                                      In The

                                Court of Appeals
                    Ninth District of Texas at Beaumont
                              ________________
                               NO. 09-13-00413-CV
                              ________________

         NATIONAL LLOYDS INSURANCE COMPANY, Appellant

                                         V.

                             LATOSHA A. LEWIS,
                                 Appellee
________________________________________________________________________

                    On Appeal from the 60th District Court
                          Jefferson County, Texas
                         Trial Cause No. B-188,072
________________________________________________________________________

                          MEMORANDUM OPINION

      National Lloyds Insurance Company (“Lloyds”) appeals the trial court’s

judgment in favor of Latosha A. Lewis following a jury trial. In seven appellate

issues, Lloyds challenges (1) the legal sufficiency of the evidence supporting the

jury’s findings regarding causation, damages for mental anguish, breach of

contract, and breach of the DTPA, and exemplary damages, (2) the trial court’s

inclusion in the charge of an instruction regarding waiver and its refusal to include


                                         1
an instruction on spoliation, (3) and the trial court’s rendition of a judgment that

allegedly failed to force Lewis to make an election of remedies. We affirm the trial

court’s judgment as modified.

                        PROCEDURAL BACKGROUND

      Lewis1 sued Lloyds, alleging that when Hurricane Ike occurred in 2008, her

home in Beaumont was covered by a policy from Lloyds. According to Lewis, her

home and personal property were seriously damaged by the storm, and she also

incurred additional living expenses. Lewis asserted that Lloyds wrongfully denied

her claim for repairs of the property, despite the fact that her policy provided

coverage for such losses, and underpaid some of her claims. In addition, Lewis

contended that all conditions precedent for her to recover under the policy had

been satisfied. Lewis asserted causes of action for breach of contract, DTPA

violations, unfair insurance practices, breach of the duty of good faith and fair

dealing, and fraud. Lewis sought economic damages, as well as damages for

mental anguish, treble damages pursuant to the DTPA and the Texas Insurance

Code, exemplary damages, and attorney’s fees.




      1
      Lewis married and changed her last name to “James” after purchasing her
home. We will refer to appellee throughout as “Lewis.”
                                         2
                                THE EVIDENCE

      At trial, Lloyds’s corporate representative, Paul Boswell, testified that

Lewis’s policy provided coverage for her dwelling in the amount of $54,000 and

an additional $5000 coverage for incurred expenses. Boswell testified that Lloyds

did not exclude Lewis’s roof from coverage when Lloyds decided to cover Lewis’s

house, nor did Lloyds inform Lewis that it would not cover the roof unless she

repaired any damage. Boswell explained that in 2005, after Hurricane Rita, Lloyds

paid Lewis for new shingles, but did not pay to replace the decking, and Lloyds’s

adjuster did not see any structural problems with the roof. According to Boswell,

Lloyds found no evidence during its investigation of Lewis’s Hurricane Rita claim

that the structure of the roof was compromised. Boswell also testified that when

Hurricane Humberto struck approximately two years later, Lloyds found no

evidence of interior water damage to the home.

      Boswell testified that selling actual cash value (ACV) policies “to insure

people with lower valued homes and people with lower levels of education” is one

of Lloyds’s “main markets[.]” After Hurricane Rita damaged Lewis’s home,

Lloyd’s paid (pursuant to Lewis’s ACV policy) $3,884.86. Boswell testified that

Lloyds neither instructed Lewis concerning how to use the money paid for her

Hurricane Rita claim, nor informed Lewis that future claims would be barred if she

                                        3
did not replace the roof. Lloyds never refused to cover the roof when the policy

renewed annually. Boswell did not believe that Lloyds required Lewis to obtain a

windstorm certificate for her roof.

      Boswell explained that Lewis’s policy required her to make reasonable and

necessary repairs to protect the property. Lloyds took the position that Lewis failed

to protect the property and mitigate her damages as required by the policy, and that

the problem with the roof after Hurricane Ike struck had existed since Hurricane

Rita. According to Boswell, Lloyds did not pay any money to Lewis for evacuation

expenses or living expenses because Lloyds determined that Lewis’s home was not

completely uninhabitable after Hurricane Ike.

      Boswell testified that at Lewis’s request, Lloyds wrote a letter to FEMA

stating that Lloyds denied coverage because the home was not completely

uninhabitable; however, Lewis’s policy did not require that her home be wholly

uninhabitable to make a claim. Boswell admitted that the letters Lloyds sent to

Lewis about the denial of her claim “could have been better” and probably did not

comply with Lloyds’s obligation to give Lewis its reasons for denying her claim.

When asked whether Lewis’s policy contained any language requiring her to

replace her entire roof after receiving an insurance payment, Boswell testified,

“[t]hat exact language is not in the policy.” According to Boswell, an email from

                                         4
claims processor Nathan Rendo and the inspection performed by adjuster Brian

Zepeda are the only documents in Lloyds’s file that document the investigation of

Lewis’s Hurricane Ike claim. Boswell testified that he has no criticisms of

Zepeda’s work with respect to the investigation and adjustment of Lewis’s

Hurricane Ike claim.

      Zepeda, the independent adjuster who inspected Lewis’s home after

Hurricane Ike, testified that he reported to Lloyds that storm winds from Hurricane

Ike “caused wind damage to the roofing shingles on the rear slope and produced a

storm-created opening allowing water intrusion to the interior.” Zepeda testified

that the roof damage to which he referred had not been present after Hurricane

Humberto. Zepeda distinguished damage caused by Hurricane Humberto from that

caused by Hurricane Ike by inspecting photographs and comparing them with what

he saw in person. Zepeda testified that he removed roofing from his estimate and

issued a new report pursuant to Rendo’s email which stated, “Please remove the

roofing from the estimate. It was paid in 2005 and never replaced.”

      Lewis testified that she purchased this house for $54,000.00 in 2003 when

she was twenty-three or twenty-four years old. Lewis obtained insurance for the

property from Lloyds. Hurricane Rita damaged Lewis’s home, and she filed a

claim with Lloyds. Lewis explained that the master bedroom sustained water

                                         5
damage, and the shingles on the roof were damaged. Lewis testified that her son’s

bedroom did not sustain water damage after Hurricane Rita.

      Lloyds paid Lewis’s Hurricane Rita claim in January 2006. Lewis testified

that she received $5300, and she made repairs with that money and also used it to

purchase a $500 generator, as well as for her evacuation expenses. She spent “the

majority of it” on repairing her roof. Lewis testified that she was never paid for

damage to gutters, fascia, or soffits after Hurricane Rita. According to Lewis, the

checks from Lloyds did not come with any letters telling her what losses the

payments were covering, and no one from Lloyds told her that she needed to

replace her entire roof with the money she received. When asked why she did not

replace the entire roof after Hurricane Rita, Lewis testified, “I didn’t have enough

money to replace my roof. I had people stopping by giving estimates . . . , but their

estimates were way too high. So, we had to repair it. We couldn’t just let it sit.”

