                                                                 FILED
                                                                 17-0400
                                                                 12/20/2017 7:49 AM
                                                                 tex-21395273
                                                                 SUPREME COURT OF TEXAS
                                                                 BLAKE A. HAWTHORNE, CLERK



                              NO. 17-0400
________________________________________________________________________

                IN THE SUPREME COURT OF TEXAS
________________________________________________________________________

                            DENNIS WEBB,

                                        Petitioner/Cross-Respondent

                                   v.

                        STATE FARM LLOYDS.

                                        Respondent/Cross-Petitioner
________________________________________________________________________

                     On Petition for Review from the
                     Ninth Court of Appeals of Texas
                   Appellate Cause No. 09-15-00408-CV
________________________________________________________________________

               CROSS-RESPONDENT DENNIS WEBB’S
               RESPONSE TO PETITION FOR REVIEW
________________________________________________________________________

                           Gregory F. Cox
                           State Bar No. 00793561
                           John A. Cowan
                           State Bar No. 04912550
                           THE MOSTYN LAW FIRM
                           6280 Delaware Street
                           Beaumont, Texas 77706
                           Tel: (409) 832-2777
                           Fax: (409) 832-2703

                           COUNSEL FOR DENNIS WEBB
                                              TABLE OF CONTENTS
Table of Contents ...................................................................................................... ii
Index of Authorities ................................................................................................. iii
Statement of Facts ......................................................................................................1
Summary of the Argument.........................................................................................4
Argument....................................................................................................................5
   I. The district court did not err in overruling State Farm’s
   objections to Peter Rabner’s testimony, and there is nothing in State
   Farm’s petition that warrants granting review. ......................................................5
   II. The court of appeals ruling on attorneys’ fees is consistent with
   this Court’s prior rulings and presents no basis for granting review. ..................11
   III. There is no reason for the Court to grant review based on State
   Farm’s alternative contention that Webb’s attorneys’ fees should be
   limited due to State Farm’s settlement offer. .......................................................14
Conclusion and Prayer .............................................................................................17
Certificate of Compliance ........................................................................................18
Certificate of Service ...............................................................................................19




                                                             ii
                                        INDEX OF AUTHORITIES

Cases
Arthur Andersen & Co. v. Perry Equip. Corp.,
  945 S.W.2d 812 (Tex. 1997) ................................................................................11
Atlantic Richfield Co. v. Misty Products, Inc.,
  820 S.W.2d 414 (Tex. App.—Houston [14th Dist.] 1991, writ denied). .............10
Caffe Ribs, Inc. v. State,
 487 S.W.3d 137 (Tex. 2016) ..................................................................................9
City of Laredo v. Montano,
  414 S.W.3d 731 (Tex. 2013) ................................................................................13
El Apple I, Ltd. v. Olivas,
  370 S.W.3d 757 (Tex. 2012) ................................................................................13
G.T. Mgmt., Inc. v. Gonzalez,
  106 S.W.3d 880 (Tex. App.—Dallas 2003, no pet.). ...........................................10
Horizon Health Corp. v. Acadia Healthcare Co.,
 520 S.W.3d 848 (Tex. 2017) ................................................................................11
In re Y.M.A.,
  111 S.W.3d 790 (Tex. App.—Fort Worth 2003, no pet.). ...................................10
Long v. Griffin,
  442 S.W.3d 253 (Tex. 2014) ................................................................................13
Midland W. Bldg. L.L.C. v. First Serv. Air Conditioning Contractors, Inc.,
 300 S.W.3d 738 (Tex. 2009). ...............................................................................14
Ross v. St. Luke's Episcopal Hosp.,
  462 S.W.3d 496 (Tex. 2015) ...............................................................................12
Russell v. Russell,
  478 S.W.3d 36 (Tex. App.—Houston [14th Dist.] 2015, no pet.) .......................14

