Texas Windstorm Insurance Association v. Commerce Office Park-One, L.P.

• Court: Court of Appeals of Texas
• Decided: October 3, 2024
• Docket: 13-20-00425-CV
• Status: Published

Opinion

NUMBER 13-20-00425-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

TEXAS WINDSTORM INSURANCE ASSOCIATION, Appellant,

v.

COMMERCE OFFICE PARK-ONE, L.P., Appellee.

ON APPEAL FROM THE 105TH DISTRICT COURT OF NUECES COUNTY, TEXAS

MEMORANDUM OPINION Before Chief Justice Contreras and Justices Tijerina and Peña Memorandum Opinion by Justice Tijerina

Appellant Texas Windstorm Insurance Association (TWIA) appeals the jury’s

verdict awarding monetary damages to appellee Commerce Office Park-One, L.P. (Commerce). 1 By four issues and multiple sub-issues, TWIA contends that: (1) the

evidence is legally and factually insufficient to support the findings that (a) damage to the

buildings’ roofs resulted from the wind as opposed to other causes such as wear and tear

and (b) “the roofs were a total loss”; (2) the trial court made numerous erroneous

evidentiary rulings that were individually and collectively harmful to TWIA; (3) the trial

court submitted erroneous questions to the jury; and (4) Commerce is only entitled to an

award of the actual cash value damages. We affirm.2

I. SUFFICIENCY OF THE EVIDENCE

By its first issue, TWIA contends that Commerce failed to prove by legally and

factually sufficient evidence that (1) the damage to its two buildings were caused directly

by the wind, (2) damage to the roofs was not caused by “excluded perils such as wind-

driven rain, wear and tear, and deterioration,” and (3) the roofs were a total loss.

Commerce responds that there is sufficient evidence to support the jury’s findings.

A. Standard of Review

A “no evidence” or legal insufficiency point is a question of law challenging the

1 Commerce sued TWIA for mishandling its claim pursuant to Texas Insurance Code §§ 2210.575–

576 and for breach of contract. See TEX. INS. CODE ANN. §§ 2210.575–576. Commerce’s suit is based on TWIA’s alleged improper denial of its insurance claim filed after Hurricane Harvey damaged the roofs on two of Commerce’s buildings. 2 We abated this case on June 12, 2023, in light of this Court’s decision in Pruski v. Texas Windstorm Ins. Association, 667 S.W.3d 460 (Tex. App.—Corpus Christi–Edinburg 2023) rev’d and remanded, Tex. Windstorm Ins. Ass’n v. Pruski, No. 23-0447, ___ S.W.3d ___, ___, 2024 WL 2096557, at *1 (Tex. May 10, 2024), wherein, we determined that a trial court lacks jurisdiction in actions against TWIA, if the presiding judge is not appointed by the Judicial Panel on Multidistrict Litigation (“MDL Panel”) and any order or judgment entered is “void.” Id. at 466-67. Subsequently, the Texas Supreme Court reversed this Court’s holding in Pruski concluding that a complaint that the MDL Panel did not appoint the judge in a suit against TWIA is not jurisdictional, and we reinstated this cause. Tex. Windstorm Ins. Ass’n, 2024 WL 2096557, at *4. Here, neither TWIA nor Commerce complained in the trial court that the MDL Panel had not appointed the judge. Therefore, we conclude that the trial court had jurisdiction. See id.

2 sufficiency of the evidence to support a particular fact finding. In re Estate of Livingston,

999 S.W.2d 874, 879 (Tex. App.—El Paso 1999, no pet.). The test for legal sufficiency is

“whether the evidence at trial would enable reasonable and fair-minded people to reach

the verdict under review.” City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). We

review the evidence in the light most favorable to the verdict, crediting any favorable

evidence if a reasonable factfinder could and disregarding any contrary evidence unless

a reasonable factfinder could not. Id. at 821–22, 827. If the evidence at trial “would enable

reasonable and fair-minded people to differ in their conclusions,” we will not substitute

our judgment for that of the factfinder. Id. at 822.

A no-evidence point will be sustained when (1) there is a complete absence of

evidence of a vital fact, (2) the court is barred by rules of law or evidence from giving

weight to the only evidence offered to prove a vital fact, (3) the evidence offered to prove

a vital fact is no more than a mere scintilla, or (4) the evidence conclusively establishes

the opposite of a vital fact. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex.

2003); see City of Keller, 168 S.W.3d at 810. Less than a scintilla of evidence exists when

the evidence is “so weak as to do no more than create a mere surmise or suspicion” of a

fact, and the legal effect is that there is no evidence. Kindred v. Con/Chem, Inc., 650

S.W.2d 61, 63 (Tex. 1983).

In reviewing a factual-sufficiency challenge to a finding on an issue on which the

appellant did not have the burden of proof, we will set aside the verdict “only if it is so

contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust.”

Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986) (per curiam). We examine the entire

3 record, considering both the evidence in favor of, and contrary to, the challenged finding

in our factual sufficiency review. Mar. Overseas Corp. v. Ellis, 971 S.W.2d 402, 406–07

(Tex. 1998). We must weigh all the evidence, not just that evidence which supports the

verdict. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001); Mar. Overseas

Corp., 971 S.W.2d at 406–07. If we determine that the evidence is factually insufficient to

support the jury’s findings, we must “detail the evidence relevant to the issue” and “state

in what regard the contrary evidence greatly outweighs the evidence in support of the

verdict.” Dow Chem. Co., 46 S.W.3d at 242. The amount of evidence necessary to affirm

is far less than the amount necessary to reverse a judgment. GTE Mobilnet of S. Tex.

Ltd. P’ship v. Pascouet, 61 S.W.3d 599, 616 (Tex. App.—Houston [14th Dist.] 2001, pet.

denied).

Whether reviewing the legal or factual sufficiency of the evidence, the jurors are

the sole judges of the credibility of the witnesses and the weight to be given their

testimony. City of Keller, 168 S.W.3d at 819. We must show deference to the jury’s

resolution of conflicts in the evidence, and we must presume that the jury resolved all

conflicts in favor of the verdict. Id. at 820–21. We may not substitute our own judgment

for that of the jury, even if we would reach a different answer based on the evidence. GTE

Mobilnet of S. Tex. Ltd. P’ship, 61 S.W.3d at 616 (citing Mar. Overseas Corp., 971 S.W.2d

at 407).

B. Pertinent Facts

Peter Kavoian owns Commerce and its buildings, which were built in the early

1970s and includes two single-story buildings that are located next to each other. Kavoian

4 bought the buildings in 1994. The buildings have business tenants including, among other

types, accountants, doctors, and construction companies. According to Kavoian, the prior

owner “opted to put a brand[-]new roof on [both] building[s] before [he] bought [them].”

Kavoian testified that although the “bulk of the work” on installing the new roofs had been

completed by the time he arrived on site prior to closing, he recalled seeing the roofers

“wrapping up” the work. Kavoian hired a local inspector to inspect the buildings prior to

purchasing them. According to Kavoian, the inspector did not locate any structural

problems to the buildings. Kavoian stated that the inspector commented that the roof “was

a class[-]A roof, perfect roof.” Kavoian testified that as he understood it, with regular

maintenance, the roof would have lasted for fifty years.

Kavoian does not maintain the properties. Ramon Flores Jr. was the full-time daily

maintenance man since 2010, and he made repairs or hired someone else to make

repairs when he could not. At the time of trial, Sharon Endres was the current site

manager, who tenants could call with complaints and who would then create a work order

for Flores. Once provided with a work order, Flores inspected the issue and reported the

work that was done. Flores ensured proper completion prior to paying outside contractors

who made repairs to the buildings.

Evidence was presented that the roofs were composed of three layers of fiberglass

membrane each embedded in tar, with broadcast pea gravel that was underneath

lightweight concrete and metal decking and were low sloped via tapered concrete.

Underneath the decking there was framing, insulation, ceiling tiles, air conditioning

refrigerant, and conduit lines that ran from the roof with water pipes in the open areas.

5 The evidence showed that, prior to Hurricane Harvey there was no regular roof

inspection and maintenance schedule. Instead, Flores determined whether there were

any leaks by observing ceiling tiles and the source of the leaks and by removing the tiles

that appeared wet or stained. Flores patched any penetrations with roof tar and cement.

Flores testified that he inspected the patches he filled after it rained to determine whether

a leak still existed. When Flores determined that a leak persisted, he called the roofer, B.

Ramirez Roofing.

Kavoian testified that all properties leak, but there were no “systemic” roof leak

problems to any of the buildings prior to Hurricane Harvey. According to Kavoian, any

issues of leaking were resolved at the time the issue arose. Flores could not recall any

“major issues with the roofs” prior to Hurricane Harvey that could not be repaired.

Butch Ramirez testified that his business, B. Ramirez Roofing, has performed

residential and commercial roofing in Corpus Christi, Texas, since the 1970s. According

to Ramirez, the roofs of Commerce’s buildings had been properly maintained, included

leak repairs and gravel replacement. Ramirez replied, “Yes,” when Commerce asked,

“And when you recommended that some work be done on the roofing system, would they

do it?” Ramirez could not recall any instance when Commerce did not follow his

recommendation for necessary roof work. He stated that regarding maintenance of the

roofs, “Everything was done. Everything was done accordingly. They never . . . denied

the fact not to do it, not to do the repairs.” Ramirez testified that he did not believe that

Commerce ever waited until the last minute to perform any roof repairs.

Ramirez said that pooling or ponding of water after it rains is not automatically a

6 problem on a roof, unless the water stays on the roof for over forty-eight hours. According

to Ramirez, prior to Hurricane Harvey, he had repaired one area on one of the building’s

roofs where the water was pooling by “flood[ing] it with hot asphalt, and then gravel[ing]

the area,” which raised that area so that the water could run off the roof. Ramirez testified

that other than this area, he could not “think of any [other] problems with water standing

on the roof” prior to Hurricane Harvey. Ramirez stated that if he had observed other

standing water issues on the roofs, he would have repaired them. Ramirez did not believe

that there were any areas of the roofs prior to Hurricane Harvey where there was not

enough gravel over the membrane. Ramirez testified that when he went to Commerce’s

buildings, his purpose was to “repair the . . . problems that they’re having on leaks, pitch

pans, penetrations,” and he always successfully made those repairs. Ramirez reiterated

that every time he went to Commerce’s buildings, he “was able to take care of the

problem.”

Ramirez testified that prior to Hurricane Harvey, the “[o]verall condition of the roof”

was “good,” and he had never observed any soft spots on the roof when walking on it.

After Hurricane Harvey, Ramirez went to the buildings, and he saw “penetrations” that he

attributed to “something that hit the roof and created . . . a hole.” Commerce asked,

“[B]ased on your personal observations of these roofs before and after Hurricane Harvey

and your experience as a roofer, do you believe that wind and debris from Hurricane

Harvey caused significant damage to these roofs?” Ramirez replied, “Yes.” Ramirez

stated that he did not recall seeing any “major problems” or “major gouges or cuts” in the

roofs that had not been repaired prior to Hurricane Harvey. Ramirez testified that after

7 Hurricane Harvey, he made repairs due to “objects penetrat[ing] the roof and there [were]

some holes on the roof” that he repaired.