Lewis explained that after she repaired the roof, the roof did not leak until

Hurricane Ike struck. Lewis explained that no leaking occurred in her son’s

bedroom before Hurricane Ike.

      When Hurricane Humberto struck, a tree limb hit Lewis’s home, damaging

the gutter and electrical lines, soffit, and fascia, and she filed a claim with Lloyds.

Lewis testified that no water damage occurred as a result of Hurricane Humberto.

                                          6
Lloyds denied Lewis’s claim in a letter which stated, “Our inspection revealed old

damage to your dwelling roof. We paid to replace the same roof damage during

Hurricane Rita . . . . It appears that the roof has never been replaced. So, no

additional payment is warranted for the roof.” According to Lewis, when Lloyds

renewed her policy each year, Lloyds never excluded her roof from coverage or

told her that she could not file a claim for damage to the roof unless she replaced it.

      When Hurricane Ike struck, Lewis evacuated for approximately two weeks,

and she estimated that she incurred $200 to $300 of additional expenses. Lewis

testified that after Hurricane Ike, the roof over her son’s bedroom caved in, and

sheetrock was “everywhere, all over.” In addition, Lewis testified that a tree was

on the roof over her son’s room and a tree had come through the window. Lewis

explained that when she and her family returned to the home, she closed the room

off and put a towel under the door in an attempt to prevent fumes from the mold

from escaping. Lewis testified that Lloyds did not pay for any of the damaged

belongings in the room, which totaled $1210. Lewis testified that the coverage

limitation on her policy was $54,000. According to Lewis, no one from Lloyds

ever talked with her about her policy.

       Lewis explained that Zepeda’s notation while adjusting her Hurricane Ike

claim that she “confirmed that the repairs have not been completed” after

                                          7
Hurricane Rita is false because she did make repairs. Lewis testified that she was

unaware that Zepeda had recommended that Lloyds pay her Hurricane Ike claim in

the amount of $7,466.99, but that Lloyds claimed that no payment was due. Lewis

testified that she called Lloyds several times after Zepeda’s visit, but no one ever

returned her calls. She then sought assistance from the Texas Department of

Insurance and FEMA. Lewis filed a complaint against Lloyds, and she testified, “I

got a response that day. . . . They contacted T.D.I., and they also contacted

FEMA.” Lewis testified that the letter response Lloyds faxed to the Texas

Department of Insurance said (1) “the insurance claim was denied[,]” (2) Lloyds’s

inspection revealed old damage, and (3) Lloyds had paid to replace the roof after

Hurricane Rita. Lloyds’s letter did not allege that Lewis failed to make reasonable

repairs or to protect her property from further damage. Lloyds never paid Lewis for

the damages to her home from Hurricane Ike. According to Lewis, although some

mold was present in the home after Hurricane Rita, that damage was successfully

repaired, and the home did not develop a significant mold problem until after

Hurricane Ike.

      Lewis’s husband, Herbert James, Jr., testified that he and his stepfather-in-

law repaired the roof after Hurricane Rita, when the roof above the master

bedroom was damaged. According to James, after the Hurricane Rita repairs, no

                                         8
water got into the house until Hurricane Ike, when the area of the roof above his

son’s room was damaged by a tree. James explained that there were no water leaks

in his son’s bedroom before Hurricane Ike. After Hurricane Ike, James removed

the tree and repaired the roof by installing rolled roofing.

      Rendo testified that he received his license as an insurance adjuster in 2006.

When Hurricane Ike struck, Rendo was working from his home as an independent

contractor associated with Wardlaw Claims Service. Rendo was asked to help

review files at Lloyds’s offices approximately one month after Hurricane Ike.

Rendo testified that his job title was “claims processor[,]” and his job was to “help

them get files paid.” Rendo explained that he also made coverage decisions, and he

was familiar with Lloyds’s insurance policy covering Lewis’s house. Lloyds

provided Rendo a copy of the policy via its claim system, and Rendo also reviewed

the files on Lewis’s claims for Hurricanes Rita and Humberto. According to

Rendo, no one from Lloyds ever gave him claims handling guidelines or provided

feedback. Rendo did not recall speaking with Zepeda, a Lloyd’s employee, or

anyone else concerning Lewis’s claim.

      Rendo testified that he did not specifically recall writing the email to

Zepeda, in which he instructed Zepeda to remove roofing from the estimate

because “[i]t was paid in ’05 and never replaced.” Rendo testified that Zepeda had

                                           9
used the word “new” three times to describe Lewis’s Hurricane Ike damages. After

Rendo reviewed the photographs in the claims files regarding Lewis’s damages

from Hurricanes Rita and Humberto, he concluded that the roof had been allowed

for replacement after Hurricane Rita, but the roof had not been replaced at the time

of Humberto or Ike, so he recommended that roof damages be removed from the

estimate. Rendo testified that no rule required an insured to spend money received

from a claim precisely in accordance with the way the insurance company had

adjusted the claim. According to Rendo, an insurance company could refuse to

cover the property any longer, or could exclude the roof from coverage.

      Rendo testified that Lewis was not paid for interior damage sustained from

Hurricane Ike “[b]ecause she had not replaced her roof from her prior Hurricane

Rita claim.” According to Rendo, Hurricane Rita damaged Lewis’s roof “past the

point where it could be effectively repaired, which is why it was allowed for

replacement.” Rendo stated that Lewis did make what he characterized as

“temporary repairs” after Hurricane Rita. Rendo testified that the photographs

show new damage to the roof that did not exist prior to Hurricane Ike. Rendo

eventually testified that Lewis failed to comply with the provision of her policy

requiring her to protect the property from further damage, but conceded that this

provision did not require her to replace the roof. Rendo also stated that Lewis’s

                                        10
policy required her to make reasonable and necessary repairs to protect the

property, but he conceded that this provision of her policy does not mandate

replacement of the damaged areas.

      Licensed engineer Charles Norman testified that he holds a Bachelor of

Science degree in engineering and a Master of Science degree in engineering

science, and he has served as an engineering professor at McNeese State

University. He also taught at Lamar while enrolled in a doctoral program. Norman

is licensed as a professional engineer in Texas and Louisiana. Norman explained

that he also does forensic engineering work, which involves using engineering

principles to determine the cause of a particular incident or situation. Norman has

published papers on forensic engineering “to the Forensic Engineering Institute on

methodology, particularly in hurricane-damaged homes.” He estimated that he has

worked on thousands of hurricane damage cases during the last forty-five years,

and he has testified in court thirty to forty times. Norman explained that the court

accepted him as an expert in each of the prior cases in which he had testified.