Statutes
TEX. INS. CODE § 541.158(b) ...................................................................................15
TEX. INS. CODE § 541.159 ........................................................................................14
TEX. INS. CODE § 541.159(a) ............................................................................ 15, 16
TEX. INS. CODE § 541.159(b) ............................................................................ 15, 16
                                                        iii
Rules
TEX. R. APP. P. 33.1 .......................................................................................... 10, 11
TEX. R. APP. P. 33.1(a) .............................................................................................12
TEX. R. APP. P. 38.1(i)..............................................................................................12
TEX. R. APP. P. 47.1 .................................................................................................15
TEX. R. APP. P. 53.2(f) .............................................................................................11
TEX. R. APP. P. 55.2 .................................................................................................11
TEX. R. APP. P. 56.1 ...................................................................................................6




                                                           iv
                                STATEMENT OF FACTS
      This is a first party insurance case in which Dennis Webb sued State Farm

Lloyds and others for breach of contract and insurance code violations relating to its

handling of his claim for damage caused by a plumbing leak. See CR8-25. The court

of appeals correctly stated the nature of the case in that it is a first-party insurance

case, and the facts as they relate to State Farm’s petition for review.

      In May of 2012, Webb opened the garage door and noticed a foot-wide semi-

circle of water where the garage meets the driveway. Water had seeped up between

the slab for the garage and the slab for the driveway, and it was very wet. 2RR209-

12. As the day wore on, the wet spot got bigger, expanding up to two feet, and it

continued to grow over the next few days. 2RR212-14. It was eventually a seven to

eight foot wide area, and Webb also found that the water meter can was full of water

and the yard was soggy all the way down to the street. 2RR222-224; 3RR93. Water

was coming from a leak under the house, seeping down around the perimeter beam

(which extends two feet down), and then coming up through the joint. See 2RR209-

14. Webb contacted a plumber and called his insurance company. 2RR215; 3RR8.

      The first adjuster State Farm sent out was Janice Warner. Warner took some

pictures and left. 3RR9-10. A few days later, as the plumbers were finishing up,

Webb called Warner out for a visit to take a look at the work. At the time of Warner’s




                                           1
second visit, there were still no cracked tiles or other visible damage, just a wet spot

on the driveway and a soggy lawn. 3RR27-29, 93-96.

      About three weeks later, in the beginning of June 2012, Webb started to see

cracked tiles. 3RR13, 29. Webb first noticed hairline cracks in a few of the kitchen

tiles near the island (about 32 feet from the leak), but most of the cracked tiles were

in part of the dining area not far from the wall between the dining area and the garage

where the leak was located. In addition, a fairly large crack developed on the garage

floor in the general vicinity of the leak, and cracks developed in the brickwork above

the garage doors. 2RR225-26; 3RR39-42, 52-54; see DX12. There were no unusual

events (other than the leak) to explain the appearance of the cracks. 3RR29-31.

      State Farm sent Brandon English (who testified as its engineering expert at

trial) to inspect the property. English prepared a report stating that the foundation

damage was not caused by a plumbing leak, and at the end of October 2012, State

Farm sent a letter denying coverage based on English’s report. 4RR209-13; PX16.

      Webb was not satisfied with the way State Farm handled his claim and

retained a lawyer and another engineer, Peter Rabner, to evaluate the claim. Taking

into account all available data and eliminating possible causes not consistent with

the evidence, Rabner concluded to a reasonable engineering probability that the

damage most likely resulted from the plumbing leak. 3RR148-179.                 Rabner

concluded that the most likely explanation was that the large amount of water


                                           2
radiating out from the leak under the garage caused the expansive soils under the

house to expand, leading to temporary heaving of the foundation, which then

returned more or less to its original position as the water dissipated and the ground

dried up. See 3RR141, 178-179.

      As late as the time of his deposition, English could not say what caused the

cracks in the tiles and the garage floor other than to say it was not the leak. He

suggested seasonal changes or vegetation as possible causes for movement of the

foundation, because both could change the moisture content under the foundation.

5RR216-17. At trial, he admitted that vegetation was not really a reasonable

explanation. 5RR218-19. English admitted at trial that water under the foundation

could cause the foundation to heave up, and that it could settle back down when the

moisture dissipated, but insisted that could not have happened in Webb’s case.

5RR215-16. Instead, he settled on “seasonal variations” leading to “shrinkage.” See

5RR166-70. But he really offered no explanation for why the cracks would have

suddenly appeared right after the leak, after 48 seasons of stability. 5RR219. In the

absence of any good explanation, English suggested that Webb was lying about

when the cracks appeared (even though at his deposition he had remarked about how

honest and straightforward Webb was), and seemed to suggest that the cracks really

were there before the leak, even though he admitted he had nothing to back that up.

