United Services Automobile Association v. Joseph Hayes, Jr and Joanne Hayes

Opinion issued August 30, 2016

In The

Court of Appeals
For The

First District of Texas
————————————
NO. 01-14-00133-CV
———————————
UNITED SERVICES AUTOMOBILE ASSOCIATION,
Appellant/Cross-Appellee
V.
JOSEPH HAYES, JR. AND JOANNE HAYES, Appellees/Cross-Appellants

On Appeal from the 165th Judicial District Court
Harris County, Texas
Trial Court Case No. 2009-63319

OPINION

Appellant/Cross-Appellee, United Services Automobile Association

(“USAA”), challenges the trial court’s judgment, entered after a jury trial, in favor

of Appellees/Cross-Appellants, Joseph Hayes, Jr. and Joanne Hayes (collectively,
“the Hayeses”), in their suit against USAA for breach of contract and violations of

the Texas Insurance Code.1 In three issues, USAA contends that there is no

evidence to support the jury’s finding that it failed to comply with its insurance

policy in regard to the Hayeses’ claim for damage caused by Hurricane Ike to the

roof of their house; the trial court erred in awarding the Hayeses “a specific

amount of costs”; and the trial court erred in awarding the Hayeses “$56,421.65 in

court costs.”

In their cross-appeal,2 the Hayeses contend that the trial court erred in

concluding that USAA conclusively established that they had made an excessive

demand upon it and disregarding the jury’s corresponding award of $237,500 for

their attorney’s fees for representation in the trial court; disregarding the jury’s

finding that USAA had knowingly engaged in an unfair or deceptive act or practice

that caused them $30,000 in additional damages; disregarding the jury’s finding

that $5,000 would fairly and reasonably compensate them for damage to the

interior of their home and garage; and not awarding them penalty interest pursuant

to the Texas Insurance Code.3

We affirm in part and reverse and remand in part.

1
See TEX. INS. CODE ANN. §§ 541.151, 541.060, 542.055, 542.056, 542.058,
542.060 (Vernon 2009 & Supp. 2015).
2
See TEX. R. APP. P. 38.2(b)(1).
3
See TEX. INS. CODE ANN. § 542.060.

2
 Background

In their Second Amended Petition, the Hayeses alleged that in September

2008, Hurricane Ike caused damage to their house in Clearlake and Mr. Hayes

reported their claim of exterior damage to USAA in late September.

The evidence presented at trial reveals that while waiting for a USAA

adjuster to inspect the damage to their house, the Hayeses, on November 5, 2008,

had their roof inspected by Brinkman Roofing (“Brinkman”). Captain Kenyon of

Brinkman reported that wind had caused damage to their roof, it needed to be

replaced, and it would cost $11,593 to replace the roof.

However, when Cynthia Melena, USAA’s adjuster, viewed the Hayeses’

house later in November, she opined that it had sustained damages totaling $9,319.

And she concluded that the roof had not in fact been damaged by wind because she

found no torn, creased, or missing shingles. Melena did note at the time that the

roof did have shingles that were “unsealed.”

USAA subsequently sent to the Hayeses a “Claim Payment” letter in which

it stated that the actual cash value settlement due to the Hayeses was $7,209.38.

After Mr. Hayes complained to USAA that its settlement value was too low,

USAA sent a second adjuster, Stephen Taylor, to re-inspect the house on

December 3, 2008. Taylor opined that the Hayeses’ house had sustained $9,892 in

damages, but he also concluded that the roof had not been damaged by wind. After

3
Mr. Hayes again complained to USAA, it sent a third adjuster, Jack Berke, to

inspect the roof. Berke opined that wind turbines on the roof, and the roofing

surrounding the turbines, needed to be replaced. Although he saw six to seven

damaged shingles, he concluded that the entire roof did not need to be replaced.

And Berke estimated that the house had sustained damages totaling $12,006.

In May 2009, USAA sent Peter Weakly, the fourth and final adjuster, to

inspect the damage to the Hayeses’ house. He noted that “40-60%” of the shingles

on the roof were “lifted” and “not sealed,” most of the lifted shingles were located

on the front slope and the center of the front slope of the roof, and one shingle

might have been nicked by flying debris. Weakly did not see any evidence of

“creased” shingles, which would have been indicative of wind damage. And he

opined that wind did not cause the lifted shingles to become unsealed; rather, this

was caused by “poor manufacturing, defective shingles, at the time.” Weakly did

see a torn shingle, but concluded that it was torn by a Brinkman roofer. He also

saw damage to vent pipes on the roof, but he concluded that the damage had been

caused by squirrels, not Hurricane Ike. When Weakly entered the house, he found

water damage in the master bedroom, dressing area, and master bathroom.

However, he opined that this interior water damage was caused by the exterior

damage to the vent pipes on the roof. In all, Weakly estimated that the Hayeses’

4
house had sustained $28,473.09 in damages, including the costs to reseal the

shingles on the roof.

At trial, Mr. Hayes testified that although USAA had paid him $24,025 on

his claim, he paid $8,450 out of his own pocket for repairs. And, even with the

money that he received from USAA, he was not able to make all of the needed

repairs to the house. Moreover, after Weakley had inspected the house, Mr. Hayes

contacted USAA to ask if it was going to replace the roof, USAA responded,

“[T]hat’s it.”

After hearing the evidence, the jury returned its verdict, finding that USAA

had failed to comply with the insurance policy regarding the Hayeses’ claim “for

roof, garage door, and other exterior damage” to their house. It further found that

USAA had “knowingly” engaged in “unfair or deceptive act[s] or practice[s]” that

caused the Hayeses damage, specifically by failing to attempt in good faith to

effectuate a prompt, fair, and equitable settlement of their claim after USAA’s

liability had become reasonably clear; failing to promptly provide the Hayeses with

a reasonable explanation of the basis in the policy for USAA’s denial of their claim

or an offer of a compromise settlement of their claim; and refusing to pay the

Hayeses’ claim without conducting a reasonable investigation. And the jury found

that USAA had failed to notify the Hayeses “in writing” of its “acceptance or

5
rejection of their claims by June 10, 2009” and “comply with its duty of good faith

and fair dealing” to the Hayeses.

The jury awarded the Hayeses $20,000 for “[d]amage to the roof, garage

door, and other exterior damage” to their house, $5,000 for “[d]amage to the

interior of the home and garage,” and $2,000 for damages proximately caused by

USAA’s “failure to comply with its duty of good faith and fair dealing.” In

addition to their actual damages, it awarded the Hayeses $30,000 because USAA

had committed its conduct knowingly. And the jury awarded the Hayeses

$237,500 in attorney’s fees for representation in the trial court and $50,000 for

representation in the court of appeals.

In its Motion for Judgment Notwithstanding the Verdict (“JNOV”), USAA

asserted that the Hayeses had presented no evidence to establish that they had

suffered a direct physical loss; USAA committed violations of the Texas Insurance

Code; they suffered damages in regard to their claims for breach of contract and

violations of the Texas Insurance Code; they suffered $20,000 in damage to the

roof, garage door, and other exterior damage; they suffered $5,000 in damage to

the interior of their home and garage; USAA “knowingly” engaged in “unfair or

deceptive act[s] or practice[s]” that caused damage to the Hayeses; and USAA

failed to comply with its duty of good faith and fair dealing that proximately

caused damages of $2,000 to the Hayeses. USAA further asserted that the

6
Hayeses’ evidence on attorney’s fees is “improper as a matter of law”; their

attorney’s fees are limited due to the fact that they made an excessive demand

upon USAA; and, alternatively, their recovery of attorney’s fees is limited under

the Texas Insurance Code.4 In their response, the Hayeses asserted that they did

not make an excessive demand upon USAA and legally sufficient evidence

supports the jury’s findings and awards.

In its judgment, the trial court disregarded the jury’s award of $5,000 for

damage to the interior of the Hayeses’ home and garage; the jury’s finding that

USAA “knowingly” engaged in “unfair or deceptive act[s] or practice[s]” and

corresponding award of $30,000; the jury’s award of $2,000 for USAA’s failure to

comply with its duty of good faith and fair dealing; and the jury’s award to the

Hayeses for attorney’s fees for representation in the trial court. And the trial court

reduced the award of attorney’s fees for trial representation to “$0, reflecting the

[c]ourt’s finding of excessive demand” by the Hayeses. In accord with the

remainder of the jury’s verdict, the trial court rendered judgment in favor of the

Hayeses and against USAA based upon the jury’s findings that USAA had failed to

comply with the insurance policy and violated the Texas Insurance Code. And it

awarded the Hayeses $20,000 in actual damages, plus pre- and post-judgment

interest, and $56,421.65 in “taxable court costs.” The Hayeses then filed a Motion

4
See TEX. INS. CODE ANN. § 541.159 (Vernon 2009).

7
to Modify, Correct or Reform the Judgment and a Motion for New Trial on

Attorney’s Fees, both of which were overruled by operation of law.5

Breach of Contract

In its first issue, USAA argues that the trial court erred in denying its motion

for JNOV and “rendering judgment on the [Hayeses’] breach of contract claim

because there [is] no evidence of a direct physical loss with respect to unsealed

shingles.” USAA asserts that “[a] shingle in an ‘unsealed’ condition is not a

‘direct physical loss’ under the Hayes[es’s] homeowner’s policy, absent evidence

the shingle was sealed prior to the storm”; the Hayeses’ expert evidence “regarding

the cause of the unsealed shingles is conclusory and not probative”; and, “as a

matter of public policy, unsealed shingles should not be considered” a direct

physical loss. USAA concludes its discussion of its first issue as follows:

Because unsealed shingles alone without proof the shingle was
unsealed by wind are not [a direct physical loss], there is no breach of
contract and, because there is no breach of contract, the Hayes[es]
cannot recover the $20,000 awarded them. Furthermore, in the
absence of any claim for which attorney’s fees may be recovered, the
Hayes[es] are not entitled to attorney’s fees.

