ACCEPTED 04-13-00608-CV FOURTH COURT OF APPEALS SAN ANTONIO, TEXAS 4/9/2015 3:16:37 PM KEITH HOTTLE CLERK
NO. 04-13-00608-CV FILED IN IN THE TEXAS COURT OF APPEALS FOR THE FOURTH DISTRICT 4th COURT OF APPEALS SAN ANTONIO, TEXAS SAN ANTONIO, TEXAS 4/9/2015 3:16:37 PM KEITH E. HOTTLE * * * * * Clerk
SMITH-REAGAN & ASSOCIATES, INC., D/B/A SMITH-REAGAN INSURANCE AGENCY,
APPELLANT,
V.
FORT RINGGOLD LIMITED, PETE DIAZ III, AARON DIAZ and MONICA AGUILLON,
APPELLEES. * * * * * On Appeal from the 381st Judicial District Court Starr County, Texas District Court Cause No. DC-02-343 * * * * * APPELLEES’ MOTION FOR REHEARING * * * * * Respectfully submitted,
Brendan K. McBride Matthew R. Pearson State Bar No. 24008900 State Bar No. 0078817 Brendan.McBride@att.net mpearson@gplawfirm.com MCBRIDE LAW FIRM, of Counsel GRAVELY & PEARSON, LLP to GRAVELY & PEARSON, LLP 425 Soledad, Suite 600 425 Soledad, Suite 620 San Antonio, Texas 78205 San Antonio, Texas 78205 (210) 472-1111 Telephone (210) 227-1200 Telephone (210) 472-1110 Facsimile (210) 881-6752 Facsimile TABLE OF CONTENTS Page
TABLE OF CONTENTS ............................................................................................................. 2 TABLE OF AUTHORITIES ........................................................................................................ 3 INTRODUCTION & SUMMARY ................................................................................................ 1 ARGUMENT & AUTHORITIES ................................................................................................. 4 A. The Court Must Review The Entire Record and All of the Evidence To Resolve a Challenge to the Legal Sufficiency of the Evidence.............................................. 6 B. There Was Evidence Of How Business Interruption Would Have Been Determined. .................................................................................................................. 6 C. Smith-Reagan’s Own Brief Contradicts The Court’s Conclusion. ......................... 9 CONCLUSION & PRAYER ...................................................................................................... 12 CERTIFICATE OF SERVICE ..................................................................................................... 13 CERTIFICATE OF COMPLIANCE............................................................................................. 13
2 TABLE OF AUTHORITIES Page Cases City of Keller v. Wilson, 168 S.W.3d 802 (Tex. 2005) ............................................................. 6 Dow Chem. Co. v. Francis, 46 S.W.3d 237 (Tex. 2001).......................................................... 6 Henson v. Reddin, 358 S.W.3d 428 (Tex.App. – Fort Worth 2012, no pet.) ...................... 6 Hidden Forest Homeowners Ass'n v. Hern, No. 04-10-00551-CV, 2011 Tex. App. LEXIS 9566, 2011 WL 6089881 (Tex. App. -- San Antonio 2011, no pet.)(to be published)6 Kroger v. Texas Ltd. Parnership v. Suberu, 216 S.W.3d 788 (Tex. 2006) ................................ 6 Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706 (Tex. 1997)......................................... 6 Smith-Reagan & Assocs. v. Fort Ringgold Ltd., No. 04-13-00608-CV, 2015 Tex. App. LEXIS 2291, 4 (Tex. App. -- San Antonio Mar. 11, 2015, no pet. h.)(mem. op.) ...... 2
3 INTRODUCTION & SUMMARY
The Court’s opinion in this case overlooks certain key record evidence related
to the proof of damages that is inconsistent with the Court’s conclusions about the
record, and necessarily requires a different legal result. Given that the Court’s opinion
and judgment is based on a sufficiency of the evidence challenge, the Court must
review all of the evidence on the record to determine whether there is at least a
scintilla of evidence to support the jury’s verdict. Considering all of the evidence on
the record – as the Court must – the Court’s conclusion that the evidence does not
support the amount of business income loss sustained by the Hotel is erroneous and
should be corrected on rehearing.