5RR219-21.


                                         3
      After hearing all the evidence, the jury found that State Farm failed to comply

with its obligations under the policy and that it violated the Insurance Code. CR688-

97. State Farm appealed. The court of appeals rendered a judgment affirming the

jury’s award for breach of contract damages in the amount of $15,000, but reversing

the jury’s awards of actual damages and additional damages for Insurance Code

violations, and remanding “for a new trial with respect to the attorney’s fees

recoverable on Webb’s breach of contract claim.” Both sides filed petitions for

review.

                            SUMMARY OF THE ARGUMENT
      In its first issue, State Farm does not ask the Court to resolve some legal issue

of importance to the jurisprudence of this state; it merely asks the Court to take sides

in a “battle of the experts” and exclude Webb’s expert because State Farm’s expert

(or lawyers) view things differently. There is no issue of law where the court of

appeals held differently from any opinion of this Court or of any court of appeals on

any important point of law, and there is no reason for this Court to grant review.

      In its second issue, State Farm complains that Webb’s attorney fee evidence

included reconstructed time records, but State Farm does not cite any case holding

that this is improper, and this Court has expressly permitted it in at least three cases,

including the one cited in State Farm’s petition. Moreover, even if State Farm raised

a valid complaint, the result would not be to reverse and render, as State Farm


                                           4
requests, but to remand for a new trial on attorneys’ fees. This is precisely what the

court of appeals already did.

      State Farm’s third issue, related to limiting the attorney fee recovery, involves

an issue that the court of appeals did not reach and that has not yet been ruled upon

by any court. It is a matter properly addressed to the district court, which is where

it will go if the Court denies State Farm’s petition (unless the Court grants the relief

sought in Webb’s petition, in which case it will be moot).

                                     ARGUMENT
I.    The district court did not err in overruling State Farm’s objections to
      Peter Rabner’s testimony, and there is nothing in State Farm’s petition
      that warrants granting review.
      A significant plumbing leak in a water line running under Webb’s garage

caused the expansive soils under the slab to expand, which lead to a temporary

heaving of the foundation, which lead to cracking of some of the most susceptible

materials—brittle materials like tile, the concrete garage floor, and the brick at the

top of the column between the garage doors.

      State Farm’s corporate representative admitted that there were expansive soils

underneath the Webb house and that the foundation moved (although he denied it until

shown where he admitted it in his deposition) and that movement of the foundation

caused the tile cracking (again, only after being shown his deposition). 4RR34-36. He

also admitted that State Farm has no opinion as to what caused the foundation to move



                                           5
(and again, only after being shown his deposition). 4RR36-37. So basically, State

Farm’s position was that there was movement, there was cracking, there were

expansive soils, and a whole lot of water, but for some reason, State Farm refused to

link them up. 4RR37-38. Rabner did connect the dots, and State Farm says letting him

do so was reversible error.

        Regardless of how State Farm tries to frame the issue, it is not a matter of any

genuine legal question. It boils down to a complaint that in evaluating the data,

Webb’s expert did not reach the conclusions that State Farm’s lawyer did. While

State Farm’s petition contains standard buzz words like “novel theory” and

“analytical gap,” (but surprisingly, no “ipse dixit”), it does not identify anything in

the court of appeals opinion that conflicts with any other court of appeals on any

important issue of law, nor does it identify any error of law of such importance to

the state’s jurisprudence as to warrant this Court’s intervention. See TEX. R. APP. P.

56.1.

        State Farm complains that Rabner proposed a “novel theory” that the

foundation moved up when the leak drenched the expansive soils under the slab, and

sometime within the roughly three months after the leak was fixed settled back. This

“novel theory” is just a matter of using reason and certain uncontroversial facts, like

that there were expansive soils under Webb’s house, expansive soils expand when

they get wet, the leak caused a substantial amount of water to seep into the soil under


                                            6
the slab, and after the leak was fixed, things would be expected to settle back to their

previous condition.