Norman is a member of the American Society of Civil Engineers (“ASCE”), and

he has published several peer-reviewed papers through that organization. Norman

is also a graduate of FEMA’s Wind Engineering, Earthquake, Fire and Flood



                                        11
Design Institute, and he explained that this FEMA program included training about

conducting inspections and “making an evaluation of what’s damaged.”

      According to Norman, forensic engineers use particular standards to

determine how much wind or force is required to cause certain types of destruction

to components of buildings, as well as building failures. Norman explained that

ASCE standards set forth in “ASCE 7” contain minimum design loads for

buildings and other structures, and Norman described ASCE 7 as “a very excellent

standard that we use to design things -- design homes, buildings, structures -- and

we also use to analyze failures.” Norman testified that ASCE 7 is readily accepted

and relied upon by engineers in his field. Norman also identified American

National Standard Institute (“ANSI”) “S500” as pertinent to Lewis’s case, and he

explained that S500 is “an excellent standard that guides us, based on engineering

principles, on how we assess water damage to a home from a hurricane, from water

leak, and so forth.” According to Norman, engineers readily accept ANSI S500 and

consider it authoritative. Lloyds’s counsel did not object when Lewis’s counsel

offered Norman “as an expert in damage causation and engineering forensics.”

      Norman testified that in analyzing the damage to Lewis’s home, he utilized

the ASCE-07, ANSI 500, ASCI, and a causation method known as “root cause

analysis[.]” Norman explained that he reviewed the claim files on Lewis’s property

                                        12
from Hurricanes Rita, Humberto, and Ike, as well as inspection reports from

Lewis’s mortgage Lender, Wells Fargo, documents from engineer Matt Oestrike of

Nelson Engineering, and photographs and reports from Gary Wiener, who testified

as an expert in construction and damage estimation. Norman also spoke with

Lewis, Lewis’s next door neighbor, and Wiener. In addition, Norman reviewed and

relied upon deposition transcripts and official tropical cyclone reports from the

National Hurricane Center for Hurricanes Rita, Humberto, and Ike.

      Norman testified that the hole in the decking of Lewis’s roof was consistent

with a tree limb impact because it is “some sort of a puncture, . . . [a] dynamic

impact.” According to Norman, the hole was associated with “water entry[,]” and

he characterized the hole as “a smaller area of impact loading” and ruled out rot

and deterioration as causes. Norman opined that the amount of force necessary to

create such a hole in the decking “would be in the realm of 3,000 pounds[,]” and

explained that it would be “like a tree limb, something that size.” Norman testified

that it was reasonable to conclude that rolled roofing was applied over the hole

after Hurricane Ike.

      According to Norman, the damage to Lewis’s home was caused by wind and

water intrusion through the hole as a result of Hurricane Ike. Norman testified that

nothing in the Wells Fargo inspection documents suggested that a hole was present

                                        13
in the decking, and the Wells Fargo inspection indicated that there was no

collapsed sheetrock. Norman testified that, in his opinion, the damage to Lewis’s

roof was caused by Hurricane Ike.

      Norman also testified that the damages he attributed to Hurricane Ike are

consistent with the wind load analysis testing he did of Lewis’s house. In addition,

Norman explained that the cracks depicted in the post-Hurricane Ike photographs

were at the ceiling or high up on the walls, which “suggests and indicates and

supports that the house moved from vibration due to wind” rather from movement

of the slab. Norman testified that his own roof endured four hurricanes before he

replaced the entire roof. According to Norman, “[i]f a repair to a roof suffices to

keep the water shed and water from coming in, it’s a complete repair.” Norman

opined that the post-Hurricane Rita repairs made to Lewis’s roof probably held up

after Hurricane Humberto because “there were no leaks after Humberto.” Norman

explained that if Lewis had the money to repair the back slope of the roof after

Hurricane Ike and “done the repairs associated with the interior water damage[,] . .

. she could have mitigated enough damage that it would have prevented this house

from being . . . a constructive total loss[;]” that is, the cost of repairing the home

would not have been near or exceeding the value of the entire house. According to



                                         14
Norman, Providence Engineering, L.L.C.’s 2 repair cost estimate to mitigate the

damage to Lewis’s home, bring it up to livable standards, and satisfy the upgrade

requirements was $156,155.49. Norman agreed with Providence Engineering’s

assessment that Lewis’s home was a constructive total loss. According to Norman,

Lloyds failed to follow protocols and industry standards applicable to its

assessment of the insulation, ceilings, wood flooring, and HVAC system in

Lewis’s home.

      Wiener testified that he has worked in the construction business for over

thirty-five years and is licensed as a general contractor in Michigan and Louisiana.

In approximately 2000, Wiener became a premier service contractor for State Farm

Insurance, which led him to become involved in “heavier, bigger restoration

projects.” State Farm required Wiener to use an estimating software called

Xactimate, and Wiener estimated that he has prepared “well over 400” estimates

using Xactimate. Wiener testified that he is familiar with contractors “from Lake

Charles to contractors over on this side of Texas.” Lloyds did not object when

Lewis offered Wiener as “an expert in construction and damage estimation.”

      Wiener inspected Lewis’s home in November 2010, took dimensions and

photographs of the property, and generated a report using Xactimate. Wiener
      2
      Southeast Texas Regional Planning Commission retained Providence
Engineering, L.L.C. to evaluate Lewis’s home.
                                        15
explained that when he prepared his initial report, he was unaware that Lewis had

claims for Hurricanes Humberto and Rita. After learning of the additional storms,

Wiener prepared three additional reports that broke the original estimate “into three

estimates, which were Hurricane Rita, Humberto, and Ike.” Wiener testified that he

and Norman worked together to distinguish the damages by reviewing “a bunch of

documents and photographs.” According to Wiener, he and Norman determined

that, with the necessary code upgrades, the replacement cost of the damages to

Lewis’s home from Hurricane Ike was $62,998.07, and he explained that he

calculated depreciation in the amount of $3360.87, for an actual cash value of

$59,637.20. Wiener testified that the actual cash value without including upgrades

to bring the home up to code is $34,640.38.

