In the
Court of Appeals
Sixth Appellate District of Texas at Texarkana
No. 06-25-00098-CV
LOU ANNE NACOL, Appellant V.
STORMS ROOFING AND CONSTRUCTION, LLC, D/B/A STORMS CONSTRUCTION AND ASHLEY STORMS, Appellees
On Appeal from the 162nd District Court Dallas County, Texas
Trial Court No. DC-22-17115
Before Stevens, C.J., van Cleef and Rambin, JJ.
Memorandum Opinion by Justice van Cleef
MEMORANDUM OPINION
Lou Anne Nacol appeals the trial court’s findings against her following a bench trial.1 On appeal,2 Nacol argues that the trial court erred by failing to find that Storms Roofing and Construction, LLC d/b/a Storms Construction (Storms) violated the Texas Insurance Code. 3 By cross-appeal, Storms argues that the trial court erred by (1) overruling its motion to reopen the evidence to introduce evidence of attorney fees, (2) failing to award legal fees, and (3) failing to award pre-judgment interest.
We find that sufficient evidence supported the trial court’s finding that Storms did not violate the Texas Insurance Code. We further find that the trial court did not err by overruling Storms’s motion to reopen the evidence or by failing to award attorney fees to Storms. Lastly, we find that Storms has failed to preserve the issue regarding pre-judgment and post-judgment interest. As a result, we affirm the trial court’s judgment. I. Factual and Procedural Background On February 18, 2021, winter storm Uri caused burst pipes leading to significant damage to Nacol’s Dallas County home. Nacol, who was visiting her daughter in California, became aware that water was flooding her home when she received a call from her realtor. Nacol’s
1 Originally appealed to the Fifth Court of Appeals, this case was transferred to this Court by the Texas Supreme Court pursuant to its docket equalization efforts. See TEX. GOV’T CODE ANN. § 73.001 (Supp.). We follow the precedent of the Fifth Court of Appeals in deciding the issues presented. See TEX. R. APP. P. 41.3. 2 Although Nacol sued Ashley Storms individually, the trial court granted a directed verdict dismissing the claims against Ashley, and that ruling is not appealed. 3 Nacol also argued that she was harmed by the trial court’s failure to enter findings of fact and conclusions of law. However, we abated this matter to the trial court, which entered findings of fact and conclusions of law. As a result, we overrule Nacol’s complaint as moot.
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Travelers Insurance (Travelers) homeowner’s policy (Policy) covered water damage from burst pipes. The Policy’s coverage limit for Nacol’s dwelling was $197,000.00, and her recovery for personal property was limited to $98,461.00.
A. Nacol Hired Storms to Repair Her Damaged Home Nacol called and hired Storms as a general contractor while she was still in California.
Storms’s owner, Ashley, said that she and Nacol discussed the damage to Nacol’s home and that Storms’s crew appeared at the home on February 19 “to get water off the property” while Nacol was still in California. Ashley explained that process began the “remediation/mitigation phase” of the work, in which the goals were to “try and stop that damage from occurring or from getting worse” and to remove property in preparation for construction. At trial, Nacol said that Storms’s crew began working even though she had not yet signed any written agreement for the services.
Nacol said that she had a hard time getting a Travelers’ adjuster to come out and assess the damage to her home because “Dallas was a mess” after the winter storm, and she was afraid that Travelers would not cover the repairs if not assessed before the commencement of any repairs. According to Nacol, Ashley assured her that “insurance ha[d] to cover it.”
B. Nacol’s Agreement with Storms On March 4, 2021, Nacol signed Storms’s “EMERGENCY WORK AGREEMENT & AUTHORIZATION” (Agreement), which authorized Storms to “perform certain work and/or make repairs” to Nacol’s property for the loss sustained on or about February 18. Specifically, Nacol agreed that Storms would (1) perform “emergency repairs in the form of water extraction, structure and/or content drying and dehumidification,” (2) assist with moving Nacol’s belongings
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to a climate-controlled storage unit, and (3) “repair[] or restore[]” the home “to the same condition in which the real estate existed before the damage, loss, or expense occurred.”
By signing the Agreement, Nacol “acknowledge[d] that since the work to be performed [wa]s urgent in nature, the exact specifications for the [w]ork” could not be provided, but “[r]egardless, [Nacol] . . . elect[ed] to authorize the commencement of [w]ork under th[e] Agreement” and to assign insurance proceeds provided by Travelers for the work to Storms. The Agreement memorialized Nacol’s expectation that the damages to her home would be covered “in whole or in part, by the proceeds of an insurance policy,” her agreement “to be obligated for any and all [w]ork specified and agreed upon by the carrier of said insurance,” and her “understand[ing] that if full payment [wa]s not received from any applicable insurance or other third party, [Nacol] unconditionally and irrevocably guarantee[d] to fully and promptly pay [Storms] the unpaid amount upon demand.” Simply put, Nacol “underst[ood] and agree[d] that [she] [wa]s solely responsible for payment of the total cost, including [Storms’s] fee[s] for” repairs authorized by her. In exchange, Storms agreed “that the total cost of the [w]ork w[ould] be in accordance with the original estimate and any supplemental estimates prepared by [Storms] and approved by the adjuster for [its] insurance company, plus any change orders approved by [Nacol] and [Storms].”
