Carmen Aleman v. Standard Casualty Company
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Opinion
Opinion issued August 26, 2025
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-23-00572-CV ——————————— CARMEN ALEMAN, ERIC B. DICK, AND THE DICK LAW FIRM, PLLC, Appellants V. STANDARD CASUALTY COMPANY, Appellee
On Appeal from the County Civil Court at Law No. 3 Harris County, Texas Trial Court Case No. 1188597
MEMORANDUM OPINION
Appellants, Carmen Aleman, Eric B. Dick, and the Dick Law Firm, PLLC
(the “Dick Law Firm”) (collectively, “appellants”), challenge the trial court’s
rendition of summary judgment and award of sanctions in favor of appellee, Standard Casualty Company (“Standard”), in Aleman’s suit against Standard for
breach of contract, breach of the duty of good faith and fair dealing, fraud, and
violations of the Texas Deceptive Trade Practices Act (“DPTA”) and the Texas
Insurance Code. In three issues, appellants contend that the trial court erred in
granting summary judgment, sanctioning appellants, and awarding Standard
attorney’s fees.
We affirm in part and reverse and remand in part.
Background
In her first amended petition, Aleman alleged that she owned a residential
property in Katy, Texas (the “property”) that was insured by Standard from
December 12, 2019 to December 12, 2020. According to Aleman, on or about
October 23, 2020, the property was damaged “as a result of a wind and hail storm.”
Aleman submitted a claim to Standard for the damage caused on October 23, 2020,
estimating $67,851.78 as the amount of damage to the property. Aleman alleged
that Standard refused to pay her the “full” amount she was owed under her policy.
Aleman brought claims against Standard for breach of contract, breach of the
duty of good faith and fair dealing, fraud, and violations of the DPTA1 and the Texas
Insurance Code. Aleman sought damages and attorney’s fees.
1 See TEX. BUS. & COM. CODE ANN. §§ 17.01–.955.
2 Standard answered, generally denying the allegations in Aleman’s petition
and asserting that Aleman “ha[d] not presented a covered loss for . . . damage that
occurred within the policy period” and Standard had already paid for Aleman’s
“separate claim for wind damage to [the property’s] roof.”
Standard then moved for summary judgment on Aleman’s claims against it.
Standard asserted that it was entitled to judgment as a matter of law on Aleman’s
claims for breach of contract, breach of the duty of good faith and fair dealing, and
violations of the Texas Insurance Code and there was no evidence to show that
Standard breached the duty of good faith and fair dealing, violated the DTPA, or
committed fraud. In its motion, Standard explained that on February 9, 2021,
Aleman presented “a claim to Standard for a loss occurring on or about October 23,
2020 for damage to the [p]roperty allegedly from hail.” The property was then
inspected on February 11, 2021.
The insurance adjuster who inspected the property “found no evidence of hail
or wind damage to the roof or exterior” of the property. The adjuster also “found no
evidence of wind damage to [Aleman’s] fence or gazebo and no evidence of any
covered loss for the various damages found on the interior of the home.” According
to the adjuster, the property had “rotted decking on the roof’s right slope,” “missing
shingles on the right and left front gable,” “left-rear hip on [the] right slope,” and
“missing shingles on a portion of the ridge showing weathered exposed decking.”
3 The damage was found to be preexisting and “not caused by a named peril” under
Aleman’s policy. The adjuster’s interior inspection found “damage in the game
room right below the damaged ridge on the roof as well as in the hall bathroom
ceiling.” Because such damage had “resulted from a repeated event,” it was not
covered by Aleman’s policy. According to the adjuster, any damage “to the
downspouts and the fence post [was] not caused by hail or any covered event.”
Although there was “hail damage to some window beading, weather reports clearly
demonstrated that no hail [had] occurred on or near the [p]roperty during the [p]olicy
period.” On February 24, 2021, Standard notified Aleman by letter that her claim
related to the purported October 23, 2020 weather event was not covered by her
policy.
In the matter-of-law portion of its summary-judgment motion, Standard
argued that Aleman could not recover on her breach-of-contract claim as a matter of
law because Aleman could not establish that she suffered hail damage to the property
and that “the cost for repairs of the purported hail damage [was] in excess of her
deductible.” Standard also could not breach its insurance policy with Aleman if
Aleman did not have damages to the property that were covered by her policy.
Further, Standard explained that Aleman could not recover for violations of the
Texas Insurance Code under chapters 541 and 542 because if Standard did not breach
the insurance policy, then it could not have violated the “unfair practices” provisions
4 of the Texas Insurance Code. Aleman could also not establish that Standard acted
in bad faith in handling her claim.
As to Aleman’s claim for breach of the duty of good faith and fair dealing,
Standard argued that it was entitled to judgment as a matter of law on that claim
because “[t]he undisputed evidence establishe[d] that Standard acted reasonably in
denying [Aleman’s] hail claim and . . . there was a bona fide dispute as to whether
the [p]roperty suffered hail damage in excess of [Aleman’s] deductible.” An insurer
breaches the duty of good faith and fair dealing “by denying or delaying payment of
a claim” when it “knew or should have known it was reasonably clear the claim was
covered,” and, here, Aleman could not establish that Standard had acted in bad faith.
(Internal quotations omitted.)
In the no-evidence portion of its summary-judgment motion, Standard argued
that Aleman could not recover on her claim for breach of the duty of good faith and
fair dealing because Aleman had no evidence that Standard breached its duty. As to
Aleman’s claim for violations of the DTPA, Standard asserted that Aleman had no
evidence that Standard represented that any goods or services had characteristics,
benefits or qualities that they did not have, Standard represented that Aleman’s
policy conferred rights and remedies that it did not, Standard failed to disclose
information concerning Aleman’s policy that was known at the time of purchase and
the failure to disclose was intended to induce Aleman into a transaction which she
5 would not have otherwise entered, Standard engaged in unconscionable conduct, and
that any act by Standard proximately caused Aleman damages. And as to Aleman’s
fraud claim, Standard asserted that Aleman had no evidence that Standard operated
in reckless disregard for Aleman in the course of handling her claim, made false
statements, misrepresented material facts, engaged in fraudulent acts for the purpose
of misleading Aleman as to actual damages resulting from the storm, had knowledge
of any alleged false statements or made any statement recklessly without any
knowledge of the truth and as a positive assertion, and made any misrepresentation
that Aleman acted upon. Standard also asserted that Aleman had no evidence that
she acted in reliance on any alleged misrepresentation or that she suffered any injury
Free access — add to your briefcase to read the full text and ask questions with AI
Opinion issued August 26, 2025
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-23-00572-CV ——————————— CARMEN ALEMAN, ERIC B. DICK, AND THE DICK LAW FIRM, PLLC, Appellants V. STANDARD CASUALTY COMPANY, Appellee
On Appeal from the County Civil Court at Law No. 3 Harris County, Texas Trial Court Case No. 1188597
MEMORANDUM OPINION
Appellants, Carmen Aleman, Eric B. Dick, and the Dick Law Firm, PLLC
(the “Dick Law Firm”) (collectively, “appellants”), challenge the trial court’s
rendition of summary judgment and award of sanctions in favor of appellee, Standard Casualty Company (“Standard”), in Aleman’s suit against Standard for
breach of contract, breach of the duty of good faith and fair dealing, fraud, and
violations of the Texas Deceptive Trade Practices Act (“DPTA”) and the Texas
Insurance Code. In three issues, appellants contend that the trial court erred in
granting summary judgment, sanctioning appellants, and awarding Standard
attorney’s fees.
We affirm in part and reverse and remand in part.
Background
In her first amended petition, Aleman alleged that she owned a residential
property in Katy, Texas (the “property”) that was insured by Standard from
December 12, 2019 to December 12, 2020. According to Aleman, on or about
October 23, 2020, the property was damaged “as a result of a wind and hail storm.”
Aleman submitted a claim to Standard for the damage caused on October 23, 2020,
estimating $67,851.78 as the amount of damage to the property. Aleman alleged
that Standard refused to pay her the “full” amount she was owed under her policy.
Aleman brought claims against Standard for breach of contract, breach of the
duty of good faith and fair dealing, fraud, and violations of the DPTA1 and the Texas
Insurance Code. Aleman sought damages and attorney’s fees.
1 See TEX. BUS. & COM. CODE ANN. §§ 17.01–.955.
2 Standard answered, generally denying the allegations in Aleman’s petition
and asserting that Aleman “ha[d] not presented a covered loss for . . . damage that
occurred within the policy period” and Standard had already paid for Aleman’s
“separate claim for wind damage to [the property’s] roof.”
Standard then moved for summary judgment on Aleman’s claims against it.
Standard asserted that it was entitled to judgment as a matter of law on Aleman’s
claims for breach of contract, breach of the duty of good faith and fair dealing, and
violations of the Texas Insurance Code and there was no evidence to show that
Standard breached the duty of good faith and fair dealing, violated the DTPA, or
committed fraud. In its motion, Standard explained that on February 9, 2021,
Aleman presented “a claim to Standard for a loss occurring on or about October 23,
2020 for damage to the [p]roperty allegedly from hail.” The property was then
inspected on February 11, 2021.
The insurance adjuster who inspected the property “found no evidence of hail
or wind damage to the roof or exterior” of the property. The adjuster also “found no
evidence of wind damage to [Aleman’s] fence or gazebo and no evidence of any
covered loss for the various damages found on the interior of the home.” According
to the adjuster, the property had “rotted decking on the roof’s right slope,” “missing
shingles on the right and left front gable,” “left-rear hip on [the] right slope,” and
“missing shingles on a portion of the ridge showing weathered exposed decking.”
3 The damage was found to be preexisting and “not caused by a named peril” under
Aleman’s policy. The adjuster’s interior inspection found “damage in the game
room right below the damaged ridge on the roof as well as in the hall bathroom
ceiling.” Because such damage had “resulted from a repeated event,” it was not
covered by Aleman’s policy. According to the adjuster, any damage “to the
downspouts and the fence post [was] not caused by hail or any covered event.”
Although there was “hail damage to some window beading, weather reports clearly
demonstrated that no hail [had] occurred on or near the [p]roperty during the [p]olicy
period.” On February 24, 2021, Standard notified Aleman by letter that her claim
related to the purported October 23, 2020 weather event was not covered by her
policy.
In the matter-of-law portion of its summary-judgment motion, Standard
argued that Aleman could not recover on her breach-of-contract claim as a matter of
law because Aleman could not establish that she suffered hail damage to the property
and that “the cost for repairs of the purported hail damage [was] in excess of her
deductible.” Standard also could not breach its insurance policy with Aleman if
Aleman did not have damages to the property that were covered by her policy.
Further, Standard explained that Aleman could not recover for violations of the
Texas Insurance Code under chapters 541 and 542 because if Standard did not breach
the insurance policy, then it could not have violated the “unfair practices” provisions
4 of the Texas Insurance Code. Aleman could also not establish that Standard acted
in bad faith in handling her claim.
As to Aleman’s claim for breach of the duty of good faith and fair dealing,
Standard argued that it was entitled to judgment as a matter of law on that claim
because “[t]he undisputed evidence establishe[d] that Standard acted reasonably in
denying [Aleman’s] hail claim and . . . there was a bona fide dispute as to whether
the [p]roperty suffered hail damage in excess of [Aleman’s] deductible.” An insurer
breaches the duty of good faith and fair dealing “by denying or delaying payment of
a claim” when it “knew or should have known it was reasonably clear the claim was
covered,” and, here, Aleman could not establish that Standard had acted in bad faith.
(Internal quotations omitted.)
In the no-evidence portion of its summary-judgment motion, Standard argued
that Aleman could not recover on her claim for breach of the duty of good faith and
fair dealing because Aleman had no evidence that Standard breached its duty. As to
Aleman’s claim for violations of the DTPA, Standard asserted that Aleman had no
evidence that Standard represented that any goods or services had characteristics,
benefits or qualities that they did not have, Standard represented that Aleman’s
policy conferred rights and remedies that it did not, Standard failed to disclose
information concerning Aleman’s policy that was known at the time of purchase and
the failure to disclose was intended to induce Aleman into a transaction which she
5 would not have otherwise entered, Standard engaged in unconscionable conduct, and
that any act by Standard proximately caused Aleman damages. And as to Aleman’s
fraud claim, Standard asserted that Aleman had no evidence that Standard operated
in reckless disregard for Aleman in the course of handling her claim, made false
statements, misrepresented material facts, engaged in fraudulent acts for the purpose
of misleading Aleman as to actual damages resulting from the storm, had knowledge
of any alleged false statements or made any statement recklessly without any
knowledge of the truth and as a positive assertion, and made any misrepresentation
that Aleman acted upon. Standard also asserted that Aleman had no evidence that
she acted in reliance on any alleged misrepresentation or that she suffered any injury
as a result of the alleged fraud.
Standard attached to its summary-judgment motion a copy of Aleman’s policy
for the property, which was effective from December 12, 2019 to December 12,
2020. The policy stated that it “insure[d] against physical loss to the property”
caused by a “[w]indstorm, [h]urricane and [h]ail.”