      Phil Spotts, Lewis’s expert witness with respect to claims handling and

investigation, testified that he became an insurance claims adjuster in 1978 or early

1979, and he holds the designation of C.P.C.U. (Chartered Property and Casualty

Underwriter), which is “considered to be the highest designation . . . from the

Insurance Institute of America.” Spotts testified that he also holds the Insurance

Institute of America designations of Associate in Risk Management and Associate

in Claims. Spotts is certified by the National Flood Insurance Program and the

Texas Catastrophe Property Insurance Association. Spotts became manager of the

                                         16
General Adjustment Bureau office in Beaumont in the early 1980s, and he handled

both residential and commercial claims and trained and supervised adjusters.

Spotts testified that he has been involved in adjusting insurance claims from

eighteen hurricanes, and he estimated that he has worked on at least 15,000

residential hurricane claims.

      Spotts explained that when adjusting claims, adjusters must be cognizant of

what the policy provides, what laws govern the handling of claims, and orders

from the Texas Department of Insurance. Spotts testified that he is familiar with

the Texas Insurance Code, which governs how claims are handled and how

insurance companies should handle, investigate, and pay claims.

      Spotts testified that he reviewed Zepeda’s reports, the entire claim file,

estimates, engineering reports, and some depositions. Spotts reviewed the claims

files from all three of Lewis’s hurricane claims. Spotts explained that two adjusters

were involved with Lewis’s Hurricane Ike claim: the field adjuster, Zepeda, and

the adjuster at Lloyds, Rendo. According to Spotts, “Mr. Zepeda can’t do his job

without knowing the coverage when he goes out there or else he won’t know what

to put in the estimate. He won’t know what questions to ask. Mr. Rendo has got to

know the coverage because he . . . was making the ultimate decision as to what was

gonna be paid and what wasn’t gonna be paid.” Spotts testified that Rendo did not

                                         17
state anywhere in the file what documents he was relying on in making the

coverage determination. In addition, Spotts testified that Zepeda had never handled

a claim before Hurricane Ike and did not have an adjuster’s license, so Spotts was

“concerned about that right off the bat.” Spotts explained that anyone “can send

$20 to the Texas Department of Insurance after a catastrophe and be an emergency

claims adjuster.”

      Spotts testified that Lewis’s claim was not simple, and he believed Rendo

and Zepeda did not have “enough experience to know what to do to properly

analyze the coverage and to communicate with the insured the basis of their

decision.” Spotts also noted that the claim file contained nothing regarding Lewis’s

food spoilage, evacuation expenses, or additional living expenses, but those items

should have been included in the file.

      According to Spotts, notations in the claim payment log indicate that Lloyds

had closed Lewis’s Hurricane Ike file on November 22, 2008. It was Spotts’s

opinion that closing the file on that date was not reasonable because “there had

been very little or no investigation into the Ike case by either the field adjuster or

Mr. Rendo at National Lloyds.” Spotts testified that the file contains no

documentation that anyone from Lloyds had ever telephoned Lewis. According to

Spotts, the first entry on Lloyds’s “messages for claims” screen pertaining to

                                         18
Lewis’s claim was the date the file was closed. Spotts explained that the first entry

should be the date Lloyds received the claim and set up a file, and he characterized

the lack of entries other than the date the file was closed as “unreasonable” and

“very unusual.” Spotts testified that Lloyds’s letter to Lewis does not explain why

Lloyds was not going to compensate her for the items Zepeda included in his

estimate. Spotts explained that, if an insurance company is going to deny portions

of a claim, both the policy itself and the Texas Insurance Code require that the

company explain the reason.

      According to Spotts, the letter advising Lewis that no additional payment

was warranted for the roof fails to address “many of the issues at the house,” and

“it misrepresents the policy. It tells her that there’s no coverage because she hasn’t

replaced her roof. . . . That’s not in the policy. So, it’s what I call a

misrepresentation.” According to Spotts, Lewis’s ACF policy “has no replacement

cost requirement that mandates that she spend money a certain way in order to

recover a replacement cost claim.” When asked about testimony that the roof was a

total constructive loss after Hurricane Rita, Spotts testified that Lloyds “had three

years to figure it out if they wanted to do something about it.” Spotts testified that

Lloyds’s investigation was “below standard[,]” “poor, and . . . reflects the lack of



                                         19
an investigation in this case. Reflects, I think the company’s attitude towards this

claim.”

      Spotts testified, “before I make a determination that there’s no coverage on a

claim, I want to know everything there is to know so that I can make an informed

decision, because I’m the only advocate in this process for the insured. They’re

depending on me to get it right.” Spotts further testified that Lloyds’s file

contained no evidence that Rendo “discussed the claim with anyone, either the

insured or Mr. Zepeda. . . . At a minimum[,] that should have happened.”

Additionally, Spotts explained that Lloyds’s claims file does not indicate that

anyone from Lloyds had evaluated the quality of Lewis’s prior roof repairs before

denying her claim. Spotts testified, “if they’re basing their coverage determination

on that information and they don’t have that information, they cannot accurately

assess the coverage in the case.” Spotts believed that Lloyds should have assessed

the quality of Lewis’s repairs as part of its investigation. Furthermore, Spotts

testified that Lloyds’s letters to the Texas Department of Insurance and FEMA

contained misrepresentations regarding Lewis’s coverage. Finally, Spotts testified

that nothing in Lloyds’s claims file, the letter to FEMA, or the letter to the Texas

Department of Insurance set forth Lloyd’s contention that Lewis had failed to

properly protect the property from further damage. When asked his opinion about

                                        20
Lloyds’s handling of Lewis’s claim, Spotts opined, “I believe they were not

prompt, fair, or equitable to her.”

      The jury found that Lloyds failed to comply with the terms of Lewis’s policy,

knowingly violated the DTPA, and failed to comply with its duty of good faith and fair

dealing to Lewis. The jury found that Lewis’s actual damages for breach of contract were

$56,822.69; her actual damages under the DTPA were $66,822.69 ($56,822.69 plus

mental anguish damages of $10,000); Lewis’s additional damages under the DTPA were

$133,645.38 (apparently calculated by doubling the actual DTPA damages of

$66,822.69); and Lewis’s actual damages for Lloyds’s breach of its duty of good faith

and fair dealing were $8467. In addition, the jury found that Lloyds’s breach of its duty

of good faith and fair dealing resulted from malice or gross negligence and awarded

Lewis $300,000 in exemplary damages. The trial court’s judgment awarded Lewis

$45,791.13 as damages for Lloyds’s non-compliance with the prompt payment provisions

of the Texas Insurance Code 3 and awarded Lewis a total of $871,738.06, as well as post-

judgment interest and damages.