      Even State Farm’s own expert admitted that water getting into the soils

underneath the house could cause the soils to swell and that that water coming under

the foundation could have caused it to heave up and then to come down again after

the moisture dissipated. 5RR215-16. He acknowledged that the leak could cause clay

swelling, and that clay swelling could move the foundation. 5RR123-24. He said

that when clay soils get wet, they tend to swell, and “if it does move the foundation,

generally it should manifest itself, it should show up somewhere as a crack, as a door

out of alignment, as something in a -- in some of the more susceptible components

of that structure.” 5RR131. And that is what happened here. As Rabner pointed out,

some things that are especially susceptible to damage from foundation movement

are brittle materials like mortar and concrete and ceramic tile, as they are far more

susceptible to breaking and cracking than things like sheetrock and framing

members. 3RR148-49.

      State Farm claims that this is somehow inconsistent with a couple elevation

surveys performed years before the leak and one done about three months after, but

elevation surveys are just snapshots that tell the position of the slab at the time they

are taken. They do not show what happens between frames, and having the soil swell

when it’s wet and return to the previous pattern when the water source is removed is


                                           7
perfectly consistent with survey data showing that the foundation had returned to

equilibrium months after the leak was fixed. See 3RR220-222, 249.

         State Farm also asserts that Rabner’s opinions are all unreliable because the

tile was supposedly cracked before the leak. This is just not true. The evidence was

unequivocal and uncontradicted that the cracks in the tiles first appeared after the

leak. This was demonstrated not only by Webb’s testimony, but also by State Farm’s

contact logs from May of 2012 (i.e., Warner’s two visits prior to the appearance of

the cracks). See 3RR 139-41, 150-51,222-23, 228-29. Furthermore, none of this was

contradicted by any supposed “objective data” showing the cracks had been there

for several years prior to the leak.1

         State Farm also claims that Rabner’s testimony is unreliable because he



     1
       State Farm says on page 12 of the petition that Rabner ignored “photographs
showing pre-existing cracks.” There were no such photographs in the sense of
photographs taken before the leak that showed that the tiles were cracked as they
were after. Nor does the barely legible scrawl the Hurricane Ike “field notes”
referenced in footnote 4 on page 12 of State Farm’s petition show that the cracks
that appeared after the leak were really there all along. (Those “field notes” are not
in evidence in this case, and State Farm has not challenged their exclusion in its
petition for review.) Hurricane Ike tore the shingles off the house, and water poured
in, along with wet sheetrock and insulation, and in the process of shoveling up the
muck from the kitchen floor, some tiles were damaged. Mr. Webb described the
damage as “chips.” About 25-30 tiles were damaged, some with just very small bits
knocked off at the corner, and some chunks as big as a quarter, but none were
cracked like after the leak. 3RR18-20, 22-23. While some of the tiles were damaged
in the cleanup after Hurricane Ike, that damage was mostly repaired and had nothing
to do with foundation movement and the damage was altogether different from the
cracks that appeared after the leak.

                                           8
credited Webb’s account of when the cracks appeared. State Farm contends that

there is evidence that the cracks were there earlier, so Rabner’s testimony must be

unreliable. State Farm says on page 12 of its petition, “[a]n expert cannot pick and

choose among conflicting pieces of evidence.” In fact, that is exactly what experts

can do, and it is up to the jury to decide which facts to believe. “When an expert's

opinion is predicated on a particular set of facts, those facts need not be

undisputed…. An expert's opinion is only unreliable if it is contrary to actual,

undisputed facts.” Caffe Ribs, Inc. v. State, 487 S.W.3d 137, 144 (Tex. 2016).

         Furthermore, this supposed “objective data” was not presented to the trial

court in State Farm’s Motion to Exclude, and generally just consists of opinions

offered by State Farm’s expert (or State Farm’s lawyers) after Rabner had already

testified. For instance, State Farm tells this Court that there is something terribly

significant about the fact that the tiles were cracked but the grout was not. There

was nothing about the supposed significance of untracked grout in State Farm’s

Motion to Exclude, CR540-552, and State Farm’s lawyer did not ask Rabner about

it at trial,2 and the word “grout” does not appear in State Farm’s brief in the court of




     2
        State Farm’s lawyer asked Rabner at trial whether he had seen photographs
taken by English where “sometimes he would put down something that would
indicate you could see a little crack running to the right of the pen and then the other
tile to the left of the pen, although the grout's not cracked.” 3RR244. Rabner said
that he had, and State Farm left it at that, without any follow-up.