In response, the Hayeses first argue that because USAA has not, in its

appellate brief, challenged (1) the jury’s findings that USAA, in addition to its

failure to comply with the insurance policy, also violated the Texas Insurance Code

and (2) the jury’s award of $20,000 for actual damages, the trial court’s judgment,

5
See TEX. R. CIV. P. 329b(c).

8
which is based in part on these findings and award, should be affirmed. See

Britton v. Tex. Dep’t of Criminal Justice, 95 S.W.3d 676, 680–81 (Tex. App.—

Houston [1st Dist.] 2002, no pet.) (“[A]ppellant must attack all independent bases

or grounds that fully support a complained-of ruling or judgment.”).

In Question 1A of its charge, the trial court asked the jury whether USAA

had failed “to comply with the insurance policy with respect to the claim [of the

Hayeses] for roof, garage door, and other exterior damage?” And the jury

answered, “yes.” However, the trial court, in Question 4 of its charge, further

asked the jury whether USAA had “engaged in any unfair or deceptive act or

practice that caused damages” to the Hayeses. And the jury specifically found that

USAA had

 failed “to attempt in good faith to effectuate a prompt, fair, and
equitable settlement” of the Hayeses’ “claim when USAA’s
liability had become reasonably clear”;

 failed “to promptly provide” to the Hayeses “a reasonable
explanation of the basis in the policy, in relation to the facts or
applicable law,” for USAA’s “denial of [their] claim or offer of
a compromise settlement of their claim”; and

 refused to pay the Hayeses’ “claim without conducting a
reasonable investigation with respect to their claim(s).”

In Question 5, which was predicated on an affirmative response to “Question

No. 1A or to Question No. 1B or to any part of Question 4,” the trial court asked

the jury what sum of money would fairly and reasonably compensate the Hayeses

9
for their damages that “resulted from the failure to comply you found in response

to Questions Nos. 1A and/or 1B, and/or that were caused by an unfair or deceptive

act that you found in response to Question no. 4.” (Emphasis added.) In regard to

the first subpart for “[d]amage to the roof, garage door and other exterior damage,”

the jury answered “$20,000.”

The trial court, “based upon the jury’s answers to question no. 1A, question

no. 1B, question no. 2, question no. 3, question no. 4, question no. 5, the first

subpart only, question no. 6, question no. 9, question no. 11, and question no. 12,”

then rendered its judgment against USAA and in favor of the Hayeses, awarding

them $20,000 in actual damages. (Emphasis added.)

Regardless of the jury’s answer to Question 1A, concerning whether USAA

had failed to comply with the insurance policy, the jury further found in answer to

Question 4, which was not in any way predicated upon an answer to Question 1,

that USAA had also committed the three separate violations of the Texas Insurance

Code as outlined above. Simply put, these three separate violations of the Texas

Insurance Code constitute causes of action separate and apart from the Hayeses’

claim against USAA for breach of contract. As such, they provided the Hayeses

with three additional grounds of recovery against USAA independent from their

breach-of-contract claim. And the jury, in answer to Question 5, awarded the

Hayeses damages of $20,000 based on either the failure of USAA to comply with

10
the insurance policy “or” its separate violations of the Texas Insurance Code.

Because the trial court did render judgment based upon the jury’s answers to

Questions 4 and 5, as well as Question 1, USAA, in order to successfully challenge

the trial court’s judgment, was required to also challenge either the jury’s three

affirmative findings in regard to Question 4 or its award of actual damages in

regard to Question 5. See Britton, 95 S.W.3d at 681. Contrary to USAA’s

assertion in its reply brief, it did not challenge any of these findings in its

appellant’s brief.6 Accordingly, we must affirm the portion of the trial court’s

judgment that it entered based on the jury’s answers to Questions 4 and 5. Id.

Moreover, we note that, contrary to USAA’s assertion, the jury’s findings that

USAA violated the Texas Insurance Code also entitle the Hayeses to recover their

attorney’s fees. See TEX. INS. CODE. ANN. § 541.152 (Vernon Supp. 2015).

6
Over a month after oral argument and four months after it had filed its reply brief,
USAA, “out of the proverbial ‘abundance of caution,’” filed a motion to
supplement its brief to contend in three additional issues that there is no evidence
that USAA failed to compensate the Hayeses “for their garage door and other
exterior damage”; because USAA “did not breach the policy,” the Hayeses may
not recover extra-contractual damages and attorney’s fees based on extra-
contractual damages; and “[t]he jury’s answers to question 4 cannot support the
$20,000 award.” As noted by the Hayeses, “USAA was aware of the Hayeses’
argument and responded to it in a footnote in its reply brief” and USAA did not
brief its new issues and arguments. Accordingly, we overrule USAA’s motion to
supplement its appellant’s brief. Regardless, as noted below, the evidence is
legally sufficient to support the jury’s finding that USAA failed “to comply with
the insurance policy with respect to the claim [of the Hayeses] for roof, garage
door, and other exterior damage.”

11
 Even were we to assume that USAA’s contention that there is no evidence to

support the jury’s answer to Question 1A encompasses a challenge to the jury’s

answers to Questions 4 and 5, ample evidence supports the jury’s finding that

USAA failed to comply with the policy “with respect to the claim [of the Hayeses]

for roof, garage door, and other exterior damage.”

In response to the merits of USAA’s argument that there is no evidence that

the Hayeses suffered “a direct physical loss with respect to unsealed shingles,”

they assert that USAA “itself determined that the unsealed shingles on the

Hayeses’ roof were a covered loss” and the eyewitness testimony of the Hayeses,

expert testimony, and other evidence support the jury’s finding that USAA failed

to comply with the policy.

We review a trial court’s JNOV ruling under a legal-sufficiency

standard. City of Keller v. Wilson, 168 S.W.3d 802, 823 (Tex. 2005) (“[T]he test

for legal sufficiency should be the same for summary judgments, directed verdicts,

judgments notwithstanding the verdict, and appellate no-evidence review.”). A

trial court may disregard a jury’s verdict and render a JNOV if there is no evidence

to support the jury’s findings or if a directed verdict would have been proper. TEX.

R. CIV. P. 301; Tiller v. McLure, 121 S.W.2d 709, 713 (Tex. 2003).

When, as here, an appellant attacks the legal sufficiency of an adverse

finding on an issue on which it did not have the burden of proof, it must

12
demonstrate that no evidence supports the finding. Examination Mgmt. Servs., Inc.

v. Kersh Risk Mgmt., Inc., 367 S.W.3d 835, 839 (Tex. App.—Dallas 2012, no pet.).

We will sustain a legal-sufficiency or “no-evidence” challenge if the record shows

one of the following: (1) a complete absence of evidence of a vital fact; (2) rules

of law or evidence bar the court 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

scintilla; or (4) the evidence establishes conclusively the opposite of the vital fact.

City of Keller, 168 S.W.3d at 810.

In conducting a legal-sufficiency review, a “court must consider evidence in

the light most favorable to the verdict, and indulge every reasonable inference that

would support it.” Id. at 822. The term “inference” means:

In the law of evidence, a truth or proposition drawn from another
which is supposed or admitted to be true. A process of reasoning by
which a fact or proposition sought to be established is deduced as a
logical consequence from other facts, or a state of facts, already
proved. . . .

Marshall Field Stores, Inc. v. Gardiner, 859 S.W.2d 391, 400 (Tex. App.—

Houston [1st Dist.] 1993, writ dism’d w.o.j.) (internal quotations omitted). “For a

jury to infer a fact, it must be able to deduce that fact as a logical consequence

from other proven facts.” Id.

If there is more than a scintilla of evidence to support the challenged finding,

the finding must be upheld. Formosa Plastics Corp. USA v. Presidio Eng’rs &

13
Contractors, Inc., 960 S.W.2d 41, 48 (Tex. 1998). “[W]hen the evidence offered

to prove a vital fact is so weak as to do no more than create a mere surmise or

suspicion of its existence, the evidence is no more than a scintilla and, in legal

effect, is no evidence.” Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex.

2004) (internal quotations omitted). However, if the evidence at trial would enable

reasonable and fair-minded people to differ in their conclusions, then jurors must

be allowed to do so. City of Keller, 168 S.W.3d at 822. “A reviewing court cannot

substitute its judgment for that of the trier-of-fact, so long as the evidence falls

within this zone of reasonable disagreement.” Id.