C. Nacol and Storms Discussed Damages and Repairs with Travelers Nacol testified that “[t]here was no estimate or quote” at the time she signed the Agreement. Nacol said that she “was under the impression that [Storms] was going to handle everything” because Nacol “was very leery about calling [Travelers].” Ashley admitted that she
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did not provide the scope of the work to Nacol contemporaneously with the Agreement. According to Ashley, Nacol wanted to upgrade and refresh her home by making improvements that were not a part of her insurance claim, and Nacol testified that she knew she would owe Storms for “the repairs that were not part of the flood.”4 Nacol believed the cost of the upgrades her Policy would not cover was approximately $20,000.00, although she did not ask Storms for a separate estimate.
Ashley explained that she and Nacol walked through Nacol’s home several times to discuss the damages and how they would be repaired. Ashley testified that due to the extent of the loss, Storms hired a third party, Coppermont Consulting, to “complete the scope” of the work to ensure Storms “had everything accounted for.” Ashley said that she explained to Nacol that Nacol could provide evidence of the damage to Travelers or could authorize Storms to do so on her behalf.
While waiting for the scope of the work, on March 12, 2021, Nacol signed a third-party authorization form permitting Storm “to communicate with [her] insurance and mortgage companies directly.” By signing the form, Nacol authorized Storms to “request inspections, claim status information and updates, and to be listed as a contact for the property undergoing repairs.” When asked what she thought Storms was doing in its communications with Travelers, Nacol responded, “Letting the insurance company know how much it was going to cost to fix [her] house.”
4 Ashley testified, “There were items on [Nacol’s] build back that were supposed to be due to the winter storm and then there were items that she wanted upgrades on, and it was a balancing between the two of those.”
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According to Ashley, Storms and Nacol would review the charges Nacol would incur if Travelers did not cover the repairs “continuously each week,” “[u]sually on Fridays,” after a weekly update to Storms’s invoice, and Nacol agreed that she met weekly with Ashley to find out how much Nacol owed Storms. The record reflects that Nacol wrote weekly checks to Storms for the work performed. Nacol said that she would leave the weekly meetings with a list of work that required completion but was not informed of how much it would cost.
In April 2021, Coppermont provided its scope of the work analysis to Storms. Ashley testified, and an email admitted into evidence confirms, that Storms provided a copy of the scope of the work to Nacol and Travelers, which contained a detailed list of what was necessary to return the property to its “pre-loss condition.” In the communication to Travelers, Storms noted that “costs for foundation repairs, replacement/repairs of soil/sprinkler systems which were affected,” and “costs of any masonry which must be completed after the foundation work has taken place” were not included. Storms represented that “[t]hese [were] additional costs which [were] still to be determined and must be paid for in order to properly indemnify the homeowner.” The scope of work was a detailed, room-by-room, item-by-item estimate totaling $152,886.08. Ashley said that Nacol never signed the scope of work, but it was submitted to Travelers “at [Nacol’s] request.” In doing so, Ashley testified that she was “making claims as to what ha[d] been damaged based on [her] experience as a contractor.”
D. Travelers Requested Documentation After Denying Some Repairs Ashley said that Travelers denied many line items contained in the scope of the work and that, in response to Travelers’ adjuster’s request, Storms sent “supplements on th[e] claim” to
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support the assessed damages with a notation that Storms was still waiting on “masonry and irrigation bids.” By that time, Nacol had consulted with her brother, an attorney, about her claim. In early May 2021, Ashley sent a text message reporting that she had sent the scope of the work estimate to Nacol, Nacol’s brother, and to the Travelers adjuster so they would “already have all the documentation [Storms] submitted” in case the adjuster “start[ed] throwing a fit and [Nacol’s brother] [did] have to step in.” On May 26, Nacol asked Ashley when Nacol’s brother should get involved since Travelers was “holding the reno up.” Nacol then texted Ashley to inform her that Nacol had spoken to a subcontractor, who said to proceed with the sheetrock since Travelers had sent some money to Nacol. Nacol texted Ashley stating, “We will fight it out for the rest,” and Nacol testified that her text showed that she was taking an active role in moving the work forward and threatened to fight Travelers for the rest.
On June 16, 2021, after a new adjuster, Matt,5 took over the case from a previous adjuster, Nacol texted Ashley stating, “[T]hat Matt guy was so deceiving, he gave me the impression to not worry . . . . I’m going all the way with this. [Travelers is] going to make this right. My brother is a master at this[,] and he will rip them apart.” Ashley responded by stating that she would “make sure that [Storms’s] scope [was] marked up and [would] then start collecting all the information they need[ed].”
In July 2021, Storms submitted several documents to support additional line-item requests in the scope of work. The scope contained detailed, itemized estimates for each repair totaling $166,300.36.
5 In the record before us, Matt’s last name was not presented to the trial court.
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E. Nacol Owed Storms Money but Tells Them to Stop Working Ashley said that Storms stopped work on the project in August because Nacol had not paid Storms’s weekly invoice. In September 2021, Nacol texted Ashley stating, “I told you from the start that I don’t have any money to cover what insurance does not . . . . [S]o I guess we will have to hold off until insurance comes through. . . . I’m tapped.” In September 2021, Ashley said that Nacol told Storms to stand down, which it did. Ashley also recommended that Nacol hire a public adjuster “to get insurance to cover items they normally [do not] like to.” On July 30, Nacol hired Mosaic Claims Management, P.C., as her public insurance adjuster. Mosaic submitted an itemized estimate of $223,582.54 in repairs to Travelers.