Standard also attached to its motion the affidavit of Rebecca Renee Johnson,
the assistant claims manager for Standard. In her affidavit, Johnson testified that
Aleman, on February 9, 2021, notified Standard of a claim for hail and wind damage
at the property that occurred on October 23, 2020. The property was inspected on
February 11, 2021 by Christopher Ryan Strohl from Mason Claims Services. On
6 February 24, 2021, Standard notified Aleman that her claim was not covered by her
policy because “none of the claimed damage was caused by a peril insured against
in the [p]olicy.”2 On February 7, 2022, Aleman submitted a claim under her policy
2 A copy of the February 24, 2021 letter from Standard to Aleman was attached to Johnson’s affidavit. It listed her claim number, the date of loss as October 23, 2020, and the cause of loss as “[h]ail.” In the letter, Standard stated: As you are aware, this office received notice on February 9th 2021, for hail damage to your roofing system on you [sic] home. . . . Adjuster . . . Strohl’s inspection . . . with you on February 11th 2021, revealed rotted decking on the roof’s right slope; missing shingles on the right and left front gable; left-rear hip on [the] right slope; [and] missing shingles on a portion of the ridge showing weathered exposed decking. This damage is preexisting and not caused by a named peril under your policy therefore, not covered. Additionally, the inspection revealed hail damage to the window beading. Your . . . policy [was] in effect as of December 12th 2019 through December 12th 2020, which constitutes the time for which coverage will be afforded. We have received the hail event report which concludes the hail which damaged your home occurred prior to your policy inception. Therefore, there is no coverage for the hail damage prior to your policy incept[ion] date. The interior inspection revealed damage in the game room right below the damaged ridge on the roof as well as in the hall bathroom ceiling. This is a repeated event, therefore not covered under your policy. During the inspection the adjuster noted damage to the downspouts and the fence post on the right elevation was leaning and not damaged due to any named peril under your policy. No coverage applies. . . . There is no coverage for the damages as reported. .... . . . [T]he purpose of this letter is to advise you that there is no coverage for the deteriorated roofing system, interior damage to ceilings, fencing and hail damage to window beading to your home.
7 for damage arising from a January 10, 2022 windstorm; Standard paid her based on
that claim.3
Additionally, the unsworn declaration of Strohl was attached to Standard’s
summary-judgment motion. In the declaration, Strohl stated that he was employed
by Mason Claim Services and was assigned to inspect the property after Aleman’s
claim “for a loss caused by . . . hail and wind on October 23, 2020.” Strohl inspected
the property on February 11, 2021, and he did not find “any damage caused by hail
or wind to the roof or exterior of the [p]roperty.” Strohl explained that he also “found
no evidence of wind damage to [Aleman’s] fence or gazebo[,] and further found no
evidence of any covered loss for the various damages found on the interior of the
home.” Although his inspection of the property “revealed rotted decking on the
roof’s right slope; missing shingles on the right and left front gable; left-rear hip on
[the] right slope; [and] missing shingles on a portion of the ridge showing weathered
exposed decking,” the damage was “preexisting and not caused by a named peril
under [Aleman’s] policy.” Strohl also stated that his inspection of the interior of the
home showed “damage in the game room right below the damaged ridge on the roof
as well as in the hall bathroom ceiling.” Damage on the property’s downspouts and
the fence post “were not caused by hail or any covered event.” Finally, Strohl noted
3 A copy of a check from Standard to Aleman was attached to Johnson’s affidavit.
8 that although he found “hail damage to some window beading,” a hail report, 4
showed that “no hail occurred on or near the [p]roperty during the [p]olicy period”
from December 12, 2019 to December 12, 2020.
Further, Standard attached to its summary-judgment motion a copy of the
transcript from Aleman’s deposition. In her deposition, Aleman testified that she
owned the property, and she recalled calling Standard to make a claim. Aleman
could not recall the weather event that purportedly occurred on October 23, 2020
that caused her to file her claim with Standard. She also could not recall what
happened in February 2021 that caused her to think she had a claim for damage to
the property. When asked if she remembered a storm happening around October
2020, Aleman responded, “Maybe.”
According to Aleman, at some point, “someone . . . stop[ped] by to look at
[the property] and there was some damage,” but she did not remember who that
“someone” was or what kind of damage he saw. Aleman, herself, had not seen
damage to the property and did not know the cause of any damage.
4 A copy of the hail report was attached to Strohl’s unsworn declaration. The report showed that no “significant hail event” occurred at the property on October 22, 2020 through October 24, 2020, and “[h]ail greater than 0.75[] [inches] did not occur” at the property on October 23, 2020. Further, the last time that there was hail measuring 0.75 inches in diameter was on August 27, 2019, 423 days before the reported date of loss. The estimated wind speed on those days was thirty-five miles per hour.
9 She had not hired anyone to do repairs on the property. From the time that
Aleman had lived at the property, she had not had the roof repaired. While looking
at photographs of the property during her deposition, she did not know when the
damage to her roof had occurred. She did not know when shingles had gone missing
from the roof, and she did not remember any water entering the home. She also did
not know that “there were rugs being used to patch [the] roof.” She was not told that
hail or wind had caused the rotting wood outside the game room window of the
home. Aleman did not know what caused any of the damage found by the adjuster
who inspected the property in February 2021. No one had ever told her that the
interior damage to the home was caused by hail or wind.
Aleman also testified that her attorney had hired a company to inspect the
property in August 2021, but she did not recall if anyone from the company told her
what had caused the damage to the property. Between October 2020 and August
2021, Aleman had repaired “some shingles” on the roof, but she did not know where
on the roof the shingles were replaced. This would have happened after she filed
her February 2021 claim with Standard, and she did it because water was coming
into the upstairs of the home.
Finally, Aleman testified that she made a second claim with Standard for a
wind event that occurred on January 10, 2022. She stated that she thought a storm,
or some wind had occurred, but she could not remember exactly what had happened
10 weather wise. She recalled finding shingles on the ground though. Standard sent
her a check in response to her second claim. Aleman could not remember if her
second claim involved damage to the interior of the home as well.
Standard also attached to its summary-judgment motion a copy of the
transcript from Billy Bray’s deposition testimony. In his deposition, Bray testified
that he owned a commercial insurance brokerage, and he had been contacted about
Aleman’s case in January 2023 by her attorney. He had never spoken to Aleman,
and he had not inspected the property. He was not told that he had been designated
as an expert witness by Aleman, and he had not been told whether he was going to
testify in the case. In preparation for his deposition, Bray had reviewed Aleman’s
policy, “the dispute,” and other files sent to him by Aleman’s attorney. He had not
been asked to produce a report by anyone. He was available to answer “coverage
questions” about whether Aleman’s claim was covered by her policy. Bray stated
that he “believe[d] there[] [was] coverage for the claim based on the policy
language.”
Bray further testified that he “believe[d] [Aleman’s] claim was a wind or hail
or maybe [a] wind and hail claim” and “[i]t look[ed] like the damage was caused by
wind, hail or a combination of the two.” Bray did not get on the property’s roof and
observe the damage personally though. He also could not say when the damage to
the property’s roof had occurred, and he was not sure if a weather event had occurred
11 in the timeframe listed in Aleman’s claim or during Aleman’s policy period.
Further, he noted that it was possible that something other than wind or hail had led
to the damage to the interior of the home; he believed the damage to the interior of
the home was caused by water. He did not know when the damage to the interior of
the home had occurred. Bray did not believe that Standard had acted in bad faith,
but he also stated that he was not asked to testify as to bad faith.
A copy of the transcript from the deposition of Richard Gadrow was attached
to Standard’s summary-judgment motion. Gadrow testified that he was contacted
by Aleman’s attorney, but he had not been asked to serve as an expert witness in the
case, and he had never been told that he was designated as one. Gadrow owned
Quantum Claim Consulting Services, and he “d[id] inspections and estimates on
storm damage and insurance claims” for both residential and commercial properties.
Gadrow inspected the property in 2021 and wrote an estimate for the cost of repairs
to the property. He could not remember ever speaking to Aleman.
Gadrow further testified that he had concluded that there was damage to the
property, and he believed the damage to the property was due to “the freeze,” but he
could not recall when “the freeze” had occurred. He also stated that he could not
say “exactly what [had] happened”; it was just his “best guess.” While viewing
photographs that he took during his inspection, Gadrow acknowledged that he could
12 not determine what caused certain damage to the property’s roof or when that
damage had occurred.
He noted that he believed that the water damage to the ceiling and wall inside
the home was caused by ice damming on the roof, which led to water leaking inside.
As to other damage inside the home, Gadrow opined that it “could be a leaking pipe”
or it “could be a leak from the roof dripping off of a rafter,” but there was “a number
of different ways that [the damage] c[ould have] happen[ed].” He did not reach a
conclusion as to what caused the damage inside Aleman’s home. He also did not
know when the damage had occurred. While investigating both the outside and
inside damage to the property, Gadrow did not see any damage that was the result
of hail.
According to Gadrow, he intended to testify at trial that there was $67,851 in
damage to the property because that was what he estimated it would be the cost to
repair the property. A copy of Gadrow’s estimate was attached as an exhibit to his
deposition transcript. The estimate stated that it was “based upon a visual inspection
of the . . . property conducted in August of 2021,” and it would cost $37,124.53 to
repair the roof, $8,304.21 to repair the exterior, $3,370.68 to repair the “[l]oft,”
$1,079.12 to repair the stairway, $3,159.81 to repair the hallway, and $2,156.06 to
repair a bedroom. It also included $12,657.37 for other “[g]eneral” repair costs.
13 Further, Standard attached a copy of the transcript from Matthew Morgan’s
deposition to its summary-judgment motion.5 Morgan testified that he was a
licensed insurance adjuster that had been contacted by Aleman’s attorney. He
reviewed Gadrow’s estimate, and the photographs attached to it, and he concluded
that there was damage to the property because there were missing shingles on the
roof. He believed the damage to the roof was caused by wind. He also used certain
software and found that there were two wind events in September and October
2021.6 Morgan did not look for hail damage to the property when he reviewed
Gadrow’s estimate and photographs.
Morgan had no information to show that Standard was trying to avoid paying
Aleman’s claim, and he did not have any information regarding Standard’s overall
handling of Aleman’s claim. Despite this limited knowledge, he stated that he
believed that Standard had acted in bad faith because Standard did not pay Aleman’s
claim. Morgan noted that he had never been to the property, and he had never spoken
to Aleman.
A copy of the transcript from Shiran Renga Perera’s deposition was attached
to Standard’s summary-judgment motion. Perera testified that he had been contacted
5 A copy of an email sent from Morgan to Standard’s counsel, which was also attached to the summary-judgment motion, stated that he was an “unretained expert.” 6 In her petition, Aleman alleged that the property was damaged on October 23, 2020.
14 a few weeks before her deposition by Aleman’s attorney, who told him that he was
designated as an expert witness in the case. Perera was employed as a civil and
structural engineer. Perera intended to testify about the cause of damage to the
property and not about whether the damage was covered by Aleman’s policy. Perera
did not inspect the property, but reviewed Gadrow’s estimate. He had never spoken
After reviewing Gadrow’s estimate, Perera understood that mainly wind
damage had occurred to the property. The photographs attached to the estimate
showed wind damage but not hail damage. He noted that the photographs were taken
in August 2021, even though the damage to the property reportedly occurred in
October 2020. He could not tell from the photographs when any damage to the
property had occurred, and he noted that he did not see hail damage in the
photographs. At least one of the photographs revealed what he believed to be
damage from a tree rubbing against the roof. He thought some damage he observed
in the photographs could have been caused by wind along with temperature changes,
and some was caused by only wind.
While viewing photographs of the fence on the property, Perera opined that
the damage was caused by wind. As to the interior of the home, Perera stated that
the photographs showed water intrusion from a leak. He did not see any damage to
the attic in the photographs.
15 In her response to the matter-of-law portion of Standard’s summary-judgment
motion, Aleman argued that Standard was not entitled to judgment as a matter of law
on her breach-of-contract claim because Standard “failed and refused to pay
adequate compensation for [Aleman’s] claim” and there was a fact issue as to
whether the damage to the property was covered by Aleman’s policy. As to her
claims for violations of the Texas Insurance Code, Aleman argued that Standard was
not entitled to judgment as a matter of law because they remained viable, and
Standard had engaged in bad faith in handling Aleman’s claim. For instance,
according to Aleman, Standard had “failed to perform a reasonable investigation of
[the] property” because Aleman’s investigator’s repair estimate was larger than
Standard’s adjuster’s estimate. Further, Aleman asserted that there was a fact issue
as to whether Standard had engaged in unfair settlement practice because the
evidence showed that Standard did not conduct an accurate evaluation of Aleman’s
damages, did not conduct a reasonable investigation or provide a reasonable
explanation for its failure to pay Aleman under her policy, did not provide a timely
indication of acceptance or rejection, and did not timely compensate Aleman for her
losses. As to her claim for breach of the duty of good faith and fair dealing, Aleman
argued that Standard was not entitled to judgment as a matter of law because
Standard “unquestionably owed [Aleman] a duty of good faith and fair dealing.”
16 In her response to the no-evidence portion of Standard’s summary-judgment
motion, Aleman argued that there was “ample evidence” that Standard had violated
the DTPA because the same violations of the Texas Insurance Code constituted
violations of the DTPA. Aleman also asserted that there was a fact issue as to
whether Standard “knowingly made a false, material representation upon which
[Aleman] was intended to rely and [Aleman] actually relied and suffered injury,” so
summary judgment was improper on her fraud claim.