This is a dispute over the failure by an insurance agent to obtain all of the
coverage requested for the Fort Ringgold Motor Inn in Rio Grande City, Texas (“the
Hotel”). Appellees, Fort Ringgold Limited, Pete Diaz III, Aaron Diaz and Monica
Guillon (collectively “Fort Ringgold”) were unable to obtain insurance benefits for
“business interruption” losses when a massive rain storm caused massive damage
disabling many of the rooms and causing a significant loss of income for the Hotel.
Fort Ringgold brought this claim against its insurance agent, Smith-Reagan &
Associates, Inc. d/b/a Smith-Reagan Insurance Agency (“Smith-Reagan”) to recover
damages for Smith-Reagan’s failure to include business interruption coverage on the
property insurance policy for the Hotel.
1 In its opinion and judgment reversing rendering a take nothing judgment, the
Court concluded that there was no evidence presented on the record to show the
amount of damages sustained by the Hotel as a result of Smith-Reagan’s failure to
obtain requested business interruption coverage. The Court’s opinion begins with the
statement that there was no evidence of how business interruption damages would
have been calculated had the coverage been obtained. Smith-Reagan & Assocs. v. Fort
Ringgold Ltd., No. 04-13-00608-CV, 2015 Tex. App. LEXIS 2291, 4 (Tex. App. – San
Antonio Mar. 11, 2015, no pet. h.)(mem. op.). However, since no coverage was
actually obtained, there is no way to prove what it would have been. At most, there
would be evidence of what it probably would have been. And there was such evidence.
David Surles, Smith-Reagan’s insurance expert, explained to the jury how business
interruption coverage usually works and how the loss would be calculated – it would
be based off net profit. Indeed, as explained below, Smith-Reagan’s own brief to the
Court conceded that there was evidence from Surles about how the loss would have
been calculated.
The Court then focused mainly on Pete Diaz’s testimony about the loss of
gross revenues from the loss of use of many of the Hotel’s rooms and concluded that
business interruption insurance would not have provided coverage for loss of total
gross revenue. On that basis, the Court reversed and rendered a take nothing
judgment against Fort Ringgold. It is true that business interruption coverage would
not have paid the total gross revenue for all of the damaged rooms. However, there 2 was other critical evidence that does show the amount of coverage the Hotel probably
would have been paid for business interruption losses had Smith-Reagan not failed to
obtain the coverage. Specifically, Surles explained to the jury that the gross sales
figure would have to be adjusted for the historical occupancy rate to arrive at how
much gross revenue was lost, and then adjusted for expenses.
Thus, the jury heard that there were three items of information that were
generally necessary to determine how much would have been paid had a standard
business interruption policy been obtained for the Hotel: (1) the amount of gross
revenue lost for all the unusable rooms; (2) the likely occupancy rate to determine
how many of those damaged rooms were likely to have been rented had they not been
damaged; and, (3) evidence of the difference in expenses due to the shutdown of
some of the rooms. There was evidence of all three of these items.
1. Pete Diaz testified about what would the gross rental income from all of the damaged rooms would have been had they all been rented ($1.176 million)1.
2. Surles testified that he had reviewed historical occupancy data for the Hotel and told the jury the percentage applicable to adjust the gross revenue to reflect the likely occupancy rate (57%).
3. Diaz testified that the Hotel had to keep its staff, pay insurance, mortgage and other recurring expenses and had no substantial change in operating expenses because of the damaged rooms.
1 This number is based on the total number of unusable rooms multiplied by the rental price and the number of days they were unusable, up until the Hotel was forced to permanently close its doors. 3 Thus, there was evidence from which the jury could determine the Hotel had
lost as much as $670,320 (57% of $1.176 million, with no reduction for expenses).
The jury awarded $325,000 for losses that “would not have occurred had [Smith-
Reagan] procured insurance for Fort Ringgold that included coverage for business
interruption.” (CR5:181)
There was more than a scintilla of evidence to support the jury’s determination
of damages. The Court should grant rehearing and consider these additional facts that
support the jury’s award of damages.