Under the heading, “Perils Insured Against,” the insurance policy provides

that USAA will “insure against risk of direct loss to property described in

Coverages A and B only if that loss is a physical loss to property.” (Emphasis

added.) Coverage A provides for insurance for the Hayeses’ home, and the parties

do not dispute that the insurance policy covers the Hayeses’ home. We note that

the rules governing interpretation of contracts, in general, apply to interpreting

insurance policies. Gilbert Tex. Constr., L.P. v. Underwriters at Lloyd’s, London,

327 S.W.3d 118, 126 (Tex. 2010). And when construing an insurance policy, a

court’s primary concern is to give effect to the written expression of the parties’

intent. Mid–Continent Cas. Co. v. Global Enercom Mgmt., Inc., 323 S.W.3d 151,

154 (Tex. 2010). Here, the Hayeses do not dispute that they had the burden to

14
prove by a preponderance of the evidence that they suffered a direct physical loss

to recover on their breach-of-contract claim.

In regard to the Hayeses’ assertion that USAA “itself determined that the

unsealed shingles” on their “roof were a covered loss,” we note that Lisa

Thompson, USAA’s corporate representative, stated that USAA did in fact “make

a decision to provide coverage or to pay . . . to seal the shingles” and USAA agreed

to pay to fix the unsealed shingles. She agreed that USAA “is not [in] business to

pay for uncovered damages but compromises can be made on claims.” And Jack

Berke, a USAA claims adjuster, was asked, “as a corporate representative of

USAA, that everything that was allowed in every single one of the estimates sent

to my client with a check—that those items that were in those estimates were

considered covered by USAA?” Berke answered, “Yes, when we issued payment,

we were allowing for those items.”

Mr. Hayes testified that he knew that Hurricane Ike had damaged his roof

because the damage was clearly visible right after the storm. From the ground, he

could “see the roof,” and it was “obvious” that “the shingles were out of place

after the storm. [He] didn’t have to go up there to see that.” Mr. Hayes noted that

“[y]ou could see the shingles were not sealed like they should have been. You

could tell they were not sealed.” He explained, “[a]ll of the roof was real wavy

looking.” And it was “wavy in its entirety. Front[,] backsides[,] ends, the whole

15
roof, you could tell that it had been compromised by the wind.” Mr. Hayes also

noted that after the storm, the shingles “were not seated[,] not sealed like they

should have been.”

Mr. Hayes further testified that when he went to the county tax appraisal

office to protest his property taxes in 2008 prior to Hurricane Ike, he had no

complaint about the roof because he did not have any roof problems. However,

after Hurricane Ike, he met with Brinkman Roofing and Larry Wilsford, Jr., a

general contractor, and both informed him that his roof needed to be replaced.

Regardless, USAA did not pay to replace his roof, did not pay him to replace

ventilators on the roof that had been “dinged up and bent” because of the storm,

and never told him that it was denying any part of his claim.

Mrs. Hayes testified that when the Hayeses purchased the house before

Hurricane Ike, she did not see anything that indicated that the roof needed to be

replaced. However, after the hurricane, she noticed that the roof looked “wavy.”

And Mrs. Hayes explained that although the roof looked flat in certain photographs

admitted into evidence, the roof in fact had “kind of a wavy appearance” after the

storm.

Cynthia Melena, the first USAA adjuster to inspect the Hayeses’ roof after

Hurricane Ike, testified that she had a conversation with Captain Kenyon of

Brinkman. Although she disagreed with Kenyon, he told her that wind from the

16
hurricane had damaged the Hayeses’ roof. Also, Melena wrote in her report,

“Roofer says this is wind damage; I said it is not.” And other USAA documents

contain statements that Kenyon had told Mr. Hayes that the only way that the

shingles could have been lifted and become unsealed was from the hurricane’s

winds and the roof needed to be replaced.

Although the four USAA adjusters that inspected the Hayeses’ roof opined

that it had not been damaged by wind, Peter Weakly, the fourth USAA adjuster,

did state that “40-60%” of the shingles on the roof were “lifted” and “not sealed.”

Captain Kenyon told Mr. Hayes that the wind had caused the shingles to unseal.

And Stephen Taylor, the second USAA adjuster that inspected the roof, conceded

that a roof shingle can be lifted by wind without causing any creasing or tearing to

the shingle.

Finally, when Mark Kubena, USAA’s expert, was asked if he saw any

damage to the Hayeses’ roof “indicative of winds,” he, referring to photographs

admitted into evidence, answered, “there’s a ridge shingle that was damaged here

and there’s one that’s damaged here. So there are some—there is a ridge shingle

that was damaged on this roof slope. So we did observe that. And we observed it

again right here (indicating).” At the point where he indicated that the greatest

wind speed affected the roof, Kubena, stated, “So right on this roof corner—again,

where you should anticipate seeing the highest wind speeds—we found an

17
unsealed shingle here (indicating) and we found some damage to the ridge right

here. So we did find it here.”

In sum, USAA’s own corporate representatives agreed that the unsealed

shingles on the Hayeses’ roof constituted a covered claim. Before Hurricane Ike,

the Hayeses had no problems with their roof, and it did not need to be replaced.

However, after the storm, the roof was “wavy in its entirety,” one could tell by

looking at it that “it had been compromised by the wind,” and it was “obvious the

shingles were out of place after the storm.” Kenyon told Mr. Hayes that the only

way for the shingles to have become lifted and unsealed was due to wind damage

and the roof needed to be replaced. And Kubena, USAA’s own expert, admitted to

seeing damage to shingles on the Hayeses’ roof “indicative of winds.” Although

professional roofers had informed Mr. Hayes that his roof needed to be replaced,

Mr. Hayes noted that, as of the time of trial, USAA had not paid to replace his

roof. In explaining that USAA’s insurance policy is a replacement cost policy,

Thompson stated,

In the simplest terms, it means new for old, in the simplest terms. If
you have a 30-year-old roof and you have covered damage to that
roof, we are going to give you a brand-new roof. We are not going to
find 30-year-old material and put that on your roof.

However, the evidence shows that USAA did not pay for new shingles or a new

roof; rather it merely paid to have certain shingles re-sealed.

18
 The Hayeses presented ample evidence from which the jury could have

reasonably concluded that Hurricane Ike caused a “direct, physical loss” to the

Hayeses’ roof. See City of Keller, 168 S.W.3d at 82 (In conducting legal-

sufficiency review, “court must consider evidence in the light most favorable to the

verdict, and indulge every reasonable inference that would support it”).

Accordingly, we hold that the evidence is legally sufficient to support the jury’s

finding that USAA failed “to comply with the insurance policy with respect to the

claim [of the Hayeses] for roof, garage door, and other exterior damage.” We

further hold that the trial court did not err in denying USAA’s motion for JNOV

and rendering judgment on the Hayeses’ claim for breach of contract.7

USAA further asserts that, “[a]s as matter of public policy, unsealed shingles

without evidence of creases, rips, or tears caused by wind or some other covered

loss, should not be considered” a direct, physical loss. USAA further asserts that

“there are many causes of unsealed shingles such as manufacturing defects,

thermal expansion, construction defects, intentional damage, accidental damage,

wind damage, the quality or quantity of the sealant, fastener location and depth,

decking movement, effects of weathering, improper handling before installation,

activation failure due to lack of sunlight or sufficient heating, and wear and tear.”

7
Having held, without considering the testimony of Peter Rabner, the Hayeses’
expert, that the evidence is legally sufficient to support the jury’s finding in
answer to Question 1A, we need not address USAA’s assertion that Rabner’s
opinion testimony is conclusory. See TEX. R. APP. P. 47.1.

19
And USAA notes that Peter Rabner, the Hayeses’ expert, testified that, generally,

if the number of unsealed shingles on an insured’s roof is as low as eight percent,

the entire roof would need to be replaced. Thus, according to USAA, “an insured

need only find a handful of unsealed shingles regardless of the cause, and the

insured will argue they are now entitled to a new roof, especially if they wait until

after a wind storm to report these unsealed shingles.”

We first note that Rabner testified about the percentage of unsealed shingles

on a roof requiring roof replacement in reference to a USAA expert report

regarding such replacement. Second, in regard to USAA’s policy argument, we

note that USAA, as an insurer, is in the best position to determine whether a roof

has an unacceptable number of unsealed shingles before writing a policy.

Here, more important, the issue before this Court is simply whether legally-

sufficient evidence supports the jury’s answer to Question 1A. And the jury was

presented with conflicting evidence as to whether wind can cause roof shingles to

unseal and whether wind from Hurricane Ike caused damage to the Hayeses’ roof

such that they needed a roof replacement. Given the conflicting evidence, the jury

was free to credit evidence in favor of the Hayeses and discredit evidence in favor

of USAA. See City of Keller, 168 S.W.3d at 822.

We overrule USAA’s first issue.