On October 4, 2021, Ashley emailed Nacol’s daughter, Sarah Bobbe, and stated that Travelers “refused to budge anymore and still had not covered [Nacol’s] additional living expenses,” which is why Storms recommended that Nacol hire a public adjuster. Ashley stated in her email that public adjusters could “push in ways [Storms] [could not] and even though [Storms] brought [the costs] up significantly [Nacol] still was not getting what she needed to be fully indemnified which is what insurance is required to do in [Nacol’s] situation.” Bobbe testified that she became involved when she learned that Nacol’s house had been demolished in preparation for repair even though a Travelers’ adjuster had not seen the home.
Nacol, who had written weekly checks to Storms, had paid $72,724.59 up to that point.
Ashley admitted that Storms did not complete the construction. Storms sent a final invoice for their work in December 2021, that included $26,859.56 as the balance owed for materials, fifteen percent or $16,925.62 for overhead, and fifteen percent or $16,925.62 for profit, but Ashley
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admitted there was nothing in writing indicating that Nacol had agreed to pay for profit or for fifteen percent of the overhead, although she had discussed it with Nacol.
Nacol testified that she authorized putting the project on hold and did not ask Storms to come back to finish the work. Instead, she hired a new company, Dash Construction, to complete the work and paid them $42,000.00 for their work.6 In January 2022, Ashley emailed Bobbe stating, “Please understand we did not want it to come to this. We worked tirelessly to have [Nacol] indemnified by [Travelers]. However, our agreement is with [Nacol] and she is ultimately responsible for the bill due.”7 Nacol terminated Storms’s services on January 31, 2022, and did not pay Storms’s final invoice.
F. Nacol Sued Storms On December 12, 2022, Nacol sued Storms, alleging that it had abandoned the job after it became clear that there was no more insurance money. According to Nacol, Storms “misrepresented that it could and would manage her [l]oss claim with [Travelers] and ensure that it paid for . . . remediation and repairs.” Nacol brought claims for common law fraud, negligent misrepresentation, and violation of Section 4102.051 of the Texas Insurance Code8 because Storms allegedly acted as a public-insurance adjuster without a license, which, according to Nacol, allowed her to void any contract she had with them.9
6 Nacol testified that the payment to Dash did not include any improvements to her home.
7 In April 2022, Travelers provided Nacol with a statement showing that it would approve $79,460.90 in dwelling loss, $4,506.28 for personal property loss, and $16,853.77 in mitigation. 8 See TEX. INS. CODE. ANN. § 4102.051 (Supp.). 9 Nacol also sought declaratory judgment that Storms’s contract was unlawful because Storms acted as an insurance adjuster.
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G. Storms Sued Nacol for Money Owed In response to Nacol’s lawsuit, Storms filed a verified denial, raised several affirmative defenses, and brought counterclaims for breach of contract, unjust enrichment, quantum meruit, promissory estoppel, money had and received, and common law fraud. Storms, which sought attorney fees, argued that it performed pursuant to the Agreement but that Nacol failed to pay as promised. Storms’s final invoice shows that it was seeking a balance of $73,963.43.
The matter was set for a bench trial. At trial, the trial court heard the evidence referenced above through testimony from Nacol and Ashley, along with additional evidence to support each party’s claims.
H. A Bench Trial Resulted in Rulings Favoring Storms According to Nacol, Storms had already completed the remediation phase without providing any quote for the work. Nacol said that Storms told her that Travelers should pay for the water-damaged items and was “led to believe that [Storms] had it under control, that [she did not] have to worry about it.” Nacol said that Ashley helped her shop for materials, that she believed Ashley was her “advocate,” and that Storms acted as her agent to settle her insurance claim. She thought Storms’s goal was “to squeak every bit of money out of [Travelers].”
According to Nacol, Storms never told her how much she would owe if Travelers did not approve the scope of the work or if it denied a line item, but she admitted that she never asked Storms to prepare a comprehensive estimate of the work to be performed because they discussed those matters during their weekly walk-throughs. Nacol said that, even as of September 2021, she still did not know how much she was going to have to pay Storms if Travelers did not cover
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everything. Instead, Nacol testified that she had paid Storms throughout based on their weekly invoices for work performed.
Nacol said she looked to Storms for insurance advice and that they provided advice that she relied on. When asked what kind of advice, Nacol provided the following example:
Like the kitchen cabinets, I was concerned that the upper cabinets were not going to be covered because that [was not] on the scope of work from the insurance company. And [do not] worry about it. We [can not] take down just part of your cabinets. We have to take all the cabinets down, so that will be covered with the insurance.
As another example, Nacol said that she was encouraged to demolish the fireplace instead of just painting it based on Storms’s representation that insurance would cover a fireplace repair.
Nacol also said that Storms advised her to ask Travelers for $400.00 per day for living expenses and helped her with her personal property claim by advising her to list every item in her house and “go on the [i]nternet and find out how much it would cost to replace [those] item[s].” Nacol said that Ashley gave her advice about her personal property coverage when Ashley said Nacol would be “golden” if she had $98,000.00 in coverage instead of $30,000.00.
Nacol represented that Storms’s advice on coverage was false but admitted she did not know “what Travelers would or [would not] have done” to pay for the full invoice submitted by Storms because she never sued Travelers. When asked what false statements Storms gave, Nacol said it was that they would finish the work. In hindsight, Nacol said Storms did not provide bad advice by suggesting that she get a public adjuster and possibly file a lawsuit and admitted that it was possible that Storms’s representation that she was not paid enough money was entirely correct. When asked if she would have altered her plans for repair if she knew the insurance
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coverage “was going to turn out the way it did,” Nacol said, “No, probably not. I might have, but I would have known what it was going to cost me.” Nacol testified that she did not believe Ashley wanted to harm her.
