In the
Court of Appeals
Second Appellate District of Texas at Fort Worth
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No. 02-25-00293-CV
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KEVIN W. KISS AND FONDA H. KISS, Appellants V.
STATE FARM LLOYDS, Appellee
On Appeal from the 236th District Court Tarrant County, Texas
Trial Court No. 236-322580-20
Before Bassel, Womack, and Walker, JJ.
Memorandum Opinion by Justice Walker
MEMORANDUM OPINION
This appeal arises from a lawsuit brought by appellants Kevin W. Kiss and Fonda H. Kiss against appellee State Farm Lloyds concerning State Farm’s handling of an insurance claim. The jury found that State Farm had breached its duty of good faith and fair dealing and that the Kisses had sustained $15,732.29 in damages. In its response to the Kisses’ motion for judgment, State Farm argued that the jury’s damages award should be reduced by the amount of the Kisses’ deductible and the payments that State Farm had previously made on their claim. The trial court agreed and signed a judgment awarding the Kisses only $7,161.20 in damages as well as $2,500.00 in attorney’s fees. Raising two appellate issues, the Kisses argue that the trial court erred by (1) reducing their damages award and (2) awarding them only $2,500.00 in attorney’s fees. For the reasons set forth below, we sustain the Kisses’ first issue and overrule their second issue. Accordingly, we modify the trial court’s judgment to correct the damages award and affirm the judgment as modified.
I. BACKGROUND
The Kisses own a residential property in Azle that comprises a home, a barn, a patio with a pergola, a chicken coop, and a wooden fence. In April 2020, a hailstorm damaged the Kisses’ property.
Concerned about their roof, the Kisses asked a local roofer to perform an inspection. The roofer confirmed that their roof had, in fact, sustained hail damage from the storm.
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Accordingly, the Kisses submitted a claim under their homeowners insurance policy with State Farm. In May 2020, State Farm sent adjuster Robert Briggs to inspect the damage to the property. Although Briggs found hail dents on certain metal turbines, turtle vents, and rain caps as well as small hail impact marks on the fence, window screens, and metal roofing covering the chicken coop, he did not observe any hail damage to the home’s roof.
Based on Briggs’ inspection, State Farm prepared an estimate, which reflected $7,409.85 in property damage. After taking into account depreciation and the Kisses’ $2,158.00 deductible, State Farm issued the Kisses a $4,951.89 payment, but it refused to pay for a new roof.
Given the conflicting opinions that they had received concerning the status of their roof, the Kisses retained SunCoast Claims, Inc. as their public insurance adjuster. SunCoast inspected the roof and found hail damage. It sent State Farm its findings and supporting photographs together with a damage estimate, which reflected total repair costs of $39,859.85.
After receiving the documentation from SunCoast, State Farm sent another adjuster, Jorge Barraza, to inspect the Kisses’ property. While Barraza acknowledged that Briggs had missed some covered damage during his initial inspection, he maintained that the roof had not sustained any hail damage. Based on Barraza’s inspection, State Farm sent the Kisses an additional payment for the minor damage, but it still refused to pay for a new roof.
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Fearing that the roof was hail-damaged and that potential leaks would further damage their home, the Kisses ultimately paid to have the roof replaced.
Believing that State Farm had wrongfully refused to cover the cost of replacing their roof, the Kisses sued State Farm for violations of the Texas Insurance Code and for breach of its common-law duty of good faith and fair dealing.1 After suit was filed, State Farm made two settlement offers. In November 2021, it offered— pursuant to Section 541.157 of the Texas Insurance Code—to pay the Kisses $17,000.00 ($14,500.00 of which was for damages and $2,500.00 of which was for attorney’s fees) to settle all of their claims. See Tex. Ins. Code § 541.157. In May 2022, it again offered to settle the Kisses’ claims for $17,000.00—this time pursuant to Chapter 42 of the Texas Civil Practice & Remedies Code and Texas Rule of Civil Procedure 167. See Tex. Civ. Prac. & Rem. Code § 42.003(a); Tex. R. Civ. P. 167. The Kisses did not accept either offer.