Aleman attached her own affidavit to her response as well as a copy of her
policy with Standard and a copy of Gadrow’s repair estimate along with his business
record affidavit.
In its reply to Aleman’s summary-judgment response, Standard objected to
Aleman’s summary-judgment evidence, and it requested that those documents be
struck. Standard also asserted that Aleman had failed to raise a fact issue as to
whether she suffered a covered loss during her policy period, and without a covered
loss, Aleman could not recover of on her claims for breach of contract, violations of
the Texas Insurance Code, breach of the duty of good faith and fair dealing, and bad
faith. Further, Standard asserted that Aleman, in her response, failed to cite any
evidence “to identify a single act or omission that constitute[d] a deceptive act or
that constitute[d] fraud.”
17 The trial court sustained Standard’s objections to Aleman’s
summary-judgment evidence and struck Aleman’s affidavit and Gadrow’s repair
estimate and affidavit from the summary-judgment record. The trial court also
granted Standard’s matter-of-law and no-evidence summary-judgment motion on
Aleman’s claims against it and ordered that she take nothing on her claims against
Standard.
In connection with its summary-judgment motion, Standard also moved to
recover attorney’s fees under the Texas Rules of Civil Procedure, the Texas
Insurance Code, the Texas Civil Practice and Remedies Code, and the DTPA,7
asserting that Aleman had filed a frivolous lawsuit, which was sanctionable conduct.
According to Standard, Aleman’s claims against it were “wholly without basis in
law or fact” at the time she filed her petition. Neither Aleman nor her attorney “had
made [a] reasonable inquiry to determine if the claims [alleged against Standard]
were supported by facts or law,” “had investigated or obtained any analysis
regarding causation of the alleged damages” to the property, or “had retained any
experts to review or analyze the cause of damage to [the] [p]roperty in order to
ascertain if the cause of such damage would fall within the categories of ‘covered
peril’ under [Aleman’s] policy.” (Emphasis omitted.) Further, Aleman testified in
7 See TEX. R. CIV. P. 13; TEX. INS. CODE ANN. § 541.153; TEX. CIV. PRAC. & REM. CODE ANN. § 10.001; TEX. BUS. & COM. CODE ANN. § 17.50(c).
18 her own deposition that she “had no knowledge of the cause of the damage to [the
property], she had not been told that any damage to [the property] was caused by
wind or a hailstorm,” and she had no knowledge or expertise “to be able to evaluate
the type or cause of damage to [the property].” Standard also asserted that Aleman
had filed a false, groundless, and misleading designation of expert witnesses along
with her petition to “make it appear that [she] had retained multiple experts.” But at
the time the designation was filed “none of the designated experts [had been] told or
[were] aware they had been designated as expert witnesses” and “none of the
designated experts who [were] deposed ha[d] reviewed or approved the
[d]esignation prior to the time [it] was filed.” (Emphasis omitted.) Standard
attached attorney’s fees evidence to its motion.
In response to Standard’s motion for attorney’s fees, Aleman asserted that her
claims against Standard were not frivolous, and she had based her suit on “findings
[from] expert reports,” referring to Gadrow’s repair estimate.
The trial court granted Standard’s request for attorney’s fees pursuant to Texas
Insurance Code section 541.153, Texas Rule of Civil Procedure 13, Texas Civil
Practice and Remedies Code section 10.001, and Texas Business and Commerce
Code section 17.50(c). Aleman then requested a jury trial on the issue of
reasonableness and necessity of Standard’s attorney’s fees under Texas Insurance
Code section 541.153, Texas Rule of Civil Procedure 13, Texas Civil Practice and
19 Remedies Code section 10.001, and Texas Business and Commerce Code section
17.50(c), which the trial court granted.
Following the admission of evidence at trial, the jury found, as to the amount
of reasonable and necessary attorney’s fees, that Standard was entitled to recover
$137,000 for representation in the trial court, $16,250 for representation in the court
of appeals, $10,000 for representation at the petition for review stage in the Texas
Supreme Court, $10,000 for representation at the briefing on the merits stage in the
Texas Supreme Court, and $12,000 for representation at the oral argument stage and
through the completion of the proceedings in the Texas Supreme Court.
In its final judgment, the trial court sustained Standard’s objections to
Aleman’s summary-judgment evidence and struck the objected-to evidence attached
to Aleman’s summary-judgment response. The trial court also granted Standard
summary judgment on Aleman’s claims against it and ordered that she take nothing
on her claims against Standard. Further, the trial court granted Standard’s request
for attorney’s fees pursuant to Texas Insurance Code section 541.153, Texas Rule
of Civil Procedure 13, Texas Civil Practice and Remedies Code section 10.001, and
Texas Business and Commerce Code section 17.50(c). Consistent with the jury’s
verdict, the trial court awarded Standard $137,000 in attorney’s fees as sanctions
against Aleman and her attorney as well as unconditional appellate attorney’s fees.
20 Related to its award of attorney’s fees, the trial court made the following
findings of fact:
1. [Aleman] failed to present any admissible evidence to contradict [Standard’s] Traditional and No-Evidence Motion[] for Summary Judgment pursuant to Texas Rules of Civil Procedure 166a and 166a(i):
a. [Aleman] and her counsel did not present admissible evidence of coverage under any insurance policy and failed to identify a loss occurring within the applicable policy period that was covered under the policy.
b. [Aleman] and her counsel failed to establish with any admissible evidence that [she] suffered any damages for which Standard could be held liable.
c. [Aleman] and her counsel did not present admissible evidence of any act or omission constituting a breach of any policy contract issued by Standard, including evidence of a covered peril occurring within the policy period.
d. [Aleman] and her counsel did not present admissible evidence segregating covered losses from those specifically excluded by the applicable insurance policy for any loss suffered.
e. In [her] response to the Motion[] for Summary Judgment, [Aleman] and her counsel failed to establish that Standard (1) violated the policy contract or any provision of the Texas Insurance Code; (2) committed any act or omission constituting bad faith; (3) failed to act in good faith and fair dealing; or (4) engaged in fraud or a breach of the [DTPA].
2. [Aleman’s] Response to Standard’s Motion[] for Summary Judgment and Motion for Recovery of Attorney’s Fees and Costs as described above demonstrate[s] that the lawsuit is groundless, brought in bad faith, and could only have been brought for the 21 purpose of harassment. [Aleman’s] Response demonstrates that the pleadings filed by [Aleman] lacked any reasonable basis in law or fact; that the pleadings were signed by counsel without any inquiry and without knowledge of viable claims; and that counsel knew or should have known the allegations were groundless.
3. [Aleman’s] pleadings and responses demonstrate that neither [Aleman] nor her counsel had any evidence of coverage, acts violating any provision of the Texas Insurance Code, any act constituting bad faith or the failure to act in good faith and to deal fairly with its insured, fraud, or a violation of the [DTPA] when this lawsuit was filed.
4. Due to [Aleman] and her counsel’s failure to support by any claim pled in this lawsuit and the failure to identify any effort to investigate a basis in law or fact to support the[] pleadings, the [c]ourt finds that there is no evidentiary support for any claim pled by [Aleman] in this lawsuit and that the lawsuit was brought for an improper purpose, including to cause unnecessary delay and the needless increase of the cost of litigation.
5. With regard to the following of [Aleman’s] designated experts, the [c]ourt further finds that the Expert Designations filed by [Aleman] and her attorneys, . . . Dick and the Dick Law Firm, . . . were misleading and contained false information about designated witnesses. . . . Dick and the Dick Law Firm . . . obstructed the discovery process by filing designations that were not reviewed or approved by the named witnesses and did not accurately represent the views or opinions of the identified witnesses. [Aleman’s] expert designations stated false opinions that were not actually held by the identified witnesses:
a. Richard Gadrow:
i. Gadrow was designated as a “General Contractor/Estimator” to testify “about the nature, existence of damage, loss cause . . . and value of [Aleman’s] property and similar property.”
22 ii. [T]he [Expert] Designation further identifies the following expected opinions for Gadrow:
A. “ . . . [A]n insurance carrier adjusting this claim reasonably and in good faith either knew or should have known to identify and accept coverage for the aforementioned reasonably clear damages”;
B. “[T]o the extend [sic] [Standard] failed to acknowledge and accept coverage for the aforementioned reasonably clear damage, [Standard] adjusted this claim in bad faith”;
C. “[Standard] did not fully indemnify the insured for his/her loss and he/she has not been paid to restore the insured’s property back to pre-loss condition”; and
D. “[T]he insured was underpaid for this claim and [Standard] knew or should have known that its claim decision constituted an unfair denial because evidence of covered damages warranting further coverage at all times was reasonably clear during its claim investigation[.]”
iii. Gadrow was deposed on January 19, 2023. He testified that he did not recall being approached by [Aleman’s] counsel to be an expert and could only recall inspecting the [p]roperty “sometime in 2021.” He had not seen the Expert Designation attributable to him, did not approve of it before it was filed in this case, was not informed that it was being submitted on his behalf, or that he was being designated as an expert. He was first informed that he was designated an expert a few weeks before his January 19th deposition.
23 iv. He inspected the [p]roperty and prepared a single damage estimate using Xactimate, which contained detailed information regarding the damaged items and estimated costs of repair but was wholly devoid of any analysis as to the cause or type of damage and did not address causation. Rather[,] the estimate contains a single remark related to causation which was not a conclusion or opinion of Gadrow, but merely a statement that he was contracted to provide a “disinterested third party estimate for the repairs to the subject property caused by a covered peril as defined by Others[.]”
v. Gadrow testified that he would not be testifying whether or not the damage was covered under the policy, and his sole report (an Xactimate estimate) contains no analysis of policy coverage.
vi. . . . Gadrow merely inspected the damage and prepared a repair estimate, but he did not find that [Aleman’s] roof exhibited damage caused by hail, rather he found it was caused by “the freeze” and “ice damming” and also stated that wind was a possible cause of some of the damage, and that there was nothing he could rely on to tell the date of damage.
vii. Gadrow did not calculate any percentage of the roof damaged by the ice storm versus wind damage, and did not recall any damage caused by hail, nor conclude that any damage was caused by hail based on review of his report photos during his deposition. He did not state in his report on which elevations he saw any alleged ice or wind damage. He further admits he cannot tell when the damage occurred and stated there is nothing he could rely on that shows when the damage occurred.
24 b. Billy Bray:
i. [Aleman] designated Bray to opine as to the following:
A. [T]he insured sustained covered loss during the effective policy period.
B. The proper scope of repairs to address the damages is reflected in the estimates or appraisal awards previously produced or to be produced.
C. Evidence of covered damage was obvious and reasonably clear.
D. An insurance carrier adjusting this claim reasonably and in good faith either knew or should have known to identify and accept coverage for the reasonably clear damages.
E. To the extent [Standard] failed to acknowledge and accept coverage for the reasonably clear damage, [Standard] adjusted this claim in bad faith.
F. [Standard] did not fully indemnify the insured for his/her loss and he/she has not been paid to restore the insured’s property back to pre-loss condition.
G. The insured was underpaid for this claim and [Standard] knew or should have known that its claim decision constituted an unfair denial because evidence of covered damages warranting further coverage at all times was reasonably clear during its claim investigation.
25 ii. [Aleman’s] counsel initially agreed to a date for Bray’s deposition and the deposition was scheduled for January 17, 2023. [Aleman’s] counsel informed Standard’s counsel the day before that the deposition had to be rescheduled. . . . Bray’s deposition was eventually taken on January 26, 2023.
iii. When deposed, . . . Bray admitted he was first contacted by [Aleman’s] counsel in January of 2023, and had never spoken with [Aleman].
iv. Bray testified that he would not be testifying as to bad faith and had no basis to believe bad faith occurred.
v. Bray did not inspect the [p]roperty, has not been asked to prepare a report, and he did not review or approve the [Expert] Designation prior to the date it was filed.
c. Matt Morgan:
i. [Aleman’s] Expert Designation states that Morgan is expected to opine to the following opinions:
A. He may be called to testify as an insurance professional with regard to what a reasonable and prudent insurance adjuster and/or insurance company would have done in processing the insurance claim subject to this lawsuit.
B. He is expected to testify regarding his investigation and [Standard’s] handling of the claim and that [Standard] did not exercise good faith while adjusting [Aleman’s] claim.