After listing her complaints, Nacol testified that Storms’s work “needed to be performed”
and was properly performed. Nacol said that the quality of Storms’s work “was very good” and that she was not complaining about it. She was aware that her counsel emailed an adjuster for Travelers stating that Nacol was “satisfied with the validity of Storms’[s] invoice for labor and material provided by trades and vendors for the home.” Nacol clarified that she could not challenge whether the prices charged by Storms were proper reflections of the value of work performed. In fact, Nacol had only owned the home for a few months before the winter storm damage, had paid $326,000.00 for it, but sold it in September 2022 for $498,000.00. As a result, Nacol agreed that the work Storms completed helped her sell her home for profit.
Ashley testified that she never offered to handle the insurance claim for Nacol and did not act as her representative. According to Ashley, Storms “took care to explain to Nacol . . . that [they] were just the contractor on the project and could not negotiate th[e] claim for her with Travelers.” Ashley said that, on March 4, she explained that Storms could “have conversations about the [P]olicy” and there would be times when they would have to submit information to Travelers, but explained that was “where [their] boundaries . . . lie[d] with that” so as not to violate the Texas Insurance Code. Ashley also said that she provided her “personal opinion regarding the sufficiency of the funds available to indemnify Nacol for her personal property
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claim.” She testified that she commented on the completeness of Nacol’s indemnification because she considered Nacol a friend.
Nacol testified that she had several meetings with Ashley to go “over the insurance [P]olicy of exactly how much [they could] get from [Travelers]” and stated that Ashley said she would “handle everything with [Travelers].” Even so, Nacol did not remember what she discussed with Ashley during their first meeting because she was in “such a shock.” Yet, Nacol said that Storms was “involved in every call with the insurance [P]olicy and coached [her] on what to say and how to . . . get as much out of [Travelers] as [she] could.” Nacol repeated that Ashley would tell her “[do not] worry, they have to cover that.” As a result, Nacol believed that Ashley represented her for settlement of the insurance claim and testified that Ashley never told her that she could not discuss the Policy with Nacol. Yet, Nacol was impeached by her deposition, during which Nacol said that Ashley merely represented “that [Storms] was going to be [her] contractor, and that [they] need[ed] to get insurance involved as soon as possible to get [the] house put back together.” Nacol agreed that Ashley negotiated the settlement for line items, which Ashley explained was different from settling the full claim. Ashley admitted that her communications sometimes used the word “claim” when she was referring to specific line items in the scope of the work.
Ashley explained that there is no way to comprehend the full scope of repairs when doing emergency mitigation work, which is why there was no dollar figure listed in the Agreement. Ashley testified that all of the work Storms included in the scope of the work was necessary to be performed to restore Nacol’s home to its pre-damage condition. Ashley noted that, as the full
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extent of the damages became realized, Storms and Travelers both modified the scope of the work, that she went over the scope of the work with Nacol multiple times, and that Travelers alone had modified its scope of the work four times based on documentation Storms provided. As an example of Storms’s work, Ashley testified that she spoke to Travelers about the scope of the work while Nacol was on the phone and that it resulted in an additional approval from Travelers of $5,298.45. Ashley testified that Travelers went from approving $70,373.00 in line- item work to approving “a total of $115,182.21 on” the final scope.
Nacol testified that $146,688.02 was an accurate reflection of the value of the work performed by Storms on the property but that Nacol only paid $72,724.59 to Storms. As a result, Ashley testified that $73,963.43 remained outstanding. Nacol agreed that Travelers paid her a total of $153,892.74 for her claim, which included $39,400.00 for alternative-living expenses, $4,700.00 for the home contents, and $4,529.02 for personal property, leaving her with approximately $113,000.00 for the reconstruction of her home. Of that, she had added approximately $20,000.00 in upgrades that were completed by Storms. 10 Ashley explained that Storms went over the supervisor hours allotted for the project and did not charge Nacol the full amount, although it was now seeking attorney fees.
The trial court also heard from expert witness Jack Hanks, a licensed-public adjuster, appraiser, and umpire.11 Hanks testified that he was a restoration contractor from 1992 to 2017,
became licensed as a public adjuster in forty states, was Storm Venture Group’s Public Adjuster 10 Nacol paid Dash $47,273.09 on its retail contract to complete remaining repairs.
11 Hanks explained that “[a]s an umpire, you are named by both opposing appraisers as a third part of that group. So[,] [you are] basically appointed and [you are] hired technically by the insurance company and the insured because they both pay you equally.”
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of the Year in 2021 and 2022, and is currently the chief executive officer for VPA Claims. Hanks testified about Nacol’s claims under Section 4102.051(a), which states that “[a] person may not act as a public insurance adjuster in this [S]tate or hold himself or herself out to be a public insurance adjuster in this [S]tate unless the person holds a license issued by the commissioner.” TEX. INS. CODE ANN. § 4102.051(a). The term “[p]ublic insurance adjuster,” as it is relevant here, means “a person who, for direct, indirect, or any other compensation . . . acts on behalf of an insured in negotiating for or effecting the settlement of a claim or claims for loss or damage under any policy of insurance covering real or personal property.” TEX. INS. CODE ANN. § 4102.001(3)(A)(i).