On cross-examination by TWIA, TWIA asked Ramirez to identify water ponding on

Commerce’s roofs in pictures shown to him. However, Ramirez testified that it is difficult

to ascertain whether water has been ponding on a roof based on a picture. He said that

to make such a determination, “you actually have to physically be out there.” Ramirez

explained, “I can pinpoint all the dark areas, but not necessarily that all of those are

ponding.” Ramirez hypothesized that the dark areas in the pictures shown to him by TWIA

could simply be depictions of the asphalt. Ramirez agreed with TWIA that in some of the

pictures shown, there was ponding of water and there was grass growing, which indicated

ponding. On redirect examination by Commerce, Ramirez agreed that he was unaware

of how long the water had been on the roof at the time that the pictures were taken.

Kelly Urbanec, TWIA’s corporate representative, testified that upon an application

for a wind-storm policy, TWIA can inspect the property. According to Urbanec, when

Commerce applied for a wind-storm policy on April 25, 2012, TWIA inspected the roofs

and reported that the roofs were ten to fifteen years old and in good condition. According

to Urbanec, prior to renewing a policy, TWIA may require that the policy holder make

necessary repairs to the roof, but Urbanec stated that although TWIA had renewed

Commerce’s policy on a yearly basis, TWIA had never requested Commerce to make

roof repairs. Urbanec explained that generally, if there is a condition “that needs repair,”

TWIA’s underwriting department notifies the “policyholder saying, please document repair

of X, Y, [Z] items, wherever it is, missing shingles on the roof on a house, and provide us

8 documentation, invoices that you’ve completed that, and that’s how they address that.”

TWIA had insured the two buildings from 2014 to 2019 without asking for repairs.

Urbanec testified that coverage on the policy included replacement cost value,

actual cash value, and special coverage of increased cost of construction for compliance

with codes during replacement. Urbanec agreed with Commerce that one calculates the

actual cash value by establishing the replacement cost and then “subtract[ing] the

depreciation on the replacement cost.” Urbanec said, “Whoever writes up the estimate

would figure ‘Replacement Cost Value.’ They would figure the depreciation and then they

would also figure the Actual Cash Value or whatever those damages are.” Urbanec

clarified that TWIA would pay actual cash value if there were repairs made that cost more,

and TWIA reimburses the withheld depreciation up to the replacement cost value.

According to Urbanec, the actual cash value payment ensures that the work of replacing

the roof can begin.

Urbanec testified that on September 26, 2017, Commerce notified TWIA of its

claim. After inspecting the property, TWIA accepted Commerce’s claim in part and denied

it in part. Urbanec agreed with Commerce that TWIA followed the policy’s requirement of

notifying Commerce within sixty days of its decision by sending a letter to Commerce, on

October 14, 2017. The letter acknowledges that TWIA received notice of Commerce’s

claim on September 26, 2017, and that Commerce suffered “[w]ind damage to the

building’s roof system. . . .” The letter states that TWIA accepted the claim in part and

denied it in part. TWIA denied coverage for damage to a fence.

Specifically, the letter states that “TWIA accepts the damages as summarized” as

9 follows: (1) building one—wind damage to the building’s roof system, broken glass, and

“interior water intrusions to various suites causing water damage to ceilings, walls, and

floors”; (2) building two—wind damage to the roof, broken glass, and “interior water

intrusions to various suites causing water damage to ceilings, walls, and floors.” However,

according to the letter, the monetary damage incurred was below the deductible for both

buildings; therefore, no loss payment applied. The letter also denied the claim in part for

wind damage to an outdoor wooden fence and exterior light fixtures and poles because

those items were not listed in the policy.

Urbanec testified that under the applicable policy, Commerce had the right to

invoke the appraisal process if it disagreed with the amount found by TWIA. According to

Urbanec, the appraisal decision is binding on both TWIA and Commerce. Urbanec

explained that under the policy, appraisal is not available when TWIA fully denies a claim,

and appraisal only applies in situations like here where TWIA has either completely

accepted the claim or partially accepted the claim. Urbanec agreed with Commerce that

TWIA had accepted coverage for the roofs. Urbanec also agreed that the deadline for

TWIA to have accepted or denied Commerce’s claim was November 26, 2017.

After TWIA sent the October 14, 2017 acceptance letter to Commerce, Commerce

invoked the appraisal process. Urbanec testified that the appraisal was set for January

10, 2018. TWIA then sent a letter to Commerce requesting a reinspection of the property

in lieu of the appraisal. The letter states, “The appraisal process will be formally evaded

or postponed on this claim until such time that the reinspection’s been completed.”

(Emphasis added). Urbanec explained that if Commerce had refused the reinspection,

10 the appraisal would have been done, and TWIA would have “said, okay.” Commerce

agreed to a reinspection. Urbanec acknowledged that in its letter requesting reinspection,

Commerce was informed that if the disagreement was not resolved after reinspection, an

appraisal would follow.

However, after reinspection TWIA completely denied Commerce’s claim by letter

on July 20, 2018, and denied an appraisal. Urbanec conceded that July 20, 2018, was

“way beyond 60 days from the date of the notice” and that the denial of Commerce’s claim

was made “after the decision date deadline.” Urbanec also acknowledged that TWIA does

not inform a policy holder that if TWIA accepts a claim and then conducts a reinspection,

appraisal is no longer an available remedy if TWIA changes its disposition to a denial in

full. Urbanec agreed with Commerce that this allows TWIA to change its decision to

approve or deny a claim depending “on how the reinspection comes out.” Urbanec

acknowledged that Commerce’s policy does not state that TWIA may change its

disposition from acceptance to denial of the claim but maintained that the policy “doesn’t

provide that [TWIA] can’t change either.” Finally, Urbanec conceded that internal TWIA

notes about Commerce’s claim indicate that TWIA had concluded there had been wind

damage to a wooden fence on the exterior of the property and that TWIA “accepted

anterior and exterior damages to the roof.”

Through Urbenec’s testimony, Commerce established that TWIA asked its

contractor to determine the actual cash value of replacing the roofs, and the contractor

determined that the actual cash value of replacing the roofs and structural damage was

11 approximately $1.2 million with depreciation of $139,487.40.3 Urbanec stated that she

had “no reason” to dispute the pricing estimate that had been made by its contractor who

had worked with TWIA on several prior occasions. Regarding the increased cost of

construction, Urbanec agreed that TWIA’s contractor’s estimate was over $442,000. For

the other building, the contractor “found an increased cost of construction [of] $303,708.”

Urbanec agreed that TWIA’s contractor based the estimate of the replacement costs of

the roofs on an assumption that the roofs had plywood sheathing as opposed to metal

sheathing. Urbanec acknowledged that there is a difference in price for those two

materials.

On cross-examination by TWIA, Urbanec clarified that the applicable policy

prohibits payment “for loss or damage caused by or resulting from rain, whether driven

by wind or not,” and the policy only covers damage or loss from rain if “wind or hail first

makes an opening in the walls or roof of the described building.” In such cases, Urbanec

clarified TWIA “will only pay for the loss . . . to the interior of the building or the insured

property within [that is] caused immediately by rain entering through such openings.”

Urbanec said that if “[t]here is a wind created opening, we can pay for that,” which cannot

have been a “preexisting opening.”

Regarding Commerce’s buildings, Urbanec testified that she “noticed” what

appeared to be areas, “whether they existed before or not,” where “there was some

avenue for the water to have come in or it was from around windows and doors.”

3 Plaintiff’s Exhibit 28 is an inspection report by TWIA’s contractors Tom Young and Cheyenne

Homes that shows the total amount to replace the roof and to repair the structural damage would have been $763,573.18 for building one and $503,645.33 for building two.

12 According to Urbanec, such damage from gaps in windows and doors is indicative of

“wind driven rain.” TWIA showed Defendant’s Exhibit 8 to Urbanec, which included

pictures taken by an adjuster of Commerce’s buildings’ roofs. Urbanec testified that she

did not see “any windstorm [damage] whatsoever in those pictures.”

Urbanec stated that the October 14, 2017 letter to Commerce informed Commerce

that the amount listed was only an estimate and that “[t]here’s further process involved.”

Urbanec reiterated that the amount the letter indicated the damage to each building was

below the deductible and that Commerce could not have misunderstood that TWIA was

providing an estimate to replace the entire roof.

TWIA’s Exhibit 6, which includes notes kept on Commerce’s claim, stated that on

October 16, 2017, a TWIA examiner called Commerce to inform it that there is “no wind

damage found to the flat roof, but the wind caused some damages to roofing materials

such as turbines and areas around the AC [which] created opening[s] to cause water

intrusion to the various units.” In another note, the examiner documented that she let

Commerce’s insurance company “know that no signs of wind or hail damage [were] noted

to the gravel flat roof on this building” and that TWIA was “covering the interior water

damage to the various suites or offices” that were affected. Nonetheless, the examiner

found that the estimated damage did “not exceed the $44,211 deductible.” Urbanec

agreed with TWIA that it was Commerce’s attorney who first brought up the idea of a

reinspection in a letter dated January 10, 2018. Urbanec testified that on several

occasions in other cases, after a reinspection, TWIA has at no charge to the policy holder

“paid more money” on the claim based on a “fresh look at the evidence.”

13 According to Urbanec, TWIA had an engineer from “ProNet” reinspect

Commerce’s property, and “[b]ased on [the engineer’s] conclusions there was not any

windstorm damage to the property from Hurricane Harvey.” Urbanec explained that once

ProNet “turned in the report,” TWIA sent Commerce a letter informing it that its claim had

been denied after reinspection, TWIA had “found no storm related damages to the roof

or elevations of the building,” and “the displace[d] turbine roof vents on the roof over both

buildings occurred prior to Hurricane Harvey.” Urbanec said that in a second letter

explaining the denial of Commerce’s claim, TWIA informed Commerce that the condition

of “the H[VAC] ductwork and displaced turbine vent” existed prior to Hurricane Harvey.

Thus, according to Urbanec, although the adjuster initially thought the damage had

occurred due to Hurricane Harvey, “the engineer found that they were not.” Urbanec

explained that “with high winds, [she] wouldn’t expect that lightweight PVC pipe to be

there” on the roofs, which were shown in pictures. Urbanec thought these pictures

supported TWIA’s denial of Commerce’s claim. Urbanec said that “specifically the H[VAC]

ductwork that was . . . missing a cover,” had been blown off by the wind; however, “aerial

photography show that it preexisted.”

On redirect examination by Commerce, Urbanec stated that although the October

14, 2017 letter said TWIA had accepted roof damage, that acceptance was limited to the

“damage that was written specifically in [TWIA’s] estimate.” Urbanec acknowledged that

Commerce sought a “general claim” of roof damage, TWIA had originally accepted “a

small portion of that general claim,” TWIA did not “deny [the claim] in the letter,” and TWIA

“did not find damage to the rest of the roof.”

