reverse that portion of the final judgment incorporating the trial court’s partial summary judgment based on limitations. B. Brokers’ Motion for Directed Verdict on Insureds’ Claims for Breach of Fiduciary Duty In their second issue, the Insureds argue that the trial court erred in granting the Brokers a directed verdict on the Insureds’ claims for breach of fiduciary duty because the Insureds raised fact issues regarding the existence of a formal or an informal fiduciary relationship. In a subsidiary argument, the Insureds contend that the statute of limitations was tolled because a fiduciary relationship exists and it is presumed that their injury was inherently undiscoverable. 1. Standard of Review Judgment without or against a jury verdict is proper at any course of the proceedings only when the law does not permit reasonable jurors to decide otherwise. City of Keller v. Wilson, 168 S.W.3d 802, 823 (Tex.2005). Accordingly, the test for legal sufficiency is the same for summary judgments, directed verdicts, judgments notwithstanding the verdict, and appellate no-evidence review. Id. When reviewing the legal sufficiency of the evidence, we consider the evidence in the light most favorable to the Insureds and indulge every reasonable inference that would support it. See id. We must credit favorable evidence if a reasonable factfin-der could and disregard contrary evidence unless a reasonable factfinder could not. See id. at 827. We must determine whether the evidence at trial would enable reasonable and fair-minded people to find the facts at issue. See id. The factfinder is the only judge of witness credibility and the weight to give to testimony. See id. at 819. 2. Formal Fiduciary Relationship The Insureds first argue that a determination of whether a broker is an agent of the insured is a question of fact. According to the Insureds, they raised a fact issue concerning whether the Brokers had a formal fiduciary relationship with the Insureds. The Insureds rely on case law in which courts note that an insurance agent “acts for the insured in making the application for insurance and processing the policy” and on non-insurance cases addressing the duties generally owed by an agent to his principal. Although the existence of facts giving rise to a fiduciary duty is a question for the factfinder’s determination, the issue of whether those facts give rise to a formal fiduciary relationship is a question of law. See Brewer & Pritchard, P.C. v. Johnson, 7 S.W.3d 862, 867 (Tex.App.Houston [1st Dist.] 1999), aff'd, 73 S.W.3d 193 (2002); Fuqua v. Taylor, 683 S.W.2d 735, 737-38 (Tex.App.-Dallas 1984, writ ref'd n.r.e.). “ ‘[N]ot every relationship involving a high degree of trust and confidence rises to the stature of a fiduciary relationship.’ ” Meyer v. Cathey, 167 S.W.3d 327, 330 (Tex.2005) (quoting Schlumberger Tech. Corp. v. Swanson, 959 S.W.2d 171, 176-77 (Tex.1997)). The Insureds cite no case recognizing a formal fiduciary relationship between an insured and its insurance broker, or the agency employing the broker, or the owner of the agency. In contrast, the Brokers support their argument that they did not owe any fiduciary duties to the Insureds with Choucroun v. Sol L. Wisenberg Insurance Agency-Life & Health Division, Inc. and the cases cited therein. Significantly, the Insureds did not bring forward any evidence in their case-in-chief that a fiduciary relationship existed between the parties. On appeal, the Insureds argue generally that “[t]he trial record speaks for itself and contains ample evidence of Defendants’ fraud, breach of fiduciary duty[,] and statutory violations. Plaintiffs cannot replicate herein the extensive documents and days of testimony admitted to the jury.” The Insureds contend that a formal fiduciary relationship existed because the Brokers (a) “selected and recommended insurers and coverage” to the Insureds, (b) “prepared and processed” the Insureds’ applications for insurance, and (c) procured the policies and delivered them to the Insureds in Texas. In support of these contentions, the Insureds primarily rely on testimony from Mary Wallace, the Insureds’ employee who testified that her “main responsibilities” were to handle “human resources/benefits,” but that she also “was more or less just the liaison between Environmental Procedures and the Dwight Andrus insurance agency [and] George Guidry[.]” But Wallace was not “the decision-maker regarding insurance” for the Insureds. Wallace testified, “We looked towards George Guidry as our trusted advisor. It was his expertise in the insurance industry. That was his business. We looked for him on what we needed to do to have insurance for our business.” Wallace stated that Guidry “selected the [insurance] companies[,]” and she described the insurance application process as follows: The preliminary preparation was normally