In March 2023, a jury trial was held. After considering all the evidence, the jury found that State Farm had breached its common-law duty of good faith and fair dealing and awarded the Kisses $15,732.29 in damages.
The Kisses moved for entry of a judgment awarding the damages assessed by the jury, prejudgment interest, and $95,161.50 in attorney’s fees. State Farm filed a
1 The nature of the Kisses’ claims and the defendants against which their claims were directed evolved over the course of the litigation. But by the time of trial, they alleged only Insurance Code and breach-of-the-duty-of-good-faith-and-fair-dealing claims against State Farm.
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response in which it argued that the trial court should (1) reduce the damages award by the amount of the insurance policy’s deductible and the amounts of the payments that State Farm had previously made to the Kisses and (2) either award the Kisses no attorney’s fees or limit the award of attorney’s fees to $2,500.00 pursuant to Chapter 541 of the Texas Insurance Code or, alternatively, to 39 percent of the their reasonable and necessary fees pursuant to Chapter 542A of the Texas Insurance Code. See Tex. Ins. Code §§ 541.159(b), 542A.007(a). State Farm also filed a motion for judgment notwithstanding the verdict (JNOV) in which it asked the trial court to render a take-nothing judgment in its favor because the evidence was legally insufficient to support the Kisses’ claims and because the Kisses had failed to secure a jury finding of covered damages owed.
After hearing telephonic arguments on the post-trial motions, the trial court agreed with State Farm that the jury’s damages award should be reduced by the amount of the Kisses’ deductible and the total insurance payments that they had previously received. The trial court ultimately signed a judgment awarding the Kisses $7,161.20 in damages and $2,500.00 in attorney’s fees.2 The Kisses filed a motion for new trial, which was overruled by operation of law. See Tex. R. Civ. P. 329b(c). This appeal followed.
2 By signing a final judgment in the Kisses’ favor (albeit for a reduced damages amount), the trial court implicitly denied State Farm’s JNOV motion. See Chilkewitz v. Hyson, 22 S.W.3d 825, 828 (Tex. 1999).
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II. DISCUSSION
A. DAMAGES
In their first issue, the Kisses contend that the trial court erred by reducing the jury’s damages award by the amount of their deductible and State Farm’s prior payments. We agree.3 The trial court’s charge asked the jury to answer six questions. As relevant here, Question 5 asked whether State Farm had “fail[ed] to comply with its duty of good faith and fair dealing to” the Kisses. Because the jury answered “Yes” to this question, it was required to answer Question 6.
Question 6 provided in relevant part as follows:
What sum of money, if any, now paid in cash, would fairly and reasonably compensate [the Kisses] for their damages, if any, that were proximately caused by such conduct[]?
Consider the following elements of damages, if any, and none other:
3 The Kisses argue that the trial court erred both substantively and procedurally.
On the procedural front, they argue that the trial court erred by disregarding the jury’s verdict because State Farm requested the reduction of the damages award in a response to the Kisses’ motion for entry of judgment and did not file a standalone motion requesting such relief. See Tex. R. Civ. P. 301. This argument is grounded in the Kisses’ framing of their first issue as one concerning the trial court’s disregarding the jury’s verdict, but because no question concerning offsets or credits was submitted to the jury, it is unclear that the trial court actually disregarded the jury’s verdict by applying the credits to which State Farm claimed that it was legally entitled. In any event, because we conclude that the trial court substantively erred by reducing the jury’s damages award, we need not address the Kisses’ alternative procedural argument. See Tex. R. App. P. 47.1.
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The reasonable and necessary cost to repair or replace [the Kisses’] property that was damaged as a result of hail occurring during the policy period.
The jury’s answer to this question was $15,732.29.