14 Vicky Geer, a former claims examiner for TWIA, testified that she wrote a May 7,

2018 denial letter to Commerce and the updated July 20, 2018 letter informing Commerce

that TWIA had denied its claim. Geer agreed with Commerce that she had experience as

a field adjuster “where [she] would actually climb up on buildings and take photographs

and take measurements and write estimates.” Geer said, “The field adjuster’s job is to go

out to see if there is damage and to determine that damage . . . look at the damage, report

it, write an estimate for it, and turn it in.” Geer clarified that as a field adjuster, she did not

“determine coverage out in the field.” Geer agreed with Commerce that as part of her duty

as a field adjuster, she was “trying to determine the cause of the damage,” which included

determining “whether a property was damaged by water that was rising water like from a

flood or storm surge versus a property that was damaged by wind causing damage to the

roof or wind causing damage to the property that allowed rainwater to enter the

property[.]”

Geer said, “The examiner’s job is to review the information that they receive from

the field adjuster.” Geer clarified that the examiner may also rely on other things, such as,

the engineering report. Geer agreed with Commerce that when she made the

determination to deny coverage and draft the July 20, 2018 letter, she was relying on

information that had been given to her, and she did not actually inspect the property. Geer

stated that she relied on the engineering report that had been submitted to TWIA by

ProNet, “[t]he adjuster’s report and photographs, along with [Cheyenne Home’s initial

building consultant] report and photographs.”

Geer testified that in this case, TWIA considered ProNet’s opinion that there had

15 been no wind damage to the property as “more credible” than the original field adjuster’s

initial opinion that some wind damage occurred. 4 Geer found ProNet’s opinion more

credible based on the “[e]ngineer’s experience, schooling, [and] understanding of roofing

structures with a built-up roof,” even though Geer said that she did not know “anything”

about the original field adjuster’s expertise. Geer averred she knew the engineer’s

qualifications because of “[h]is background in building construction.” Geer testified that

she concluded that there had not been any wind damage to Commerce’s buildings after

reviewing the initial field adjuster’s photographs and report, which stated that there was

wind damage. Geer, however, did not rely on the initial field adjuster’s report.

Geer acknowledged that Cheyenne Homes had not been tasked with “identifying

the cause of the damage to the property” and that the goal was to determine the

“[d]amages found and cost estimation” while ProNet’s role was to determine what caused

the damage. Geer’s notes showed that ProNet’s engineer determined that the damage to

the buildings was “from lack of maintenance, age deterioration on the roof.” According to

Geer, the engineer found photographs taken of the roofs prior to Hurricane Harvey and

“found the exact same damages to the roof that was on the roof directly after Harvey,

when the very first adjuster went out to inspect the property.” Commerce asked Geer the

purpose of requesting that ProNet review pictures of the buildings’ roofs prior to Hurricane

Harvey “a little over a month” after she sent the May 7, 2018 letter denying the claim.

Geer did not know the reason but said, “In my experience, it would be someone at TWIA

had looked at my denial letter and wanted further explanation of the two photos.”

4 The initial field adjuster worked for the firm Mason Claim Services (“Mason”).

16 Geer stated that she had authority to request additional investigation and testing

from ProNet such as uplift testing and core sampling; however, she did not do so. Geer

did not recall anyone at TWIA “going back and looking at Mason’s findings.” Geer did not

request logs of the roofs’ maintenance from Commerce.

Thomas Irmiter, Commerce’s expert witness, testified his business inspects and

evaluates damage to buildings that are caused by, among other things, fire, hurricanes,

construction defects, and floods. Irmiter opined that Hurricane Harvey caused the

damages he observed on both roofs. Irmiter testified that the roofs cannot be repaired in

the current condition due to the damage sustained during Hurricane Harvey; therefore, it

would be necessary to replace the entire roofs. Irmiter testified that he used Xactimate,

which is a software used to determine the costs of replacing roofs. According to Irmiter,

the cost to replace the roofs on both buildings would “rough[ly]” be $5,543,106.44 with a

depreciation of $122,330.14. Thus, Irmiter concluded that the actual cash value of

replacing the roofs is $5,420,777.30. Commerce asked, “[W]hat is your opinion as to what

has necessitated these repairs or this replacement in this case?” Irmiter replied, “Damage

caused by Hurricane Harvey.” On redirect examination, Irmiter said, “I believe that 80

percent of this roof assembly is currently wet as a result of Hurricane Harvey.” TWIA’s

expert witness disagreed with Irmiter that wind had caused penetrations on the roofs that

led to the water damage.

C. Cause of Loss

By its first issue, TWIA challenges the evidence supporting the jury’s finding that

17 the cause of Commerce’s loss was the direct result of the wind during Hurricane Harvey.5

Commerce responds that there is sufficient evidence that Hurricane Harvey caused the

damages to Commerce’s roofs, including among other things, witness testimony “that

Commerce’s roofs were in good condition before they sustained wind damage in

Hurricane Harvey,” “TWIA’s own 2012 underwriting report stat[ing] these were ‘10–15

year old roof[s]’ in ‘good condition,’” and testimony of multiple witnesses “that Harvey’s

winds caused damage, including Commerce’s expert, Irmiter.”

As set out above more thoroughly, evidence was presented that Hurricane

Harvey’s winds caused the roofs of both buildings to sustain damage resulting in water

penetrating the roofs and causing damage to the roofs, ceilings, and interiors of both

buildings. Further, there was testimony that had the roofs been in their current condition

during Hurricane Harvey, as alleged by TWIA, those roofs would have blown off the

buildings. In addition, the jury heard evidence that prior to offering a windstorm policy,

TWIA must inspect the roofs of the buildings, that TWIA inspected Commerce’s buildings’

roofs, and that TWIA reported that the roofs were ten to fifteen years old and in good

condition when it first insured Commerce’s roofs in 2012. Additionally, Urbanec testified

TWIA had not requested any repairs to the roofs, and TWIA had continued to offer

Commerce a policy on a yearly basis for the roofs without notice to Commerce of any

5 Question 1 of the jury charge asked and instructed the following: “Was TWIA’s denial of

[Commerce’s] insurance claim improper under the policy”; “TWIA’s denial of coverage was improper if [Commerce’s] buildings sustained covered damage that was caused by the windstorm that occurred on or about August 25, 2017 (Hurricane Harvey)”; and “‘Covered damage’ consists only of direct physical loss to insured property caused by wind or rain, but only if rain first enters through wind-created openings in the insured property.” Thus, TWIA challenges the jury’s implicit finding that the damage to the roofs was sustained by covered damage of wind or wind-created openings.

18 deficiencies requiring repairs. Finally, the jury heard evidence that TWIA’s adjuster had

initially determined that the roofs had sustained wind damage and had accepted

Commerce’s claim in part.

Furthermore, Irmiter testified that the damage to the roofs of both buildings was

caused by Hurricane Harvey’s wind. Although TWIA presented evidence that the damage

to the roofs preexisted Hurricane Harvey and theorize on appeal that there may have

been other causes, the jury was free to disbelieve any evidence contrary to Irmiter’s

testimony that damage to the buildings was caused by the wind during Hurricane Harvey.

See City of Keller, 168 S.W.3d at 820–22. Viewing the evidence in the light most favorable

to the verdict, crediting any favorable evidence if a reasonable factfinder could and

disregarding any contrary evidence unless a reasonable factfinder could not, we conclude

that the evidence would have enabled the jury to find that the damage to Commerce’s

buildings’ roofs was sustained by covered damage of wind or wind-created openings. See

City of Keller, 168 S.W.3d at 821–22, 827. In addition, examining the whole record and

considering both the evidence in favor of, and contrary to, the challenged finding, we

cannot conclude that the verdict is so contrary to the overwhelming weight of the evidence

as to be clearly wrong and unjust.6 See Mar. Overseas Corp., 971 S.W.2d at 406–07;

6 In its brief, TWIA has not detailed the evidence relevant to the issue and has not stated in what

regard the contrary evidence greatly outweighs the evidence in support of the verdict. See Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001).

However, although seemingly unrelated to its factual sufficiency challenge, in a sub-issue to issue one, TWIA contends that Commerce was required to segregate its damages by those caused by wind from Hurricane Harvey and those that had other causes, such as “clogged or frozen air conditioning units, leaking drain pans, clogged drain lines, corrosion, and man-made penetration through the roof, to name a few.” TWIA then cites evidence it claims support a finding that Commerce’s roofs’ damage preexisted Hurricane Harvey, including that “Commerce asked tenants for years not to make roof penetrations because they can and had caused leaking”; “ProNet engineers assert water entered the buildings through these unsealed openings”; “Irmiter testified there were fifty-six penetrations on Building 1 and fifty-two penetrations on 19 Cain, 709 S.W.2d at 176.

D. Segregating Damage

As a first sub-issue to its first issue, TWIA contends that Commerce failed to

provide evidence segregating damage to the roofs of its building caused “by the excluded

perils of rain and other items such as wear and tear.” Specifically, TWIA points to evidence

that Commerce’s roofs leaked and required repair prior to Hurricane Harvey.7

The doctrine of concurrent causation “provides that when . . . covered and non-

covered perils combine to create a loss, the insured is entitled to recover only that portion

of the damage caused solely by the covered peril(s).” Wallis v. United Servs. Auto. Ass’n,

2 S.W.3d 300, 302–03 (Tex. App.—San Antonio 1999, pet. denied) (emphasis added). In

Texas, it is well-settled that “if an insurer pleads an ‘exclusion under the policy’ the

‘insureds [are] obligated to introduce evidence to prove and secure jury findings that

damage was caused solely by the [covered risk]; or segre[gate] the damage caused by

the insured peril from that caused by . . . an excluded peril.’” Travelers Pers. Sec. Ins. Co.

v. McClelland, 189 S.W.3d 846, 849 (Tex. App.—Houston [1st Dist.] 2006, no pet.) (citing

Travelers Indem. Co. v. McKillip, 469 S.W.2d 160, 162 (Tex.1971)).

Here, TWIA did not plead any specific exclusion of loss as set out in its policy.8

Building 2”; and “Almost every roof repair Commerce made pre and post-Harvey occurred at man-made penetrations.” However, these were facts that the jury was free to believe or disbelieve. See City of Keller v. Wilson, 168 S.W.3d 802, 819 (Tex. 2005). 7 We note that although TWIA generally cites authority concerning segregating damages when

there are concurrent causes, it does not apply the law to the facts with a clear and concise argument. See TEX. R. APP. P. 38.1(i). Nonetheless, as we are able to construe the issue and address it, we will do so. 8 On appeal, TWIA claims that “many things can cause leaking—clogged or frozen air conditioning

units, leaking drain pans, clogged drain lines, corrosion, and man-made penetrations through the roof, to name a few.” It further asserts that “Commerce’s roofs had many of these problems.” Nonetheless, as set out above, there is legally sufficient evidence to support the jury’s finding that wind alone caused the 20 Thus, there was no evidence before the jury that could have supported a finding that there

had been a contributing factor to the damage. See McKillip, 469 S.W.2d at 162. Moreover,

Commerce refuted TWIA’s evidence that the damage preexisted Hurricane Harvey,

introduced evidence that proved that the damage to the roofs was caused solely by the

wind, and secured such a jury finding. See McClelland, 189 S.W.3d at 849. TWIA, on the

other hand, denied that any of the damage to the roofs was caused by wind during

Hurricane Harvey, claimed that all the damage to the roofs preexisted the hurricane, and

did not request a jury question asking the jury to determine whether the damage was due

to wind in combination with an excluded cause. See id. Thus, the evidence did not raise

the issue of concurrent causation, and TWIA did not provide evidence regarding any

“excluded perils” as had been done in Wallis.9 See Wallis, 2 S.W.3d 300, 302–03. Finally,

Commerce did not request a jury question regarding segregation. See Wal-Mart Stores,

Inc. v. Sturges, 52 S.W.3d 711, 715 (Tex. 2001) (providing that we “must” analyze the

sufficiency of the evidence “in light of the jury charge . . . [given] without objection”).