                                      ISSUE ONE

      In its first issue, Lloyds contends the evidence of causation was legally

insufficient. Specifically, Lloyds asserts that Norman’s expert testimony on

      3
       The trial court’s judgment stated that it calculated the damages by
multiplying the actual damages of $56,822.69 by eighteen percent per year times
4.477 years.
                                           21
causation was “neither relevant nor reliable[,]” constituted nothing more than

unreliable say-so grounded in inaccurate facts, and Wiener’s repair estimate “was

disclosed less than 30 days prior to trial and devised to support an opinion without

a reliable basis[.]” Lloyds argues that, pursuant to the doctrine of “concurrent

causation,” when “covered and non-covered perils combine to create a loss, the

insured is only entitled to recover that portion of the damage the covered peril

caused.” According to Lloyds, three hurricanes damaged Lewis’s property, but her

policy only covered damage caused by Hurricane Ike. Lloyds contends Lewis

failed to show that the damages she sought in the litigation stemmed solely from

Hurricane Ike and failed to differentiate between “non-covered perils and covered

perils.” Lloyds further asserts that Norman’s testimony was unreliable and,

therefore, cannot constitute legally sufficient evidence. According to Lloyds,

Norman’s opinions are conclusory, and the analytical gap between the data and the

opinion proffered is too great. Lloyds argues that Wiener’s testimony was

unreliable and conclusory, and that Wiener’s repair estimate was inadmissible

because it was disclosed less than thirty days prior to trial.

      In a legal sufficiency review, we are to “credit favorable evidence if

reasonable jurors could, and disregard contrary evidence unless reasonable jurors

could not.” City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). Evidence is

                                           22
legally sufficient if it “would enable reasonable and fair-minded people to reach

the verdict under review.” Id. We will sustain a legal sufficiency challenge if the

record shows one of the following: (1) a complete absence of evidence of a vital

fact; (2) rules of law or rules of 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 mere scintilla; or (4) the evidence conclusively establishes

the opposite of a fact that is at issue in the appeal. Id. at 810. “Evidence does not

exceed a scintilla if it is ‘so weak as to do no more than create a mere surmise or

suspicion’ that the fact exists.” Kroger Tex. Ltd. P’Ship v. Suberu, 216 S.W.3d

788, 793 (Tex. 2006) (quoting Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 601

(Tex. 2004)). The jury is the sole judge of the credibility of the witnesses and is

responsible for resolving any conflicts in the evidence, weighing the evidence, and

drawing reasonable inferences from basic facts to ultimate facts. City of Keller,

168 S.W.3d at 819-21; S.W. Bell Tele. Co. v. Garza, 164 S.W.3d 607, 625 (Tex.

2004).

      Under Rule 702 of the Texas Rules of Evidence, the party seeking to admit

expert testimony must establish that (1) the expert is qualified to render an opinion

on the subject matter and (2) the testimony is relevant to the issue in the case. Tex.

R. Evid. 702; TXI Transp. Co. v. Hughes, 306 S.W.3d 230, 234 (Tex. 2010).

                                         23
Expert testimony must rely on sufficient data and proper methodology.

Volkswagen of Am., Inc. v. Ramirez, 159 S.W.3d 897, 905-06 (Tex. 2004); Kerr-

McGee Corp. v. Helton, 133 S.W.3d 245, 257 (Tex. 2004). “An expert’s bare

opinion will not suffice.” Ramirez, 159 S.W.3d at 906. If the analytical gap

between the offered opinion and the underlying data is too great, the expert

testimony is unreliable. Ford Motor Co. v. Ledesma, 242 S.W.3d 32, 39 (Tex.

2007); see Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713, 726 (Tex.

1998). A trial court must act as a gatekeeper to screen out unreliable expert

evidence. Gen. Motors Corp. v. Sanchez, 997 S.W.2d 584, 590 (Tex. 1999); see

E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 556-57 (Tex. 1995).

The examination of an expert’s methodology, technique, or foundational data is a

task for the trial court in its role as gatekeeper. Coastal Transp. Co., Inc. v. Crown

Central Petroleum Corp., 136 S.W.3d 227, 233 (Tex. 2004). A Robinson

determination is “not an analysis that should be undertaken for the first time on

appeal.” Id. Requiring the trial court to first address the issue insures that a full

record will be developed and an appellate court will be able to evaluate the

sufficiency of the evidence without looking beyond the appellate record. Id.

      We conclude that the record supports the trial court’s decision to admit

Wiener’s report into evidence. See Tex. R. Civ. P. 193.6(b). Lloyds knew of

                                         24
Wiener’s identity, qualifications, and methodology well before trial, and the record

does not reflect that Wiener’s change in the amount of hurricane damages impaired

Lloyds’s ability to prepare for trial or otherwise unfairly surprised or prejudiced

Lloyds. See Exxon Corp. v. West Tex. Gathering Co., 868 S.W.2d 299, 304 (Tex.

1993) (concluding that admitting an expert’s revised calculation less than thirty

days before trial was permissible under former Tex. R. Civ. P. 166b); see also Tex.

R. Civ. P. 193.6(a)(2). Having determined that Lewis produced legally sufficient

evidence of causation and that the trial court did not err by admitting Wiener’s

report into evidence, we overrule issue one.

                                  ISSUE FOUR

      In issue four, Lloyds argues that the evidence was legally insufficient to

support the jury’s award of $10,000 to Lewis for mental anguish. To prevail on a

mental anguish claim, a plaintiff must present direct evidence of the nature,

duration, and severity of her mental anguish, and prove a substantial disruption in

her daily routine. Gunn Infiniti, Inc. v. O’Byrne, 996 S.W.2d 854, 860 (Tex. 1999);

Saenz v. Fidelity & Guar. Ins., 925 S.W.2d 607, 614 (Tex. 1996); Parkway Co. v.

Woodruff, 901 S.W.2d 434, 444 (Tex. 1995). Plaintiff’s evidence must demonstrate

more than worry, anxiety, vexation, embarrassment, or anger. Parkway, 901

S.W.2d at 444. “Courts should ‘closely scrutinize’ awards of mental anguish

                                         25
damages.” O’Byrne, 996 S.W.2d at 860 (quoting Universe Life Ins. Co. v. Giles,

950 S.W.2d 48, 54 (Tex. 1997)). While the impossibility of precisely evaluating

mental anguish requires that juries be given a measure of discretion, such

discretion is limited, and the amount awarded must fairly and reasonably

compensate for the loss. Saenz, 925 S.W.2d at 614.