C. He is designated to testify that he would testify as insurance professional and “legal 26 expert” with regard to what constitutes a valid defense of fraud. More specifically, he will testify that the [Standard] would be incorrect in claiming fraud because there is a lack of materiality and/or there is no material evidence showing intent to deceive on behalf of the insured. . . .
ii. This deposition was unnecessarily difficult to schedule. [Aleman’s] counsel initially agreed to a date, and the deposition was scheduled for January 10, 2023. Counsel apparently never informed Morgan about the deposition and Standard was forced to serve a Notice of Deposition and a subpoena to compel Morgan to appear. After Morgan was served, he contacted Standard’s counsel, asking to be paid, and stated that [Aleman’s] counsel had never contacted him. Indeed, his first knowledge of this case was when Standard’s counsel contacted him.
iii. Morgan’s deposition was rescheduled twice, first from January 10, 2023 to February 15, 2023, and then rescheduled again to February 21, 2023, and his deposition was ultimately taken on February 21, 2023.
iv. Morgan did not inspect the [p]roperty and had not spoken to the [Aleman] at the time of the deposition. He did not contribute at all to the Expert Designation attributable to him. Despite being designated to testify to “[Standard’s] handling of the claim and that [Standard] did not exercise good faith while adjusting [Aleman’s] claim,” he was not even given the claim file to review.
v. Contrary to [Aleman’s] claim that her [p]roperty was damaged by hail, Morgan concluded the damage was caused primarily by a wind event, and
27 he had no basis to conclude there was any other cause.
d. Shiran Perera:
i. [Perera] was designated to testify “regarding the causation, nature, existence of damage at the insured property” and “an event (ie: hail, wind, fire, pipe burst, freeze, water loss, etc) occurred at the insured location during the policy period and said event caused damaged [sic] to the insured property.”
ii. Perera was first contacted by [Aleman’s] counsel a few weeks before his January 11, 2023 [d]eposition. He did not inspect the [p]roperty, nor speak with anyone about the [p]roperty and the alleged damage. Perera testified only to wind damage, damage from a tree branch, and temperature changes (freezing and thawing).
iii. He did not see evidence of hail damage to the roof, including no hail damage to any of the metal vents. He could only testify from photographs taken in August 2021, even though the alleged hailstorm was stated as occurring in October 2020.
iv. He cannot determine when any of the damage he sees in the photograph occurred, other than to guess at the “last couple of years,” and some of the damage was even older.
6. . . . Dick and the Dick Law Firm . . . obstructed the discovery process by failing to timely tender each designated witness for deposition, forcing Standard to incur substantial expense in issuing and serving subpoenas, forcing Standard to incur cost to issue multiple deposition notices, and in having to depose each witness to discover the falsity of the designations. In addition to the findings discussed above in paragraph 5, [Aleman] and her counsel designated Dexter McIntrye as an “Appraiser,” with a 28 nearly identical designation as Gadrow. There was no appraisal in this case. [Aleman] never made McIntyre available for deposition, forcing [Standard] to serve a Notice of Deposition and subpoena to compel him to appear. McIntyre was served and scheduled to appear for deposition on January 9, 2023. After McIntyre was served, he personally contacted Standard’s counsel, asking to be paid, and stated that [Aleman’s] counsel had never contacted nor retained him to serve as an expert. McIntyre’s deposition was then scheduled for March 2, 2023, however [Aleman’s] counsel cancelled and informed [Standard] that the deposition again needed to be rescheduled without providing any reason or explanation. . . . McIntyre was never presented for deposition.
7. [Aleman] and her counsel . . . Dick and the Dick Law Firm . . . were provided the opportunity to respond to the Motion for Recovery Fees and Costs, but failed to do so in any meaningful or substantive way. In response to the Motion for Recovery of Attorney’s Fees and Costs, neither [Aleman] nor counsel responded with affidavit testimony or any evidence establishing that either had investigated the facts supporting the lawsuit, nor determined that the lawsuit was supported by any legal authority. The [c]ourt finds that [Aleman] and her counsel’s failure to present evidence supporting the claims made in [Aleman’s] [p]etition and the failure to identify any investigation or basis for any claim made in this proceeding when the suit was filed is evidence that the lawsuit, from its inception, was frivolous, groundless, and made solely for the purpose of harassment.
8. [Standard] has suffered damages in the amount of $137,00.00 in attorney’s fees as a result of the groundless and frivolous pleadings and expert designations filed in this lawsuit by . . . Aleman and her attorneys, . . . Dick and the Dick Law Firm . . . .
(Emphasis omitted.)
29 Summary Judgment
In their first issue, appellants argue that the trial court erred in granting
Standard summary judgment on Aleman’s claims against it because “more than a
scintilla of evidence exist[ed] raising genuine issues of material fact” and the trial
court erred in striking Aleman’s affidavit attached to her summary-judgment
response.
A party seeking summary judgment may combine in a single motion a request
for summary judgment under the no-evidence standard with a request for summary
judgment as a matter of law. Binur v. Jacobo, 135 S.W.3d 646, 650–51 (Tex. 2004).
We review a trial court’s summary-judgment ruling de novo. Valence Operating
Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005); Provident Life & Accident Ins.
Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003). In conducting our review, we take
as true all evidence favorable to the non-movant, and we indulge every reasonable
inference and resolve any doubts in the non-movant’s favor. Valence Operating,
164 S.W.3d at 661; Knott, 128 S.W.3d at 215. If a trial court grants summary
judgment without specifying the grounds for granting the motion, we must uphold
the trial court’s judgment if any of the asserted grounds are meritorious. Beverick v.
Koch Power, Inc., 186 S.W.3d 145, 148 (Tex. App.—Houston [1st Dist.] 2005, pet.
denied).
30 A. Summary-Judgment Evidence
In a portion of appellants’ first issue, they assert that the trial court erred in
striking Aleman’s affidavit attached to her summary-judgment response.
We review a trial court’s decision to admit or exclude summary-judgment
evidence for an abuse of discretion. Starwood Mgmt., LLC v. Swaim, 530 S.W.3d
673, 678 (Tex. 2017); Holland v. Mem’l Hermann Health Sys., 570 S.W.3d 887,
893–94 (Tex. App.—Houston [1st Dist.] 2018, no pet.). A trial court abuses its
discretion if it acts without reference to any guiding rules or principles. Carpenter
v. Cimarron Hydrocarbons Corp., 98 S.W.3d 682, 687 (Tex. 2002). We will not
reverse a trial court’s erroneous evidentiary ruling unless the error probably caused
the rendition of an improper judgment. See TEX. R. APP. P. 44.1(a)(1); Interstate
Northborough P’ship v. State, 66 S.W.3d 213, 220 (Tex. 2001).
In the trial court, Aleman attached her affidavit to her response to Standard’s
summary-judgment motion.8 Standard then objected to and moved to strike
Aleman’s affidavit, asserting, among other things, that it contained inadmissible
8 Aleman also attached a copy of her policy with Standard and a copy of Gadrow’s repair estimate, along with Gadrow’s accompanying affidavit. Standard moved to strike Gadrow’s repair estimate and accompanying affidavit, which the trial court granted. Appellants do not appear to challenge that ruling on appeal, but to the extent that they do, for reasons discussed below, we hold that the complaint is waived due to inadequate briefing. See TEX. R. APP. P. 38.1(i); Trimcos, LLC v. Compass Bank, 649 S.W.3d 907, 921 (Tex. App.—Houston [1st Dist.] 2022, pet. denied).
31 hearsay and inadmissible legal opinions and was nonsensical, confusing, conclusory,
vague, lacked a proper foundation, lacked personal knowledge, and was irrelevant.
The trial court sustained Standard’s objections to Aleman’s affidavit and struck it
from the summary-judgment record.
On appeal, appellants’ briefing contains only conclusory statements that “the
trial court abused its discretion in striking Aleman’s summary[-]judgment
evidence.” There is no substantive analysis or argument to support their assertion
that the trial court erred in sustaining Standard’s objections or in striking Aleman’s
affidavit. See TEX. R. APP. P. 38.1(i); see also Bolanos v. Purple Goat, LLC, 649
S.W.3d 753, 763 (Tex. App.—El Paso 2022, no pet.) (“It was [appellant’s] burden
to challenge on appeal each basis for the trial court’s exclusion of evidence.”).
Texas Rule of Appellate Procedure 38.1(i) requires that an appellant’s brief
“contain a clear and concise argument for the contentions made, with appropriate
citations to authorities and to the record.” See TEX. R. APP. P. 38.1(i). A failure to
provide substantive analysis of an issue or cite appropriate authority supporting a
complaint waives the complaint on appeal. Marin Real Estate Partners, L.P. v. Vogt,
373 S.W.3d 57, 75 (Tex. App.—San Antonio 2011, no pet.); Huey v. Huey, 200
S.W.3d 851, 854 (Tex. App.—Dallas 2006, no pet.); Cervantes-Peterson v. Tex.
Dep’t of Family & Protective Servs., 221 S.W.3d 244, 255 (Tex. App.—Houston
[1st Dist.] 2006, no pet.); see also In re Estate of Taylor, 305 S.W.3d 829, 836 (Tex.
32 App.—Texarkana 2010, no pet.) (failure to provide substantive analysis of issue
presented results in waiver of complaint on appeal).
We hold that appellants waived, due to inadequate briefing, their complaint
about the trial court’s striking of Aleman’s affidavit. See, e.g., Shaw v. Trinity
Highway Prods., LLC, 329 S.W.3d 914, 920 (Tex. App.—Dallas 2010, no pet.)
(appellant’s failure to adequately brief complaint trial court erred in striking
summary-judgment evidence resulted in waiver of complaint on appeal); Torres v.
GSC Enters., Inc., 242 S.W.3d 553, 559 (Tex. App.—El Paso 2007, no pet.)
(appellant waived complaint trial court erred in striking his summary-judgment
evidence where he did not provide argument or authority supporting his
contentions); see also Ramirez v. Gelman, No. 13-10-00618-CV, 2012 WL 987817,
at *4 n.2 (Tex. App.—Corpus Christi–Edinburg Mar. 22, 2012, no pet.) (mem. op.)
(“We will only consider contentions that are supported by clear and concise
arguments . . . .”).
B. No-Evidence Summary Judgment
In a portion of their first issue, appellants argue that the trial court erred in
granting Standard’s no-evidence motion for summary judgment because “more than
a scintilla of evidence supports the challenged elements of Aleman’s various causes
of action.”
33 To prevail on a no-evidence summary-judgment motion, the movant must
establish that there is no evidence to support an essential element of the
non-movant’s claim on which the non-movant would have the burden of proof at
trial. See TEX. R. CIV. P. 166a(i); Fort Worth Osteopathic Hosp., Inc. v. Reese, 148
S.W.3d 94, 99 (Tex. 2004); Hahn v. Love, 321 S.W.3d 517, 523–24 (Tex. App.—
Houston [1st Dist.] 2009, pet. denied). The burden then shifts to the non-movant to
present evidence raising a genuine issue of material fact as to each of the elements
challenged in the motion. Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex.
2006); Hahn, 321 S.W.3d at 524. A no-evidence summary-judgment may not be
granted if the non-movant brings forth more than a scintilla of evidence to raise a
genuine issue of material fact on the challenged elements in the motion. See Ford
Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004). More than a scintilla of
evidence exists when the evidence “rises to a level that would enable reasonable and
fair-minded people to differ in their conclusions.” Merrell Dow Pharm., Inc. v.
Havner, 953 S.W.2d 706, 711 (Tex. 1997) (internal quotations omitted). The trial
court must grant a no-evidence summary-judgment motion if the movant asserts that
there is no evidence of one or more specified elements of the non-movant’s claim
on which the non-movant would have the burden of proof at trial and the non-movant
fails to file a timely response or fails to produce summary-judgment evidence raising
a genuine issue of material fact on each challenged element. See TEX. R. CIV. P.
34 166a(i); Lockett v. HB Zachry Co., 285 S.W.3d 63, 67 (Tex. App.—Houston [1st
Dist.] 2009, no pet.).
Here, Standard moved for a no-evidence summary judgment on Aleman’s
claims for breach of the duty of good faith and fair dealing, violations of the DTPA,
and fraud, asserting that there was no evidence to support those claims. More
specifically, as to Aleman’s claim for breach of the duty of good faith and fair
dealing, Standard asserted that to recover on such a claim, Aleman was required to
show that (1) there was an insurance contract between Aleman and Standard,
(2) Standard breached its duty when it (a) denied or delayed payment when liability
was reasonably clear, or (b) cancelled Aleman’s insurance policy without a
reasonable basis, and (3) Standard’s breach proximately caused Aleman’s damages.
But Aleman had no evidence that Standard had breached its duty by “denying or
delaying payment to [Aleman] when liability was reasonably clear.”
Further, as to Aleman’s claim for violations of the DTPA, Standard asserted
Aleman had no evidence that “Standard represented that any goods or services had
characteristics, benefits, or qualities which they did not have,” “Standard represented
that [Aleman’s] [p]olicy conferred rights and remedies which it did not have,”
“Standard failed to disclose information concerning [Aleman’s] [p]olicy which was
known at the time of purchase and such failure to disclose such information was
intended to induce [Aleman] into a transaction into which [Aleman] would not have
35 entered had the information been disclosed,” “Standard engaged in an
unconscionable course of conduct,” and “any act” allegedly committed by Standard
“proximate[ly] cause[d]” any of Aleman’s damages. See TEX. BUS. & COM. CODE
ANN. §§ 17.46(b), 17.50(a).
Finally, as to Aleman’s fraud claim, Standard asserted that to recover on her
claim, Aleman needed to establish: (1) that a material representation was made,
(2) the representation was false, (3) when the representation was made, Standard
knew it was false or made it recklessly without any knowledge of the truth and as a
positive assertion, (4) Standard made the representation with the intent that Aleman
should act upon it, (5) Aleman acted in reliance on the representation, and
(6) Aleman suffered injury. But Aleman had no evidence that Standard made false
statements, misrepresented material facts, “[]engaged in fraudulent acts for the
purpose of misleading [Aleman] as to the actual damages resulting from the
[purported] storm,” “had knowledge of any alleged false statements or made any
statement recklessly without any knowledge of the truth and as a positive assertion,”
“made any misrepresentation with the intent that [Aleman] act upon it,” and
“operated in [a] reckless disregard for [Aleman] in the course of handling [her]
claim.” (Internal quotations omitted.) Additionally, there was no evidence that
Aleman “acted in reliance on any alleged misrepresentation [by] Standard or that she
suffered any injury as a result of any act of alleged fraud.”