20
 Court Costs

In its second issue, USAA argues that the trial court erred in “including a

specific amount of costs,” namely $56,421.65, in its judgment because it should

have merely stated which party was responsible for paying costs and allowed the

trial court clerk to perform its ministerial duty to assess the amount of costs. In its

third issue, USAA argues that the trial court’s award of $56,421.65 in costs to the

Hayeses is “grossly excessive” because “[i]temized entries in taxable court costs

indicate[] that the Hayes[es] had incurred a mere $802.54 in taxable court costs.”

Following the jury’s verdict, the Hayeses filed a Motion for Entry of Final

Judgment, requesting $56,421.65 in taxable court costs, and the trial court awarded

them this amount in its judgment. Subsequently, USAA filed a Motion to Modify

Judgment and Re-tax Costs, asking the trial court to enter a new judgment

removing the amount of costs. USAA also asserted that no evidence supports the

trial court’s award of $56,421.65 in court costs to the Hayeses and they, at most,

should be awarded only $802.54 for costs. The Hayeses responded that they are

entitled to recover costs in the amount of at least $46,855.69, and they attached to

their response invoices in support of this assertion. The trial court did not rule on

USAA’s Motion to Modify Judgment and Re-tax Costs.

Generally, a successful party to a lawsuit is entitled to recover its court costs

and fees incurred during the lawsuit. TEX. R. CIV. P. 131. Whether a party is the

21
“successful” party and entitled to costs is determined by the court, and the taxing

or tabulation of costs is determined by the clerk. Wood v. Wood, 320 S.W.2d 807,

812 (Tex. 1959); Madison v. Williamson, 241 S.W.3d 145, 158 (Tex. App.—

Houston [1st Dist.] 2007, pet. denied). “The court may, for good cause, to be

stated on the record, adjudge the costs otherwise than as provided by law or these

rules.” TEX. R. CIV. P. 141. To ensure full recovery of its costs, the successful

party must apprise the clerk of all costs incurred and may do so by presenting a

record of its costs either before or after the judgment is entered. See TEX. CIV.

PRAC. & REM. CODE ANN. § 31.007(a) (Vernon 2015); Madison, 241 S.W.3d at

158; Varner v. Howe, 860 S.W.2d 458, 466 (Tex. App.—El Paso 1993, no writ).

The successful party may also apprise the clerk of its costs by filing a motion to re-

tax costs in the court where the costs accrued. Wood, 320 S.W.2d at 813; Reaugh

v. McCollum Expl. Co., 140 Tex. 322, 167 S.W.2d 727, 728 (Tex. 1943). Because

the taxing of costs is a ministerial duty of the clerk, the motion may be filed even

after the case has been disposed of on appeal, so long as it is filed before the

mandate issues and the costs are paid. Reaugh, 167 S.W.2d at 728; Operation

Rescue-Nat’l v. Planned Parenthood of Hous. & Se. Tex., Inc., 937 S.W.2d 60, 87

(Tex. App.—Houston [14th Dist.] 1996), modified on other grounds, 975 S.W.2d

546 (Tex. 1998). The allocation of costs is a matter for the trial court’s discretion

and cannot be overturned on appeal unless the trial court abused its discretion.

22
Univ. of Hous.-Clear Lake v. Marsh, 981 S.W.2d 912, 914 (Tex. App.—Houston

[1st Dist.] 1998, no pet.).

In response to a request for an award of costs, the trial court’s role is to

adjudicate which party is to bear the costs of court, not to determine the correctness

of specific items. See Reaugh, 167 S.W.2d at 728; Pitts, 23 S.W.3d at 417. The

judgment should not state the amount taxed as costs, but only that costs are

awarded against a certain party. See Pitts, 23 S.W.3d at 417. Accordingly, we

hold that the trial court erred in awarding the Hayeses a specific amount of court

costs in its judgment.

We sustain USAA’s second issue.

We do not, however, have jurisdiction to address USAA’s third issue, i.e., its

argument that the trial court’s award of $56,421.65 in costs to the Hayeses is

“grossly excessive.” See Reaugh, 167 S.W.2d at 728 (holding motion to re-tax

costs should be filed in court where costs accrued and, thus, appellate court lacks

jurisdiction to re-tax trial court costs).

Excessive Demand

In their first and second cross-points, the Hayeses argue that the trial court

erred in granting USAA’s motion for JNOV and disregarding the jury’s award of

their attorney’s fees because USAA did not conclusively establish its affirmative

23
defense of excessive demand and “[n]o other basis exists for disregarding the jury

fee awards.”

As noted above, we review a trial court’s JNOV ruling under a legal-

sufficiency standard. City of Keller, 168 S.W.3d at 823. A JNOV may be granted

“when the evidence is conclusive and one party is entitled to recover as a matter of

law or when a legal principle precludes recovery.” B & W Supply, Inc. v.

Beckman, 305 S.W.3d 10, 15 (Tex. App.—Houston [1st Dist.] 2009, pet. denied).

When, as here, an affirmative defense is not submitted to a jury, we review

the record to determine whether the defense was conclusively established. See

T.O. Stanley Boot Co. v. Bank of El Paso, 847 S.W.2d 218, 222–23 (Tex. 1992);

Whitney Nat’l Bank v. Baker, 122 S.W.3d 204, 207 (Tex. App.—Houston [1st

Dist.] 2003, no pet.) (reviewing denial of JNOV on affirmative defense not

submitted to jury). To the extent that such a ruling is based on a question of law,

we review that aspect of the ruling de novo. See In re Humphreys, 880 S.W.2d

402, 404 (Tex. 1994) (“[Q]uestions of law are always subject to de novo review.”);

Elliott v. Whitten, No. 01-02-00065-CV, 2004 WL 2115420, at *3 (Tex. App.—

Houston [1st Dist.] Sep. 23, 2004, pet. denied) (mem. op.).

When a trial court has specified the ground upon which it granted a JNOV,

an appellant need only challenge the ground relied upon by the trial court.

Edascio, L.L.C. v. NextiraOne L.L.C., 264 S.W.3d 786, 795 (Tex. App.—Houston

24
[1st Dist.] 2008, pet. denied). However, an appellee may assert on appeal any

other grounds that it alleged in its motion for JNOV, but were not relied upon by

the trial court, to attempt to vitiate the jury’s verdict. Id.; see also TEX. R. APP. P.

38.2(b); TEX. R. CIV. P. 324(c).

“A creditor who makes an excessive demand upon a debtor is not entitled to

attorney’s fees for subsequent litigation required to recover the debt,” even if it

prevails in its suit. Findlay v. Cave, 611 S.W.2d 57, 58 (Tex. 1981); Triton 88,

L.P. v. Star Elec., L.L.C., 411 S.W.3d 42, 65 (Tex. App.—Houston [1st Dist.]

2013, no pet.). A demand is not excessive simply because it is greater than the

amount eventually awarded by the fact finder. Findlay, 611 S.W.2d at 58; Panizo

v. Young Men’s Christian Ass’n of Greater Hous. Area, 938 S.W.2d 163, 169 (Tex.

App.—Houston [1st Dist.] 1996, no pet.) (unliquidated demand of $125,000 not

excessive even though jury awarded only $1,000). However, “a claim for an

amount appreciably greater than that which a jury later determines is actually

due . . . may indeed be some evidence of an excessive demand.” Findlay, 611

S.W.2d at 58. And “it may be very persuasive evidence” when a claim is

liquidated. Id.; Tonkin v. Amador, No. 01-07-00496-CV, 2009 WL 1424724, at *5

(Tex. App.—Houston [1st Dist.] May 21, 2009, no pet.); see also BLACK’S LAW

DICTIONARY (8th ed. 2004) (“liquidated debt” is “[a] debt whose amount has been

determined by agreement of the parties or by operation of law”). Nevertheless, “it

25
cannot be the only criterion for determination, especially where the amount due is

unliquidated.” Findlay, 611 S.W.2d at 58 (“Certainly one can conceive of

circumstances in which a demand for an unliquidated sum would have to be

characterized as excessive, and attorney’s fees denied.”); Outdoor Sys., Inc. v.

BBE, L.L.C., 105 S.W.3d 66, 73 (Tex. App.—Eastland 2003, pet. denied); Panizo,

938 S.W.2d at 169 (unliquidated demand not excessive).

“The dispositive question in determining whether a demand is excessive is

whether the claimant acted unreasonably or in bad faith.” Oyster Creek Fin. Corp.

v. Richwood Invs. II, Inc., 176 S.W.3d 307, 318 (Tex. App.—Houston [1st Dist.]

2004, pet. denied); see also Alford v. Johnston, 224 S.W.3d 291, 298 (Tex. App.—

El Paso 2005, pet. denied). Further, application of the excessive-demand doctrine

is limited to situations in which a creditor has refused a tender of the amount

“actually due” or has clearly indicated to the debtor that such a tender would be

refused. Findlay, 611 S.W.2d at 58; Hernandez v. Lautensack, 201 S.W.3d 771,

777–78 (Tex. App.—Fort Worth 2006, pet. denied).