      As discussed above, Lewis testified that after Hurricane Ike damaged her

home, she felt “horrible” and she cried when it rained. Lewis also described the

“horrible” feeling of having her children tell her it was raining inside the house. In

addition, Lewis introduced evidence that her home was partially uninhabitable

from when Hurricane Ike struck in September 2008 until she moved out in the

middle of 2011 for the home to be demolished, and that Lloyds denied her claim

for the damage to her roof. The jury was responsible for drawing reasonable

inferences from basic facts to ultimate facts. See City of Keller, 168 S.W.3d at 819;

see also Auto Ins. Co. of Hartford v. Davila, 805 S.W.2d 897, 907 (Tex. App.—

Corpus Christi 1991, writ denied), overruled on other grounds by Hines v. Hash,

843 S.W.2d 464 (Tex. 1992) (In case involving wrongful denial of fire insurance

benefits, evidence was sufficient because the jury could infer mental anguish from

such circumstances as the unrepaired condition of plaintiffs’ home, their shortage

of clothes and furniture, and their living conditions.). We conclude that Lewis

                                         26
introduced legally sufficient evidence of the nature, duration, and severity of her

mental anguish, as well as a disruption in her routine, to support the modest award

of $10,000. See O’Byrne, 996 S.W.2d at 860; Saenz, 925 S.W.2d at 614; Woodruff,

901 S.W.2d at 444; Davila, 805 S.W.2d at 907. Accordingly, we overrule issue

four.

                                   ISSUE FIVE

        In its fifth issue, Lloyds challenges the legal sufficiency of the evidence

supporting the jury’s award of damages for breach of contract, DTPA, and punitive

damages, and also complains of alleged charge error regarding questions two, five,

seven, and nine. We first address Lloyds’s sufficiency challenge.

        With respect to Lloyds’s challenge to the sufficiency of the evidence

supporting the damages for breach of contract, our review of the trial court’s

judgment reveals that the trial judge did not award damages for breach of contract

to Lewis in its judgment. Because the breach of contract finding and damages are

not part of the judgment, we need not address the legal sufficiency of the

supporting evidence. See Tex. R. App. P. 47.1. For similar reasons, which are fully

explained in our discussion of Lloyds’s seventh issue below, we also need not

address the legal sufficiency of the evidence supporting the award of exemplary



                                         27
damages for breach of the duty of good faith and fair dealing in the amount of

$300,000 or Lloyds’s complaint that the exemplary damages are excessive. See id.

      We turn now to the legal sufficiency of the evidence supporting the jury’s

award of damages pursuant to the DTPA. The jury found that Lloyd’s made false

representations relating to an insurance policy; misrepresented a material fact or

policy provision relating to coverage; failed to make a good faith attempt to

effectuate a prompt, fair, and equitable settlement of Lewis’s claim when Lloyds’s

liability had become reasonably clear; and failed to promptly provide Lewis a

reasonable explanation of the factual and legal basis for denying her claim. The

jury awarded economic damages of $56,822.69 for the DTPA violations, as well as

mental anguish damages of $10,000, for a total of $66,822.69. In addition, the jury

determined that Lloyds committed the DTPA violations knowingly and awarded

additional damages in the amount of $133,645.38. Lloyds does not raise an issue

challenging the jury’s finding that Lloyds violated the DTPA, but challenges the

amount of DTPA damages.

      The jury heard evidence from Boswell that Lewis’s policy did not contain

language requiring her to replace her entire roof after receiving an insurance

payment. Boswell also testified that Lloyds did not pay for Lewis’s evacuation or

living expenses because her home was not completely uninhabitable. That

                                        28
representation was made to FEMA, even though there was no such requirement in

Lewis’s policy. In addition, the jury heard Boswell testify that the letters Lloyds

sent to Lewis probably did not comply with Lloyds’s obligation to explain to

Lewis its reasons for denying her claim. The jury also heard testimony that the

basis for denying Lewis’s claim was that she had not replaced the roof after her

2005 Hurricane Rita claim. In addition, the jury heard testimony from Spotts that

(1) Rendo and Zepeda lacked adequate experience to properly adjust Lewis’s

claim, (2) Lloyds closed its file on Lewis’s claim although Zepeda and Rendo had

done “little or no investigation” of Lewis’s claim, and (3) Lloyds’s letter to Lewis

does not adequately explain why she would not be compensated for the items

Zepeda had included in his estimate, and it misrepresents the terms of Lewis’s

policy. The jury heard Spotts testify that Lloyds lacked a basis not to pay Lewis for

her Hurricane Ike claim, and opine that Lloyd’s was not prompt, fair, or equitable

to Lewis.

      Moreover, the jury heard Lewis’s testimony that she paid $54,000 for her

home, and both Lewis and Boswell testified that the policy limit of Lewis’s policy

with Lloyd’s was $54,000. Boswell explained that Lewis’s policy provided $5000

coverage for additional incurred expenses. Furthermore, Lewis testified as to

replacement costs for her son’s bed, mattress set, dresser, television, air purifier,

                                         29
clothing, and a table, in the amount of $1210, and she also testified concerning the

$200-300 of additional expenses that she incurred as a result of evacuating. When

an owner is familiar with property’s value, “the owner of the property can testify to

its market value, even if [s]he could not qualify to testify about the value of like

property belonging to someone else.” Porras v. Craig, 675 S.W.2d 503, 504 (Tex.

1984).

      Crediting favorable evidence if reasonable jurors could, and disregarding

contrary evidence unless reasonable jurors could not, we conclude that the

evidence would enable reasonable and fair-minded people to reach the verdict

under review and, therefore, is legally sufficient. See City of Keller, 168 S.W.3d at

827. The jury’s award of actual damages under the DTPA is supported by legally

sufficient evidence. In addition, the jury’s award of additional DTPA damages in

the amount of $133,645.38, which is twice the sum of the economic damages and

the mental anguish damages, is also supported by legally sufficient evidence. See

id. Accordingly, we overrule the sufficiency argument presented in issue five. To

the extent Lloyds contends the additional DTPA damages were excessive, the

record does not support Lloyds’s argument. Rather, we conclude that both the

amount of economic damages and the amount of the additional DTPA damages



                                         30
assessed were supported by the evidence. Accordingly, we overrule Lloyds’s claim

that the damages assessed under the DTPA were excessive.

        We now turn to the charge error portion of Lloyds’s fifth issue. We need not

address Lloyds’s contentions with respect to questions regarding breach of contract

or breach of the duty of good faith and fair dealing, nor need we address Lloyd’s

argument that questions two and five permitted Lewis a double recovery, as

explained more fully in our analysis of issue seven below. See Tex. R. App. P.

47.1.