36 A no-evidence motion for summary judgment is like a pre-trial motion for
directed verdict. See Draughon v. Johnson, 631 S.W.3d 81, 88 (Tex. 2021). In its
motion, the movant must state the elements of a claim as to which it believes there
is no evidence. TEX. R. CIV. P. 166a(i); Bolanos, 649 S.W.3d at 762; see also Roper
v. CitiMortg., Inc., No. 03-11-00887-CV, 2013 WL 6465637, at *4 (Tex. App.—
Austin Nov. 27, 2013, pet. denied) (mem. op.) (“A movant . . . who seeks a
no-evidence summary judgment against another party’s claim, must allege that there
is no evidence of one or more essential elements of the claim on which the adverse
party would have the burden of proof at trial.”). The burden then shifts “to the
nonmovant to present evidence raising a genuine issue of material fact supporting
each element contested in the [no-evidence] motion.” JLB Builders, L.L.C. v.
Hernandez, 622 S.W.3d 860, 864 (Tex. 2021).
Aleman attached to her response to Standard’s no-evidence
summary-judgment motion, her own affidavit, as well as a copy of Gadrow’s repair
estimate, and Gadrow’s accompanying affidavit. But the trial court struck such
evidence, and we have concluded that Aleman has either not challenged or waived
any error related to the trial court’s striking of her summary-judgment evidence. See,
e.g., McCollum v. The Bank of N.Y. Mellon Tr. Co., 481 S.W.3d 352, 361–62 (Tex.
App.—El Paso 2015, no pet.). Because the only evidence Aleman produced in
response to Standard’s no-evidence motion for summary judgment was struck by the
37 trial court,9 there was no summary-judgment evidence for the trial court to consider,
and without any responsive evidence to consider, the trial court was required to grant
Standard’s no-evidence summary-judgment motion. See TEX. R. CIV. P. 166a(i);
McCollum, 481 S.W.3d at 362 (holding trial court was required to grant no-evidence
motion for summary judgment because non-movant’s evidence was struck);
Blackard v. Fairview Farms Land Co., Ltd., 346 S.W.3d 861, 869 (Tex. App.—
Dallas 2011, no pet.) (“Once the trial court struck all of [appellant’s] summary
judgment evidence, she was left with no summary judgment evidence with which to
raise a genuine issue of material fact . . . .”); see also Hamilton v. Wilson, 249
S.W.3d 425, 426 (Tex. 2008) (trial court must grant no-evidence summary-judgment
motion unless non-movant produces summary-judgment evidence raising genuine
issue of material fact); Jones v. Blume, 196 S.W.3d 440, 445 (Tex. App.—Dallas
2006, pet. denied) (filing of no-evidence motion for summary judgment places
burden on non-movant to present summary-judgment evidence raising genuine fact
issue). Accordingly, we hold that the trial court did not err in granting Standard’s
9 In reviewing whether summary judgment was properly granted, an appellate court may not consider struck portions of the record because that evidence is not part of the summary-judgment record. See McCollum v. The Bank of N.Y. Mellon Tr. Co., 481 S.W.3d 352, 361–62 (Tex. App.—El Paso 2015, no pet.).
38 no-evidence motion for summary judgment as to Aleman’s claims for breach of the
duty of good faith and fair dealing,10 violations of the DTPA, and fraud.
We overrule this portion of appellants’ first issue.
C. Matter-of-Law Summary Judgment
In the remaining portion of their first issue, appellants argue that the trial court
erred in granting Standard’s matter-of-law summary-judgment motion because
“Aleman provided the [t]rial [c]ourt with more than a scintilla of evidence to
substantiate her claims that she suffered a loss within her policy period that [was]
covered by [her] policy and ha[d] not been paid.”11
10 We further note that in her summary-judgment response, Aleman did not respond to Standard’s no-evidence argument related to Aleman’s claim for breach of the duty of good faith and fair dealing, and as such, the trial court was obligated to grant the no-evidence summary-judgment motion as to that claim. See, e.g., Wohlstein v. Aliezer, 321 S.W.3d 765, 772–73 (Tex. App.—Houston [14th Dist.] 2010, no pet.); see also Hernandez v. Vazquez, 656 S.W.3d 589, 594 (Tex. App.—El Paso 2022, no pet.) (where appellant did not respond to negligence per se portion of no-evidence summary-judgment motion, he waived any error in trial court’s granting of summary judgment on his negligence per se claim). 11 Standard moved for summary judgment as a matter of law on Aleman’s claims for breach of contract, breach of the duty of good faith and fair dealing, and violations of the Texas Insurance Code. We have already held that the trial court did not err in granting Standard’s no-evidence summary-judgment motion as to Aleman’s claim for breach of the duty of good faith and fair dealing. Thus, we need not consider whether the trial court properly granted Standard’s matter-of-law summary-judgment motion as to that claim on appeal. See TEX. R. APP. P. 47.1; Merriman v. XTO Energy, Inc., 407 S.W.3d 244, 248 (Tex. 2013). Instead, the memorandum opinion will focus on the propriety of the trial court’s matter-of-law summary-judgment ruling on Aleman’s claims for breach of contract and violations of the Texas Insurance Code.
39 To prevail on a matter-of-law summary-judgment motion, the movant must
establish that no genuine issue of material fact exists and the trial court should grant
judgment as a matter of law. See TEX. R. CIV. P. 166a(c); Cathey v. Booth, 900
S.W.2d 339, 341 (Tex. 1995). When a defendant moves for a matter-of-law
summary judgment, it must either: (1) disprove at least one essential element of the
plaintiff’s cause of action, or (2) plead and conclusively establish each essential
element of an affirmative defense, thereby defeating the plaintiff’s cause of action.
See Cathey, 900 S.W.2d at 341; Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197
(Tex. 1995). Once the movant meets its burden, the burden shifts to the non-movant
to raise a genuine issue of material fact precluding summary judgment. See Siegler,
899 S.W.2d at 197; Transcon. Ins. Co. v. Briggs Equip. Tr., 321 S.W.3d 685, 691
(Tex. App.—Houston [14th Dist.] 2010, no pet.). The evidence raises a genuine
issue of fact if reasonable and fair-minded fact finders 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).
As to Aleman’s breach-of-contract claim, Standard, in its summary-judgment
motion, argued that Aleman could not recover on her claim as a matter of law
because Aleman was unable to show that the property had sustained damages
covered by her policy and, thus, could not establish that Standard had breached the
policy by refusing to pay her the “full” amount she was owed under her policy.
40 To recover on her breach-of-contract claim, Aleman was required to establish
the following elements: (1) the existence of a valid contract between her and
Standard, (2) she performed or tendered performance, (3) Standard breached the
contract, and (4) she was damaged as a result of the breach. Tex. Windstorm Ass’n
v. Dickinson Indep. Sch. Dist., 561 S.W.3d 263, 272 (Tex. App.—Houston [14th
Dist.] 2018, pet. denied). Moreover, to prevail on a claim for breach of an insurance
policy, Aleman had to establish that her claim was covered by her policy. Seger v.
Yorkshire Ins. Co., 503 S.W.3d 388, 400 (Tex. 2016); see also Powell v. USAA Cas.
Ins. Co., No. 01-19-00308-CV, 2021 WL 1414217, at *8 (Tex. App.—Houston [1st
Dist.] Apr. 15, 2021, pet. denied) (mem. op.) (“In the context of an insurance policy,
a plaintiff must prove the existence of a valid insurance policy covering the denied
claim and entitlement to money damages on that claim. The insured bears the initial
burden to establish coverage under the policy.” (internal citations omitted)). To
prove coverage, Aleman had to show that the damage to the property was covered
by the policy and that it was incurred at a time covered by the policy. See Seger,
503 S.W.3d at 400; see also Stagliano v. Cincinnati Ins. Co., 633 Fed. Appx. 217,
219 (5th Cir. 2015).
41 Aleman’s policy with Standard for the property was effective from December
12, 2019 to December 12, 2020.12 The policy stated that it “insure[d] against
physical loss to the property” caused by a “[w]indstorm, [h]urricane and [h]ail.” In
her affidavit, Johnson, the assistant claims manager for Standard, testified that
Aleman, on February 9, 2021, notified Standard of a claim for hail and wind damage
which Aleman asserted had occurred on October 23, 2020.13 An inspection of the
property was done on February 11, 2021.
Strohl, in his declaration, explained that he inspected the property after
Aleman made her claim with Standard “for a loss caused by . . . hail and wind on
October 23, 2020.” When Strohl inspected the property on February 11, 2021, he
did not find “any damage caused by hail or wind to the roof or exterior of the
[p]roperty.” He also “found no evidence of wind damage to [Aleman’s] fence or
gazebo[,] and further found no evidence of any covered loss for the various damages
found on the interior of the home.” Although his inspection of the property “revealed
rotted decking on the roof’s right slope; missing shingles on the right and left front
gable; left-rear hip on [the] right slope; [and] missing shingles on a portion of the
ridge showing weathered exposed decking,” Strohl determined that the damage was
12 Aleman’s policy and the additional evidence discussed below were attached to Standard’s summary-judgment motion. 13 In her petition, Aleman alleged that, on or about October 23, 2020, the property was damaged “as a result of a wind and hail storm,” and she had submitted a claim to Standard for the damage caused to the property on October 23, 2020.
42 “preexisting and not caused by a named peril under [Aleman’s] policy.” Further,
damage on the property’s downspouts and the fence post “were not caused by hail
or any covered event,” and Strohl noted that although he found “hail damage to some
window beading,” a hail report showed that “no hail occurred on or near the
[p]roperty during the [p]olicy period” of December 12, 2019 to December 12,
2020.14
Following Strohl’s inspection, Standard notified Aleman that her claim was
not covered by her policy because “none of the claimed damage was caused by a
peril insured against in the [p]olicy.” A letter sent by Standard to Aleman on
February 24, 2021, listed her claim number, the date of loss as October 23, 2020,
and the cause of loss as “[h]ail.” The letter stated:
As you are aware, this office received notice on February 9th 2021, for hail damage to your roofing system on you [sic] home. . . .
Adjuster . . . Strohl’s inspection . . . with you on February 11th 2021, revealed rotted decking on the roof’s right slope; missing shingles on the right and left front gable; left-rear hip on [the] right slope; [and] missing shingles on a portion of the ridge showing weathered exposed decking. This damage is preexisting and not caused by a named peril under your policy therefore, not covered.
14 The hail report showed that no “significant hail event” occurred at the property on October 22, 2020 through October 24, 2020, and “[h]ail greater than 0.75[] [inches] did not occur” at the property on October 23, 2020. Further, the last time there was hail measuring 0.75 inches in diameter was on August 27, 2019, 423 days before the reported date of loss. The estimated wind speed on those days was thirty-five miles per hour.
43 Additionally, the inspection revealed hail damage to the window beading. Your . . . policy [was] in effect as of December 12th 2019 through December 12th 2020, which constitutes the time for which coverage will be afforded. We have received the hail event report which concludes the hail which damaged your home occurred prior to your policy inception. Therefore, there is no coverage for the hail damage prior to your policy incept[ion] date.
The interior inspection revealed damage in the game room right below the damaged ridge on the roof as well as in the hall bathroom ceiling. This is a repeated event, therefore not covered under your policy.
During the inspection the adjuster noted damage to the downspouts and the fence post on the right elevation was leaning and not damaged due to any named peril under your policy. No coverage applies.
. . . There is no coverage for the damages as reported.
....
. . . [T]he purpose of this letter is to advise you that there is no coverage for the deteriorated roofing system, interior damage to ceilings, fencing and hail damage to window beading to your home.
Aleman testified in her deposition that she could not recall the weather event
that occurred on October 23, 2020 that caused her to file her claim with Standard.
She also could not recall what happened in February 2021—when she filed her
claim—that caused her to think she had a claim for damage to the property. Aleman
could not say whether a storm had occurred at the property around October 2020.
Instead, according to Aleman, at some point, “someone . . . stop[ped] by to
look at [the property] and there was some damage,” but she did not remember who
44 that “someone” was or what kind of damage he saw. She had not seen damage to
the property and did not know the cause of any damage to the property.
Aleman also noted that she had never had her roof repaired, and she did not
know when the damage to her roof had occurred, i.e., whether or not it was during
her policy period. Further, she did not know when shingles had gone missing from
the roof, and she did not remember any water entering the home. She also did not
know that “there were rugs being used to patch [the] roof.” She was not told by
anyone that hail or wind had caused the rotting wood outside the game room window
of the home, and she did not know what had caused any of the damage found by
Strohl when he inspected the property in February 2021. No one had ever told her
that the interior damage to the home was caused by hail or wind.