Here, the Hayeses first argue that USAA waived its excessive-demand

defense because it failed to submit a question to the jury and obtain a finding on its

defense. USAA argued to the trial court that its excessive-demand defense is “a

question of law for the [trial court] to resolve.” And it points out that the Hayeses

26
themselves argued to the trial court that the question was a “decision for the [trial

court] after the jury comes back with the verdict.”

To preserve an excessive-demand challenge, a debtor is required to (1) plead

excessive demand as an affirmative defense to the claim for attorney’s fees and

(2) “request and obtain findings of fact regarding the essential elements of

excessive demand.” Dror v. Mushin, No. 14-12-00322-CV, 2013 WL 5643407, at

*8 (Tex. App.—Houston [14th Dist.] Sept. 26, 2013, pet. denied) (mem. op.); see

Kurtz v. Kurtz, 158 S.W.3d 12, 21 (Tex. App.—Houston [14th Dist.] 2004, pet.

denied) (excessive demand constitutes affirmative defense); see, e.g., Wayne v.

A.V.A. Vending, Inc., 52 S.W.3d 412, 414, 418–19 (Tex. App.—Corpus Christi

2001, pet. denied) (affirming trial court’s denial of attorney’s fees based on jury

finding of excessive demand).

The record shows that USAA, in its Second Amended Answer, pleaded the

affirmative defense of excessive demand. However, it did not request and obtain

any jury findings on its defensive theory. Thus, our analysis of USAA’s defense

“will be limited to its presentation as a ground” for JNOV. See Bates v. Randall

Cty., 297 S.W.3d 828, 833 & n.7 (Tex. App.—Amarillo 2009, pet. denied);

Triumph Trucking, Inc. v. S. Corp. Ins. Mgrs., Inc., 226 S.W.3d 466, 470 (Tex.

App.—Houston [1st Dist.] 2006, pet. denied). That is, USAA must have

conclusively established in the trial court that the Hayeses made a demand that was

27
excessive and in bad faith as a matter of law. See Oyster Creek Fin. Corp., 176

S.W.3d at 318 (upholding jury’s finding demand not excessive); see also Dror,

2013 WL 5643407, at *8 (considering whether defendants, who did not obtain jury

finding on excessive-demand defense, established defense as matter of law).

The Hayeses next assert, as they did in the trial court, that USAA did not

establish as a matter of law that they made a “demand” upon it. The Hayeses

assert that their statutory pre-suit notice letter, which USAA attached to its motion

for JNOV and upon which it solely relies, does not constitute a “demand.” See

TEX. INS. CODE ANN. § 541.154(a) (Vernon 2009); see also TEX. CIV. PRAC. &

REM. CODE ANN. § 38.001(Vernon 2015).

Under the Texas Insurance Code, “[a] person seeking damages in an action

against another person . . . must provide written notice to the other person not later

than the 61st day before the date the action is filed.” TEX. INS. CODE ANN.

§ 541.154(a). The notice must advise the recipient of “the specific complaint” and

“the amount of actual damages and expenses, including attorney’s fees reasonably

incurred in asserting the claim against the other person.” Id. § 541.154(b). The

purpose of the notice requirement is to “discourage litigation and encourage

settlements of consumer complaints.” Hines v. Hash, 843 S.W.2d 464, 469 (Tex.

1992). Pre-suit notice provides the defendant insurer an opportunity to make a

settlement offer. See TEX. INS. CODE ANN. § 541.156 (Vernon 2009); see also In

28
re Behr, No. 04-05-00895-CV, 2006 WL 468001, at *3 (Tex. App.—San Antonio

Mar. 1, 2006, no pet.) (mem. op.). If a plaintiff fails to comply with the 60-day

notice requirement prior to filing suit, “abatement of the action for the statutory

notice period is more consistent with the purpose of notice than dismissal.” Hines,

843 S.W.2d at 469; see also TEX. INS. CODE ANN. § 541.155 (abatement).

Here, the Hayeses, on October 1, 2009, attached to their Original Petition

and served on USAA a “NOTICE LETTER,” which states, in pertinent part, as

follows:

Undoubtedly, you [USAA] are aware of your liability to my
clients under the Texas Insurance Code, which specifically covers
unfair settlement claims. Specifically, you are liable to [the Hayeses]
jointly and individually for the following violations of the Texas
Insurance Code § 541.060:
[list of claims]
Furthermore, the delay in payment to [the Hayeses] is also in
violation of Texas Insurance Code §542.055, et seq., thus triggering
liability on your part to pay the amount of the claim, plus damages
consisting of eighteen percent . . . per annum of the amount of the
claim, along with prejudgment interest and reasonable attorney’s fees.
....
Accordingly, on behalf of [the Hayeses], demand is hereby
made that within sixty . . . days from your receipt of this
correspondence, the following amounts be paid:
1. $ 323,000.86 in economic damages;
2. $ 50,000 in mental anguish damages; and
3. $ 248,667.24 for expenses, including attorney’s fees,
which you should note will increase as we prepare this
case for trial.

29
 This demand is made in the spirit of compromise. According to
our analysis, this demand represents a tremendous savings to you[,]
given your potential exposure under the Texas Insurance Code. Thus,
we hope this demand is viewed as a good faith and conservative effort
on our part to expeditiously resolve this potential litigation on
amicable terms.
If [the Hayeses’] claim is not paid within sixty . . . days from
the receipt of this correspondence, we would expect to recover actual
damages, along with damages for mental anguish, prejudgment
interest, attorney’s fees and breach of the duty of good faith and fair
dealing . . . . In addition, please be aware that recovery in the form of
treble damages and additional penalties will also be sought.
....
As [the Hayeses] are anxious to have this matter resolved
promptly, we trust that you will immediately respond in writing, to
this formal demand letter. . . .
If you have any questions regarding this matter or need
additional information, please feel free to contact this office. . . .

In the letter, which is titled a “Notice,” the Hayeses expressly provide notice

to USAA that they are seeking damages against it under the Insurance Code. See

TEX. INS. CODE ANN. § 541.154(a). And the letter advises USAA of the Hayeses

specific complaints and the amount of actual damages, expenses, and attorney’s

fees sought. See id. § 541.154(b). USAA, in its motion for JNOV, acknowledged

that the Hayeses’ notice letter was “sent pursuant to Texas Insurance Code chapter

541.” USAA, in its response to the Hayeses’ brief on excessive demand, further

asserted in the trial court that, “presumably,” the “purpose” of the Hayeses’ letter

was “[c]ompliance” with the statute “because it is titled ‘NOTICE LETTER.’”

And the letter constitutes a “statutory formality” and “a prerequisite to filing suit.”

30
 The purpose of the statutory notice requirement is to “encourage settlement”

and to give an insurer an opportunity to make a “settlement offer.” See TEX. INS.

CODE ANN. § 541.156; Hines, 843 S.W.2d at 469. The Hayeses, who are the

insureds, emphasize that their notice letter represents their attempt to draw USAA

into a settlement. They expressly state in their letter that it is “offered in the spirit

of compromise.” Although the word “demand” appears, the letter also states that

the Hayeses “hope this demand is viewed as a good faith and conservative effort

on [their] part to expeditiously resolve this potential litigation on amicable terms.”

Indeed, as the Hayeses assert, the letter “contains no expression that it is a ‘take-it-

or-leave-it’ demand.” Rather, it invites further discussion.

In McAlister v. Hatbreeze Props., L.L.C., in contrast to the instant case, the

plaintiff’s letter to the defendants presented a clear ultimatum:

[T]his letter shall serve as a demand that you make arrangements to
pay the full amount of $192,000.00 plus attorney’s fees of $2,500.00
for handling this matter within thirty (30) days of this letter. In the
event you fail to pay the amount, my client will be forced to file suit
against you . . . for breach of contract.

No. 02-11-00060-CV, 2012 WL 579436, at *8 (Tex. App.—Fort Worth Feb. 23,

2012, no pet.) (mem. op.). The Fort Worth Court of Appeals concluded that the

“language requiring [defendants] to pay the full $192,000 or else [the plaintiff]

would file suit” indicated a “clear intent” to refuse anything other than full

payment. Id.

31
 USAA argues that the Hayeses’ notice letter constitutes a “demand” as a

matter of law and not an “offer of settlement” because the Hayeses, in their notice

letter, do not offer to relinquish any rights. “In an offer of settlement or

compromise, a party concedes some right to which he believes he is entitled in

order to bring about a mutual settlement.” Vinson Minerals, Ltd. v. XTO Energy,

Inc., 335 S.W.3d 344, 351 (Tex. App.—Fort Worth 2010, pet. denied). Here, the

Hayeses, in their notice letter, claim that they are entitled to “treble damages”

against USAA for certain violations of the Texas Insurance Code, and they offer to

“sav[e]” USAA this “potential exposure.” Thus, the Hayeses did offer to concede

a right to which they believed they were entitled.

A proposition is established as a matter of law when a reasonable fact finder

can draw only one conclusion from the evidence presented. City of Keller, 168

S.W.3d at 814–16. We conclude that a reasonable fact finder could infer that the

Hayeses’ notice letter constituted either a demand or an initial offer and attempt to

draw USAA into settlement discussions. Thus, the notice letter, on which USAA

exclusively relies, is insufficient to establish a demand as a matter of law. See id.