According to State Farm, because the Kisses did not dispute that their policy included a deductible and that State Farm had made prior payments on their hail- damage claim and because Question 6 did not ask the jury to determine the amount of additional damages owed and instead instructed the jury to consider “[t]he reasonable and necessary cost to repair or replace” the Kisses’ hail-damaged property, the trial court was required to reduce the jury’s damages award by the sum of the deductible and these prior payments. But State Farm’s proffered interpretation ignores the actual question posed to the jury, disregards the evidence presented at trial, and defies common sense. See Mem’l Hermann Health Sys. v. Gomez, 649 S.W.3d 415, 423 (Tex. 2022) (“In determining whether a charge interpretation is reasonable, the charge must be viewed as a whole, and interpreted in the light of its entire content, of the issues between the parties, and of the evidence relevant thereto.” (citation modified)); see also Garza v. Cantu, 431 S.W.3d 96, 104 (Tex. App.—Houston [14th Dist.] 2013, pet. denied) (“We must read jury instructions like jurors do—with common sense.” (citing Nip v. Checkpoint Sys., Inc., 154 S.W.3d 767, 772 n.3 (Tex. App.—Houston [14th Dist.] 2004, no pet.))).
Question 6, when read together with Question 5, asked the jury “[w]hat sum of money . . . would fairly and reasonably compensate [the Kisses] for their
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damages . . . that were proximately caused by” State Farm’s breach of its duty of good faith and fair dealing. Thus, contrary to State Farm’s contention, the jury was not asked to calculate the total cost of repairing the Kisses’ hail-damaged property; rather, it was asked to determine the amount that would fairly compensate the Kisses for State Farm’s tortious conduct—i.e., its refusing to pay for a new roof even though it knew or should have known that it had no reasonable basis for such refusal. See Davis v. Nat’l Lloyds Ins. Co., 484 S.W.3d 459, 473 (Tex. App.—Houston [1st Dist.] 2015, pet. denied). Throughout the trial, both sides made it clear to the jury that State Farm had (1) acknowledged that the Kisses’ property had sustained some covered hail damage; (2) calculated the cost to repair the covered damage; (3) subtracted the Kisses’ $2,158.00 deductible from the repair costs; (4) issued payments to the Kisses totaling $6,413.09; and (5) refused to pay for a new roof. Viewed in this context, a juror exercising common sense would construe Question 6 as asking what amount would fairly compensate the Kisses for the damage that State Farm had refused to cover—i.e., the replacement of the roof—not the total cost to repair all the hail damage to their property.4
4 Indeed, as State Farm’s counsel explained to the jury during closing arguments, the evidence showed that the Kisses had paid their contractor a total of $21,500.00 to replace the roof on their house, the roof on the barn, and the house gutters and to add additional gutters to the barn; State Farm estimated the cost of the house gutters to be a little over $1,200.00; and Mr. Kiss testified that $600.00 of the cost was attributable to the barn gutters. This left approximately $19,665.00 for roofing costs. Because the house’s roof makes up about eighty percent of the combined roofing square footage between the two structures, the rough cost to replace the house’s roof
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To support its interpretation of Question 6, State Farm emphasizes the charge’s language instructing the jury to consider “[t]he reasonable and necessary cost to repair or replace [the Kisses’] property that was damaged as a result of hail” when calculating the amount of damages. But this language merely limits the category of damages that the jury could consider when determining the amount that would fairly compensate the Kisses for State Farm’s tortious conduct and clarifies that it could award only economic damages as opposed to noneconomic damages. Compare Tex. Civ. Prac. & Rem. Code § 41.001(4) (defining “[e]conomic damages” as “[c]ompensatory damages intended to compensate a claimant for actual economic or pecuniary loss”), with id. § 41.001(12) (defining “[n]oneconomic damages” as those “awarded for the purpose of compensating a claimant for physical pain and suffering, mental or emotional pain or anguish, loss of consortium, disfigurement, physical impairment, loss of companionship and society, inconvenience, loss of enjoyment of life, injury to reputation, and all other nonpecuniary losses of any kind other than exemplary damages”). Thus, it does not support State Farm’s proffered interpretation.
Viewing the charge as a whole and construing it in light of the issues and evidence presented at trial, we conclude that State Farm’s interpretation of Question 6 is unreasonable. See Mem’l Hermann Health Sys., 649 S.W.3d at 423. Accordingly, the
would be eighty percent of $19,665.00, or $15,732.00—which is almost exactly the amount of damages that the jury awarded.