As to Aleman’s designated expert witnesses, Bray, who stated he was
available to answer “coverage questions,” testified in his deposition that he had
never spoken to Aleman and had not inspected the property. Bray “believe[d]” that
Aleman’s claim “was a wind or hail or maybe [a] wind and hail claim,” but he did
not get on the property’s roof and observe the damage personally. Although he had
viewed photographs of the property, he did not know when the damage to the
property’s roof had occurred, and he did not know if a weather event had occurred
in October 2020, as alleged by Aleman, or during Aleman’s policy period. To the
45 extent that there was damage to the interior of the home, he believed that the damage
was caused by water, but he did not know when that damage occurred.
Similarly, Gadrow, one of Aleman’s designated expert witnesses, testified
that he inspected the property in 2021, but he did not speak to Aleman. Gadrow
believed that the damage to the property had been caused by “the freeze,” but he did
not know when “the freeze” had occurred. He also admitted that he could not say
“exactly what [had] happened”; “the freeze” was just his “best guess.” He could not
determine what had caused certain damage to the property’s roof or when that
Gadrow also testified that he thought the damage to the ceiling and the wall
inside Aleman’s home was caused by ice damming on the roof, and other damage
inside the home “could be a leaking pipe” or it “could be a leak from the roof
dripping off of a rafter.” But there were “a number of different ways that [the
damage] c[ould] [have] happen[ed].” Gadrow did not have a conclusion as to what
had caused the damage inside the home, and he did not know when the damage
occurred. While investigating both the outside and inside damage to Aleman’s
home, he did not see any damage that was caused by hail.
Further, Morgan, another one of Aleman’s designated experts, testified at his
deposition that he had never been to the property, and he had never spoken to
Aleman. He reviewed certain photographs of the property from which he concluded
46 that damage to the roof had been caused by wind. But as to the timing of the damage,
he testified that he had only identified wind events that had occurred in September
and October 2021—a timeframe outside of Aleman’s policy coverage and after
October 23, 2020 the date Aleman had alleged that the damage had occurred.
Finally, Perera, a designated expert for Aleman, testified in his deposition that
he did not intend to testify as to whether the damage to the property was covered by
Aleman’s policy. He had not inspected the property, and he had never spoken to
Aleman. Perera viewed photographs of the property and believed that the damage
to the roof was caused by wind, not hail.15 However, the photographs that he viewed
were taken in August 2021, even though the damage to the property purportedly
occurred in October 2020. Perera did not know when the damage in the photographs
had occurred. As to the interior of the home, Perera stated that the photographs
showed water intrusion from a leak.
Based on the foregoing, we conclude that Standard’s uncontroverted
summary-judgment evidence16 established as a matter of law that Aleman could not
15 He also noted that some damage he saw was caused by a tree rubbing against the roof, and some could have been caused by wind along with temperature changes. 16 As previously mentioned, the trial court struck the summary-judgment evidence attached to Aleman’s summary-judgment response, including Aleman’s affidavit which she relies on in her briefing. We may not consider the struck evidence in determining whether there was a genuine issue of material fact as to coverage because that evidence was not part of the summary-judgment record. See McCollum v. The Bank of N.Y. Mellon Tr. Co., 481 S.W.3d 352, 361–62 (Tex. App.—El Paso 2015, no pet.). We also do not consider any evidence attached to Aleman’s motion 47 show that the damage to the property was covered by her policy or that the damage
was incurred at a time covered by the policy. See Seger, 503 S.W.3d at 400; see also
Stagliano, 633 Fed. Appx. at 219. As such Aleman is unable to maintain a
breach-of-contract claim against Standard, and we hold that the trial court did not
err in granting Standard summary judgment on Aleman’s breach-of-contract claim
against it.
Turning to Aleman’s claim for violations of the Texas Insurance Code, we
note that “[w]hen the issue of coverage [has been] resolved in [an] insurer’s favor,
extra-contractual claims[17] do not survive.” State Farm Lloyds v. Page, 315 S.W.3d
525, 532 (Tex. 2010). Further, generally, an insured cannot recover policy benefits
as statutory damages caused by an insurer’s statutory violation unless there has been
a finding that the insured had a right to receive those benefits under the insurance
policy. USAA Tex. Lloyds Co. v. Menchaca, 545 S.W.3d 479, 489, 494–95, 500
(Tex. 2018); Conlee v. ASI Lloyds, No. 01-23-00159-CV, 2024 WL 3503067, at *4
(Tex. App.—Houston [1st Dist.] July 23, 2024, no pet.) (mem. op.). Because we
for new trial. See Eckhardt v. Nestra, No. 04-16-00394-CV, 2017 WL 1244442, at *2 (Tex. App.—San Antonio Apr. 7, 2017, no pet.) (mem. op.) (not considering evidence filed with appellant’s new-trial motion in reviewing trial court’s summary-judgment ruling); Rodriguez v. Spencer, 902 S.W.2d 37, 45 (Tex. App.— Houston [1st Dist.] 1995, no writ). 17 See Prime Time Fam. Ent. Ctr., Inc. v. AXIS Ins. Co., 630 S.W.3d 226, 229 (Tex. App.—Eastland 2020, no pet.) (noting claims for violations of chapters 541 and 542 of Texas Insurance Code constitute extra-contractual claims).
48 have held that Aleman is unable to show coverage for her claim related to the
property as a matter of law, and thus cannot establish a breach of contract, she is also
unable to maintain her extra-contractual claims for violations of the Texas Insurance
Code.18 See, e.g., Reyes v. S. Vanguard Ins. Co., No. 14-19-00728-CV, 2020 WL
6741942, at *5 (Tex. App.—Houston [14th Dist.] Nov. 17, 2020, no pet.) (mem.
op.); Prime Time Fam. Ent. Ctr., Inc. v. AXIS Ins. Co., 630 S.W.3d 226, 233 (Tex.
App.—Eastland 2020, no pet.). Accordingly, we further hold that the trial court did
not err in granting Standard summary judgment on Aleman’s claim for violations of
the Texas Insurance Code.
We overrule this portion of Aleman’s first issue.
Attorney’s Fees
In their second issue, appellants argue that the trial court erred in awarding
Standard attorney’s fees as sanctions because Aleman’s suit was not groundless or
brought in bad faith or for purposes of harassment. In their third issue, appellants
argue that the trial court erred in awarding Standard attorney’s fees because the
evidence was insufficient to show that the fees were reasonable and necessary.
18 Aleman does not assert that the independent-injury exception applies to this case. See State Farm Lloyds v. Fuentes, 597 S.W.3d 925, 938, 940 (Tex. App.—Houston [14th Dist.] 2020, no pet.).
49 A. Sanctions
In its final judgment, the trial court granted Standard’s request for attorney’s
fees pursuant to Texas Insurance Code section 541.153, Texas Rule of Civil
Procedure 13, Texas Civil Practice and Remedies Code section 10.001, and Texas
Business and Commerce Code section 17.50(c).
A trial court is authorized to impose sanctions, including attorney’s fees,
against a party or the party’s attorney by rule, statute, or inherent authority. Powell
v. Grimes, No. 01-23-00129-CV, --- S.W.3d ---, 2025 WL 626428, at *10 (Tex.
App.—Houston [1st Dist.] Feb. 27, 2025, no pet.); Sadeghian v. Webb, No.
2-03-367-CV, 2005 WL 737424, at *6 (Tex. App.—Fort Worth Mar. 13, 2005, pet.
denied) (mem. op.) (sanctions can include attorney’s fees); see, e.g., TEX. R. CIV. P.
13; TEX. CIV. PRAC. & REM. CODE ANN. §§ 10.001–.006; Brewer v. Lennox Hearth
Prods., LLC, 601 S.W.3d 704, 718 (Tex. 2020) (“Courts . . . possess inherent powers
that aid the exercise of their jurisdiction, facilitate the administration of justice, and
preserve the independence and integrity of the judicial system. A court’s inherent
authority includes the ‘power to discipline an attorney’s behavior.’” (internal
footnotes omitted)).
Texas Rule of Civil Procedure 13 states that the signature of a party or an
attorney constitutes a certificate that the pleading, motion, or other paper filed, to the
best of her knowledge, “is not groundless and brought in bad faith or groundless and
50 brought for the purpose of harassment.” TEX. R. CIV. P. 13. Under rule 13, a trial
court may impose a sanction when a pleading is filed that is groundless and brought
in bad faith or groundless and brought for the purposes of harassment. See id.;
Sakonchick v. Overlook at Rob Roy Owner, LLC, No. 03-23-00085-CV, 2025 WL
626590, at *16 (Tex. App.—Austin Feb. 27, 2025, pet. denied) (mem. op.).
“Groundless” means there is no basis in law or fact and the pleading is not warranted
by a good faith argument for the extension, modification, or reversal of existing laws.
TEX. R. CIV. P. 13 (internal quotations omitted).
Texas Civil Practice and Remedies Code chapter 10 provides that the
signature of an attorney or a party on a pleading or motion constitutes a certificate
by her that, to the best of her knowledge, information, and belief formed after a
reasonable inquiry, the instrument is not being presented for an improper purpose,
is warranted by existing law or by a nonfrivolous argument for the extension,
modification, or reversal of existing law or the establishment of new law, and there
is evidentiary support for each allegation or contention. See TEX. CIV. PRAC. & REM.
CODE ANN. § 10.001. Thus, there are two requirements under chapter 10: (1) the
claims made in a pleading must not be frivolous and (2) the pleading may not be
made for an improper purpose. Fontenot v. Little, No. 01-07-00328-CV, 2009 WL
144579, at *2 (Tex. App.—Houston [1st Dist.] Jan. 22, 2009, no pet.) (mem. op.).
“A court that determines that a person has signed a pleading or motion in violation
51 of [s]ection 10.001 may impose a sanction on the person, party represented by the
person, or both.” TEX. CIV. PRAC. & REM. CODE ANN. § 10.004(a); see also
Fontenot, 2009 WL 144579, at *2 (trial court’s finding claims made in pleading were
frivolous or pleading made for improper purpose supported imposition of sanctions).
We review a trial court’s ruling on a motion for sanctions for an abuse of
discretion. Cire v. Cummings, 134 S.W.3d 835, 838 (Tex. 2004); Knoderer v. State
Farm Lloyds, 515 S.W.3d 21, 31 (Tex. App.—Texarkana 2017, pet. denied). We
will reverse the trial court’s ruling only if it “acted ‘without reference to any guiding
rules and principles,’ such that its ruling was arbitrary or unreasonable.” Am. Flood
Rsch., Inc. v. Jones, 192 S.W.3d 581, 583 (Tex. 2006); see also Downer v.
Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985).
Appellants must attack all independent grounds that fully support an adverse
ruling. Fontenot, 2009 WL 144579, at *2; Britton v. Tex. Dep’t of Crim. Just., 95
S.W.3d 676, 681 (Tex. App.—Houston [1st Dist.] 2002, no pet.); see also Sheets v.
Autogrp. Premier, Inc., No. 14-18-00279-CV, 2020 WL 548366, at *2 (Tex. App.—
Houston [14th Dist.] Feb. 4, 2020, no pet.) (mem. op.) (“The rule that an appellant
must attack all independent grounds supporting an order or judgment has been
applied in many contexts, including judgments awarding monetary sanctions.”). If
appellants fail to do so, we must affirm the ruling. Fontenot, 2009 WL 144579, at
*2; Britton, 95 S.W.3d at 681.
52 In their briefing, appellants only assert that the trial court erred in awarding
Standard attorney’s fees as sanctions under Texas Rule of Civil Procedure 13. Rule
13 and Texas Civil Practice and Remedies Code chapter 10 are “independent
grounds on which the trial court based its ruling.” Fontenot, 2009 WL 144579, at
*2. Appellants do not raise a challenge under chapter 10 to the trial court’s
attorney’s fees award, which could, if meritorious, independently support the
award.19 Id.; see also In re Hansen, No. 05-06-00585-CV, 2007 WL 824587, at *1
(Tex. App.—Dallas Mar. 20, 2007, orig. proceeding) (mem. op.) (overruling
appellant’s assertion trial court erred in awarding attorney’s fees pursuant to Texas
Rules of Civil Procedure 13 and 215.2(b) because appellant did not challenge
sanctions award under Texas Civil Practice and Remedies Code chapter 10).
Because appellants do not challenge all the grounds under which the attorney’s fees
award was imposed, we must uphold the award. Fontenot, 2009 WL 144579, at *2;
see also Sheets, 2020 WL 548366, at *2, *4. Accordingly, we hold that the trial
court did not err in awarding Standard attorney’s fees as sanctions.
We overrule appellants’ second issue.
19 Appellants do not refer to or cite Texas Civil Practice and Remedies Code chapter 10 in their briefing. See generally TEX. R. APP. P. 38.1(i). They also make no reference to Texas Insurance Code section 541.153 or Texas Business and Commerce Code section 17.50(c)—which the trial court, in its final judgment, also relied on to support its award of attorney’s fees to Standard. See generally id.
53 B. Reasonable and Necessary
In a portion of their third issue, appellants argue that the jury’s award of trial
court attorney’s fees was unreasonable and unnecessary as a matter of law because
Standard “failed to offer any testimony that th[e] [attorney’s fee] rates were
reasonable,” Daena Goldsmith Ramsey—Standard’s attorney—did not testify “that
the $136,941.50 in fees [she] incurred . . . were, in her expert opinion, reasonable or
necessary,” and Standard “failed to present any evidence required by” Arthur
Andersen & Co. v. Perry Equip. Corp., 945 S.W.2d 812 (Tex. 1997).20 (Emphasis
omitted.)