We conclude that USAA did not conclusively establish its excessive-demand

defense. Accordingly, we hold that the trial court erred in reducing the Hayeses’

award of attorney’s fees to “$0, reflecting the [c]ourt’s finding of excessive

demand,” and granting USAA a JNOV on this ground. See Beckman, 305 S.W.3d

32
at 15 (JNOV may be granted “when the evidence is conclusive and one party is

entitled to recover as a matter of law or when a legal principle precludes recovery”

(emphasis added)).

USAA asserts, however, that alternate grounds support the trial court’s

JNOV. See Edascio, 264 S.W.3d at 795 (appellee may assert on appeal grounds

“that it alleged in its motion for judgment notwithstanding the verdict, but were not

relied upon by the trial court, to attempt to vitiate the jury’s verdict”). First, USAA

argues that the testimony of the Hayeses’ counsel, R. Cashiola, constituted no

evidence of reasonable and necessary attorney’s fees because his testimony reflects

that he “increased his hourly rate to recover certain costs,” such as overhead,

expert witness fees, and transcript fees, which “are not recoverable as a matter of

law.” Second, USAA argues that Cashiola’s testimony constituted no evidence of

attorney’s fees because he did not segregate recoverable from unrecoverable

attorney’s fees.

Again, as noted above, we will sustain the granting of a JNOV based on “no

evidence” when the record discloses one of the following: (1) a complete absence

of evidence of a vital fact; (2) the trial court is barred by the 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 not more than a scintilla; or (4) the

evidence establishes conclusively the opposite of a vital fact. City of Keller, 168

33
S.W.3d at 810. And again, to the extent that the trial court’s ruling is based on a

question of law, we review that aspect of the ruling de novo. See In re Humphreys,

880 S.W.2d at 404; Elliott, 2004 WL 2115420, at *3.

In regard to USAA’s assertion that Cashiola “increased his hourly rate to

recover certain costs,” we note that “expenses incurred in prosecuting or defending

a suit are not recoverable as costs . . . unless recovery of those items is expressly

provided for by statute, is available under equitable principles, or is expressly

provided for by contract.” Transcon. Realty Inv’rs, Inc. v. Orix Capital Mkts.

L.L.C., No. 05-14-00588-CV, 2015 WL 3751392, at *10 (Tex. App.—Dallas June

16, 2015, pet. denied) (mem. op.); see also Wagner & Brown, Ltd. v. Sheppard,

282 S.W.3d 419, 425 (Tex. 2008) (“overhead” expenses include administration,

supervision, and office services); Strauss v. Cont’l Airlines, Inc., 67 S.W.3d 428,

440 n.7 (Tex. App.—Houston [14th Dist.] 2002, no pet.) (“overhead” expenses

include “office rent, salaries to employees, payroll taxes, and other fixed costs of

doing business”). And, generally, in Texas, “expert witness fees are not

recoverable as costs of litigation.” Bundren v. Holly Oaks Townhomes Ass’n, 347

S.W.3d 421, 440 (Tex. App.—Dallas 2011, pet. denied).

Here, Cashiola testified that the Hayeses, in bringing their case, incurred

“reasonable and necessary” attorney’s fees of $335,817.75, and he explained some

of the factors supporting those fees. See Arthur Andersen & Co. v. Perry Equip.

34
Corp., 945 S.W.2d 812, 818 (Tex. 1997). The trial court also admitted into

evidence Cashiola’s “Attorney Fee Recap,” which is an itemized billing of the

work he and other attorneys performed in the Hayeses’ case since its inception in

July 2009. The Recap does not expressly contain any amounts attributed to

overhead, expert witness fees, or transcript fees. In the portion of the record of

which USAA complains, Cashiola testified as follows:

[Counsel for Hayeses]: And that figure [$335,817.75] does not
include expenses for experts or for filings or
serving or any expenses related to this
claim?

[Cashiola]: No. There are elements that the law allows
for us to recover, such as taxable court costs
if we prevail; but the experts, Craig, copies
from court reporters, none of that. That all
comes out of this rate. It comes out of the
overhead.
....

[Counsel for Hayeses]: Now, when coming to your conclusion that
the fees represented on there are reasonable
and necessary, what factors did you look at
that have been laid out in Texas to look at?

[Cashiola]: . . . [F]irst of all, we’re not recovering—or
Mr. Mostyn is having to pay overhead out of
this rate that the law doesn’t give us. And I
have to compare these rates to other lawyers
and—who work for insurance companies,
and their rate structures aren’t like this
where everything is at risk. They get to bill
for an hourly rate of, say, 225 an hour; and
then separately they get to bill for their
expenses. And so if I’m paid $225 an hour

35
 and my opposing counsel—or if the jury
decides a fair rate for me is $225 an hour
and my opposing counsel is getting $225 an
hour, the insurance company comes out
ahead because they—their lawyers are paid
more than us because we’ve got to turn
around now and pay Craig, our experts and
the overhead and everything else that—well,
not overhead; but—well, we have to pay
that. But that wouldn’t be included in what
a defense lawyer would get to bill an
insurance company. So they’re getting their
225 an hour net of all these expenses in the
case. We are not. We do not get to ask for
that. So our rates are always going to be
higher—quote, unquote, higher in dollar
amount than what lawyers who have
arrangements where their hourly rate is paid
separately from their expenses in the case.

The record reveals that Cashiola expressly testified that the attorney’s fees at

issue did not include expenses for expert witnesses or transcripts. He explained

that the law firm must pay its overhead out of the revenues it generates, that is,

from the fees its attorneys earn. “[H]ourly market rates” for attorneys “necessarily

take into consideration such factors as salaries, overhead, the costs of support

personnel, and incidental expenses.” AMX Enters., L.L.P. v. Master Realty Corp.,

283 S.W.3d 506, 517–18 (Tex. App.—Fort Worth 2009, no pet.); see also Tex.

Comm. on Prof’l Ethics, Op. 594, 2010 WL 1026289 (Feb. 2010) (“[W]hen a

client has engaged a lawyer to provide legal services for a fee, charging, collecting

or recouping additional charges for general office overhead is prohibited because

36
the client may reasonably be expected to understand that the lawyer’s general

office overhead expenses are subsumed within the agreed-upon fee (whether

determined on an hourly, flat fee, contingent fee or other basis).”). Cashiola

further explained that his rates are generally higher, as compared to an attorney

representing an insurer, because his firm’s cost of doing business is higher and

represents greater risk. Nothing in the complained-of testimony suggests that

Cashiola “inflat[ed]” his rates in this case in order to recover overheard, expert

witness fees, or transcript fees.

In regard to USAA’s assertion that the Hayeses failed to segregate their

recoverable from unrecoverable attorney’s fees, it complains that when Cashiola

was questioned about fee segregation, he “never identified nor segregated the time

and fees related to prosecuting” claims for which attorney’s fees were not

recoverable and offered only the following “vague testimony”:

I mean, we’re having to prove essentially the same thing in each case,
damage-wise and so forth. But they’re alternative causes of action for
the most part, and we have a duty to our client to put in front of you
every proper cause of action that the law allows. And so we work on
them sort of together because they’re all—they all have common—
common denominators.

But the Supreme Court, who we must obey, has said, “We don’t care
if they’re all sort of intertwined like that in terms of your work. We
want you to segregate the common law, and you can estimate a
percentage.” And because they’re so intertwined, the percentage I
always estimate is five percent.

(Emphasis added.)

37
 USAA asserts that Cashiola “did not do what Texas law requires and ‘parse

the work into component tasks’ and examine them to identify which are related to

recoverable claims.” Rather, “[t]here was no indication he looked at specific

pleadings, motions, or discovery, let alone discrete parts thereof, to determine

whether they related to claims for which attorney’s fees were recoverable.”

“Texas law [does] not allow[] for recovery of attorney’s fees unless

authorized by statute or contract.” Tony Gullo Motors I, L.P. v. Chapa, 212

S.W.3d 299, 310 (Tex. 2006). “As a result, [attorney’s] fee claimants have always

been required to segregate fees between claims for which they are recoverable and

claims for which they are not.” Id. at 311. The need to segregate attorney’s fees is

a question of law, and the extent to which certain claims can or cannot be

segregated is a mixed question of law and fact. Id. at 312–13; CA Partners v.

Spears, 274 S.W.3d 51, 81 (Tex. App.—Houston [14th Dist.] 2008, pet. denied).

The party seeking to recover attorney’s fees carries the burden of demonstrating

that fee segregation is not required. See Hong Kong Dev., Inc. v. Nguyen, 229

S.W.3d 415, 455 (Tex. App.—Houston [1st Dist.] 2007, no pet.).

“[I]f any attorney’s fees relate solely to a claim for which such fees are

unrecoverable, a claimant must segregate recoverable from unrecoverable fees.”