        To preserve a complaint regarding error in the charge, a party must timely

and plainly make the trial court aware of the complaint and obtain a ruling. State

Dept. of Highways & Pub. Transp. v. Payne, 838 S.W.2d 235, 241 (Tex. 1992); see

also In re B.L.D., 113 S.W.3d 340, 349 (Tex. 2003). Lloyds complains that

question five is defective because it “improperly define[d] the manner in which the

amount payable under the subject insurance policy should be determined” and the

trial court’s definition of “actual cash value” is erroneous. The record of the charge

conference reflects that the defense objected to question five of the charge “on the

ground that there’s no legally sufficient evidence to support an award of damages

in favor of the plaintiff for any alleged unfair deceptive act or practice.” Lloyds

also objected to question five on the grounds that it should not include a definition

                                         31
of “actual cash value” and should not include damages for loss of use, personal

property, money incurred in making temporary repairs, damages to the dwelling,

and damages to other structures. Lloyds seems to argue on appeal that the trial

court’s definition of “actual cash value” was erroneous because the insurance

policy defined the term differently. Complaints on appeal must comport with

objections made at trial. See In re A.V., 113 S.W.3d 355, 362 (Tex. 2003). We

conclude that Lloyds failed to preserve the alleged error in question five for

appellate review. See Payne, 838 S.W.2d at 241; B.L.D., 113 S.W.3d at 349; see

also In re A.V., 113 S.W.3d at 362; see also Tex. R. App. P. 33.1(a).

      Lloyds complains that question seven is defective “in its own right and as a

consequence of the error associated with” question five. In particular, Lloyds

argues that question seven is tied to question five, which Lloyds asserts improperly

defined “actual damages” and “by extension, improperly instructs the jury as to the

appropriate damage basis and limitation on the amount of additional damages it

may award.” Lloyds also contends that question seven was improper because the

evidence was legally insufficient to support an award of both actual DTPA

damages and additional DTPA damages.

      We have already addressed the sufficiency of the evidence as to both types

of DTPA damages the jury awarded, and we have held that Lloyds waived any

                                        32
alleged defect in question five by failing to object at the charge conference. We

therefore turn to Lloyds’s contention that question seven improperly instructed the

jury as to the damages it could award. Lloyds argues that there is no set of numbers

“that the jury could have justifiably provided . . . that, even if tripled, could total

$133,645.38.” Question seven instructed the jury that it could award additional

damages not to exceed three times the amount of the actual damages, if any, that it

had awarded in question five. As discussed above, legally sufficient evidence

supported the jury’s award of $66,822.69 in its answer to question five. Lloyds’s

brief does not adequately explain the legal and factual basis for its argument that

the jury’s answer to question seven, in which the jury apparently simply doubled

the amount of damages it had awarded in question five, should be disregarded. We

overrule the charge error portion of Lloyds’s fifth issue. Having now addressed all

of the arguments raised in issue five, we overrule issue five in its entirety.

                                   ISSUE THREE

      In its third issue, Lloyds argues that the trial court erred by refusing to

include a spoliation instruction “because Lewis had a duty to preserve her home,

she breached that duty, and the resulting spoliation of evidence prejudiced

[Lloyds’s] ability to present its case.” After the parties filed their briefs in this

appeal, the Texas Supreme Court decided Brookshire Brothers, Ltd. v. Aldridge. In

                                          33
Aldridge, the Supreme Court held that because a spoliation instruction is based on

a presumption of wrongdoing rather than mere negligence, “a party must

intentionally spoliate evidence in order for a spoliation instruction to constitute an

appropriate remedy.” Aldridge, 438 S.W.3d 9, 23-24 (Tex. 2014). The Supreme

Court explained that “[b]y ‘intentional’ spoliation, often referenced as ‘bad faith’

or ‘willful’ spoliation, we mean that the party acted with the subjective purpose of

concealing or destroying discoverable evidence.” Id. at 24. Accordingly, the Court

held that “a trial court’s finding of intentional spoliation . . . is a necessary

predicate to the proper submission of a spoliation instruction to the jury.” Id. at 25.

The Supreme Court qualified its broader holding by providing a means for the trial

court to give a spoliation instruction “if the act of spoliation, although merely

negligent, so prejudices the nonspoliating party that it is irreparably deprived of

having any meaningful ability to present a claim or defense.” Id. at 25-26.

      The record reflects that Lewis made a claim for her damages from Hurricane

Ike in the fall of 2008, filed suit against Lloyds on September 9, 2010, and

remained in the home until approximately mid-2011, when she moved out so that

the house could be demolished and rebuilt. Nothing in the record suggests that

Lewis intentionally selected the demolition date in an attempt at spoliation, nor

does the record suggest that the alleged spoliation irreparably deprived Lloyds of

                                          34
any meaningful ability to present a claim or defense; rather, the record reflects that

Lloyds vigorously defended itself. See id. at 23-26. We conclude that the trial court

did not err by refusing to submit Lloyds’s requested spoliation instruction. We

therefore overrule issue three.

                                     ISSUE SIX

      In issue six, Lloyds argues the trial court erred by failing to include an

excessive demand question “and when it included an award of attorneys’ fees in

the judgment.” According to Lloyds, Lewis failed to satisfy “the condition

precedent of proper pre-suit notice and demand under each of her statutory theories

of recovery” and did not introduce evidence that she presented her claim for

attorney’s fees to Lloyds. Lloyds asserts that Lewis tendered her pre-suit demand

“solely to the trial court, over National Lloyds’ objection.” Lloyds maintains that

Lewis’s counsel made an excessive pre-suit demand for $160,873.15, which

“undeniably included payment for uncovered damage caused by prior storms as

well as a value that failed to account for any depreciation[,]” and that the demand

was based upon Wiener’s initial report, which failed to account for depreciation.

Lloyds also argues that Lewis demanded payment under a replacement cost value

basis (RCV) rather than an ACV basis.



                                         35
      We first address Lloyds’s argument that the trial court erred by awarding

attorney’s fees in its judgment because Lewis made an excessive demand. Lloyds

points the Court to Lewis’s DTPA demand letter of August 29, 2011, to Lloyds’s

counsel. In that demand letter, Lewis demanded property damages of $51,105.74,

damages to the contents of her home in the amount of $1210.00, minus the

deductible, for a total of $51,775.74 owed under the policy, and she also claimed

$32,748.15 in statutory interest, attorney’s fees of $56,349.26, and mental anguish

in the amount of $20,000, for a total demand of $160,73.15. The letter also stated

that Lewis reserved “the right to adjust these amounts to conform to the

information and evidence that will be available to us at the time of trial[.]” Lloyds

also directs the Court to Boswell’s testimony that Lloyds initially offered Lewis

$60,000 to settle the claim and later offered $100,000.