done in Andrus’s office.... Then it was brought to Houston, along with the presentation, and then the balance of it — it was reviewed. If there was [sic] any changes to be made, any additions to be made to it, then it was changed, and then ultimately, it was signed by ... the secretary/treasurer of the [appellant] eorporation[s]. After reviewing the evidence, we conclude that reasonable and fair-minded people could not conclude that a formal fiduciary relationship existed between the Brokers and Insureds. See Pickens, 836 S.W.2d at 805 (stating that an insurance agent has no duty to procure additional coverage for a customer “merely because the agent has knowledge of the need for additional insurance of that customer, especially in the absence of evidence of prior dealings where, the agent customarily has taken care of his customer’s needs without consulting him” (emphasis added)). A formal fiduciary relationship is one created by law or by the nature of the contract between the parties. Peckham v. Johnson, 98 S.W.2d 408, 416 (Tex.Civ.App.-Fort Worth 1936), aff'd, 132 Tex. 148, 120 S.W.2d 786 (1938). The existence of a formal fiduciary relationship is determined by the relationship between the parties, and if such a relationship is established, questions of whether one party relied on or confided in the other are immaterial. Johnson v. Peckham, 132 Tex. 148, 151-52, 120 S.W.2d 786, 788 (1938) (addressing the formal fiduciary relationship of partners). In this case, however, the Insureds cite no binding precedent recognizing a formal fiduciary relationship under similar facts, and our own research has revealed none. Courts do not create fiduciary relationships lightly. Schlumberger Tech. Corp., 959 S.W.2d at 177. And as an intermediate appellate court, we decline to extend the set of formal fiduciary relationships to encompass the relationship of an insurance agent, agency, or broker to a client. See T.F.W. Mgmt., Inc. v. Westwood Shores Prop., 79 S.W.3d 712, 720 (Tex.App.-Houston [14th Dist.] 2002, pet. denied) (declining to create a fiduciary duty requiring the owner of a country club to provide an accounting to a property owners’ association of fees the association provided to the club); Emscor Mfg., Inc. v. Alliance Ins. Group, 879 S.W.2d 894, 910 (Tex.App.-Houston [14th Dist.] 1994, writ denied) (“It is not for an intermediate appellate court to create new causes of action.”). 3. Informal Fiduciary Relationship The Insureds also contend that the trial court erred in granting a directed verdict regarding the Insureds’ breach-of-fiduciary-duty claims because the evidence raised questions of fact regarding whether an informal fiduciary relationship existed between the parties. When a business transaction is involved, “the special relationship of trust and confidence must exist prior to, and apart from, the agreement made the basis of the suit.” Associated Indem. Corp. v. CAT Contracting, Inc., 964 S.W.2d 276, 288 (Tex.1998). After reviewing the record under the applicable standard of review, we conclude that the evidence would not permit reasonable and fair-minded people to conclude that a confidential relationship existed between the Insureds and Brokers prior to the transactions which are the subject of the Insureds’ claims. We overrule the Insureds’ second issue; hence, we do not reach their subsidiary argument that when a fiduciary relationship exists, it is presumed that the injury caused by a breach of fiduciary duty is inherently undiscoverable, which thereby tolls the statute of limitations. C. Insureds’ Motion for Judgment Notwithstanding the Verdict 1. Standard of Review In their third issue, appellants contend the trial court erred in failing to render judgment notwithstanding the verdict (“JNOV”) on appellants’ claims under the Unauthorized Insurance Act because it is undisputed that the Act applies to the 1991 and 1992 British American placements and the evidence conclusively establishes that the “independent procurement” exception does not apply as a matter of law. Judgment notwithstanding the verdict is proper when (a) a defect in the opponent’s pleadings makes the pleadings insufficient to support a judgment, (b) the evidence conclusively proves a fact that establishes a party’s right to judgment as a matter of law, or (c) the evidence offered on a cause of action is insufficient to raise an issue of fact. Apache Corp. v. Dynegy Midstream Servs., Ltd., 214 S.W.3d 554, 559 (Tex.App.-Houston [14th Dist.] 2006, pet. granted). In analyzing the trial court’s ruling on a JNOV motion, we consider the evidence in the light most favorable to the verdict, crediting favorable evidence if reasonable jurors could, and disregarding contrary evidence unless a reasonable juror could not. Id. at 558-59. 2. No Independent Procurement Under the Act, an insurance contract effective in this state an