Based on these facts, we conclude that the doctrine of concurrent causation is not

applicable, the evidence is sufficient to support a finding that wind solely from Hurricane

Harvey caused Commerce’s damage, and Commerce did not have a burden to segregate

its damage. See Wallis, 2 S.W.3d at 302–03; see also Southland Lloyds Ins. Co. v. Cantu,

damage to the roofs. 9 TWIA on appeal cites evidence it claims shows that the damage to the roofs occurred before

Hurricane Harvey, including the following: (1) “frequent, significant water ponding on Commerce’s flat roofs, which cause leaks,”: (2) “leaking at the flashing joints around the air conditions”; and (3) “corrosion, which allowed leaks.” We are required to view the evidence in the light most favorable to the jury’s verdict; therefore, we must conclude that the jury believed Commerce’s evidence that these problems had been remedied prior to Hurricane Harvey. See City of Keller, 168 S.W.3d at 819.

21 399 S.W.3d 558, 576 (Tex. App—San Antonio 2011, pet. denied) (deferring to the jury’s

finding that the hailstorm alone and not wear and tear caused the damage to the plaintiffs’

property because “unlike in Wallis, the jury . . . was not required to guess what

percentage of the damage was caused by the hailstorm; instead, the jury was faced with

a credibility question: the [plaintiffs] claimed all the damage itemized in [the expert’s]

report was due to hail, while Southland claimed some of the damage was caused by

ordinary wear and tear”); U.S. Fire Ins. Co. v. Matchoolian, 583 S.W.2d 692, 694 (Tex.

App.—Houston [14th Dist.] 1979, writ ref’d n.r.e.) (reversing the trial court’s judgment

because “[u]nder the undisputed evidence rain and wind were presented as concurrent

causes; and . . . no attempt was made to determine the amount of loss caused Solely by

the wind”); McKillip, 469 S.W.2d at 162 (“Travelers having plead [sic] the exclusion under

the policy of loss by snowstorm, the insureds were obligated to introduce evidence to

prove and secure jury findings that the damage was caused solely by the windstorm, an

insured peril; or segregating the damage caused by the insured peril from that caused by

the snowstorm, an excluded peril.”). In addition, examining the whole record and

considering both the evidence in favor of, and contrary to, the challenged finding, we

conclude that the verdict is not so contrary to the overwhelming weight of the evidence

as to be clearly wrong and unjust. See Mar. Overseas Corp., 971 S.W.2d at 406–07; Cain,

709 S.W.2d at 176. We overrule TWIA’s first sub-issue to its first issue.

E. Expert Opinion

By what we construe as second and third sub-issues to its first issue, TWIA

contends that Irmiter’s testimony is irrelevant and unreliable; therefore, the evidence is

22 legally insufficient to show that the damage to the roofs was caused by wind. According

to TWIA, Irmiter’s “baseless opinion will not support a judgment even if there is no

objection to their admission.”

Citing Whirlpool Corp. v. Camacho, TWIA argues that under our legal sufficiency

review, we are required to evaluate Irmiter’s testimony for reliability and relevance. See

298 S.W.3d 631, 640 (Tex. 2009) (agreeing with appellees “that proper appellate legal

sufficiency review pursuant to [a] challenge [to an expert’s opinion] requires evaluating

[the expert’s] testimony by considering both Robinson-type factors and examining for

analytical gaps in his testimony”). We agree with TWIA that Camacho applies when a

party challenges the legal sufficiency of the evidence on the basis that the expert

testimony is unreliable and not relevant. See id. Nonetheless, TWIA as the appellant still

bears the burden to provide this Court with substantive legal analysis of the issue, and

under this purported claim, to provide us with a brief explanation as to which Robinson-

type factors support a conclusion that Irmiter’s testimony is unreliable and not relevant

and to explain which analytical gaps in his testimony lead to a conclusion that his

testimony is unreliable and not relevant. See TEX. R. APP. P. 38.1(i). TWIA generally cites

Camacho; however, it does not provide a detailed explanation of which Robinson-type

factors we must find are lacking and how the supposed analytical gaps make Irmiter’s

testimony unreliable. See id. Nonetheless, we will address this issue as we understand

it.

1. Applicable Law

The proponent of expert testimony must prove the testimony is relevant and

23 reliable. Camacho, 298 S.W.3d at 639. “The proponent must satisfy its burden regardless

of the quality or quantity of the opposing party’s evidence on the issue and regardless of

whether the opposing party attempts to conclusively prove the expert testimony is wrong.”

Id. at 639. A reviewing court may not “merely accept ‘experience’ as a substitute for proof

that an expert’s opinions are reliable and then only examine the testimony for analytical

gaps in the expert’s logic and opinions.” Id. Unobjected-to expert testimony that is

supported by any basis, even if the basis is unreliable, is considered probative evidence.

Houston Unlimited, Inc. Metal Processing v. Mel Acres Ranch, 443 S.W.3d 820, 829 (Tex.

2014) (citing City of San Antonio v. Pollock, 284 S.W.3d 809, 818 (Tex. 2009)). However,

when the expert has no basis for his opinion “or the basis offered provides no support,

the opinion is merely a conclusory statement and cannot be considered probative

evidence, regardless of whether there is no objection.” Id. Expert opinion is unreliable

when there is too great an analytical gap between the data on which the expert relies and

the opinions offered. Kinder Morgan Prod. Co., LLC v. Scurry Cnty. Appraisal Dist., 637

S.W.3d 893, 906 (Tex. App.—Eastland 2021, pet. Denied). “Analytical gaps may include

circumstances in which the expert unreliably applies otherwise sound principles and

methodologies, the expert’s opinion is based on assumed facts that vary materially from

the facts in the record, or the expert’s opinion is based on tests or data that do not support

the conclusions reached.” Id.

2. Relevant Opinion

By its second sub-issue to its first issue, TWIA first states that Irmiter’s testimony

was not relevant because the “jury was not asked to determine if Commerce’s roofs were

24 wet” and “none of Irmiter’s testimony about instrumentation he used to locate and confirm

the presence of water aided the jury in resolving a factual dispute.” This is the extent of

TWIA’s argument. Accordingly, it is not adequately briefed.10 See TEX. R. APP. P. 38.1(i).

Nonetheless, Irmiter testified that he used instruments to locate and confirm that

water seeped into the roof through penetrations caused by wind during Hurricane Harvey.

According to Irmiter, the water seeped into the buildings due to wind damage, and he

inspected the water damage to determine whether the roofs needed replacement after

being opened by the wind which caused rain to enter the buildings. On the other hand,

TWIA’s expert, Armando Selva, spent time opining on the roofs’ water damage that he

attributed to other causes beside wind. Selva agreed that water seeping into the building

due to wind making an opening in the roofs is damage to the building. Moreover, Irmiter

testified that replacement of the roofs was necessary because the wind caused so much

damage to the roofs, rainwater seeped into the roofs causing an eighty percent saturation

of the roofs. Thus, whether water damage occurred due to the wind causing penetration

in the roofs versus other causes was disputed at trial based on the experts’ conflicting

testimony and therefore relevant. See Tex. R. Evid. 401.

3. Reliability of Irmiter’s Testimony

Next, TWIA claims that Irmiter “simply concluded” that the roofs openings were

10 As we understand it, TWIA complains that the basis for Irmiter’s opinion is not supported by the

evidence; thus, the evidence is insufficient to show that the roofs were damaged by the wind during Hurricane Harvey. However, TWIA’s challenge to Irmiter’s testimony about the extent of water damage pertains to the admission of the evidence because TWIA’s complaint is that such testimony was irrelevant to whether the roofs had been damaged by the wind. TWIA does not explain how this complaint constitutes an attack on the sufficiency of the evidence, and we are unable to make such a leap without further briefing. See TEX. R. APP. P. 38.1(i).

25 caused by the wind.” TWIA does not point to any unreliable foundational data that Irmiter

allegedly relied upon, or any of Irmiter’s specific opinion that was drawn from any such

unreliable data. See Helena Chem. Co., 47 S.W.3d at 499. In addition, TWIA does not

state that Irmiter’s opinion is based on certain assumptions about the facts, and it does

not provide us with evidence showing that any alleged assumptions about the facts were

unfounded. See City of Keller, 168 S.W.3d at 813. Instead, TWIA generally challenges

Irmiter’s basis for his opinion that the wind caused the damage to the roofs. TWIA states:

“Eschewing substantive facts or supporting tests, Irmiter repeatedly testified his opinions

were based on forty-five years of experience, but Irmiter failed to connect his wet-roof

finding with his ultimate opinion that Harvey’s winds produced a wind-created opening (as

required by the policy).” According to TWIA, Irmiter’s “baseless opinions will not support

a judgment even if there is no objection to their admission.”

Irmiter testified that he visually inspected the roofs and performed other tests

approved and required by the ASTM guidelines. Likewise, TWIA’s own expert testified

that he utilized the same procedures that Irmiter followed when he made his visual

inspection. Neither TWIA nor Selva performed any other tests not performed by Irmiter to

determine whether the wind caused the damage to the roofs or the water intrusion. Irmiter

testified that during his scoping visit, he inspected the buildings inside and outside

“looking for signs something happened at this location.” According to Irmiter, he followed

ASTM guidelines that are “recognized by the engineering [community] at large [and] by

the International Code Council as a definitive source that you can reference for

guidelines.” TWIA points to nothing in the record indicating that the ASTM guidelines or

26 the International Code Council are unreliable sources of guidelines for inspection of roofs.

Selva did not follow the ASTM guidelines or International Code Council and he merely

performed visual inspection of the roofs.

Based on his visual observation of the repairs made to the roofs post-Harvey,

Irmiter believed the repairs “appear to be reactionary where they’re trying to plug

something quickly.” Irmiter, thus, concluded after his visual inspection and other tests that

the damage was due to high winds during Hurricane Harvey. In addition, Irmiter testified

that the winds even at eighty-two miles per hour as claimed by a meteorologist’s report

obtained by TWIA could cause wind damage to the roofs; Selva stated he did not disagree

with this proposition. Urbanec acknowledged that TWIA does not dispute Irmiter’s

interpretation of the wind speeds, which Irmiter gathered from the Benchmark Weather

wind speed reports obtained by TWIA and the meteorologist’s report.11 Irmiter observed

damage patterns in the roofs which were consistent with eighty-two-mile per hour winds

and ninety-eight per hour winds. His visual inspection included looking for wind scour

(dislodged gravel), which were present, and stated that the wind scours were caused by

strong wind, which necessarily had to have exceeded eighty-mile per hour winds. Selva

agreed that seeing wind scour on the roofs would lead to a conclusion that wind had

caused openings in the roof.