Hanks read from a Texas Department of Insurance factsheet which explained that, under the Texas Insurance Code, a contractor may “discuss the amount of damage to the home, the appropriate replacement and reasonable cost with the insurance company” “to the extent they are relative to the estimate to repair the damage to the consumer’s home,” but they may not “advocate on behalf of consumer and discuss insurance policy . . . coverages and exclusions.”
Hanks said that he had reviewed all documents, photographs, voice recordings, and recorded telephone calls related to Nacol’s claims and saw nothing unusual about the third-party authorization or Storms’s actions. Hanks testified that Storms was allowed, and that it is common for contractors, to discuss the scope of the work to be performed to repair a property, their bills and invoices, materials, line items, supplements, and best practices with an insurance company. Further, Hanks testified that he was present in court for all of the previously mentioned testimony.
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According to Hanks, “in a perfect world, the insured is indemnified for exactly what the damages are minus their deductible. [That is] the way [it is] supposed to work.” He explained that a contract like the one Storms had with Nacol, as opposed to a retail contract, was “very much open ended.” Hanks said that is because the damage can not be fully assessed until after mitigation, and the cost of the mitigation phase in Nacol’s case would depend on how long it would take for the items in her home to dry out based on moisture-meter readings and the humidity outside. Only after that phase was completed would the full scope of damage be uncovered. Hanks said that, for this reason, repairing a storm-damaged home was often a work in progress and it is not uncommon to have multiple updates to the scope of the work. He explained that both Storms and Travelers were “trying to get the scope accurate so they [could] put [Nacol’s] home accurately back together.”
As for creating the scope of the work, Hanks used a program called Xactimate because it is the industry standard and also used by Travelers. Hanks explained that insurance companies do not need to “work off of invoices” because they “always pay[] the actual cash value of the Xactimate, as [they are] legally obligated to do.” For this reason, Hanks said it is commonplace for contractors to work without a contract with the insured, that they “literally work[] off the insurance scope.” He further explained, “So there was never a de facto contract, [we are] going to do X amount of work for X amount of dollars.” Hanks said that ten percent for profit and ten percent for overhead was the most common cost charged by contractors, although there could be separate arrangements for an hourly rate and markup on materials. For hourly rates, Hanks said,
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“Xactimate[’s] number for a supervisor is around $70[.00]” per hour and sometimes there is no documentation other than an Xactimate.
Hanks testified that Storms’s emails to the Travelers’ adjusters discussed the scope of the work and submission of line items, which is what contractors are allowed to do, instead of discussing the policy or coverage. Hanks admitted that unlicensed-public adjusters are not allowed to ask for indemnification, which has a specific meaning, and noted that Storms used the term in an April 2021 email. Yet, in Hanks’s opinion, the email, which stated, “These are additional costs which are still to be determined and must be paid for in order to properly indemnify the homeowner,” did not mean “indemnify” as used by public adjusters. Hanks said that Storms used the “word wrong” and meant that they were “presenting their scope of damages to the carrier” and “ask[ed the scope to be paid properly.” Hanks said that Storms again used the incorrect wording when saying it worked tirelessly to have Travelers indemnify Nacol, which he believed meant that Storms “worked tirelessly to get the scope as accurate as they could by the [insurance] carrier.”
Hanks said that, based on the work performed, Storms’s $23,978.64 charge for supervisor hours was reasonable. Hanks, who had heard Nacol deny that she had ever discussed Storms’s overhead and profit until “the end when everything had kind of gone crazy,” testified that the scope of the work Storms created in April 2021, included ten percent profit and ten percent overhead.12 Even so, Hanks said nothing shows that either Storms communicated it would charge fifteen percent for overhead and profit or that Nacol agreed to such a charge.
12 Nacol said, “[She] knew there would be charges for [overhead and profit] but [she] never had a number.”
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After hearing the evidence, the trial court took the matter under advisement. The trial court entered its final judgment on June 6, 2025, which ordered that Nacol take nothing by her claims against Storms, but that Storms recover “principal damages in the amount of $60,709.69.” The judgment also decreed “that all other relief not [t]herein granted [wa]s expressly denied.” In its findings of fact and conclusions of law, the trial court found, among other things, that “there [was] no credible testimony or evidence proving to a preponderance of the evidence that Storms Construction engaged in conduct that violated Texas Insurance Code [Chapter] 4102.” II. Sufficient Evidence Supports the Rejection of Nacol’s Texas Insurance Code Claim In her first point of error on appeal, Nacol challenges the trial court’s decision finding no violation of Chapter 4102 of the Texas Insurance Code.13 Nacol’s argument asserts that she established, as a matter of law, that Storms acted as a public-insurance adjuster without a license. Based on the record before us, which includes the trial court’s findings of fact and conclusions of law, we conclude that legally-sufficient evidence supported the trial court’s rejection of Nacol’s Texas Insurance Code claim and that, as a result, the trial court was free to make its fact finding, based on Hanks’s testimony, that Storms was not acting as a public-insurance adjuster.