Chapa, 212 S.W.3d at 313. “Intertwined facts do not make tort fees recoverable; it

is only when discrete legal services advance both a recoverable and unrecoverable

38
claim that they are so intertwined that they need not be segregated.” Id. Where

segregation is required, attorneys are not required to “keep separate time records

when they drafted the fraud, contract, or DTPA paragraphs of [the] petition.” Id. at

314. Rather, “an opinion [will] suffice[] stating that, for example, 95 percent of

their drafting time would have been necessary even if there had been no fraud

claim.” Id.; 7979 Airport Garage, L.L.C. v. Dollar Rent A Car Sys., Inc., 245

S.W.3d 488, 506 (Tex. App.—Houston [14th Dist.] 2007, pet. denied).

Here, the Hayeses brought claims against USAA for breach of contract,

breach of the common-law duty of good faith and fair dealing, common-law fraud,

and violations of the Texas Insurance Code. And they sought attorney’s fees for

each claim. Although the Hayeses prevailed on their claims for breach-of-contract

and violations of the Insurance Code, upon which they are entitled to recover

attorney’s fees, they are precluded by law from recovering attorney’s fees on their

common-law claims. Thus, the Hayeses were required to either segregate their

recoverable from their unrecoverable attorney’s fees or demonstrate that

segregation was not required because discrete legal services advanced both

recoverable and unrecoverable claims. See Chapa, 212 S.W.3d at 313–14;

Nguyen, 229 S.W.3d at 455.

The evidence presented at trial concerned the totality of the fees for work

performed by up to eight attorneys on all of the Hayeses’ claims from the inception

39
of the litigation to the date of trial. Cashiola testified that he was required to

segregate the Hayeses’ “common-law” claims. However, “because they’re so

intertwined, the percentage [he] always estimate[s] is five percent.” (Emphasis

added.)

Again, “[i]ntertwined facts do not make tort fees recoverable; it is only when

discrete legal services advance both a recoverable and unrecoverable claim that

they are so intertwined that they need not be segregated.” Chapa, 212 S.W.3d at

313 (“It is certainly true that [the plaintiff’s] fraud, contract, and DTPA claims

were all ‘dependent upon the same set of facts or circumstances,’ but that does not

mean they all required the same research, discovery, proof, or legal expertise.”).

Cashiola did not, however, testify regarding any of the discrete legal services in

this case. See Clearview Props., L.P. v. Prop. Tex. SC One Corp., 287 S.W.3d

132, 144 (Tex. App.—Houston [14th Dist.] 2009, pet. denied) (examining

“discrete pieces of legal work conducted in this litigation”).

In regard to segregating their attorney’s fees, the Hayeses assert that

Cashiola opined “that five percent of the attorney’s fees were attributable to [their]

common law causes of action.” However, the record reveals that Cashiola did not

opine regarding the fees attributable to the Hayeses’ specific claims in this case.

Rather, he testified that he simply “always” estimates “five percent.” Although an

opinion stating that, “for example, 95 percent of . . . drafting time would have been

40
necessary even if there had been no fraud claim” will suffice, Cashiola did not

demonstrate that he took into account any of the actual work performed or the

claims made in the Hayeses’ case. See Chapa, 212 S.W.3d at 314 & n.83; see also

7979 Airport Garage, L.L.C., 245 S.W.3d at 506 (holding segregation of fees

requires some consideration of component tasks). A party seeking attorney’s fees

“must show that the fees were incurred while suing the party sought to be charged

with the fees on a claim that allows recovery of the fees.” Panizo, 938 S.W.2d at

170–71. We conclude that the Hayeses did not properly segregate their

recoverable from unrecoverable attorney’s fees.

However, unsegregated attorney’s fees constitute “some evidence of what

the segregated amount should be.” Chapa, 212 S.W.3d at 314; see Arrow Marble,

LLC v. Estate of Killion, 441 S.W.3d 702, 709 (Tex. App.—Houston [1st Dist.]

2014, no pet.). And when there is some evidence in support of an award of

attorney’s fees, as here, a factfinder does not have the discretion to award no fees.

See Estate of Killion, 441 S.W.3d at 709. Rather, remand is appropriate to

determine the segregated fee amount due. Chapa, 212 S.W.3d at 314 (“[W]hen, as

here, it cannot be denied that at least some of the attorney’s fees are attributable

only to claims for which fees are not recoverable, segregation of fees ought to be

required and the jury ought to decide the rest.”); see also A.G. Edwards & Sons,

41
Inc. v. Beyer, 235 S.W.3d 704, 710 (Tex. 2007) (reversing and remanding for new

trial on attorney’s fees); Estate of Killion, 441 S.W.3d at 709.

Because the Hayeses did not properly segregate their recoverable and

unrecoverable attorney’s fees, we must remand the case to the trial court for a new

trial on attorney’s fees.

We sustain the Hayeses’ first and second cross-points in part.

Unfair or Deceptive Acts

In their third cross-point, the Hayeses argue that the trial court erred in

disregarding the jury’s finding that USAA knowingly engaged in unfair or

deceptive acts or practices and the jury’s corresponding damages award of $30,000

because both the finding and award are material and supported by legally-sufficient

evidence. USAA asserts that there is no evidence that it, in regard to violations of

the Texas Insurance Code, acted with “actual awareness.”

As noted above, the jury, in answer to Question 4 of the trial court’s charge,

specifically found that USAA had:

 failed “to attempt in good faith to effectuate a prompt, fair, and
equitable settlement” of the Hayeses’ “claim when USAA’s
liability had become reasonably clear”;

 failed “to promptly provide” to the Hayeses “a reasonable
explanation of the basis in the policy, in relation to the facts or
applicable law,” for USAA’s “denial of [their] claim or offer of a
compromise settlement of their claim”; and

42
  refused to pay the Hayeses’ “claim without conducting a
reasonable investigation with respect to their claim(s).”

Because it found that USAA had engaged in the above unfair or deceptive acts or

practices, the jury was required to answer Question 7, which provides,

Did USAA engage in any such conduct knowingly?

“Knowingly” means actual awareness, at the time of the conduct, of
the falsity, deception, or unfairness of the conduct in question. Actual
awareness may be inferred where objective manifestations indicate
that a person acted with actual awareness.

In answering this question, consider only the conduct that you found
resulted in damages to Joseph and Joanne Hayes.

And the jury answered “yes.”

We note that under the definition of “knowingly,” “actual awareness” does

not mean that a person merely knew what he was doing. St. Paul Surplus Lines

Ins. Co. v. Dal–Worth Tank Co., 974 S.W.2d 51, 53–54 (Tex. 1998). Rather,

actual awareness requires proof that a person knew that what he was doing was

false, deceptive, or unfair. Id. at 54. “In other words, a person must think to

himself at some point, ‘Yes, I know this is false, deceptive, or unfair to him, but

I’m going to do it anyway.’” Id. Thus, actual awareness constitutes more than

conscious indifference to another’s rights or welfare. Id.

In regard to whether USAA knowingly refused to pay their claim without

conducting a reasonable investigation, the Hayeses argue that USAA knew from

the first inspection of their roof that many shingles were unsealed because although

43
each adjuster had documented unsealed shingles, it “took USAA eight months to

acknowledge that 40 to 60 percent of the shingles” on their “roof were unsealed.”

The Hayeses also emphasize that during the eight-month period, USAA did not

hire “an engineer to examine the roof, even after its adjuster recommended that it

do so”; attempt to determine any pattern in the loss of adherence of the shingles; or

make a thermal diagram of their roof. Even though USAA was aware that shingles

on the roof were unsealed, USAA did “nothing to investigate the cause of the

unsealing” and “refused to pay anything for the damage until June 2009.” The

Hayeses assert that this constitutes at least some evidence that USAA knowingly

failed to conduct a reasonable investigation. However, although the record

evidence reveals that USAA may not have conducted such an extensive

investigation as proposed by the Hayeses, this fact does not support an inference

that USAA was actually aware that its investigation in any way constituted false,

deceptive, or unfair conduct.

In regard to whether USAA knowingly failed to effectuate a prompt, fair and

equitable settlement of the Hayeses’ claim, they argue that USAA, by May 2009,

knew that its liability had become reasonably clear because it, by then, had agreed

that the unsealed shingles on the roof constituted a covered loss under the policy.

The Hayeses note that Lisa Thompson, USAA’s corporate representative, agreed

that USAA had in fact “ma[d]e a decision to provide coverage or to pay . . . to seal

44
the shingles.” They also note that when Jack Berke, USAA’s third adjuster, was

asked whether USAA had covered items that had been included in estimates that

accompanied a payment check, he answered, “Yes, when we issued payment, we

were allowing for those items.” The Hayeses also cite Plaintiff’s Exhibit 23, a

letter from USAA to Mr. Hayes detailing USAA’s payment to the Hayeses. In its

letter, USAA details a replacement cost of $28,473.09, less recoverable

depreciation, less non-recoverable depreciation, less a deductible. The stated

actual cash value of USAA’s proposed total payments to the Hayeses is

$24,025.57; subtracting a prior payment of $9,773.90, this left, as of June 8, 2009,

a total of $14,251.67 due. The Hayeses assert that “USAA most certainly knew in

May 2009 that Mr. Hayes had a replacement cost policy entitling him to receive

replacement costs, not repair costs, for his damaged roof” and it “knowingly

refused to pay for replacement of the damaged shingles.”