ARGUMENT & AUTHORITIES
The Court’s opinion and judgment are based solely on the ground that there
was legally insufficient evidence of damages to support the jury’s award to Fort
Ringgold. The Court did not address the evidence showing there was an agreement by
Smith-Reagan to procure a policy with business interruption coverage for the Hotel.
As discussed in Appellees’ original briefing, there was sufficient evidence that there
was such an agreement, including statements by the agent involved for Smith-Reagan,
its Vice-President, that he had offered business interruption coverage but Diaz had
declined it, and Pete Diaz’s testimony that he did not decline any of the coverage
offered by Smith-Reagan except an “umbrella” policy. There was also evidence that
Smith-Reagan had forms it would use to document when a client was declining
offered coverage, and that business interruption coverage for a hotel would have been
important and even “critical” for a hotel and there would have been an “in depth” 4 discussion if the Hotel had declined the coverage as Smith-Reagan’s Vice-President
claimed. (Appellees’ Brief at 1-5, 11-17) There was no dispute that Smith-Reagan did
not, in fact, obtain business interruption coverage for the Hotel.
The Court’s opinion also does not address abundant evidence that the Hotel
suffered massive storm damage that left 2/3 of the rooms unusable. (Appellees’ Brief
at 5-7) Indeed, the property insurer for the Hotel, which provided coverage for
property damage but not losses of business income (because Smith-Reagan had not
obtained business income coverage), instructed the Hotel to shut down the badly
damaged rooms. (RR5:108-111) Thus, there was no dispute that the Hotel lost the
ability to use 2/3 of its rooms to generate income.
The sole basis for the Court’s judgment reversing and rendering a take nothing
judgment against Fort Ringgold is its conclusion that the record did not establish how
much Fort Ringgold would have been paid in insurance benefits for loss of business
income had Smith-Reagan obtain the requested business interruption insurance
coverage. Given the record and the standard of review applicable to a post-verdict
evidentiary sufficiency challenge, the Court should grant rehearing and reconsider all
of the evidence on the record. Considering all of the record, there is more than a
scintilla of evidence to support the jury’s award of $325,000 in actual damages.
5 A. The Court Must Review The Entire Record and All of the Evidence To Resolve a Challenge to the Legal Sufficiency of the Evidence.
The basis for the Court’s opinion is a legal sufficiency challenge to the evidence
of Fort Ringgold’s damages as awarded by the jury. The Court must examine the
“entire record” to determine if there is some evidence to support the finding. Hidden
Forest Homeowners Ass'n v. Hern, No. 04-10-00551-CV, 2011 Tex. App. LEXIS 9566,
19, 2011 WL 6089881 (Tex. App. -- San Antonio 2011, no pet.)(mem. op.)(citing Dow
Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001)).
The Court must credit favorable evidence if reasonable jurors could, and
disregard contrary evidence unless reasonable jurors could not. City of Keller v. Wilson,
168 S.W.3d 802, 822, 827 (Tex. 2005); Henson v. Reddin, 358 S.W.3d 428, 434
(Tex.App. – Fort Worth 2012, no pet.). A legal sufficiently challenge fails when the
offered evidence exceeds a “scintilla.” Kroger v. Texas Ltd. Parnership v. Suberu, 216
S.W.3d 788, 793 (Tex. 2006), citing City of Keller, 168 S.W.3d at 810. More than a
scintilla of evidence exists when the evidence supporting the finding, as a whole,
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).
B. There Was Evidence Of How Business Interruption Would Have Been Determined.
The Court’s analysis starts with the proposition that Fort Ringgold failed to
produce a copy of a policy showing how business income losses would have been
6 calculated had Smith-Reagan not failed to obtain it. There is no way to say for certain
what the coverage would have been or how it would have been calculated because it
would be a function of the endorsement that was not obtained. While there could
have been copies of exemplar endorsements from other policies introduced to show
the jury how the endorsement might have worked, that would not be the only way to
provide a scintilla of evidence from which a jury could determine how business
interruption losses would be determined.