A. Standard of Review The trial court provided findings of fact and conclusions of law in support of its judgment. The Supreme Court of Texas has clearly articulated the correct standard of appellate review:
Findings of fact in a case tried to the court have the same force and dignity as a jury’s verdict upon questions. L.R. French v. Diamond Hill Jarvis Civic League,
13 Nacol raises no complaint with respect to the trial court’s take-nothing judgment on the remainder of her claims.
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724 S.W.2d 921, 922 (Tex. App.—Fort Worth 1987, writ ref’d n.r.e.); Reyes– Retana v. PTX Food Corp., 709 S.W.2d 695 (Tex. App.—San Antonio 1986, writ ref’d n.r.e.). The trial court’s findings of fact are reviewable for legal (and factual) sufficiency of the evidence by the same standards as applied in reviewing the legal (and factual) sufficiency of the evidence supporting a jury’s finding.
Creative Mfg., Inc. v. Unik, Inc., 726 S.W.2d 207, 210 (Tex. App.—Fort Worth 1987, writ ref’d n.r.e.); Okon v. Levy, 612 S.W.2d 938, 941 (Tex. Civ. App.—
Dallas 1981, writ ref’d n.r.e.).
Anderson v. City of Seven Points, 806 S.W.2d 791, 794 (Tex. 1991); see Bone-Martin v. Moss,
No. 05-22-00439-CV, 2025 WL 495558, at *9 (Tex. App.—Dallas Feb. 13, 2025, no pet.) (mem. op.); Hegar v. Am. Multi-Cinema, Inc., 605 S.W.3d 35, 40 (Tex. 2020) (citing Anderson, 806 S.W.2d at 794) (“We review the trial court’s conclusions of law de novo . . . and its findings of fact for sufficiency of the evidence.” (citation omitted)); see Okon, 612 S.W.2d at 941 (citing Hall v. Villarreal Dev. Corp., 522 S.W.2d 195 (Tex. 1975) (per curiam)) (“[W]e apply the same standard as is applied by a court reviewing the legal or factual sufficiency of the evidence supporting a jury’s answer to a special issue.”). Accordingly, “[w]hen an appellant attacks the legal sufficiency of an adverse finding for which it did not have the burden of proof, it must demonstrate that there is no evidence to support the adverse finding.” Bone-Martin, 2025 WL 495558, at *9. “[A] challenge fails if there is more than a scintilla of evidence to support the finding.” Id. “Evidence does not exceed a scintilla if it is so weak as to do no more than create a mere surmise or suspicion that the fact exists.” Id.
“Fact findings and legal conclusions, however, reflect distinct types of court decisions, are subject to different requirements, and are reviewed under different standards.” Ad Villarai, LLC v. Chan Il Pak, 519 S.W.3d 132, 135 n.1 (Tex. 2017) (per curiam). “We review conclusions of law de novo, affording them no deference.” KWA Constr., L.P. v. ADC W. Ridge,
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L.P., No. 05-24-00253-CV, 2026 WL 265251, at *5 (Tex. App.—Dallas Jan. 30, 2026, pet. filed) (mem. op.).
“In reviewing a ‘matter of law’ challenge, [a] reviewing court employs a two-part test.”
Northsky, LLC v. Rummans, No. 05-24-00561-CV, 2025 WL 1757925, at *2 (Tex. App.—Dallas June 25, 2025, pet. denied) (mem. op.) (quoting Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex. 2001) (per curiam)). “The reviewing court must first examine the record for evidence that supports the finding, while ignoring all evidence to the contrary.” Id. “If there is no evidence to support the finding, the reviewing court will then examine the entire record to determine if the contrary proposition is established as a matter of law.” Id. “The point of error should be sustained only if the contrary proposition is conclusively established.” Id.
B. Analysis “Texas’s regulation of the business of and licensing of public insurance adjusters is based on the policy of protecting the public.” Lon Smith & Assocs., Inc. v. Key, 527 S.W.3d 604, 618 (Tex. App.—Fort Worth 2017, pet. denied). While a contractor can “discuss the amount of damage to the consumer’s home, the appropriate replacement, and reasonable cost of replacement with the insurance company,” it may not advocate on behalf of a consumer or discuss insurance policy coverages and exclusions. Id. at 620 (citing TEX. DEP’T INS. COMM’R BULLETIN B-0017-12 (2012)); see Tex. Dep’t of Ins. v. Stonewater Roofing, Ltd., 696 S.W.3d 646, 661–62 (Tex. 2024).
“The statute does not prohibit a contractor . . . from talking to its customers or an insurer about repairs that are subject to a pending insurance claim and providing information” related to
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the “repairs[,] . . . requests for information about property damage, the scope of necessary repair work, estimated costs, and repair methods.” Stonewater Roofing, Ltd., 696 S.W.3d at 661.
For this reason, a contractor runs afoul of Chapter 4102 when its contract with the consumer allows the contractor to pursue an insured’s “best interests for all repairs, at a price agreeable to the insurance company,” and specifies that “[t]he final price agreed to between the insurance company and [the contractor]” is the final price for the construction contract. Lon Smith & Assocs., Inc., 527 S.W.3d at 611; see Wolfe’s Carpet, Tile & Remodeling, LLC v. Bourelle, 693 S.W.3d 424, 429–30 (Tex. App.—Houston [14th Dist.] 2023, no pet.); Hill v. Spracklen, No. 05-17-00829-CV, 2018 WL 3387452, at *1 (Tex. App.—Dallas July 12, 2018, pet. denied) (mem. op.). A contract that authorizes a contractor to negotiate a quick and fair settlement on the insured’s behalf also violates Chapter 4102. Bourelle, 693 S.W.3d at 432. Even so, where a contract (1) does not “authorize or require [the contractor] to act in the insured’s best interest,” (2) does not authorize the contractor “to reach a final contract price with the insurance company” as opposed to “obtain[ing] ‘an estimate’ after investigating and evaluating the sustained damage,” (3) “acknowledge[s] that other parties may be involved,” such as public adjusters, agents, or consultants, or (4) has a disclaimer acknowledging that the contractor “is not a public adjuster and cannot act to negotiate or settle an insurance dispute or claim.” Id. at 431 (quoting Stellar Restoration Servs., LLC v. Courtney, 533 F. Supp. 3d 394, 420–21 (E.D. Tex. 2021)). In other words, where an agreement merely authorizes the contractor “to investigate the complex, evaluate the damage, and join others during any inspection to,
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presumably, preserve its interest in the scope of work and final price,” it “does not violate Texas public policy.” Stellar Restoration Servs., 533 F. Supp. 3d. at 421.