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trial court erred by accepting this interpretation and—more to the point—by reducing the jury’s damages award by the sum of the Kisses’ deductible and State Farm’s prior payments.
We sustain the Kisses’ first issue. Nevertheless, because—as discussed further below—the trial court impliedly found that State Farm’s November 2021 settlement offer satisfied the requirements of Insurance Code Section 541.159(a) and because this implied finding is supported by legally sufficient evidence, the Kisses’ recovery is limited to the amount of damages stated in the offer—$14,500.00. See Tex. Ins. Code § 541.159(a). Accordingly, we will modify the judgment to increase the damages award to this amount.
B. ATTORNEY’S FEES
In their second issue, the Kisses contend that the trial court erred by awarding them only $2,500.00 in attorney’s fees.5 We disagree.
1. Standard of Review
When a party challenges the amount of attorney’s fees awarded, we apply a legal-sufficiency standard of review. Huey-You v. Huey-You, No. 02-16-00332-CV, 2017 WL 4053943, at *2 (Tex. App.—Fort Worth Sept. 14, 2017, no pet.) (first citing Bocquet v. Herring, 972 S.W.2d 19, 21 (Tex. 1998); and then citing EMC Mortg. Corp. v.
5 The Kisses also complain about the trial court’s failure to award contingent appellate attorney’s fees. But because State Farm did not appeal and because we are not remanding this matter to the trial court, this issue is moot. See Neal v. SMC Corp., 99 S.W.3d 813, 818 (Tex. App.—Dallas 2003, no pet.).
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Davis, 167 S.W.3d 406, 418 (Tex. App.—Austin 2005, pet. denied)). Under this standard, if more than a scintilla of evidence supports the award, the challenge must fail. Id. (citing Wal-Mart Stores, Inc. v. Canchola, 121 S.W.3d 735, 739 (Tex. 2003)).
2. Analysis
If an insurer makes a settlement offer under Section 541.157 of the Texas Insurance Code that is “the same as, substantially the same as, or more than the amount of damages found by the trier of fact,” the claimant’s recovery is limited to the lesser of “the amount of damages stated in the offer” or “the amount of damages found by the trier of fact.” Tex. Ins. Code § 541.159(a). If the trial court finds that such a settlement offer was made, it “shall determine reasonable and necessary attorney’s fees to compensate the claimant for attorney’s fees incurred before the date and time the rejected settlement offer was made.” Id. § 541.159(b). “If the [trial] court finds that the amount stated in the offer for attorney’s fees . . . is the same as, substantially the same as, or more than the amount of reasonable and necessary attorney’s fees incurred by the claimant as of the date of the offer,” the claimant’s recovery of attorney’s fees is capped at the amount stated in the offer. Id.
As noted, in November 2021, State Farm made a Section 541.157 settlement proposal in which it offered to settle the Kisses’ claims for a total of $17,000.00— $14,500.00 for damages and $2,500.00 for attorney’s fees. By awarding the Kisses $2,500.00 in attorney’s fees instead of the $95,161.50 that they had requested, the trial court implicitly found that the damages component of State Farm’s settlement offer
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was, at a minimum, substantially the same as the amount of damages found by the jury and that the attorney’s-fees component of the offer was substantially the same as or more than the amount of reasonable and necessary attorney’s fees that the Kisses had incurred as of the date that the offer was made. See id. § 541.159(a), (b); see also Shields Ltd. P’ship v. Bradberry, 526 S.W.3d 471, 480 (Tex. 2017) (explaining that when neither party requests findings of fact or conclusions of law, “all fact findings necessary to support the trial court’s judgment are implied”); Johnson v. Eng’red Performance Racing, No. 13-24-00525-CV, 2026 WL 1982845, at *5 (Tex. App.—Corpus Christi–Edinburg July 9, 2026, no pet. h.) (“Because the trial court awarded zero attorney’s fees and zero costs and made no findings of fact and conclusions of law, we apply the implied[-]findings doctrine.”); Sprute v. Levey, No. 04-14-00358-CV, 2015 WL 4638298, at *7 (Tex. App.—San Antonio July 15, 2015, no pet.) (holding that because the trial court did not expressly state its reason for a reduced attorney’s-fees award, “we must infer that the trial court found ‘some of the claimed fees to be unreasonable [or] unwarranted[] or [that] some other circumstances . . . [made] an award of the uncontroverted claim wrong’” (quoting Ragsdale v. Progressive Voters League, 801 S.W.2d 880, 882 (Tex. 1990))).6 Comparing the jury’s damages award of $15,732.29 with State Farm’s $14,500.00 settlement offer, we cannot conclude that the evidence is legally
For this reason, we reject the Kisses’ contention that “the trial court did not 6
make the finding required to trigger [Section] 541.159’s cap.”
