                                  NO. 07-07-0211-CV

                             IN THE COURT OF APPEALS

                        FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL A

                                    JULY 9, 2007
                          ______________________________

                        IN RE ACADIA INSURANCE COMPANY
                        _________________________________


Before CAMPBELL and HANCOCK and PIRTLE, JJ.


                                        OPINION


       Relator, Acadia Insurance Company (Acadia), petitions this Court to grant a writ of

mandamus directing the Honorable Ruben Reyes, presiding judge of the 72nd District Court

of Lubbock County, to enter an order to 1) grant Acadia’s motion to invoke appraisal, 2)

grant Acadia’s plea in abatement, and 3) vacate it’s order on real party in interest’s,

Bemove, LLC (Bemove), motion to compel deposition and to preclude appraisal. We deny

the relief requested.


                                      Background


       Acadia provided property insurance to Bemove under a policy with an inception date

of April 1, 2005. Bemove alleges it suffered hail damage to the roofs of two structures

covered by the policy on May 31, 2005. Accordingly, on September 12, 2005, Bemove

filed a claim with Acadia. In a letter dated December 28, 2005, Acadia denied Bemove’s
claim stating that the hail damage pre-dated the inception date of the policy. Bemove filed

suit on August 26, 2006 alleging breach of contract, breach of duty of good faith and fair

dealing and DTPA1 violations. On April 4, 2007, Bemove filed a motion to compel

depositions and preclude appraisal. On April 6, 2007, Acadia filed a motion to invoke the

appraisal clause of the insurance policy and a plea in abatement. The trial court heard the

opposing motions regarding the appraisal on April 13, 2007. The trial court denied

Acadia’s motions and granted the relief requested by Bemove. It is from these rulings that

Acadia brings this petition for mandamus relief.


                                    Standard of Review


       Mandamus will issue only to correct a clear abuse of discretion or the violation of a

duty imposed by law when there is no other adequate remedy at law. Walker v. Packer,

827 S.W.2d 833, 839 (Tex. 1992, orig. proceeding). This is an extremely heavy burden on

relator. Canadian Helicopters, Ltd. v. Wittig, 876 S.W.2d 304, 305 (Tex. 1994, orig.

proceeding). To establish an abuse of discretion, the complaining party must demonstrate

that the trial court acted unreasonably, arbitrarily, or without reference to guiding rules and

principles. See Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.

1985). An appellate court may not resolve factual disputes in an original mandamus

proceeding. See Hooks v. Fourth Court of Appeals, 808 S.W.2d 56, 60 (Tex. 1991) (citing

Brady v. Fourteenth Court of Appeals, 795 S.W.2d 712, 714 (Tex.1990)); In re Jones, 978

S.W.2d 648, 652 (Tex.App.–Amarillo 1998, orig. proceeding). When the issues before the



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           TEX . BUS. & COMM . CODE ANN . Chapt. 17 (Vernon Supp. 2006).

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trial court require a factual determination, an appellate court abuses its discretion when it

resolves those issues in an original mandamus proceeding. Hooks, 808 S.W.2d at 60.

Neither may we substitute our judgment about disputed factual issues for that of the trial

court unless the relator can establish that the trial court could have reasonably only reached

one decision and that the trial court’s decision is arbitrary and unreasonable. Walker, 827

S.W.2d at 839-40. But, a trial court has no discretion in determining what the law is or in

applying the law to the facts. Id. at 840. Failure to either correctly analyze or apply the law

will constitute an abuse of discretion. Id.


                                           Analysis


       The record of the hearing on the competing motions provides the basis to determine

whether or not the trial court abused its discretion. Acadia contends that the issue before

the trial court was simply a matter of law, whereas, Bemove contends that the trial court was

required to make a factual determination and then a legal conclusion based upon the factual

finding. Both parties contend the issue of waiver of the right of appraisal is the controlling

issue in the case. We note that waiver is an affirmative defense that can be asserted

against a party who intentionally relinquishes a known right or engages in intentional

conduct inconsistent with claiming that right. Tenneco, Inc. v. Enterprise Prods. Co., 925

S.W.2d 640, 643 (Tex. 1996). A waivable right may spring from the law or from a contract.

Id. The question of intent to waive the right is the key inquiry. Rodriguez v. Classical

Custom Homes, Inc., 176 S.W.3d 928, 932 (Tex.App.–Dallas 2005, no pet.). Whether

waiver has occurred is a question of fact for the trier of fact. Id.



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       All matters were submitted to the trial court at the hearing on April 13, 2007. The

record of that hearing reveals that Bemove was clearly arguing that Acadia had waived its

right to demand an appraisal. In support of this argument, Bemove submitted a number of

exhibits. Exhibit 4, a letter from Acadia’s office adjuster to Bemove, concludes by stating

that Acadia’s inspection revealed “no apparent damage to the building[‘s] two roofs from

wind/hail within the policy period of this policy. . . .” Exhibit 5, a letter to Bemove from

Acadia’s counsel, dated August 17, 2005, discussing the appraisal section of the insurance

policy in question, is quite clear that Acadia does not think the claim in question was a

covered event and, furthermore, indicates that Acadia cannot be required to submit the

claim for an appraisal if there is no coverage. Finally, counsel unequivocally states, in

Exhibit 5, that Acadia is not willing to waive its coverage issue. During the argument of the

competing motions on April 13, 2005, the trial court discussed the issue of waiver at length

with both counsel and it is clear from those discussions that the trial court was attempting

to make a factual determination about whether Acadia had waived its right to demand an

appraisal by its August 17, 2005 letter. By the granting of Bemove’s motions and the denial

of Acadia’s motion, it is clear that the trial court resolved this factual dispute against Acadia.