Here, the Agreement did not authorize Storms to pursue Nacol’s best interests for all repairs, reach a settlement with Travelers, or state that the final price for Storms’s work would be the price agreed to by Travelers. Rather, the Agreement authorized Storms “to perform certain work and/or make repairs to [Nacol’s] property.” The contract price was not contingent on receipt of insurance proceeds and was instead based on “the original estimate and any supplemental estimates prepared by [Storms] and approved by the adjuster for our insurance company.” The Agreement required Nacol to acknowledge that she “alone ha[d] the authority to authorize [Storms] to make said repairs,” “[wa]s solely responsible for payment of the total cost,” and “that if full payment [wa]s not received from any applicable insurance or other third party, [Nacol] unconditionally and irrevocably guarantee[d] to fully and promptly pay [Storms] the unpaid amount on demand.” Further, the Agreement notified Nacol that “failure of [Nacol] to make proper payment when due” would entitle Storms “to suspend all work at its sole discretion until payment [wa]s made, in full.” Also, Storms’s third-party authorization merely allowed it to communicate with Travelers “to request inspections, claim status information and updates, and to be listed as a contact for the property undergoing repairs,” and did not allow it to adjust any claims. In fact, the third-party authorization acknowledged that Nacol was still “responsible for any reports, supplements, paperwork, etc. being properly filed with the appropriate parties.”
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We find that neither the Agreement nor the third-party authorization form shows, as a matter of law, that Storms acted or held itself out to be a public-insurance adjuster. As a result, Nacol did not establish that Storms violated Chapter 4102 as a matter of law.
Rather, Nacol created a factual issue for the trial court to resolve through her testimony about Storms’s representations and opinions regarding her insurance coverage, evidence of additional settlement funds obtained because of Storms’s work, and emails regarding Storms’s use of the word “indemnification.” However, as the fact-finder, the trial court was free to reject Nacol’s characterizations of Storms’s work. Here, the trial court found “there [was] no credible testimony or evidence proving to a preponderance of the evidence that Storms Construction offered to negotiate an outcome on Nacol’s claim with [Travelers].” This shows that the trial court (1) believed Ashley’s testimony that she explained to Nacol that Storms was not negotiating the settlement of an insurance claim and (2) noted that Nacol had her own public adjuster. Critically, the trial court was free to believe Hanks’s expert opinion that Storms merely discussed the scope of the work and submission of line items with Travelers, which was allowed by Chapter 4102.
Because Nacol failed to conclusively establish a Chapter 4102 violation, we find that sufficient evidence supported the trial court’s rejection of her claim. As a result, we overrule Nacol’s first point of error. IV. Storms’s Cross-Appeal In their first and second cross-issues, Storms argues that the trial court erred by refusing to reopen the evidence to present the issue of attorney fees and by failing to award attorney fees.
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“Texas law has not allowed recovery of attorney’s fees unless authorized by statute or contract.” Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299, 310 (Tex. 2006). “This rule is so venerable and ubiquitous in American courts it is known as ‘the American Rule.’” Id. at 310– 11. “Absent a contract or statute, trial courts do not have inherent authority to require a losing party to pay the prevailing party’s fees.” Id. at 311. Storms’s petition specifically sought attorney fees under Section 38.001(b) of the Texas Civil Practice and Remedies Code, which allows for attorney fees if the claim is for rendered services or performed labor. See TEX. CIV. PRAC. & REM. CODE ANN. § 38.001(b)(1)–(2) (Supp.).
Since both Nacol and Storms were seeking attorney fees, the parties entered into a Rule 1114 agreement stating that they would submit evidence of attorney fees after the trial court ruled on the merits of their claims. Yet, the text of the Rule 11 agreement expressly stated that it was “subject to the [trial] Court’s approval.” While Storms filed a notice of the Rule 11 agreement after the trial court had entered its final judgment, nothing shows that the trial court had approved the Rule 11 agreement or that it would allow the parties to later reopen the evidence. At trial, there was no mention of the Rule 11 agreement, and Storms admits that it did not offer evidence of attorney fees. Because there was no evidence of attorney fees, the trial court denied Storms’s requested relief.
On July 7, 2025,15 Storms filed a timely motion to reopen the evidence and enforce the Rule 11 agreement so it could present evidence of attorney fees. To this motion, Storms attached
14 See TEX. R. CIV. P. 11.
15 July 6, 2025, was a Sunday.
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the affidavit of its counsel, stating it was seeking a total of $195,966.13 in unsegregated fees for both its breach of contract and claims for rendered services or performed labor, along with billing records. The trial court overruled the motion to reopen the evidence.