                                           9
appeals.

      Before a party may present a complaint on appeal, the record must normally

show that the complaint was made to the trial court by a timely request, objection,

or motion. TEX. R. APP. P. 33.1. Furthermore, the objection has to be sufficiently

specific to make the trial court aware of the complaint. TEX. R. APP. P. 33.1(a)(1).

When an appellate complaint fails to comport with the trial objection, nothing is

preserved for review. G.T. Mgmt., Inc. v. Gonzalez, 106 S.W.3d 880, 885 (Tex.

App.—Dallas 2003, no pet.). “To preserve complaint on appeal regarding a trial

court's ruling on the admissibility of evidence, a party must make a timely objection

and obtain a ruling before the testimony is offered and received. The party waives

any complaint if an objection is made after admission of the evidence…, or if

testimony to the same effect has been previously admitted without objection.”

Atlantic Richfield Co. v. Misty Products, Inc., 820 S.W.2d 414, 421 (Tex. App.—

Houston [14th Dist.] 1991, writ denied). Error is not preserved unless the complaint

on appeal matches the objection in the trial court. In re Y.M.A., 111 S.W.3d 790, 791

(Tex. App.—Fort Worth 2003, no pet.). When it filed its motion to exclude Rabner’s

testimony, it did not claim that there was evidence that the cracks existed prior to the

leak. See CR540-51. Nor was it mentioned when State Farm actually raised its

objection at trial and obtained a ruling on its motion (which was well into Rabner’s

testimony). 3RR147.


                                          10
          State Farm also complains on page 11 of the petition that “[t]he court of

appeals ignored Rabner’s obvious lack of qualifications.” However, since State

Farm did not challenge Rabner’s qualifications either in the trial court 3 or the in

court of appeals, this complaint comes a bit too late. See TEX. R. APP. P. 33.1; TEX.

R. APP. P. 53.2(f), 55.2; Horizon Health Corp. v. Acadia Healthcare Co., 520

S.W.3d 848, 885 (Tex. 2017) (“matters not raised in an appellant's briefing in the

court of appeals are waived”).

II.       The court of appeals ruling on attorneys’ fees is consistent with this
          Court’s prior rulings and presents no basis for granting review.
          Randy Cashiola provided expert testimony on Webb’s reasonable and

necessary attorneys’ fees in accordance with the standards set out by this Court in

Arthur Andersen & Co. v. Perry Equip. Corp., 945 S.W.2d 812 (Tex. 1997). In

forming his opinions Cashiola went over the file materials and a worksheet that lists

the hours that went into the work. 5RR10-11. The worksheet included only work

that was “objectively verifiable” and documented, such as depositions, hearings,

pleadings, written discovery, conferences documented by e-mails, and some phone

calls. 5RR12-13. That worksheet, Plaintiff’s Exhibit 32, was admitted expressly

with “[n]o objection” by State Farm. 5RR11; see PX32. The worksheet stopped at


      3
        State Farm did not mention qualifications in its pre-trial motion to exclude
except in boilerplate in a section headed “Texas Law Governing Admissibility of
Expert Opinion,” see CR540-551, and it made no such objection when Rabner
testified at trial, see 3RR147.

                                          11
May 5, 2015, and did not include work done for trial. 5RR12. Cashiola testified as

to the value of those services based on the time expended at trial and the attorneys’

reasonable rates without reference to the worksheet that State Farm now complains

of here. 5RR19-23.

         In the court of appeals, State Farm asserted that Webb submitted no

contemporaneous time records, 4 and instead Webb’s attorneys’ fee expert, Randy

Cashiola, testified based on a “worksheet” setting out the tasks performed, who

performed them, the time reasonably expended, and the reasonable hourly rate. State

Farm claimed that this was improper, but cited no authority whatsoever. The court

of appeals could properly have declined to address the issue at all because it was

waived in the trial court due to State Farm’s failure to object, and that it was waived

again in the court of appeals due to State Farm’s failure to adequately brief the issue.