Appellants further argue, as part of their third issue, that the jury’s award of
appellate attorney’s fees was supported by legally insufficient evidence because “[a]
party seeking to recover . . . appellate attorney’s fees must provide expert testimony
about the services [it] reasonably believes will be necessary to defend the appeal and
a reasonable hourly rate for those services.”21 Appellants also argue that the trial
20 A “matter of law point[]” is a legal-sufficiency challenge. See Raw Hide Oil & Gas, Inc. v. Maxus Expl. Co., 766 S.W.2d 264, 275–76 (Tex. App.—Amarillo 1988, writ denied) (internal quotations omitted). Appellants also assert, in their third issue, that the jury’s award of trial court attorney’s fees was excessive. A challenge to attorney’s fees as being excessive is a factual sufficiency challenge to the attorney’s fees award. Tite Water Energy, LLC v. Wild Willy’s Welding LLC, No. 01-22-00158-CV, 2023 WL 5615816, at *10 (Tex. App.—Houston [1st Dist.] Aug. 31, 2023, pet. denied) (mem. op.). Due to our disposition below, we need not address appellants’ factual-sufficiency challenge to the award of trial court attorney’s fees. See TEX. R. APP. P. 47.1. 21 In a single sentence in their opening brief, appellants mention that the “award of appellate fees” was not supported by “factually sufficient evidence.” To the extent 54 court erred in awarding Standard appellate attorney’s fees because the award was
unconditional.
We review a trial court’s award of attorney’s fees for an abuse of discretion.
See Fort Worth Transp. Auth. v. Rodriguez, 547 S.W.3d 830, 850 (Tex. 2018). We
may review the amount of attorney’s fees awarded for legal sufficiency. See Bocquet
v. Herring, 972 S.W.2d 19, 21 (Tex. 1998).
When appellants attack the legal sufficiency of an adverse finding on an issue
on which they did not have the burden of proof, they must demonstrate on appeal
that no evidence supports the adverse finding. Exxon Corp. v. Emerald Oil & Gas
Co., 348 S.W.3d 194, 215 (Tex. 2011). We will sustain a legal-sufficiency challenge
if the record shows: (1) a complete absence of evidence of a vital fact; (2) the court
is barred by rules of law or of evidence from giving weight to the only evidence
offered to prove a vital fact; (3) the evidence offered to prove a vital fact is no more
than a mere scintilla; or (4) the evidence establishes conclusively the opposite of a
vital fact. Gunn v. McCoy, 554 S.W.3d 645, 658 (Tex. 2018); City of Keller v.
Wilson, 168 S.W.3d 802, 810 (Tex. 2005). In determining whether there is no
evidence to support a jury’s finding, all the record evidence must be considered in
the light most favorable to the party in whose favor the verdict has been rendered.
that appellants attempt to challenge the factual sufficiency of the evidence supporting the jury’s award of appellate attorney’s fees, we hold that the issue is waived due to inadequate briefing. See id. 38.1(i); Trimcos, 649 S.W.3d at 921.
55 Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997). As the
Texas Supreme Court has stated, “[t]he final test for legal sufficiency must always
be whether the evidence at trial would enable reasonable and fair-minded people to
reach the verdict under review.” City of Keller, 168 S.W.3d at 827. In conducting
our review of the legal sufficiency of the evidence, we are mindful that the jurors, as
fact finders, “are the sole judges of the credibility of the witnesses and the weight to
give their testimony,” and it is jurors’ role to resolve any conflicts in the evidence.
Id. at 819–20.
1. Trial Court Attorney’s Fees
In Rohrmoos Venture v. UTSW DVA Healthcare, LLP, the Supreme Court of
Texas clarified Texas law regarding the evidence a party must introduce to make a
legally sufficient showing as to trial court attorney’s fees. 578 S.W.3d 469, 486–
506 (Tex. 2019). In reaching its decision, the supreme court explained that Texas
generally applied what was known as the lodestar method, which incorporated the
well-known Arthur Andersen factors. Id. at 497–501 (explaining lodestar method of
calculating attorney’s fees incorporated into base calculation most considerations
previously set forth in Arthur Andersen and specifying lodestar method of
calculating attorney’s fees should be used whenever fees may be calculated by
multiplying reasonable hours by reasonable rates). Under the lodestar method, a
party seeking attorney’s fees had to first adduce sufficient evidence of the reasonable
56 hours worked by the attorneys and their reasonable hourly rates. Id. at 497–98, 501.
The multiplication of these figures—hours x rates—resulted in a base amount of
attorney’s fees that was presumptively reasonable. Id. at 498–99, 501.
But, according to the court, general, conclusory testimony lacking real
substance could not support a fee award. Id. at 501. So, for example, testimony
estimating the collective number of hours worked by attorneys, attributing these
hours to several general categories of tasks, and swearing these tasks were
reasonable and necessary was insufficient. See id. at 494–95. Likewise, testimony
that did no more than specify the number of hours worked by attorneys and their
respective billing rates accompanied by general representations that their time was
occupied with extensive discovery, several pretrial hearings, multiple
summary-judgment motions, and trial was insufficient. See id. at 495–96. In part,
such generalities were legally insufficient to support an attorney’s fee award because
they effectively amounted to the subjective say-so of attorneys, which could not be
meaningfully evaluated by a fact finder or reviewed by an appellate court. See id. at
496, 498 (characterizing lodestar method as “focused and objective analysis” of
reasonableness and necessity of attorney’s fees that was “readily administrable,”
limited discretion of trial courts and other fact finders, and allowed real judicial
review).
57 Thus, to be legally sufficient as to trial court attorney’s fees, the supreme court
concluded that testimony about the reasonable hours worked by attorneys and their
reasonable rates must, at a minimum, include evidence of:
(1) the particular services performed;
(2) who performed these services;
(3) approximately when they performed these services;
(4) the reasonable amount of time required to perform these services; and
(5) the reasonable hourly rate for each person who performed them.
Id. at 498, 502. Further, fees resulting from excessive, redundant, or otherwise
unneeded services should not be considered and should be excluded. Id. at 498–99.
Rates needed to reflect the legal market in the community as well as an attorney’s
experience, skill, and reputation. Id. at 499. If such evidence was introduced, then
the resulting lodestar calculation was presumptively the amount of reasonable and
necessary fees. Id.
The supreme court also explained that parties could rebut the presumption of
reasonableness and necessity with additional evidence, effectively adjusting the
lodestar calculation up or down based on relevant considerations. Id. at 500. But
because the lodestar calculation usually already accounted for most of the Arthur
Andersen considerations—including the time and labor necessary, novelty and
difficulty of questions at issue, skill needed to perform the legal services, fee
58 customarily charged for like services in the area, amount at stake, abilities of the
attorneys and their reputations, whether the fee is fixed or contingent, uncertainty of
collection before the work is done, and the results obtained—an enhancement or
reduction of the fee ordinarily could not be premised on such considerations. Id. at
500–01. Instead, an enhancement or reduction in the lodestar amount needed to be
based on specific evidence showing that a higher or lower amount of attorney’s fees
was necessary to effect an award of reasonable and necessary fees. Id. at 501–02.
As a result, an upward or downward adjustment was rarely warranted. See id. at 502
(agreeing presumption lodestar calculation resulted in reasonable and necessary
amount of attorney’s fees could only be overcome in “rare circumstances”).
In clarifying the standard for legal sufficiency as to trial court attorney’s fees,
the supreme court concluded that contemporaneous billing records were not
required. Id. Nonetheless, the court “strongly encouraged” their use as evidence,
reasoning that in all but the simplest cases, an attorney would likely have to refer to
these records or other documentation to provide legally sufficient testimony about
the reasonableness and necessity of her fees. Id. (emphasis omitted). Moreover,
billing records could provide additional information that allowed an attorney to
testify more succinctly. See id. at 502–03, 505 (indicating billing records would
allow opposing counsel to identify areas of dispute and thereby facilitate agreement
as to fees or at least narrow or focus disagreements about fees and observing that
59 attorneys “should not have to take the stand for days and testify to every detail of a
three-year-long case” to justify fees).
In Rohrmoos, the supreme court ultimately concluded the attorney’s
testimony, which was not accompanied by billing records, was too general to serve
as legally sufficient evidence of the reasonableness and necessity of the more than
$800,000 in trial court fees found by the jury and awarded by the trial court. Id. at
486, 505; see also Nath v. Tex. Children’s Hosp., 576 S.W.3d 707, 710 (Tex. 2019)
(holding conclusory affidavits reciting only generalities did not satisfy standard
articulated in Rohrmoos and therefore were legally insufficient to support fees
imposed as sanctions); Patriot Contracting, LLC v. Shelter Prods., Inc., 650 S.W.3d
627, 657–58 (Tex. App.—Houston [1st Dist.] 2021, pet. denied) (reiterating
legal-sufficiency standard stated in Rohrmoos and restating that generalities as to
tasks performed were not enough and there must be evidence about time spent on
specific tasks).
In this case, as to trial court attorney’s fees, Ramsey testified before the jury
that she began practicing law in 1988 and a large part of her practice involved
representing insurance companies in suits like Aleman’s where claims had been filed
against the insurance companies. She was board certified in civil trial law and had
received the distinction of Super Lawyer. She owned her own law firm and had
handled cases in Harris County, Texas county courts for over thirty years.
60 In the instant case, she represented Standard. Most of her cases with Standard
were litigated in Harris County courts. Her normal hourly rate was $450 to $550,
while an associate attorney’s normal hourly rate at her firm was $400 and a
paralegal’s normal hourly rate was $225. She charged Standard a discounted rate of
$300 an hour for attorneys’ work and $175 for paralegals’ work on this case. She
also did not charge Standard for all work performed in the case.
Ramsey stated that her work in the case began with reviewing the petition and
Aleman’s policy with Standard and “figuring out what [Standard was] being sued
for.” Ramsey drafted and filed special exceptions in the case because she “could not
tell from the petition” the reason for Aleman’s suit. Ramsey also filed a
counterclaim on behalf of Standard for attorney’s fees.22 During the course of the
suit, Ramsey had to deal with noncompliant disclosures from Aleman, which
required multiple emails with Aleman’s attorneys and the filing of a motion in the
trial court. Additionally, related to discovery, Aleman was not responsive, which
required Ramsey to spend time contacting Aleman’s attorneys and filing a motion
to compel.23 Ramsey also needed orders from the trial court to get Aleman to answer
Standard’s discovery requests.
22 Ramsey filed two motions requesting attorney’s fees. 23 Ramsey noted that she filed five motions to compel in the trial court.
61 Further, because Aleman had designated multiple expert witnesses in her
petition, Ramsey had to take the depositions of six to seven of those designated
expert witnesses. Ramsey had to subpoena the expert witnesses because Aleman
would not produce them for depositions. After the expert witnesses received their
subpoenas, they called Ramsey because they did not know about Aleman’s case and
had never been retained by Aleman—despite Aleman having designated them as her
expert witnesses. According to Ramsey, it cost $400 to subpoena the witnesses and
multiple emails were required to schedule the depositions. Aleman cancelled some
of scheduled depositions at the last minute. It took five or six months to get the
expert witnesses deposed. To prepare for the depositions, attorneys at Ramsey’s law
firm had to review the claim file and determine what needed to be asked of the
witnesses. Ultimately, Ramsey determined that what Aleman had disclosed her
expert witnesses would testify about was false. It cost $7,000 to take the depositions
of Aleman’s purported expert witnesses, which included the cost for paying court
reporters and the cancellation fees.
Ramsey also testified that she filed a motion for summary judgment on
Standard’s behalf in the case, which typically would take her anywhere from three
to 100 hours of work to prepare because of the difficulty involved. She believed that
she spent at least thirty hours working on the summary-judgment motion. A hearing
on the summary-judgment motion was held, which Ramsey attended. After the
62 summary-judgment motion was granted, Aleman filed a motion for findings of fact
and conclusions of law, which Ramsey had to respond to. Ramsey also responded
to Aleman’s new-trial motion and attended a hearing on the motion. And Ramsey
responded to a “motion to late file, designate an expert” and attended a hearing on
that matter. Finally, because Aleman requested a jury trial on attorney’s fees,
Ramsey prepared a jury charge on behalf of Standard, filed pretrial motions and
exhibits, and “work[ed] with witnesses.” Cf. Intertek USA, Inc. v. Trical Com. Invs.,
LLC, No. 14-23-00475-CV, 2025 WL 1232342, at *9 (Tex. App.—Houston [14th
Dist.] Apr. 29, 2025, no pet.) (mem. op.) (lead attorney’s testimony identifying
“several broad categories of work performed—depositions, sorting through
discovery, filing motions, serving subpoenas, preparing for trial—either by him,
someone else at his firm, or by [client’s] prior counsel” was legally insufficient to
support attorney’s fees award); Eason v. Deering Constr., Inc., No.
02-19-00310-CV, 2020 WL 7062687, at *8 (Tex. App.—Fort Worth Dec. 3, 2020,
no pet.) (mem. op.) (“While [party’s] counsel testified to the aggregate amount of
fees and the general tasks carried out by himself and his two associates, this sort of
evidence has been held to be insufficient.”).