Accordingly, we are not free to substitute our judgment for that of the trial court. Walker,

827 S.W.2d at 839-40.


       Acadia posits that the trial court’s decision to refuse to order an appraisal is an

application of the law to the facts and, therefore, the trial court’s ruling was an abuse of

discretion based upon the cases cited by Acadia. However, Acadia has not provided this

court with any analysis of how, under the record, we could have reached only one decision,


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that Acadia had not knowingly waived its right to require an appraisal. Id. Rather, Acadia’s

entire argument is that the delay in requesting the appraisal was not so long as to amount

to a waiver and that the courts in the State of Texas have routinely granted mandamus even

when the request was made after suit had been filed. Both of these positions may be

correct, however, neither position answers the waiver allegation asserted by Bemove. It is

clear that denying coverage under an insurance policy does, in fact, waive the right of the

insurer to request an appraisal. American Cent. Ins. Co. v. Terry, 26 S.W.2d 162, 166

(Tex.Comm.App. 1930, holding approved). That this principal was understood by Acadia

is evidenced in the record by Acadia’s counsel advising Bemove that Acadia could not

agree to an appraisal because it did not want to waive its coverage issue.


       The exhibits referred to above clearly demonstrate that Acadia was aware of its right

to require an appraisal. The trial court had before it evidence that Acadia intentionally and

unequivocally relinquished the right so that it could challenge coverage and, thus, waived

that right. Tenneco, Inc., 925 S.W.2d at 643. Therefore, Acadia has failed to establish its

right to mandamus relief because it has failed to show that the trial court could reasonably

have reached only one decision. Walker, 827 S.W.2d at 839-40. Accordingly, the trial

court’s action was not a clear abuse of discretion.


       As stated above, Acadia posits that the action of the trial court was a clear abuse of

discretion because the trial court misapplied the law to the facts. Accordingly, Acadia has

cited us to a number of Texas cases which, on their face, all seem to hold that the denial

of a request for an appraisal when the insurance contract includes an appraisal clause is

an abuse of discretion. See In re Allstate County Mut. Ins. Co., 85 S.W.3d 193 (Tex. 2002);

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Scottish Union & Nat’l Ins. Co. v. Clancey, 83 Tex. 113, 18 S.W. 439 (Tex. 1892); Johnson

v. State Farm Lloyds, 204 S.W.3d 897 (Tex.App.–Dallas 2006, pet. filed); In re State Farm

Lloyds, Inc., 170 S.W.3d 629 (Tex.App.–El Paso 2005, orig. proceeding); Vanguard

Underwriters Ins. Co. v. Smith, 999 S.W.2d 448 (Tex.App.–Amarillo 1999, no pet.).

However, a close reading of the facts and holdings of each of these cases reveals that each

is either factually or legally distinguishable from the question before us.


       In the case of In re Allstate Ins. Co., the issue was the trial court’s legal determination

that the appraisal clause was in fact an arbitration clause and, therefore, not enforceable.

In re Allstate Ins. Co., 85 S.W.3d at 194. The Texas Supreme Court held that the trial court

failed to analyze or apply the law correctly and, as such, abused its discretion. Id. at 195.

In the Scottish Union case, the Texas Supreme Court was not dealing with a mandamus

issue, rather it was addressing a jury finding that the insurance company had waived its

right to demand compliance with the appraisal section of the contract. Scottish Union,18

S.W. at 440. Additionally, the facts of that case clearly demonstrate that the evidence did

not support a waiver of the right to an appraisal by the insurance company. Id. Johnson

was an appeal from the granting of a summary judgment in favor of State Farm. Johnson,

204 S.W.3d at 898-99. Accordingly, the standard of review was de novo and not an abuse

of discretion standard. Id. Further, the issue decided by the court was the application of

the appraisal provision when the contention was extent or amount of loss. Id. at 903. The

issue of waiver of the appraisal right was not before the court. In In re State Farm Lloyds,

the trial court had denied a request for an appraisal based upon the insured’s argument that

the company had waived its right to an appraisal. However, the El Paso Court of Appeals


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found that the insured had not offered any evidence to support her assertion that the

insurance company intentionally relinquished its right to seek an appraisal. In re State Farm

Lloyds, 170 S.W.3d at 634. Accordingly, the court conditionally granted State Farm Lloyds’s

petition for writ of mandamus. In the Vanguard Underwriters case, there was no factual

dispute about whether the insurance company waived its right to enforce the appraisal

provision of the policy, rather the only question before the court was whether Vanguard

presented an appellate record sufficient to support its mandamus request. Vanguard

Underwriters, 999 S.W.2d at 450.          We conclude that each of these cases are

distinguishable from the present case and are not controlling on the issues presented.


                                       Conclusion


       Based upon the record, we cannot say that the trial court abused its discretion in

refusing Acadia’s request for an appraisal. Accordingly, the request for mandamus relief

is denied.




                                                 Mackey K. Hancock
                                                     Justice




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