According to Irmiter, wind causes a “suction effect” primarily on a roof’s edges, and

what he observed showed evidence that the wind caused such damage to the roofs.

11 The meteorologist estimated that the wind speeds during Hurricane Harvey were “between 82

and 85 miles per hour, with sustained winds of . . . 65 miles per hour.” The Benchmark Weather report estimated the winds as being sustained winds of sixty-seven miles per hour with maximum three-second wind gusts of ninety-eight miles per hour at the property.

27 Irmiter and Selva both looked for these features when each one visually inspected the

buildings. Selva’s description of the method he uses to inspect for wind damage on a roof

and his use of a visual inspection are consistent with Irmiter’s technique to establish a

basis for finding that wind had caused the damage to the roofs.12 Selva disagreed with

Irmiter’s conclusion that there was evidence that the panels had been uplifted by the wind,

but he utilized the exact same method as Irmiter of visually inspecting the roofs and

looking for the same problems that Irmiter had done during his visual inspection. On

cross-examination by Commerce, Selva agreed that he merely conducted a visual

inspection of the roofs.

The jury heard additional evidence that wind caused the damage to the roofs,

including that TWIA’s own claims examiner had determined in its first inspection that wind

had caused damage to the buildings. TWIA’s adjuster also determined that the buildings

had suffered some water intrusion which had been caused by wind-created openings

during Hurricane Harvey. Moreover, Ramon said that when he arrived two days after

Hurricane Harvey, he observed that the air conditioning covers were in the parking lot,

and when he was on the roofs he noticed that “some of the AC’s didn’t have their AC

panels on”; “drain lines [were] scattered everywhere”; “some turbines were loose,”

“rattling” and “out of balance”; and he felt that he would fall through a portion of the roof

because “there was section that had a real soft spot,” which had not been present prior

to Hurricane Harvey. Inside the buildings, Ramon “saw a lot of damage” such as insulation

12Additionally, Mary Koenig, a claims adjuster for TWIA who initially investigated Commerce’s insurance claim and who found there had been some wind damage to the buildings, testified that a field adjuster will visually inspect the property, talk to the owner of the property, and take photographs to determine whether there has been damage due to the wind. Tasks that Irmiter testified that he performed.

28 hanging, “[t]he walls had water stains coming down,” and “[t]he carpet was wet.” Ramon

stated that after one particularly dreadful rainstorm post-Harvey, he saw the roofs leaking

that he had “[n]ever” seen before.

Commerce’s site manager, Sharon Endes, testified that she went back to the

property approximately “within the week, or a week” after Hurricane Harvey. According to

Endes, “[i]t looked like a bomb went off,” and there was “a lot of water everywhere, trees,

tree limbs, broken fences, a lot of puddles of water,” and the electricity was off. Endes

said that “ceilings tiles were down,” the carpets were “squishy,” and in one of the units

Endes inspected, “water came from the top at the ceiling.” Endes testified that although

pre-Harvey, there had been leaks to the roof, none of the previous damage to the property

“came close to what [she] saw after Hurricane Harvey.” Endes believed that the water

came from the ceiling, and she agreed with Commerce that the property did not “have a

giant inundation of water into all of the units from rising flood water.” Ramirez testified that

before Hurricane Harvey the roofs were in “good condition” overall. Ramirez believed that

Hurricane Harvey caused significant damage to the roofs due to the wind and debris.

Thus, the jury could have reasonably believed Irmiter’s testimony that the wind

caused damage to the roofs which in turn caused the rain to penetrate the buildings’ roofs

and interiors during Hurricane Harvey. See City of Keller, 168 S.W.3d at 819. Viewing the

evidence in the light most favorable to the verdict crediting favorable evidence that a

reasonable factfinder could and disregarding any contrary evidence unless a reasonable

factfinder could not, we conclude that the evidence supports the reliability of Irmiter’s

basis for his opinion. City of Keller, 168 S.W.3d at 821–22, 827. In addition, examining

29 the whole record and considering both the evidence in favor of, and contrary to, the

challenged finding, we cannot conclude that the verdict is so contrary to the overwhelming

weight of the evidence as to be clearly wrong and unjust. See Mar. Overseas Corp., 971

S.W.2d at 406–07; Cain, 709 S.W.2d at 176. We overrule TWIA’s second sub-issue to its

first issue.

4. Other Causes

By a sub-issue, TWIA claims that Imiter “failed to rule out other causes of water

intrusion such as corrosion, man-made penetrations (leaking both pre- and post- Harvey),

age, deterioration, and maintenance deficiencies.” TWIA does not explain with proper

legal argument why it was Irmiter’s burden to rule out other causes of the damages. See

TEX. R. APP. P. 38.1(i). We are not allowed to make the appellant’s argument for it. See

Valadez v. Avitia, 238 S.W.3d 843, 845 (Tex. App.—El Paso 2007, no pet.). Doing so

would cause us to run afoul of the ideal that “we are to be neutral and unbiased

adjudicators of the dispute before us.” Plummer v. Reeves, 93 S.W.3d 930, 931 (Tex.

App.—Amarillo 2003, pet. denied). We are precluded from becoming an advocate for

appellant. See id. Without further explanation from appellant, we are unable to reverse

this judgment on the basis that Irmiter allegedly failed to “rule out other causes of water

intrusion such as corrosion, man-made penetrations (leaking both pre- and post- Harvey),

age, deterioration, and maintenance deficiencies.” See TEX. R. APP. P. 38.1(i).

4. Analytical Gap

Regarding an analytical gap between the data Irmiter relied upon and his opinion,

TWIA merely sets out that “[a]nalytical gaps include circumstances where an expert

30 unreliably applies otherwise sound principles and methodologies, the expert’s opinion is

based on assumed facts varying materially from facts, or the expert’s opinion is based on

tests or data that do not support the conclusions reached.” Then TWIA states, “All three

are true of Irmiter’s conclusion that Commerce’s wet roofs were caused by Harvey’s

winds” and that “[h]is opinions should have been excluded and are not evidence to

support the verdict. This sub-issue is inadequately briefed, and we are unable to address

it. See TEX. R. APP. P. 38.1(i). We overrule TWIA’s third sub-issue to its first issue.

F. Total Loss

By a fourth sub-issue to its first issue, as we understand it, TWIA contends that the

jury awarded replacement costs as opposed to awarding costs that Commerce paid to

repair the roofs, which TWIA claims totaled less than Commerce’s deductible under the

contract. TWIA cites evidence showing that Commerce made several repairs post-Harvey

that according to TWIA were minimal.

We review the sufficiency of the evidence in light of the jury instruction actually

given when neither party objects to it. Reliant Energy Servs., Inc. v. Cotton Valley

Compression, L.L.C., 336 S.W.3d 764, 782 (Tex. App.—Houston [1st Dist.] 2011, no pet.)

(citing Romero v. KPH Consol., Inc., 166 S.W.3d 212, 220–21 (Tex. 2005)). This is so

regardless of whether the charge incorrectly provides a statement of the law, “effectively

increases the burden of proof on a party beyond that actually required by the correct law,”

or causes us to apply a higher standard of review. Id.

When a party objects to an erroneous definition or instruction in the jury charge,

31 we must measure the legal sufficiency of the evidence supporting the jury’s finding

against the charge that should have been given. St. Joseph Hosp. v. Wolff, 94 S.W.3d

513, 530 (Tex. 2002). The trial court must submit to the jury the controlling questions,

instructions, and definitions raised by the pleadings and supported by the evidence. TEX.

R. CIV. P. 278; Triplex Commc’ns v. Riley, 900 S.W.2d 716, 718 (Tex. 1995). A trial court

has broad discretion to fashion the charge, so long as it is legally correct. Hyundai Motor

Co. v. Rodriguez, 995 S.W.2d 661, 664 (Tex. 1999).

2. Discussion

It appears that TWIA challenges whether Commerce was entitled to the

replacement costs. Question 2 asked, “What sum of money, if paid now in cash, would

fairly and reasonably compensate [Commerce] for the covered damage sustained to each

insured building, if any, that were caused by the windstorm that occurred on or about

August 25, 2017 (Hurricane Harvey)?” Thus, Question 2 permitted the jury to find the

amount it would cost to replace each of the roofs, and it did not ask whether Commerce

was entitled to the replacement cost or what were the costs of repairs. Instead, the

question assumes that Commerce is entitled to the replacement costs.

Interrelatedly, in a sub-issue to its third issue concerning charge error, TWIA

states:

TWIA also objected there is no evidence the roofs are a total loss, but the jury was not given the option to assess repair costs, which was in essence an instructed verdict and/or a fact finding by the court that the roofs were a total loss. The evidence demonstrates the contrary, as explained above. Moreover, as with Question 1, Question 2 diluted Commerce’s burden of proof, conflicted with the definition of “covered damage” in the charge, misstated the policy obligations, and diluted the causation requirements.

32 We construe this argument as challenging the trial court’s submission of Question 2 to

the jury. However, TWIA provides no pertinent authority supporting its claim that Question

2 was erroneous, and it does not provide any substantive argument supporting a

conclusion that Question 2 is legally incorrect. See TEX. R. APP. P. 38.1(i); see also

Osterberg v. Peca, 12 S.W.3d 31, 55 (Tex. 2000) (“[I]f the trial court has ‘to resolve a legal

issue before the jury could properly perform its fact-finding role[,] . . . a party must lodge

an objection in time for the trial court to make an appropriate ruling without having to order

a new trial.”). TWIA has not properly met its appellate burden to show that Question 2 as

submitted to the jury was not raised by the pleadings or supported by the evidence. See

TEX. R. CIV. P. 278; Triplex Commc’ns, 900 S.W.2d at 718. TWIA is required to discuss

the facts and the authorities it relied upon. Sweed v. City of El Paso, 195 S.W.3d 784,

786 (Tex. App.—El Paso 2006, no pet.). Uttering brief conclusory statements that are not

supported by legal citations does not satisfy this requirement Id. “Failure to cite legal

authority or provide substantive analysis of the legal issue presented results in waiver of

the complaint.” Martinez v. El Paso Cnty., 218 S.W.3d 841, 844 (Tex. App.—El Paso

2007, pet. struck) (citing Leyva v. Leyva, 960 S.W.2d 732, 734 (Tex. App.—El Paso 1997,

no writ)).

Thus, we are unable to determine whether Question 2 is erroneous and assuming

Question 2 is erroneous, what the legally correct question’s form should have been. See

Osterberg, 12 S.W.3d at 55. Moreover, without substantive legal analysis from TWIA, we

are unable to conclude that the proper question would have asked the jury to determine

repair costs as opposed to replacement costs. See Martinez, 218 S.W.3d at 844. TWIA

33 has waived any complaint that Question 2 is erroneous. We may only measure the

sufficiency of the evidence as it relates to the question submitted, which in this case asked

the jury to determine the amount it would cost to replace the roofs. See id.; see also

Osterberg, 12 S.W.3d at 55 (“[I]t is the court’s charge, not some other unidentified law,

that measures the sufficiency of the evidence when the opposing party fails to object to

the charge.”); Larson v. Cook Consultants, Inc., 690 S.W.2d 567, 568 (Tex. 1985)

(explaining that because the appellant did not object to a jury instruction “and no point of

error was raised concerning it[,] . . . the court of appeals was also bound to review the

evidence in light of this instruction”). The jury determined the replacement costs was

$905,910 for building one and $603,840 for building two. TWIA does not challenge these

findings. Therefore, we overrule TWIA’s fourth sub-issue to its first issue.