During her testimony, Ramsey described Aleman’s suit as a difficult case that
required “great skill,” and she noted that it was time consuming. Ramsey declined
work from several other clients because of her work on this case, but also because
63 of her work for other clients. According to Ramsey, the total amount of attorney’s
fees that Standard incurred in the case through the trial was $136,941.50.
In addition to Ramsey’s testimony, the trial court admitted into evidence,
among other things, a copy of its docket sheet, Ramsey’s resume, a summary of
Standard’s attorney’s fees and costs, which stated a total of $129,707.63, invoices
sent to Standard for payment of attorney’s fees and costs, which totaled $131,252.63,
and a summary of Standard’s deposition expenses, which stated a total of $7,134.25.
The invoices provided descriptions of the work completed by Ramsey, a
partner, as well as other attorneys, paralegals, and administrative staff employed by
her law firm. They also included information about hourly rates and when particular
services were performed. See Rohrmoos, 578 S.W.3d at 502, 505 (stating legally
sufficient evidence of attorney’s fees includes evidence of particular services
performed, when they were performed, who performed such services, and
reasonable hourly rate for person performing services, along with some details
regarding work performed). Although some associate attorneys are listed by name
in the invoices, certain paralegals are not identified by name, and neither are
administrative staff nor legal assistants whose work on the case was charged to
Standard. Further, based on billing rates, it appears that other partner-level attorneys
may have worked on Aleman’s suit, but that is not entirely clear from the invoices.
64 The jury awarded Standard $137,000 in attorney’s fees for “representation in
the trial court.” Although Ramsey testified as to her experience and reputation and
her resume was admitted into evidence, there was no evidence admitted regarding
the skill, experience, or reputation of any other attorney, paralegal, or legal assistant
for whom fees were sought.24 This is necessary to show that the fees sought for these
individuals were reasonable. See Westheimer v. Ziemer, 702 S.W.3d 621, 633–34
(Tex. App.—Houston [1st Dist.] 2024, no pet.) (holding evidence of attorney’s fees
was legally insufficient where there was “no evidence regarding the skill,
experience, or reputation of any attorney for who fees [were] sought other than [the
testifying attorney]” and “no information about the qualifications of the legal
assistants who worked on the case”); Walsh v. Gonzalez, No. 01-21-00729-CV, 2023
WL 4110851, at *11 (Tex. App.—Houston [1st Dist.] June 22, 2023, no pet.) (mem.
op.) (“[T]o recover paralegal fees, the evidence must show: (1) the paralegal’s
qualifications to perform substantive legal work, (2) that the paralegal performed
substantive legal work under an attorney’s direction and supervision, (3) the nature
of the legal work performed, (4) the paralegal’s hourly rate, and (5) the number of
hours the paralegal expended.”).
The attorney’s fees evidence admitted in this case is similar to evidence in
other cases we have considered in the past. See, e.g., Westheimer, 702 S.W.3d at
24 The invoices admitted into evidence do not supply this information.
65 633–34; Calleja-Ahedo v. Compass Bank, No. 01-15-00210-CV, 2020 WL 3820420,
at *3, *6–13 (Tex. App.—Houston [1st Dist.] July 7, 2020, no pet.) (mem. op.). For
example, in Calleja-Ahedo, the appellee, Compass Bank, was awarded attorney’s
fees in the trial court. 2020 WL 3820420, at *5. On appeal, the appellant argued
that the trial court erred in awarding Compass Bank its fees because the evidence
was legally insufficient to prove that the awarded trial court fees were reasonable
and necessary. Id. at *6, *10–13. This Court noted that, in the trial court, one of
Compass Bank’s attorneys submitted affidavit testimony and billing records or
invoices to support Compass Bank’s request for fees. See id. at *10–12. Although
the evidence of attorney’s fees admitted included invoices describing the tasks
performed by members of the law firm, the date the tasks were performed, the
individuals performing the tasks, the number of hours billed for each task, and the
amount billed for each task, we explained that the invoices “reflected that work was
performed, throughout the case, by . . . individuals” other than just the testifying
attorney. Id. at *12. The invoices identified those individuals by names and stated
the amount of hours that they worked as well as their hourly rates, but the record
contained “no evidence . . . concerning the qualifications of th[e] individuals or
whether the legal assistants and paralegals performed substantive legal work under
[the testifying attorney’s] direction.” Id.; cf. State Farm Lloyds v. Hanson, 500
S.W.3d 84, 99 (Tex. App.—Houston [14th Dist.] 2016, pet. denied) (upholding fee
66 award and noting evidence included testimony concerning experience and
qualifications not just of lead attorney, but also his two associate attorneys and
additional lawyer who assisted on case); River Oaks L-M, Inc. v. Vinton-Duarte, 469
S.W.3d 213, 233 (Tex. App.—Houston [14th Dist.] 2015, no pet.) (holding sufficient
evidence supported fee award and noting attorney “expressly described the
qualifications of his legal assistant, that she performed substantive legal work under
his direction and supervision, and the nature of the legal work she performed”). As
such, we concluded that the evidence admitted in the trial court did not establish
“that the amounts charged by th[e] [other] individuals [who worked on the case
were] reasonable and necessary.” Calleja-Ahedo, 2020 WL 3820420, at *12. And
we held that the evidence was legally insufficient to support the trial court’s
attorney’s fees award in favor of Compass Bank. Id. Accordingly, we reversed the
trial court’s judgment as to trial court attorney’s fees awarded to Compass Bank and
remanded the case to the trial court for further proceedings on attorney’s fees. Id. at
*13.
We are presented with the same scenario regarding the attorney’s fees
evidence, or lack thereof, as we were in Calleja-Ahedo. Thus, as we did in that case,
we conclude that the evidence is legally insufficient to support the trial court’s award
of trial court attorney’s fees to Standard. See id. at *12; see also Westheimer, 702
S.W.3d at 633–34; Trujillo v. Shafaii Invs., Ltd., No. 01-22-00819-CV, 2024 WL
67 2001612, at *11 (Tex. App.—Houston [1st Dist.] May 7, 2024, no pet.) (mem. op.)
(“We may not uphold a trial court’s award of attorney’s fees unless the record
contains sufficient evidence to support the award. The party seeking attorney’s fees
bears the burden of proof to support the trial court’s award. If the evidence
supporting the award is insufficient, we must reverse.” (internal quotations and
citations omitted)). We hold that the trial court erred in awarding Standard $137,000
in trial court attorney’s fees.
We sustain this portion of appellants’ third issue.
2. Appellate Attorney’s Fees
As to appellate attorney’s fees, Ramsey testified:
. . . [I]f there’s an appeal, that’s a whole other process. [$]7,000 for an appeal. That’s the easy part. The rest of the part is getting the record and filing briefs. Then there’s oral argument. Then there’s the Texas Supreme Court which is a three-stage process that you may or may not get to the full court. So we started with a representation to the Court of Appeals. Because a lot of this has already been briefed, it would be $25,000. If the Texas Supreme Court accepts what’s called a petition for review, again, it’s $10,000. If the court at that stage wants some briefing to see whether it still wants to take the case, that is another [$]10,000. If the Texas Supreme Court does take the case, I am anticipating it would be about [$]15,000 to fully brief, make oral argument at the Texas Supreme Court. I don’t think that will happen, but these are just anticipating if the appeal is filed, these are the kind of fees that we would incur.
Following Ramsey’s testimony, the jury awarded Standard $16,250 “[f]or
representation in the court of appeals,” $10,000 “[f]or representation at the petition
for review stage in the Supreme Court of Texas,” $10,000 “[f]or representation at
68 the merits briefing stage in the Supreme Court of Texas,” and $12,000 “[f]or
representation through oral argument and the completion of proceedings in the
Supreme Court of Texas.” The trial court, in its final judgment, awarded Standard
appellate attorney’s fees in accordance with the jury’s findings, but did not condition
the award upon Standard’s success on appeal. Appellants first complain about the
trial court’s unconditional appellate attorney’s fees award.25
A trial court may not penalize a party for taking a successful appeal. Hoefker
v. Elgohary, 248 S.W.3d 326, 332 (Tex. App.—Houston [1st Dist.] 2007, no pet.);
Sipco Servs. Marine, Inc. v. Wyatt Field Serv., 857 S.W.2d 602, 607–08 (Tex.
App.—Houston [1st Dist.] 1993, no writ). Thus, an award of appellate attorney’s
fees must be conditioned upon the appellants’ unsuccessful appeal. Sipco Servs.
Marine, 857 S.W.2d at 607–08; Keith v. Keith, 221 S.W.3d 156, 171 (Tex. App.—
Houston [1st Dist.] 2006, no pet.). Simply put, an unconditional award of appellate
25 Standard asserts that appellants waived their complaint about the trial court’s failure to award appellate attorney’s fees conditioned on Standard’s success on appeal, we disagree. See, e.g., Branfman v. Alkek, No. 13-18-00554-CV, 2020 WL 2776719, at *5 (Tex. App.—Corpus Christi–Edinburg May 28, 2020, no pet.) (mem. op.) (holding appellant did not waive his objection to unconditional appellate attorney’s fees award); see also Ventling v. Johnson, 466 S.W.3d 143, 156 (Tex. 2015) (“An award of conditional appellate attorney’s fees to a party is essentially an award of fees that have not yet been incurred and that the party is not entitled to recover unless and until the appeal is resolved in that party’s favor. [Thus,] . . . because an award of appellate attorney’s fees depends on the outcome of the appeal, it is not a final award until the appeal is concluded and the appellate court issues its final judgment.” (internal quotations omitted)).
69 attorney’s fees is improper. Sagredo v. Bell, 689 S.W.3d 407, 415 (Tex. App.—
Corpus Christi—Edinburg 2024, no pet.); see also Tite Water Energy, LLC v. Wild
Willy’s Welding LLC, No. 01-22-00158-CV, 2023 WL 5615816, at *12 (Tex.
App.—Houston [1st Dist.] Aug. 31, 2023, pet. denied) (mem. op.) (“Trial courts do
not have discretion to award appellate attorney’s fees that are not conditioned on the
[appellant’s] failure to obtain relief [on appeal].” (internal quotations omitted)).
Generally, the proper remedy for an unconditional award of appellate
attorney’s fees is to modify the trial court’s judgment and make the award contingent
upon the receiving party’s success on appeal. Hoefker, 248 S.W.3d at 332–33; Keith,
221 S.W.3d at 171. Here, however, appellants also assert that the evidence was
legally insufficient to support the jury’s award of appellate attorney’s fees. We
agree.
To prove a conditional award of appellate attorney’s fees, a party must make
a request for such fees and it “must also . . . provide[] opinion testimony about the
services [it] reasonably believe[s] will be necessary to defend [an] appeal and a
reasonable hourly rate for those services.” Fiamma Statler, LP v. Challis, No.
02-18-00374-CV, 2020 WL 6334470, at *19 (Tex. App.—Fort Worth Oct. 29, 2020,
pet. denied) (mem. op.) (internal quotations omitted); see also Yowell v. Granite
Operating Co., 620 S.W.3d 335, 355 (Tex. 2020); MRT of Kemp TX-SNF, LLC v.
Lloyd Douglas Enters., LC, 698 S.W.3d 607, 619 (Tex. App.—Dallas 2024, no pet.)
70 (“[A] party seeking to recover conditional appellate fees . . . [must] provide opinion
testimony about the services it reasonably believes will be necessary to defend [an]
appeal and a reasonable hourly rate for those services.”). Ramsey’s testimony
concerning appellate attorney’s fees merely constituted a request for such fees and
did not serve as evidence of their reasonableness and necessity. See Fiamma, 2020
WL 6334470, at *19. Because Ramsey’s testimony did not identify the services that
she reasonably believed would be necessary to defend an appeal and did not identify
a reasonable hourly rate for the performance of any of such services, we conclude
that the evidence was legally insufficient to support the jury’s award of appellate
attorney’s fees to Standard. See, e.g., MRT of Kemp, 698 S.W.3d at 620–24. Based
on the foregoing, we hold that the trial court erred in awarding Standard appellate
We sustain this portion of appellants’ third issue.26
Conclusion
We reverse the trial court’s judgment as to its award of attorney’s fees to
Standard and remand the cause to the trial court for a new trial limited to the
determination of reasonable and necessary trial court and conditional appellate
attorney’s fees to be awarded to Standard. See Rohrmoos, 578 S.W.3d at 506
26 Due to our holdings as to appellants’ third issue, we need not address any of appellants’ remaining arguments related to that issue. TEX. R. APP. P. 47.1.
71 (reversing award of attorney’s fees because evidence was legally insufficient and
remanding to trial court solely for redetermination of attorney’s fees); Westheimer,
702 S.W.3d at 636; see also City of Laredo v. Montano, 414 S.W.3d 731, 736–37
(Tex. 2013) (remanding for recalculation of attorney’s fees when evidence of work
performed existed but was insufficient to support the amount awarded in judgment).
We affirm the remaining portions of the trial court’s judgment.
Kristin Guiney Justice
Panel consists of Justices Rivas-Molloy, Guiney, and Morgan.
Related
Cite This Page — Counsel Stack
Carmen Aleman v. Standard Casualty Company, Counsel Stack Legal Research, https://law.counselstack.com/opinion/carmen-aleman-v-standard-casualty-company-texapp-2025.