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insufficient to support the trial court’s implied finding that these amounts are substantially the same. See Tex. Ins. Code § 547.159(a); see also Huey-You, 2017 WL 4053943, at *2; Byrnes v. Byrnes, 19 S.W.3d 556, 561 (Tex. App.—Fort Worth 2000, no pet.) (“Where the implied findings of fact are supported by the evidence, it is our duty to uphold the judgment on any theory of law that finds support in the evidence.” (first citing Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990); and then citing Point Lookout West, Inc. v. Whorton, 742 S.W.2d 277, 278 (Tex. 1987))); cf. Tex. Civ. Prac. & Rem. Code § 42.004(b) (providing that a judgment’s damages award is “significantly less favorable” than a settlement offer if the offeree “is a claimant and the award [is] less than 80 percent of the . . . offer” or the offeree “is a defendant and the award [is] more than 120 percent of the . . . offer”). Similarly, because the record reflects that the Kisses had incurred only $1,640.00 in attorney’s fees pertaining to their claims against State Farm before the date that the offer was made,7 the evidence is legally
7 The Kisses did not initially sue State Farm; rather they sued Barraza and State Farm Lloyds, Inc. Their claims against these initial defendants were ultimately nonsuited. They did not add State Farm as a defendant until November 16, 2021— two days before the settlement offer was made. Thus, although the Kisses’ counsel’s fee statements reflect other billing entries prior to the date of the settlement offer, only three—totaling four hours of work at $410.00 per hour—pertain to the Kisses’ claims against State Farm. See Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299, 311 (Tex. 2006) (explaining that under Texas law, “fee claimants have always been required to segregate fees between claims for which they are recoverable and claims for which they are not”); Oadra v. Stegall, 871 S.W.2d 882, 888 (Tex. App.—Houston [14th Dist.] 1994, no writ) (“The general rule is that a party seeking to recover attorney’s fees in a suit involving multiple claims or parties has a duty to segregate the fees owed.” (citing Stewart Title Guar. Co. v. Sterling, 822 S.W.2d 1, 10–11 (Tex. 1991))).
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sufficient to support the trial court’s implied finding that State Farm’s settlement offer satisfied the criteria set forth in Insurance Code Section 541.159(b). See Tex. Ins. Code § 541.159(b). Accordingly, the trial court did not err by awarding the Kisses only $2,500.00 in attorney’s fees.8 We overrule the Kisses’ second issue.
III. CONCLUSION
Having sustained the Kisses’ first issue and having overruled their second issue, we modify the trial court’s judgment to reflect a damages award of $14,500.00 and affirm the judgment as modified.
/s/ Brian Walker
Brian Walker
Justice
Delivered: August 13, 2026
8 State Farm argues that the trial court erred by awarding the Kisses any attorney’s fees at all and asks us to render judgment that no such fees are recoverable by the Kisses. But because State Farm did not file a notice of appeal, we cannot grant it greater relief that it received in the trial court. See Tex. R. App. P. 25.1(c); PSQ Barbie, LP v. Howard, No. 02-22-00050-CV, 2023 WL 1456928, at *4 n.2 (Tex. App.— Fort Worth Feb. 2, 2023, no pet.). Moreover, State Farm’s argument that the Kisses are barred from recovering any attorney’s fees in this case is premised on its contention that “the maximum award of damage to covered property based on the jury’s verdict was $7,161.20,” see Tex. Ins. Code § 542A.007(a)(3)(A), (c), and we have rejected that premise.