Here, there was testimony from David Surles that business interruption
coverage is intended to provide benefits to replace lost “net profit plus the expenses
that continued during the suspension of operations. So, profit plus continuing
expenses during the period of suspension of operations is what business interruption
insurance policy [sic] pays for.” (RR7:217) Thus, there was more than a scintilla of
evidence of what benefits would be provided by a policy with a business interruption
coverage endorsement even without an exemplar endorsement from some other
policy. Indeed, an exemplar from another policy would not be as probative as the
evidence here, since there really is no telling whether a particular form of
endorsement would have been sold with this policy had it been requested. Here,
however, there was evidence of the sort of losses for which these policies are intended
to compensate the insured, and as detailed below, an explanation based on an expert
witness’s knowledge how the loss would have been calculated.
7 There was also evidence as to how the amount of lost net profits should be
calculated for purposes of determining business interruption losses. When Surles
critiqued Pete Diaz’s claim that the Hotel’s lost business interruption coverage was
equal to the total amount of the lost income for all of the rooms – the $1.176 million
figure the Court mentions in its opinion – Surles explained that this number would
have to be adjusted to reflect the historical occupancy rate for the Hotel, since 100%
of the rooms would not be rented every night. (RR7:215-16) This adjustment was
based on what Surles knows “about business interruption insurance and how it would
have paid . . .” (Id.)
The jury did not need to guess what this historical occupancy rate was, either,
because Surles reviewed the documents and testified that Hotel records showed the
occupancy rate was around 57% prior to the storm damage. (RR7:216, 218-19)
The jury likewise heard that “net profit” is simply gross income less expenses.
(RR5:139-140). Once the gross income was calculated and adjusted to the occupancy
rate, the only thing that remained was to determine what effect the loss had on the
Hotel’s expenses to arrive at the lost net profit from those rooms being unusable.
There was also evidence of the effect of the damage on the Hotel’s expenses. Pete
Diaz explained to the jury that substantially all of the Hotel’s expenses remained the
same because Fort Ringgold was still trying to keep the Hotel operating while 2/3 of
the rooms were unusable. Diaz testified that the expenses would be the same for the
whole period – they were recurring monthly expenses that do not go up or down 8 from month-to-month based on the amount of occupancy. (RR5:138-140, 194)(Q:
“So even though the revenues decreased, the expenses still stayed the same?” A:
“That is correct.”)
Of course, gross income equals profit plus expenses - or put another way, net
profit is gross income less expenses. (Id.) If the expenses remained the same with
2/3 of the rooms shut down (and the expenses did remain the same, according to the
evidence), then the lost revenue from those rooms was the same thing as lost net
profit once those numbers are adjusted to the occupancy rate the jury heard about
from Surles. The jury had all it needed to calculate how much the business
interruption loss would have been based on what Surles explained about business
interruption insurance and how it would have paid, and applying that to the gross
sales number and evidence about expenses they heard from Pete Diaz.
C. Smith-Reagan’s Own Brief Contradicts the Panel’s Conclusion That There Was No Evidence of How Business Interruption Loss Would Have Been Calculated.
Critically, in their brief to this Court, these two issues – occupancy rate and
change in expenses – were the two arguments Smith-Reagan actually raised about the
sufficiency of the evidence to support the jury’s determination of damages.
(Appellant’s Brief at 33-34) This is the likely reason for the Court’s reaching a
conclusion about damages that is not consistent with the record – Smith-Reagan did
not argue the sufficiency of the evidence as it relates to damages in the way that the
Court decided that legal issue. Had Smith-Reagan tried to argue that there was no 9 evidence of how business interruption would have been calculated, Appellants would
have much more explicitly called the Court’s attention to the fact that there most
certainly was evidence of how the coverage for business interruption likely would
have been calculated. But Smith-Reagan did not make that argument – because the
record cannot support it.
Rather, Smith-Reagan actually agreed that the record included evidence of the
method of calculating lost business interruption benefits – and characterized it in the
same manner as discussed above. On page 33 of its brief, Smith-Reagan stated:
The evidence presented by Defendant’s expert witness, David Surles, was that payment for business interruption loses is determined by calculating profit plus continuing expense during the period of suspension of operations. [citation omitted] Instead of presenting evidence as to the motel’s profit, Plaintiffs presented evidence as to the motel’s gross sales.