      Excessive demand is an affirmative defense to an award of attorney’s fees.

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

denied). The “‘dispositive inquiry for determining whether a demand is excessive

is whether the claimant acted unreasonably or in bad faith.’” Pratt v. Trinity

Projects, Inc., 26 S.W.3d 767, 769 (Tex. App.—Beaumont 2000, pet. denied).

(quoting Allstate Ins. Co. v. Lincoln, 976 S.W.2d 873, 876 (Tex. App.—Waco

1998, no pet.). Nothing in the record indicates that Lewis made her pre-suit

                                         36
demand unreasonably or in bad faith. See Pratt, 26 S.W.3d at 769; Lincoln, 976

S.W.2d at 876. The trial court therefore did not err by including an award of

attorney’s fees in its judgment. We overrule issue six.

      The trial court shall submit instructions and definitions as shall be proper to

enable the jury to reach a verdict and which are raised by the written pleadings and

evidence. Tex. R. Civ. P. 277, 278. We review alleged jury charge error under an

abuse of discretion standard. Tex. Dep’t of Human Servs. v. E.B., 802 S.W.2d 647,

649 (Tex. 1990) (op. on reh’g); Lake Conroe Med. Ctr., Ltd. v. KMT Bldg. Co.,

290 S.W.3d 541, 548 (Tex. App.—Beaumont 2009, no pet.). We may not reverse

for charge error unless the error “probably caused the rendition of an improper

judgment[.]” Tex. R. App. P. 44.1(a)(1); Shupe v. Lingafelter, 192 S.W.3d 577,

579 (Tex. 2006). To determine whether an alleged error in the jury charge is

reversible, we consider the pleadings of the parties, the evidence presented at trial,

and the charge in its entirety. Island Recreational Dev. Corp. v. Rep. of Tex. Sav.

Ass’n, 710 S.W.2d 551, 555 (Tex. 1986). “Charge error is generally considered

harmful if it relates to a contested, critical issue.” Columbia Rio Grande

Healthcare, L.P. v. Hawley, 284 S.W.3d 851, 856 (Tex. 2009).

      To be included in the charge, a question or instruction must be supported by

the pleadings and the evidence. See Tex. R. Civ. P. 278; Thota v. Young, 366

                                         37
S.W.3d 678, 693 (Tex. 2012). Lloyds raised the issue of excessive demand in its

pleadings. However, as explained above, the evidence did not demonstrate that

Lewis made an excessive demand. In addition, assuming without deciding that the

trial court erred by failing to submit an excessive demand question to the jury, we

conclude that a review of the evidence presented and the charge in its entirety does

not demonstrate that the alleged error related to a contested, critical issue, nor does

the record demonstrate that the alleged error probably caused the rendition of an

improper judgment. See Tex. R. App. P. 44.1(a)(1); Hawley, 284 S.W.3d at 856;

Shupe, 192 S.W.3d at 579. Accordingly, we overrule the charge error portion of

issue six.

                                    ISSUE TWO

      In its second issue, Lloyds argues that the trial court erred by submitting

waiver questions in question one of the jury charge, which was the breach of

contract question, “because waiver was neither raised in the pleadings nor

supported by the evidence.” Specifically, Lloyds asserts that including an invalid

waiver instruction in the threshold liability question constitutes reversible error

because the Casteel presumption of harm applies. See Crown Life Ins. Co. v.

Casteel, 22 S.W.3d 378 (Tex. 2000). As we have noted above, and will discuss in

greater detail in issue seven, the trial court’s judgment did not include a recovery

                                          38
for breach of contract. Rather, the trial awarded Lewis damages under the DTPA.

Assuming without deciding that the trial court erred by submitting the waiver

instruction with question one, because the jury’s answer to question one was not

included as a basis of the trial court’s judgment, any alleged error in the

submission of question one did not cause the rendition of an improper judgment.

See Tex. R. App. P. 44.1(a); see also City of Brownsville v. Alvarado, 897 S.W.2d

750, 752 (Tex. 1995) (“Submission of an improper jury question can be harmless

error if the jury’s answers to other questions render the improper question

immaterial. A jury question is considered immaterial . . . when its answer cannot

alter the effect of the verdict.”) (citation omitted). Accordingly, we overrule issue

two.

                                  ISSUE SEVEN

       In issue seven, Lloyds contends the trial court erred in rendering a judgment

that failed to force Lewis to make an election of remedies. Although the trial

court’s judgment recites that the jury’s verdict entitles Lewis to a judgment for

breach of contract in the amount of $56,822.69, our review of the judgment reveals

that the trial court only awarded Lewis the economic damages of $56,822.69 once,

and it did so by electing for her the greater recovery, DTPA, rather than breach of

contract. However, it appears that the trial court may have included other elements

                                         39
in the judgment, such as breach of the good faith and fair dealing and attorney’s

fees, which might result in a double recovery.

      In her brief, Lewis basically concedes error and asks this Court to modify

the trial court’s judgment to award her DTPA damages of $200,468.07; trial

attorney’s fees in the amount of $300,000; appellate attorney’s fees in the amount

of $20,000; contingent appellate attorney’s fees for proceedings in the Supreme

Court if Lloyds petitions for review; prejudgment interest in the amount of

$15,822.24, prompt payment damages of $45,791.13; costs of $20,563.05; and

post-judgment interest at the rate of five percent. Lloyds does not further discuss

issue seven in its reply brief. We sustain issue seven and modify the trial court’s

judgment to award Lewis DTPA damages of $200,468.07, trial attorney’s fees in

the amount of $300,000, appellate attorney’s fees in the amount of $20,000,

contingent appellate attorney’s fees for proceedings in the Supreme Court if Lloyds

petitions for review, prejudgment interest in the amount of $15,822.24, prompt

payment damages of $45,791.13, costs of $20,563.05, and post-judgment interest

at the rate of five percent. See generally Main Place Custom Homes, Inc. v.

Honaker, 192 S.W.3d 604, 613 (Tex. App.—Fort Worth 2006, pet. denied) (“If the

trial court does not do so, the appellate court must use the findings awarding the



                                        40
greatest theory of recovery and render judgment accordingly.”); see also Tex. R.

App. P. 43.2(b). We affirm the trial court’s judgment as modified.

      AFFIRMED AS MODIFIED.

                                             _____________________________
                                                   STEVE McKEITHEN
                                                        Chief Justice


Submitted on September 25, 2014
Opinion Delivered February 19, 2015

Before McKeithen, C.J., Kreger and Horton, JJ.




                                        41