Nevertheless, the Hayeses presented no evidence to support an inference that

USAA, in not effectuating a prompt, fair, and equitable settlement, was actually

aware that it was acting in a false, deceptive, or unfair manner. The evidence upon

which the Hayeses rely establishes that USAA in fact agreed to pay for covered

losses, but it does not establish that USAA knew that what it was doing was in any

way false, deceptive, or unfair. See St. Paul Surplus Lines Ins., 974 S.W.2d at 53–

45
54 (evidence of misconduct not evidence defendant “knew it was acting falsely,

deceptively, or unfairly toward” appellee).

Finally, in regard to whether USAA knowingly failed to provide the Hayeses

with a reasonable explanation of the basis in the policy for USAA’s denial of their

claim, or its offer of a compromise settlement of their claim, the Hayeses note that

although Thompson told the jury that USAA had reached a compromise on the

Hayeses’ claim, she admitted that USAA did not explain to the Hayeses that a

compromise had been reached. Again, however, such evidence does not support

an inference that USAA, in not providing the Hayeses with a reasonable

explanation of the compromise, was actually aware that it was acting in false,

deceptive, or unfair manner. See id.

Accordingly, we hold that the trial court did not err in disregarding the jury’s

answer to Question 7 that USAA knowingly engaged in unfair or deceptive acts or

practices. Have so held, we need not address the Hayeses’ argument that legally-

sufficient evidence supports the jury’s award of $30,000 in answer to Question 8 of

the trial court’s charge.

We overrule the Hayeses’ third cross-point.

Interior Damage

In their fourth cross-point, the Hayeses argue that the trial court erred in

disregarding the jury’s answer to subpart two of Question 5 of the trial court’s

46
charge that $5,000 would fairly and reasonably compensate them for damage “to

the interior of the[ir] home and garage” because “the jury’s answer was neither

immaterial nor unsupported by the evidence.” USAA argues in part that the jury’s

answer is immaterial because the jury had already found, in answer to Question

1B, that USAA did not “fail to comply with the insurance policy with respect” to

the Hayeses’ claim “for damage to the interior of the house and garage.”

“If a trial court sua sponte disregards a [jury’s] finding, the court’s action

may be upheld only where the disregarded finding is immaterial.” Harris Cty. v.

Gibbons, 150 S.W.3d 877, 885 (Tex. App.—Houston [14th Dist.] 2004, no pet.).

A jury finding is immaterial when the trial court should not have submitted the

question to the jury and the jury’s finding does not apply to the case. Brown v.

Armstrong, 713 S.W.2d 725, 728 (Tex. App.—Houston [14th Dist.] 1986, writ

ref’d n.r.e.). Also, a trial court may disregard a jury finding when other jury

findings render it immaterial. C & R Transp., Inc. v. Campbell, 406 S.W.2d 191,

195 (Tex. 1966); Watson v. Nortex Wholesale Nursery, Inc., 830 S.W.2d 747, 750

(Tex. App.—Tyler 1992, writ denied).

Here, the trial court, as noted above, instructed the jury that if it “answered

‘Yes’ to Question No. 1A, or to Question No. 1B, or to any part of Question 4,”

then it was to answer Question 5. In Question 5, the trial court asked the jury:

What sum of money, if any, if paid now in cash, would fairly and
reasonably compensate Joseph and Joanne Hayes for their damages, if

47
 any, that resulted from the failure to comply you found in response to
Question Nos. 1A and/or 1B, and/or that were caused by an unfair or
deceptive act that you found in response to Question No. 4[?]

Consider the following elements of damages, if any, and none other:

The difference, if any, between the amount paid by
USAA to Joseph and Joanne Hayes for their Hurricane
Ike damages and the amount that should have been paid
by USAA to Joseph and Joanne Hayes under the policy.

(Emphasis added.)

In subpart two of Question 5, the jury answered $5,000 for damage to the “to

the interior of the home and garage.” However, as pointed out by USAA, the jury

had already found, in answer to Question 1B, that USAA did not “fail to comply

with the insurance policy with respect” to the Hayeses’ claim “for damage to the

interior of the house and garage.” Because the jury found that USAA did not fail

to comply with the policy in regard to the Hayeses’ claim “for damage to the

interior of the house and garage,” the jury could not have reasonably concluded

that USAA “should have . . . paid” the Hayeses on the claim.

Accordingly, we hold that the trial court did not err in disregarding the jury’s

answer to subpart two of Question 5 of the trial court’s charge that $5,000 would

fairly and reasonably compensate them for damage “to the interior of the[ir] home

and garage.”

We overrule the Hayeses’ fourth cross-point.

48
 Penalty Interest

In their fifth cross-point, the Hayeses argue that the trial court erred in not

awarding them, pursuant to the “Prompt Payment of Claims” subchapter of the

Texas Insurance Code, penalty interest of 18 percent a year on their actual

damages award because although USAA stipulated at trial that it had “received”

from them “all items, statements, and forms required by it to secure final proof of

loss on May 19, 2009,” it failed to “comply with one or more of the deadlines”

contained in the subchapter. See TEX. INS. CODE ANN. §§ 542.001–.061,

542.060(a) (Vernon 2009). In response, USAA argues that the Hayeses are not

“entitled to interest at 18 percent a year” on their actual damages because they did

not submit “in writing” to USAA the proper “notice of claim” as statutorily

required. See id. § 542.051.

Texas Insurance Code section 542.055, entitled “Receipt of Notice of

Claim,” provides:

(a) Not later than the 15th day . . . after the date an insurer receives
notice of a claim, the insurer shall:

(1) Acknowledge receipt of the claim;

(2) Commence any investigation of the claim; and

(3) Request from the claimant all items, statements, and
forms that the insurer reasonably believes, at that time,
will be required from the claimant.

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Id. § 542.055. “Notice of claim” is defined as “any written notification provided

by a claimant to an insurer that reasonably apprises the insurer of the facts relating

to the claim.” Id. § 542.051(4).

Section 542.056 provides,

(a) Except as provided by Subsection (b) or (d), an insurer shall
notify a claimant in writing of the acceptance or rejection of a
claim not later than the 15th business day after the date the
insurer receives all items, statements, and forms required by the
insurer to secure final proof of loss.

Id. § 542.056(a). Also, an insurer must pay a claim not later than 60 days after the

date it receives all items, statements, and forms reasonably required from an

insured. See id. § 542.058(a).

Section 542.060(a) provides for penalty interest, stating,

(a) If an insurer that is liable for a claim under an insurance policy
is not in compliance with this subchapter, the insurer is liable to
pay the holder of the policy or the beneficiary making the claim
under the policy, in addition to the amount of the claim, interest
on the amount of the claim at the rate of 18 percent a year as
damages, together with reasonable attorney’s fees.

Id. § 542.060(a).

The trial court, in Question 6 of its charge, asked the jury, “Did USAA fail

to notify” the Hayeses “in writing of the acceptance or rejection of their claims by

June 10, 2009?” As noted by the Hayeses, June 10, 2009 was the sixteenth

business day after May 19, 2009. The jury answered “yes” to Question 6. In its

judgment, the trial court did not expressly disregard the jury’s answer to Question

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6, but it did not award the Hayeses 18 percent penalty interest pursuant to section

542.060. Although the Hayeses, in their Motion to Modify, Correct and/or Reform

the Judgment, requested that the trial court award them the penalty interest, it did

not rule on their motion.

It is undisputed that the Hayeses did not provide to USAA an actual written

notice of their claim. As noted by USAA, at least one Texas court of appeals in

discussing the previous version of the “Prompt Payment of Claims” subchapter of

the Texas Insurance Code concluded that its “claim-handling periods . . . are

triggered by the insurance company’s ‘receipt of notice of claim.’” McMillin v.

State Farm Lloyds, 180 S.W.3d 183, 207 (Tex. App.—Austin 2005, pet. denied)

(applying former TEX. INS. CODE ANN. art. 21.55). In McMillin, the court held that

because the insureds presented no evidence that they had provided their insurer

with “notice in writing” of their claim, they did not trigger the code’s provisions

intended to promote the prompt payment of claims. Id. at 207–08. And the

Hayeses, in their briefing and arguments, have not questioned the reasoning of the

court in McMillin. Accordingly, we hold that the trial court did not err in not

awarding the Hayeses penalty interest on their actual damages pursuant to section

542.060.

We overrule the Hayeses’ fifth cross-point.

51
 Conclusion

We reverse the portions of the judgment of the trial court awarding the

Hayeses court costs in the specific amount of $56,421.65 and reducing the jury’s

award of attorney’s fees to the Hayeses “to $0, reflecting the Court’s finding of

excessive demand” by the Hayeses. We remand the case to the trial court to

address the issue of court costs and conduct a new trial on the issue of the Hayeses’

attorney’s fees. We affirm the remainder of the judgment of the trial court. We

deny USAA’s motion to supplement its brief and overrule any other pending

motions as moot.

Terry Jennings
Justice

Panel consists of Justices Jennings, Higley, and Huddle.

Huddle, J., concurring and dissenting.

52