G. Intent to Harm Commerce

By what we construe as a fifth sub-issue to its first issue, in a footnote, TWIA states

that the evidence is insufficient to support the jury’s finding that TWIA intended to harm

Commerce. In this footnote, TWIA claims that this sufficiency issue is “discussed below

in connection with TWIA’s jury charge complaints [and] is incorporated by reference.”13

After reviewing TWIA’s third issue regarding jury charge error, we located what we believe

to be TWIA’s sufficiency argument, which states:

TWIA also objected to Question 3 because there is no evidence TWIA had specific intent to harm Commerce. Specific intent to do a certain act is not enough. For instance, Commerce elicited irrelevant testimony from Urbanec 13 TWIA placed its complaint that the evidence is insufficient to show that TWIA intended to cause

harm in its section concerning charge error. However, TWIA does not include any argument in this sub- issue complaining about jury charge error or explain how its insufficient evidence argument relates to its charge error argument. Moreover, we conclude that this issue is also inadequately briefed as to any complaint regarding charge error. See TEX. R. APP. P. 38.1(i).

34 that TWIA “intended” to deny Commerce’s claim. For the imposition of additional damages, the express language of the statute requires specific intent to harm Commerce via mishandling of Commerce’s claim.

Urbanec confirmed TWIA had no intent to harm Commerce by revisiting its claims decision. She also testified her definition of intent was different than what was suggested by Commerce’s lawyer when he inquired whether TWIA “intended” to do a series of specific acts.

(Internal citation omitted).

Thus, TWIA’s complaint focuses on the definition of “intent” offered in Question 3 and

therefore is a challenge to the trial court’s submission of the definition of intent.

In Question 3, the charge defined “intent” as “actual awareness of the facts

surrounding the act or practice listed below, coupled with the specific intent that

[Commerce] suffer harm or damages as a result of the act or practice.” Question 3 asked:

“Do you find by clear and convincing evidence that TWIA mishandled Plaintiff’s claim to

Plaintiff’s detriment by intentionally performing one of the actions listed below”: (1) “Failing

to notify [Commerce] of TWIA’s final coverage decision no later than 60 days after receipt

of [Commerce’s] claim, without good cause or”; “(2) “Rejecting the claim without

conducting a reasonable investigation with respect to the claim; or” (3) “Denying coverage

for a claim in part or in full if TWIA’s liability has become reasonably clear as a result of

its investigation with respect to the denied claim” The jury answered, “Yes.”

In its sufficiency of the evidence section of its brief, TWIA does not provide any

citation to authority supporting its argument or any substantive analysis of the issue

presented explaining why the definition of intent is erroneous. See TEX. R. APP. P. 38.1(i).

Instead, in a footnote, TWIA directs us to another portion of its brief, which also fails to

meet the requirements of the Texas Rules of Appellate Procedure as it does not explain

35 why the trial court erred in submitting this definition of intent to the jury. See id. Thus, we

conclude that this issue is inadequately briefed.14 See id.

II. ADMISSION AND EXCLUSION OF EVIDENCE

By its second issue, TWIA contends that the trial court improperly excluded its

proffered exhibits of Google Earth images of Commerce’s buildings. According to TWIA,

these images “showed stain patterns on the roofs, which are a product of aging and

longstanding water accumulation, similar in size and location in 1995 and 2017, meaning

the roofs were considerably older than [the] alleged 1994 construction and Harvey’s

damages were minimal.” TWIA made this argument to the trial court and stated:

If permitted, Ms. Urbanec would testify to that fact, which is a material fact in this case not only because it explains the condition of the roof, not only because it is inconsistent with the testimony of Mr. Kavoian, but most importantly, it goes to the depreciation aspect of our—of the damage model in this case if the jury finds the roof is a total loss and needs to be replaced.

By several sub-issues to its second issue, TWIA contends that the trial court

improperly admitted hearsay as follows: (1) Kavoian’s testimony that the roofs were built

in 1994 and testimony as to the anticipated life expectancy of the roofs; (2) Irmiter’s expert

report; and (3) “a summary of responses to a post-litigation tenant survey.”

14 By a sixth sub-issue to its third issue, TWIA states:

For the same reasons discussed in connection with Question 3, there was no evidence to support submission of Question 4, which asked, “What sum of money in addition to damages found in Question No. 3, if any, should be awarded to Plaintiff because TWIA's conduct was committed intentionally?” Those arguments and TWIA’s earlier no evidence arguments are incorporated by reference.

(Internal citations omitted).

Again, other than this bare assertion, TWIA does not cite applicable law or provide substantive analysis of this assertion. Accordingly, we conclude this assertion is inadequately briefed. See TEX. R. APP. P. 38.1(i).

36 A. Standard of Review and Applicable Law

The trial court has sound discretion to exclude or admit evidence. Jones v.

Mattress Firm Holding Corp., 558 S.W.3d 732, 737 (Tex. App.—Houston [14th Dist.]

2018, no pet.). “A trial court exceeds its discretion when it acts in an arbitrary or

unreasonable manner or without reference to guiding rules or principles.” Id. We may not

substitute our own judgment for that of the trial court when we review matters committed

to the trial court’s discretion. Id. “Thus, the question is not whether this court would have

admitted the evidence. Rather, an appellate court will uphold the trial court’s evidentiary

ruling if there is any legitimate basis for the ruling.” Id.

Generally, relevant evidence is admissible. Id. Evidence is relevant if it has “any

tendency to make a fact of consequence in determining the action more or less probable.”

Id. (citing TEX. R. EVID. 401). However, relevant evidence can be excluded: (1) if the

probative value is substantially outweighed by unfair prejudice; (2) it would lead to

confusion of the issues; (3) the evidence has the potential to mislead the jury or cause

undue delay; or (4) it causes the needless presentation of cumulative evidence. Id. (citing

TEX. R. EVID. 403).

B. The Google Photographs

If photographs are relevant to any issue in a case, they are admissible. Id. A

photograph relevant to an issue in a case is admissible when a witness authenticates it

as an accurate portrayal. Id. A verifying witness must be familiar with the objects involved

in the photograph to be allowed to authenticate the photograph. Id. (first citing TEX. R.

EVID. 901(a), (b)(1); and then citing Kroger Co. v. Milanes, 474 S.W.3d 321, 342 (Tex.

37 App.—Houston [14th Dist.] 2015, no pet.)). “Conditions in a photograph do not need to be

identical to the conditions at the time of the event in question ‘if the changes are explained

in such a manner that the photograph . . . will help the jury in understanding the nature of

the condition at the time of the event at issue.’” Id. (citing Kroger, 474 S.W.3d at 342).

“Photographs taken at or around the same time from the same angle are generally

cumulative and excluding them is not an abuse of discretion.” Id.

1. Scope of Review

As a preliminary matter, TWIA first argues that Commerce has not “preserved” its

objections to TWIA’s proffered Google Earth photographs because Commerce “failed to

obtain a ruling on all but one” objection. TWIA sets out correctly that Commerce initially

objected to the photographs because they were not properly authenticated, untimely

produced, and were therefore prejudicial. TWIA reasons that because the trial court did

not specifically rule on Commerce’s objections, we are not allowed to review the trial

court’s exclusion of the photographs on those bases.

However, “[w]e ‘must uphold the trial court’s [decision to exclude evidence] if there

is any legitimate basis for the ruling’ or ‘if it is correct under any legal theory,’ ‘even if that

ground was not raised in the trial court.’” Great N. Energy, Inc. v. Circle Ridge Prod., Inc.,

528 S.W.3d 644, 659 (Tex. App.—Texarkana 2017, pet. denied) (citing Enbridge

Pipelines (E. Tex.) L.P. v. Avinger Timber, LLC, 386 S.W.3d 256, 264 (Tex. 2012));

Bennett v. Comm’n for Lawyer Discipline, 489 S.W.3d 58, 73 (Tex. App.—Houston [14th

Dist.] 2016, no pet). Therefore, we will examine all the bases for the trial court’s decision

that are suggested by the record or urged by the parties in the trial court. Bennett, 489

38 S.W.3d at 73.

2. Prejudice to Commerce for Late Production

As acknowledged by TWIA, Commerce objected to the admission of the

photographs on the basis that the late production caused it prejudice. Therefore, we may

uphold the trial court’s exclusion of the photographs if the ruling is correct under this legal

theory. See Great N. Energy, Inc., 528 S.W.3d at 659.

When a party fails to make, amend, or supplement a discovery response in a timely

manner, it may not introduce into evidence the untimely disclosed material unless the trial

court finds that (1) there was good cause for the failure to timely disclose or (2) the failure

will not unfairly surprise or unfairly prejudice the other parties. TEX. R. CIV. P. 193.6(a).

Evidence not timely disclosed is automatically excluded. Fort Brown Villas III Condo.

Ass’n v. Gillenwater, 285 S.W.3d 879, 882 (Tex. 2009). “The purposes of this rule are to

promote responsible assessment of settlement and prevent trial by ambush.” In re Kings

Ridge Homeowners Ass’n, 303 S.W.3d 773, 783 (Tex. App.—Fort Worth 2009, orig.

proceeding). “The party offering the undisclosed evidence has the burden to establish

good cause or lack of surprise, which must be supported by the record.” Lopez v. La

Madeleine of Tex., Inc., 200 S.W.3d 854, 860 (Tex. App.—Dallas 2006, no pet.); see also

TEX. R. CIV. P. 193.6(b). Determining whether a party has met this burden is within the

trial court’s “broad discretion.” Syrian Am. Oil Corp., S.A. v. Pecten Orient Co., 524

S.W.3d 350, 366 (Tex. App.—Houston [1st Dist.] 2017, no pet.).

Here, TWIA does not argue that its production of the photographs was timely; thus,

the photographs were properly excluded automatically. See TEX. R. CIV. P. 193.6. In

39 addition, TWIA does not argue on appeal that it provided evidence that good cause

existed for the failure to timely disclose or that the failure did not unfairly surprise or

unfairly prejudice Commerce. See TEX. R. CIV. P. 193.6(a). Harpst v. Fleming, 566 S.W.3d

898, 907 (Tex. App.—Houston [14th Dist.] 2018, no pet.) (“‘When an appellee objects to

evidence on several independent grounds and, on appeal, the appellant complains of the

exclusion of the evidence on only one of those grounds, the appellant waives any error

by failing to challenge all possible grounds for the trial court’s ruling that sustained the

objection.’” (citations omitted)). We overrule TWIA’s second issue.15

3. Prejudice to TWIA

Finally, TWIA claims that it was prejudiced by exclusion of the photographs

because the jury “likely would not have awarded Commerce millions of dollars.” To show

prejudice, the trial court must have committed error in the exclusion of the evidence. See

Jones, 558 S.W.3d at 739. Here, we have already concluded that the trial court did not

abuse its discretion by excluding the photographs. Therefore, we need not address this

assertion.