See TEX. R. APP. P. 33.1(a) (issue must be preserved in the trial court), 38.1(i)

(appellant’s brief must contain argument “appropriate citations to authorities and to

the record); Ross v. St. Luke's Episcopal Hosp., 462 S.W.3d 496, 500 (Tex. 2015)




     4
       Although State Farm has asserted the records were not contemporaneously
kept, that assertion is not supported by the evidence. Cashiola did not testify that
the time records were not contemporaneously kept: he said that the Mostyn Firm had
methods to immediately record time, but he could not say whether it was
contemporaneously kept because he was not there to watch it. 5RR70.

                                          12
(“Failure to provide citations or argument and analysis as to an appellate issue may

waive it.”);

      In its petition for review, State Farm for the first time cites some authority,

but that authority does not support granting review. In El Apple I, Ltd. v. Olivas,

370 S.W.3d 757, 763 (Tex. 2012), the Court said that in fee-shifting situations,

“attorneys should document their time much as they would for their own clients”

with more or less contemporaneous billing records. But “should” is not “must,” and

the Court has repeatedly ruled that where such records are not available (like, for

instance, where the lawyer works on a contingent fee basis rather than by the hour),

attorneys may reconstruct their work to provide the trial court with sufficient

information to allow it to perform a meaningful review of the fee application. Id. at

764, Long v. Griffin, 442 S.W.3d 253, 255-56 (Tex. 2014); City of Laredo v.

Montano, 414 S.W.3d 731, 736 (Tex. 2013).

      The court of appeals’ ruling was consistent with this Courts’ precedent on the

attorneys’ fee issue, but even if it were not, it would still not be appropriate to grant

review on this issue because the court of appeals remanded for new trial attorneys’

fees. The court of appeals reversed the judgment for Webb on his Insurance Code

claims and remanded for new trial on the attorneys’ fee issue because Cashiola did

not segregate out fees attributable only to the claims under the Insurance Code.

Opinion at 34. Even if all the work listed on the worksheet could be summarily


                                           13
disregarded, there was still evidence of the value of services provided at trial, so an

award of zero attorneys. fees would be improper. “An award of no fees is improper

in the absence of evidence affirmatively showing that no attorney's services were

needed or that any services provided were of no value.” Russell v. Russell, 478

S.W.3d 36, 50 (Tex. App.—Houston [14th Dist.] 2015, no pet.) (citing Midland W.

Bldg. L.L.C. v. First Serv. Air Conditioning Contractors, Inc., 300 S.W.3d 738, 739

(Tex. 2009)). Even if the Court were to reverse its prior rulings and hold that an

attorneys’ fee award cannot be based on reconstructed time records, the result would

be the same as the result in the court of appeals—a remand for new trial on attorneys’

fees. Because a decision by this court would not result in greater relief for State

Farm than it obtained in the court of appeals, review is not appropriate.

III.       There is no reason for the Court to grant review based on State Farm’s
           alternative contention that Webb’s attorneys’ fees should be limited due
           to State Farm’s settlement offer.
           State Farm asserts that this Court should grant review to determine whether

Webb’s attorneys’ fees should be limited to $5000 under TEX. INS. CODE § 541.159

due its pretrial settlement offer. This is not an appropriate ground for review because

the issue was not decided by the court of appeals,5 and because the issue is one for

the trial court to decide.


       5
       In view of its remand for a new trial on attorneys’ fees, the court of appeals
said, “we need not address State Farm’s other arguments in issue five complaining
that Webb’s damages should have been limited by State Farm’s offer of settlement

                                            14
      To invoke the limitations set out in § 541.159, the person against whom the

claim is made is to file the settlement offer with the court “accompanied by an

affidavit certifying the offer’s rejection.” TEX. INS. CODE § 541.158(b). Then, if

the court finds that the amount of the offer is substantially the same as or greater

than the amount of damages found by the trier of fact, damages are limited to the

lesser of amount of damages stated in the offer or the amount of damages found by

the trier of fact. TEX. INS. CODE § 541.159(a). If the court makes the finding

described in subsection (a), it then falls to the trial court to “determine reasonable

and necessary fees to compensate the claimant for attorney’s fees incurred before

the date and time the rejected settlement offer was made.” TEX. INS. CODE §

541.159(b). If the court finds that the amount of attorney’s fees stated in the offer is

the same as, substantially the same as, or more than the amount of reasonable and

necessary attorney’s fees incurred by the claimant as of the date of the offer, the

claimant may not recover any amount of attorney’s fees in excess of the amount of

fees stated in the offer.” Id.