“We review the trial court’s ruling on a . . . motion to reopen the evidence for an abuse of discretion.” Nixon v. GMAC Mortg. Corp., No. 05-08-00256-CV, 2009 WL 2973660, at *3 (Tex. App.—Dallas Sept. 18, 2009, no pet.) (mem. op.) (citing Naguib v. Naguib, 137 S.W.3d 367, 372 (Tex. App.—Dallas 2004, pet. denied)). “A trial court abuses its discretion when it acts in an arbitrary and unreasonable manner or when it acts without reference to any guiding rules or principles.” Id. (citing Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985)). “Although that discretion should be exercised liberally so both parties are permitted to fully develop their cases, unless a trial court has clearly abused its discretion, an appellate court should not disturb its refusal to open a case for the purpose of admitting additional evidence.” In re C.T.H., No. 05-22-01202-CV, 2025 WL 3285467, at *9 (Tex. App.—Dallas Nov. 25, 2025, pet. denied) (citing Naguib, 137 S.W.3d at 372).
The Dallas Court of Appeals has stated that a trial court may consider the following when determining whether to reopen the evidence: “(1) the movant’s due diligence in obtaining the evidence, (2) the decisiveness of the proffered evidence, (3) any undue delay the reception of the evidence could cause, and (4) any injustice the granting of the motion could cause.” Id. (citing Naguib, 137 S.W.3d at 373). “If not all of these factors are satisfied, a trial court’s denial of a motion to reopen evidence should not be disturbed.” Id. (citing Naguib, 137 S.W.3d at 373).
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Storms did not obtain the trial court’s approval of the Rule 11 agreement before trial, and nothing in the record shows that the trial court would allow evidence of attorney fees at a later date. The trial court’s subsequent findings of fact and conclusions of law do not mention the Rule 11 agreement. Applying the precedent of the Dallas Court of Appeals, we cannot find that the trial court abused its discretion by denying Storms’s motion because the trial court “had discretion to determine that [Storms] [was] not diligent in asking the court to reopen the case,” since they waited until thirty-one days after the judgment was signed to do so, and “[t]he trial court also had discretion to determine that reopening the case would cause undue delay.” Id. Also, we find that the trial court could have determined that the proffered evidence was not decisive since Storms’s motion also said it was seeking fees for breach of contract and Storms failed to segregate fees not available as a result of the denial of its breach of contract claim.
Based on the precedent of the Dallas Court of Appeals, we cannot say that the trial court abused its discretion by failing to reopen the evidence. As a result, we overrule Storms’s first cross-issue. Since it is undisputed that Storms failed to present evidence of attorney fees at trial, we likewise overrule Storms’s second cross-issue.
As for the issue of interest, Storms sought “all pre- and post-judgment interest at the highest rate allowed by law,” but the trial court denied that relief in its judgment. “In order to preserve for review a complaint concerning prejudgment interest, an appellant must in some way inform the trial court of its dissatisfaction with the judgment.” Keene Corp. v. Creel, No. 05-91- 00576-CV, 1992 WL 141076, at *1 (Tex. App.—Dallas June 23, 1992, writ denied) (not designated for publication). This rule also applies to post-judgment interest. Hagan v.
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Pennington, No. 05-18-00010-CV, 2019 WL 2521719, at *18 (Tex. App.—Dallas June 19, 2019, no pet.) (mem. op.); Marauder Corp. v. Beall, 301 S.W.3d 817, 824 (Tex. App.—Dallas 2009, no pet.). Even so, Storms raised the issue of pre-judgment and post-judgment interest for the first time on appeal. Accordingly, we overrule Storms’s complaint about lack of pre-judgment and post-judgment interest due to lack of preservation. See TEX. R. APP. P. 33.1; Hagan, 2019 WL 2521719, at *18; Marauder Corp., 301 S.W.3d at 824; Keene Corp., 1992 WL 1992 WL 141076, at *1; see also Paciwest, Inc. v. Warner Alan Props., LLC, No. 02-10-00378-CV, 2012 WL 3499603, at *10 (Tex. App.—Fort Worth Aug. 16, 2012, pet. denied) (mem. op.) (finding that appellant waived complaint regarding trial court’s failure to award pre-judgment interest because it was not raised below); Pratt v. Trinity Projects, Inc., 26 S.W.3d 767, 769 (Tex. App.—Beaumont 2000, pet. denied) (same).16 VI. Conclusion We affirm the trial court’s judgment.
Charles van Cleef
Justice
Date Submitted: August 4, 2026 Date Decided: August 20, 2026
16 We note that the trial court’s findings of fact and conclusions of law stated, “Storms Construction is entitled to collect from Nacol its pre- and post-judgment interest, both at the rate of [eighteen percent] per annum.” Even so, those findings did not alter the trial court’s judgment and could not alter the judgment since the trial court’s plenary power had already expired, and we do not consider it a substantive alteration to the judgment. HSBC Bank USA, N.A. v. Watson, 377 S.W.3d 766, 772 (Tex. App.—Dallas 2012, pets. dism’d) (citing TEX. R. CIV. P. 329b(e), (g)); Munir Bata, L.L.C. v. Vestal, No. 05-10-00346-CV, 2010 WL 2367509, at *1 n.1 (Tex. App.—Dallas June 15, 2010, pet. denied) (mem. op.); In re Gillespie, 124 S.W.3d 699, 703 (Tex. App.—Houston [14th Dist.] 2003, orig. proceeding) (en banc)).