C. Irmiter’s Report

By its first sub-issue to its second issue, TWIA contends that the trial court

erroneously admitted Irmiter’s report because it contains hearsay. TWIA does not cite the

hearsay rule or its exceptions. See TEX. R. APP. P. 38.1(i). It also does not cite the record

15 By a sub-issue, TWIA argues that the trial court should have allowed Urbanec to testify about

the Google Earth photographs that the trial court excluded. We have concluded that the trial court did not abuse its discretion in excluding those photographs; therefore, we cannot conclude that the trial court abused its discretion when it disallowed Urbanec to testify about those inadmissible photographs. We overrule this sub-issue.

40 where it objected to Irmiter’s report on the basis of hearsay. Thus, we are unable to

determine the trial court’s reasons for admitting the report. Finally, TWIA argues that “[t]he

harm that should be presumed is clear from the opinions Irmiter’s report presents as

accepted fact.” This is the extent of TWIA’s argument regarding harm. Accordingly, we

conclude this issue is inadequately briefed. See id. We overrule TWIA’s first sub-issue to

its second issue.

D. Age of Roofs

By a second sub-issue to its second issue, TWIA contends that the trial court

admitted hearsay when Kavoian testified that “the seller told him the roofs would be

replaced before his purchase in September 1994” and that “a building inspector told him

after purchase, with regular maintenance, the roofs could last 50 years.”

1. Pertinent Facts

During Kavoian’s testimony, Commerce asked, “Do you have any idea how old the

roofs were on Commerce One when you bought it?” TWIA asked to approach and

objected on the basis that “I think this is based on hearsay.” Commerce replied, “It is

absolutely not hearsay” because “he’s going to have to give definitive evidence that not

only was it a condition of the sale but [that he] saw it.” The trial court said, “Sir, I’m going

to let you proceed. And sir, you can make your objection again if you need to.” TWIA

responded, “Very good.” The trial court said, “Overruled at this time.”

Commerce asked, “How . . . old were the roofs on the property when you

purchased Commerce One?” Kavoian replied, without objection, “They had just been put

on the building.” Kavoian stated, without objection, that the seller “opted to put a brand[-

41 ]new roof on the building before we bought it.” Kavoian clarified that both roofs had been

replaced. TWIA said, “All of that would be hearsay, Judge, every bit of it.” The trial court

replied, “Overruled. Continue.” At this point, TWIA requested a running objection “to the

hearsay.”

Kavoian stated that it was his “understanding” that the deal to purchase the

property included replacement of the roofs. He said, “That was the premise upon which

we bought the property.” Kavoian explained that the “bulk of the work” on replacing the

roofs “had been done by the time we came on the scene.” He said, “They were just

wrapping up a few minor things. . . . I remember early on there were still some roofers up

there just wrapping up a few things, nothing major.” Kavoian said, “And then Mody

Boathright, you know, Mody was a licensed engineer. . . . You know, he told me that it

was a class A roof, perfect roof.” Kavoian recalled that “an out[-]of[-]town roofer” had been

hired to replace the roof and the company did “a very good job.” In addition, Kavoian

stated, that after the new roof was installed, he had Boathright inspect it. Commerce

asked, “Did you ever have any suspicions the roofs weren’t replaced?” Kavoian replied,

“Oh, no.” Kavoian said that the new roofs were supposed to last fifty years. TWIA objected

again. The trial court overruled the objection.

Hearsay is an out-of-court statement offered to prove the truth of the matter

asserted. TEX. R. EVID. 801(d). Generally, hearsay is not admissible. Id. R. 802.

Kavoian testified that he witnessed the roofers on the roofs “just wrapping up a few

things” and that he understood that the seller had agreed to replace the roofs. This

42 evidence is not hearsay because Kavoian witnessed the roofers replacing the roofs and

he made the agreement with the seller to replace the roofs. Thus, when he gave this

testimony, Kavoian did not repeat an out-of-court declarant’s statement. See id. R. 801(d).

However, we assume without deciding that the trial court erred in admitting the rest of

Kavoian’s complained-of testimony. We proceed to a harm analysis.

TWIA’s 2012 underwriting report which the trial court admitted without objection,

states that the roofs were ten to fifteen years old and in good condition. In addition, Irmiter

testified, without objection, that the roofs were not the original roofs built in the 1970s, the

roofs were twenty-two years old, and the roofs were installed in the 1990s—specifically,

Irmiter testified that the roofs were new around 1994. Thus, evidence that the roofs were

not the original 1970’s roofs and were built either in 1994 or approximately in 1997 was

admitted into evidence without objection. Therefore, to the extent the trial court may have

improperly allowed hearsay concerning the age of the roofs, we conclude error, if any,

was harmless because evidence of the roofs’ age was admitted without objection

elsewhere. See State v. Dawmar Partners, Ltd., 267 S.W.3d 875, 881 (Tex. 2008)

(explaining that because the complained of testimony was cumulative of substantially

similar evidence that was not challenged on appeal, any error in admitting the testimony

was harmless); Gee v. Liberty Mut. Fire Ins. Co., 765 S.W.2d 394, 396 (Tex.1989) (“The

erroneous admission of testimony that is merely cumulative of properly admitted

testimony is harmless error.”). We overrule TWIA’s second sub-issue to its second issue.

E. Tenant’s Survey

By a third-sub-issue to its second issue, TWIA argues as follows:

43 After litigation was filed in June 2018, Commerce’s expert created a tenant survey to inquire about interior leaks. The judge excluded responses to the survey. Over TWIA’s objection, he allowed Commerce to introduce a summary of the responses, ruling TWIA had “opened the door” by asking Kavoian questions about the minimal leak complaints in Commerce’s contemporaneous business records. That ruling was incorrect and asking a question based on admitted evidence does not waive the hearsay rule.

(Internal citations to the record omitted).

This issue is inadequately briefed. We overrule TWIA’s third sub-issue to its

second issue.16 See TEX. R. APP. P. 38.1(i).

III. CHARGE ERROR

By its third issue, TWIA contends that the “charge was incorrect in numerous ways”

as follows: (1) Question 1 (a) “fails to accurately (i) state the law, (ii) instruct the jury to

exclude wind-driven rain, and (iii) track relevant policy language,” (b) “misstates TWIA’s

coverage obligations, conflicts with the definition of ‘covered damage’ elsewhere in the

charge and dilutes the policy’s causation requirement”; (2) Question 2’s definitions of

replacement cost value and actual cash value “did not track policy language that require

TWIA to pay the lesser of actual cash value minus depreciation or the cost to repair or

replace with like kind and quality”; (3) Question 3 (a) allowed the jury to answer “Yes”

without determining whether TWIA’s mishandling of Commerce’s claim was due to

(i) “Failing to notify Plaintiff of TWIA’s final coverage decision no later than 60 days after

receipt of Plaintiff’s claim, without good cause,” (ii) “Rejecting the claim without conducting

16 By what we construe as a fourth sub-issue to its second issue, TWIA contends that cumulative

error caused the rendition of an improper judgment. However, we have not found error; therefore, the doctrine of cumulative error does not apply. See Owens-Corning Fiberglas Corp. v. Malone, 916 S.W.2d 551, 570 (Tex. App.—Houston [1st Dist.] 1996), aff’d, 972 S.W.2d 35 (Tex. 1998) (“Multiple errors, even if considered harmless taken separately, may result in reversal and remand for a new trial if the cumulative effect of such errors is harmful.”).

44 a reasonable investigation with respect to the claim,” or (iii) “Denying coverage for a claim

in part or in full if TWIA’s liability has become reasonably clear as a result of its

investigation with respect to the denied claim,” and (b) included an improper instruction

implying that “TWIA intentionally mishandled Commerce’s claim in a way not even

germane to the statutory bases for additional damages”; and (4) “TWIA’s questions and

instructions should have been submitted.

We review charge error under an abuse of discretion standard. Columbia Rio

Grande Healthcare, L.P. v. Hawley, 284 S.W.3d 851, 856 (Tex. 2009). An instruction is

proper if it (1) assists the jury, (2) accurately states the law, and (3) finds support in the

pleadings and evidence.” Thota v. Young, 366 S.W.3d 678, 687 (Tex. 2012) (quoting

Columbia Rio Grande Healthcare, L.P. v. Hawley, 284 S.W.3d 851, 855–56 (Tex. 2009)).

“A judgment will not be reversed for charge error unless the error was harmful because it

probably caused the rendition of an improper verdict or probably prevented the petitioner

from properly presenting the case to the appellate courts.” Hawley, 284 S.W.3d at 856

(citing TEX. R. APP. P. 61.1.). “Charge error is generally considered harmful if it relates to

a contested, critical issue.” Id.

B. Question 1

First, TWIA states that it objected to Question 1 because it “fails to accurately

(1) state the law, (2) instruct the jury to exclude wind-driven rain, and (3) track relevant

policy language”; and it “misstates TWIA’s coverage obligations, conflicts with the

definition of ‘covered damage’ elsewhere in the charge and dilutes the policy’s causation

45 requirement.”17 Specifically, TWIA claims that “Question 1 was premised upon Insurance

Code § 2210.576” and “[b]ecause that statute does not define what constitutes a proper

denial of coverage, this Court must look to the common law for guidance regarding

Commerce’s burden. TWIA states that “[t]o prove coverage under the common law, an

insured must establish: (1) its damage is covered by the policy; (2) was incurred during

the policy period; (3) by an insured person.” TWIA then states that “[t]he only element in

dispute is whether Commerce sustained covered damage.” Thus, TWIA claims that

“Question 1 was erroneously submitted because it did not inquire whether Commerce

sustained covered damage.”

This is the extent of this argument. There is no citation to pertinent authority and

TWIA offers no substantive legal argument applying any law to the facts. 18 See TEX. R.

APP. P. 38.1(i). These are mere utterances of bald assertions. Therefore, we conclude

that this argument is not adequately briefed.19 See id.

Next, TWIA states:

TWIA incorporates by reference its no evidence arguments explained above. The jury was instructed, “‘Covered damage’ consists only of direct physical loss to insured property caused by wind or rain, but only if rain first enters through wind-created openings in the insured property.” TWIA objected [that] the “covered damage” instruction erodes and dilutes the policy language concerning rain.

17 TWIA does not explain why the trial court abused its discretion in overruling its listed objections.

See TEX. R. APP. P. 38.1(i). 18 Although TWIA cites Seger v. Yorkshire Ins., 503 S.W.3d 388, 400 (Tex. 2016), it does not

explain how the law in Serger applies to the facts here. See id. 19 In this argument, TWIA informs the Court that it also objected to Question 1 because “there was

no evidence to support submission of Question 1.” This is not a properly presented issue. Therefore, to the extent that TWIA meant to argue that the evidence was insufficient to support the submission of Question 1, we conclude that it is inadequately briefed. See id.

46 (Internal citations to the record omitted). To the extent TWIA intends to brief this as an

issue presented, it is inadequately briefed. See id.