      This procedure was never invoked. Instead, State Farm demanded a jury

question on the amount of attorneys’ fees incurred through the date of the offer,




and that the trial court erred in accepting an incomplete jury form, as they would not
result in greater relief. See TEX. R. APP. P. 47.1.” Opinion at 36.


                                          15
which the jury answered “N/A” (as Webb’s counsel urged, based on State Farm’s

failure to put on any evidence of fees incurred at any particular date.” 6 See CR695;

7RR76-77, 79. The damages found by the jury and awarded in the judgment

significantly exceed the amount in State Farm’s settlement offer, so the district court

never had occasion to make the § 541.159(a) finding required even to reach §

541.159(b).

         The court of appeals affirmed the judgment for Webb on the breach of contract

claim, but reversed on Webb’s Insurance Code claims, which left him with an

amount of damages that is less than the amount in the settlement offer, and remanded

for retrial on attorneys’ fees. The court found it unnecessary to address the effect of

State Farm’s settlement offer on the attorney’s fee award because the attorneys’ fee

award was already going back to the district court for retrial.

         The court of appeals’ approach was correct, and there is no need for this Court

to step in. If the Court denied State Farm’s petition for review, one of two things

could happen: 1) the Court could grant Webb’s petition for review and reinstate the

jury’s finding on the Insurance Code claim, or 2) not. If the Court does the former,

this issue will be moot. If it does the latter, all that will happen is the matter will go




     6
       State Farm objected that the jury’s finding amounted to jury nullification, but
the district court opined that it was not nullification so much as a finding that State
Farm failed to carry its burden of proof, and overruled the objection. 7RR83-84.

                                           16
back to the trial court, where State Farm will have the opportunity to properly invoke

§ 541.159, at which point it will be up to the district court to make the findings

required by the statute. There is no reason for this Court to short-circuit the statutory

scheme, or to predetermine what sort of evidence the district court can consider in

making the § 541.159 findings, or what those findings should be.

                              CONCLUSION AND PRAYER
      Webb respectfully requests that the Court grant his petition for review and

deny State Farm’s.



                                  Respectfully submitted,


                                   /s/ Gregory F. Cox
                                  Gregory F. Cox
                                  State Bar No. 00793561
                                  THE MOSTYN LAW FIRM
                                  6280 Delaware Street
                                  Beaumont, Texas 77706
                                  (409) 832-2777 (Office)
                                  (409) 832-2703 (Facsimile)

                                  COUNSEL FOR PETITIONER/CROSS
                                  RESPONDENT, DENNIS WEBB




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                          CERTIFICATE OF COMPLIANCE
      I certify that this document complies with the typeface and word-count

requirements set forth in the Rules of Appellate Procedure. This document has been

prepared using Microsoft Word, in 14-point Times New Roman. This document

contains 4,395 words, as determined by the word count feature of the word

processing program used to prepare this document (Microsoft Word), excluding

those portions of the petition exempted by TEX. R. APP. P. 9.4(i)(1).



                                       /s/ Gregory F. Cox
                                       Gregory F. Cox




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                             CERTIFICATE OF SERVICE
     I hereby certify that on December 20, 2017, counsel of record listed below was
served with a copy of the foregoing document via facsimile. I further certify that on
the same date, I electronically filed the foregoing with the Clerk of the Court using
the CM/ECF system, which may send notification of such filing to counsel of record:

J. Hampton Skelton
State Bar No. 18457700
hskelton@skeltonwoody.com
Edward F, Kaye
State Bar No. 24012942
ekaye@skeltonwoody.com
SKELTON & WOODY
248 Addie Roy
Building B, Suite 302
Austin, TX 78746-4100

Counsel for Respondent/Cross-petitioner
State Farm Lloyds



                                       /s/ Gregory F. Cox
                                       Gregory F. Cox




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