Smith-Reagan then went on to explain the two specific pieces of evidence that it
claimed were necessary to do the business interruption loss calculation. First, that
Pete Diaz’s gross sales number of $1.176 million did not include “evidence of the
amount of expenses that would have continued during the period the motel’s business
was interrupted.” And second, “[h]e did not know the occupancy rate.” (Appellant’s
Brief at 34)
Contrary to what the Court explained in its opinion, there certainly was
evidence of how business interruption losses would likely have been calculated – gross
sales adjusted for occupancy rate less any change in operating expenses. Smith-
10 Reagan conceded as much in its brief. The issue is really whether there was evidence
of the effect on the damaged rooms on the ongoing operating expenses and the
occupancy rate – the two issues raised in Smith-Reagan’s brief. As explained in more
detail above, there was evidence before the jury on both issues. Pete Diaz specifically
testified that the Hotel’s operating expense was the same even with the damaged
rooms not generating revenue for the Hotel. And Surles testified that the occupancy
rate would have been 57%. The Court must consider the entire record in ruling on a
legal sufficiency challenge. There is no reason why a plaintiff cannot rely on the
testimony of the opposing party’s witnesses to support their case.
Here, taking the entire record, including Pete Diaz’s testimony about gross
sales and expenses, and Surles’s testimony about how business interruption loss is
calculated and the occupancy rate, the jury had evidence of all the elements necessary
to determine what the business interruption loss would likely have been had Smith-
Reagan not failed to obtain the coverage as agreed. The evidence supports
substantially more than the $325,000 awarded by the jury for actual damages.
There was more than a scintilla of evidence of how much Fort Ringgold likely
lost in insurance benefits as a result of Smith-Reagan’s failure to procure the business
interruption insurance. The Court should grant rehearing and on a review of the
entire record, substitute an opinion affirming the judgment for Fort Ringgold.
11 CONCLUSION & PRAYER
The Court’s opinion is based on conclusions about the evidence that are at
odds with the record. Given the narrow standard of review that prohibits the Court
from substituting its view of the evidence for that of a jury, and that limits reversal
only to those instances where there is less than a scintilla of evidence, the Court was
mistaken in concluding there was legally insufficient evidence to support the amount
of actual damages found by the jury.
To the contrary, both parties agree that Surles did testify about how business
interruption loss likely would have been calculated. Smith-Reagan’s actual complaint
was that Fort Ringgold did not produce evidence of what the ongoing expenses were
or the occupancy rate. However, applying the standard of review applicable to legal
sufficiency challenges and reviewing the entire record, as the Court must, there was at
least a scintilla of evidence on both of these matters.
The Court should grant rehearing and vacate its opinion and judgment in this
matter. The judgment should be affirmed in its entirety.
Respectfully submitted,
________________________________ Brendan K. McBride State Bar No. 24008900 Brendan.mcbride@att.net THE MCBRIDE LAW FIRM Of Counsel to GRAVELY & PEARSON, L.L.P.
12 425 Soledad, Suite 620 San Antonio, Texas 78205 (210) 227-1200 Telephone (210) 881-6752 Facsimile
And
Matthew R. Pearson State Bar No. 00788173 mpearson@gplawfirm.com GRAVELY & PEARSON, L.L.P. 425 Soledad, Suite 600 San Antonio, Texas 78205 Telephone: (210) 472-1111 Facsimile: (210) 472-1110
COUNSEL FOR APPELLEES
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing document has been forwarded on this 9th day of April 2015 to Appellant’s lead appellate counsel via email and via electronic service through Texas.gov.
____________________________________ Brendan K. McBride
CERTIFICATE OF COMPLIANCE
I hereby certify that this brief is in compliance with the rules governing the length of briefs prepared by electronic means. The brief was prepared using Microsoft Word 2010. Garamond 14 pt. font was used for the body, and Garamond 12 pt. font was used for footnotes. According to the software used to prepare this brief, the total word count, including footnotes, but not including those sections excluded by rule, is 2,976.
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