C. Question 2

TWIA next argues that “[e]ven though the jury was never asked if Commerce

sustained covered damage, Question 2 asked, ‘What sum of money, if paid now in cash,

would fairly and reasonably compensate Plaintiff for the covered damage sustain[ed] to

each insured building, if any, that were caused by the windstorm that occurred on or about

August 25, 2017 (Hurricane Harvey)?’” TWIA then recites the objections it made in the

trial court and generally asserts that the trial court abused its discretion by submitting

Question 2. Without proper legal analysis with citation to legal authority that is applied to

the facts, we are unable to conclude that the trial court abused its discretion. This issue

is therefore inadequately briefed. See TEX. R. APP. P. 38.1(i).

D. Question 3

First, TWIA challenges the trial court’s submission of Question 3 because TWIA

claims that it allowed the jury to find that mishandling Commerce’s “claim could mean any

one or more of the following”: (1) “Failing to notify Plaintiff of TWIA’s final coverage

decision no later than 60 days after receipt of Plaintiffs claim, without good cause”;

(2) “Rejecting the claim without conducting a reasonable investigation with respect to the

claim”; or (3) “Denying coverage for a claim in part or in full if TWIA’s liability has become

reasonably clear as a result of its investigation with respect to the denied claim.” TWIA

specifically takes issue with the first possible way the jury was instructed it could have

mishandled Commerce’s claim. TWIA argues that this portion of “Question 3 misstates

47 the law regarding what TWIA must do within 60 days of receiving a claim.”

According to TWIA, it was required to notify Commerce within sixty days that it

either “(1) accepted coverage for the claim in full, (2) accepted coverage for the claim in

part and denied coverage for the claim in part, or (3) denied coverage for the claim in full.”

TWIA claims that it “satisfied this requirement” and that it was not required “to provide a

‘final’ coverage decision within 60 days, and a decision made within 60 days is not, by

statute or by the policy, a ‘final decision,’ in any event.” TWIA argues that there is nothing

preventing it from changing its disposition of a claim outside the sixty-day period so long

as it sent out a disposition letter within the sixty-day period. To support its claim, TWIA

cites Texas Insurance Code § 2210.5732, which authorizes supplemental payments

under its policies. See TEX. INS. CODE ANN. § 2210.5732. Although § 2210.5732 allows

supplemental payments to the claimant, it does not state that after accepting a claim

within the sixty-day period, the insurance company has authority to then deny the claim

after the sixty-day period has expired. See id. (“The association is authorized to provide

for supplemental payments under a windstorm and hail insurance policy issued by the

association.”). Thus, we are unable to conclude that the trial court abused its discretion

in the complained-of manner.20

Next, TWIA argues that “it is unclear why” Question 3 states:

Prior to TWIA’s denial of coverage on this claim, because TWIA initially accepted coverage to wind damage to the roof systems of the buildings, that portion of [Commerce’s] claim would have been subject to the appraisal process, which would have determined both the scope of damages and the

20 TWIA complains that the trial court abused its discretion by submitting Question 3 as a single

broad-form liability question that incorporated multiple theories of liability. This issue is not supported with citation to pertinent authority with substantive legal analysis. Therefore, it is inadequately briefed. See id.

48 amount of payment to repair those damages, if any.

TWIA argues that this instruction “does not assist the jury in determining if TWIA

mishandled Commerce’s claim by missing a required deadline, conducting an

unreasonable investigation, or denying coverage after its liability had become reasonably

clear” and that it implies that “TWIA intentionally mishandled Commerce’s claim in a way

not even germane to the statutory bases for additional damages.” Thus, according to

TWIA, this instruction was “an impermissible comment on the weight of the evidence.”

At trial, Commerce argued that this instruction had been “invited” because

testimony had “created jury confusion that had to be corrected.” After reviewing TWIA’s

letter that accepted in part and denied in part Commerce’s claim, the trial court submitted

the instruction based on the letter’s wording. TWIA does not provide substantive legal

argument with citation to pertinent authority supporting a conclusion that the trial court

abused its discretion in determining that the instruction had been invited by the testimony

and based on the letter’s wording. Therefore, we are unable to reverse the judgment as

TWIA has not challenged all grounds for the trial court’s ruling.21 We overrule TWIA’s

third issue.22

21 We note that in a footnote, TWIA argues that two cases cited by Commerce in the trial court to

submit the complained-of instruction are distinguishable. However, TWIA merely asserts that the cases are distinguishable because in those two cases, the insurance company initially accepted full coverage, and here TWIA denied Commerce’s claim in part. TWIA does not mention the trial court’s reason for submitting the instruction and does not explain why this asserted distinction matters in our analysis. See id. 22 TWIA also states:

Although it did not bear the burden of proof, TWIA’s proposed questions and instructions were supported by the policy and Texas law. It was error to refuse them . . . because they would have assisted the jury on critical issues, and they accurately state the law. If this Court does not render judgment in TWIA’s favor because there is no evidence to support the judgment, it should remand for a new trial because of the defective jury charge.

49 IV. FOURTH ISSUE

By its fourth issue, TWIA contends that Commerce should have repaired its roofs,

the “equitable ‘doctrine of prevention’” does not apply, and “Kavoian admitted he has the

financial means to replace Commerce’s roofs.”

A. Condition Precedent

TWIA argues that “Commerce failed to satisfy the condition precedent to recovery

under the Replacement Cost and Increased Cost of Construction endorsements.”

Specifically, TWIA argues that because “Commerce did not repair or replace its roofs, the

event that triggers replacement cost value coverage has not occurred.”

This issue appears to challenge the sufficiency of the evidence to support Question

2 asking the jury to determine the sum of money that “would fairly and reasonably

compensate” Commerce “for the covered damage sustained to each insured building, if

any, that [was] caused by” Hurricane Harvey’s windstorm. However, as previously stated,

we must review the sufficiency of the evidence in light of the jury instruction actually given

when neither party objects to it. Reliant Energy Services, Inc. v, 336 S.W.3d at 782. Here,

the jury charge does not include a question to the jury regarding whether Commerce

satisfied the alleged condition precedent. In addition, TWIA does not cite wherein this

voluminous record it objected to Question 2 on the basis that Commerce did not satisfy

the alleged condition precedent, wherein it requested a question regarding a condition

precedent in writing, or where the trial court overruled its objection to Question 2 on that

Without substantive legal analysis with citation to pertinent authority, we are unable to address this purported argument. See id.

50 basis or request for a question on condition precedent, and we have found no such

objection or request in the record. See Patriot Contracting, LLC v. Shelter Products, Inc.,

650 S.W.3d 627, 651 (Tex. App.—Houston [1st Dist.] 2021, pet. denied) (“If appellants

assert that the trial court improperly omitted an instruction or question in the court’s

charge, they must do more than object to preserve their complaint for appeal; appellants

must request and tender to the trial court a substantially correct instruction or question in

writing.”); see also TEX. R. CIV. P. 272 (requiring for a party to get a ruling on its objection

to a jury question to preserve error). Therefore, our review of the sufficiency of the

evidence is limited to the question as presented in the charge. See id. Accordingly, the

charge does not require Commerce to prove that it made repairs or replaced the roofs to

receive replacement costs and increased costs of construction. We overrule this issue to

the extent that TWIA challenges the sufficiency of the evidence in that regard.

B. Doctrine of Prevention

Next, TWIA argues that Commerce “appear[ed] to be advancing the equitable

‘doctrine of prevention,’” when it argued to the trial court that it was “excused from

replacing or repairing its property because TWIA denied coverage.” TWIA claims, without

application of legal analysis to the facts of this case, that Commerce had the “burden

under the prevention doctrine—to prove the denial of coverage made impossible

necessary repairs or replacement.” TWIA states that the doctrine of prevention is not

recognized in Texas and even if it were recognized, “it would be inapplicable here

because Kavoian clearly qualifies as a ‘sophisticated party,’ who has the money, or at

least the financial ability to borrow the money, to replace Commerce’s roofs.”

51 TWIA cites Devonshire Real Estate & Asset Mgmt., LP v. Am. Ins. Co., No. 3:12-

CV-2199-B, 2014 WL 4796967, at *7 (N.D. Tex. Sept. 26, 2014), which states, “Under

that doctrine [of prevention], ‘when a promisor wrongfully prevents a condition from

occurring that condition is excused.’” In Devonshire, the parties filed dueling motions for

summary judgment asking the court to determine whether the contract allowed for

replacement cost or actual cash value. See Devonshire Real Estate & Asset Mgmt., LP,

2014 WL 4796967, at *4. The court determined that the contract only allowed for the

insured to receive replacement cost after it completed repairs. Id. The Devonshire court

noted that the contract allowed the insured to receive damages on a replacement cost

basis but only after “the lost or damaged property [was] actually repaired or replaced.” Id.

The Devonshire court recognized that “no Texas court has employed the doctrine of

prevention to vitiate an insured’s contractual obligation to repair or replace damaged

property before claiming payment for replacement costs,” and “in cases where the

doctrine has been applied to allow an insured to recover replacement costs, the insurer

either completely denied the claim or refused to make any payments until it was too late

for the insured, who was frequently an unsophisticated party, to make repairs.” See id.

Commerce argues that in this case, TWIA completely denied the claim; therefore, the

doctrine applies.

There is no question in the charge on the doctrine of prevention, and TWIA does

not state that it requested a question on the doctrine of prevention. TWIA does not provide

any argument supporting a conclusion that the trial court in this case applied the doctrine

of prevention, and it does not explain how we may reverse the judgment on this basis

52 even if the trial court applied it. See TEX. R. APP. P. 38.1(i). Question 2 presumed that

Commerce was entitled to replacement costs and asked the jury to determine the amount

it would cost Commerce to replace its roofs. Thus, we conclude that to have preserved

this issue, TWIA should have objected to Question 2 on the basis that it improperly applied

the doctrine of prevention. See TEX. R. CIV. P. 274 (“Any complaint as to a question,

definition, or instruction, on account of any defect, omission, or fault in pleading, is waived

unless specifically included in the objections.”); McLeod v. McLeod, 644 S.W.3d 792, 809

(Tex. App.—Eastland 2022, no pet.) (“Julie did not preserve error, if any, as to the

inclusion of Wanda in these questions because she did not object to the questions on this

basis.”); Cruz v. Andrews Restoration, Inc., 364 S.W.3d 817, 829 (Tex. 2012) (explaining

that to preserve a jury-charge complaint a party must make the trial court “aware of the

complaint, timely and plainly, and obtain a ruling.” (quoting State Dep’t of Highways &

Pub. Transp. v. Payne, 838 S.W.2d 235, 241 (Tex. 1992))). In addition, TWIA has not met

its appellate burden because it has not cited wherein this voluminous record, it made this

argument to the trial court or if it obtained a ruling. See TEX. R. APP. P. 33.1, 38.1(i).

Accordingly, we overrule TWIA’s fourth issue to the extent it argues that the doctrine of

prevention is inapplicable.

V. CONCLUSION

We affirm the trial court’s judgment.

JAIME TIJERINA Justice

Delivered and filed on the 3rd day of October, 2024.