                                   NO. 07-04-0271-CV

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL A

                                     JUNE 29, 2004

                          ______________________________


               IN RE CALIBER ONE INDEMNITY COMPANY, RELATOR

                        _________________________________


Before JOHNSON, C.J., and REAVIS and CAMPBELL, JJ.


                 OPINION ON PETITION FOR WRIT OF MANDAMUS


      By this original proceeding, relator Caliber One Indemnity Company seeks a writ of

mandamus requesting that we order the Honorable John T. Forbis, presiding judge by

assignment to the 237th District Court, to vacate his order of October 3, 2003, denying its

motion to invoke appraisal and abate the underlying proceeding in cause number 2002-

518,695. Presenting two issues, Caliber One contends (1) the trial court abused its

discretion in denying its motion to invoke appraisal, and (2) it has no adequate remedy by

appeal for the improper denial of contractual appraisal. We deny the petition for writ of

mandamus.
       Real party in interest McDougal Properties, Ltd. filed the underlying proceeding

against Caliber One, a foreign insurance carrier and Acordia West Texas Agency, Inc., a

Texas corporation, alleging causes of action based on (1) violations of section 4, article

21.21 of the Texas Insurance Code or as itemized in section 17.46(b) of the Texas

Deceptive Trade Practices-Consumer Protection Act and (2) fraud. McDougal also seeks

exemplary damages from both Caliber One and Acordia.1 However, by its pleadings,

McDougal does not allege a breach of contract claim. While the underlying proceeding was

pending removal to the United States District Court, Northern District of Texas, Lubbock

Division, following unsuccessful mediation upon McDougal’s motion, the underlying cause

was remanded to the 237th District Court.


       Upon remand, Caliber One filed its motion to invoke appraisal and abatement of the

proceeding. Although McDougal did not allege a cause of action based on the insurance

policy or contract, Caliber One sought to invoke the appraisal provision of the insurance

policy as follows:


       If we and you disagree on the value of the property or the amount of loss,
       either may make written demand for an appraisal of the loss. In this event,
       each party will select a competent and impartial appraiser. The two
       appraisers will select an umpire. If they cannot agree, either may request
       that selection be made by a judge of a court having jurisdiction. The
       appraisers will state separately the value of the property and amount of loss.
       If they fail to agree, they will submit their differences to the umpire. A
       decision agreed to by any two will be binding. Each party will:
                 A. Pay its chosen appraiser; and


       1
           Acordia is not a party to this original proceeding.

                                                2
              B. Bear the other expenses of the appraisal and umpire equally.2


       By its written response to Caliber One’s motion, among other things, McDougal

contended that appraisal under the policy was not implicated because its suit was not

based on the insurance contract or policy and it was not suing for breach of the policy, but

instead was based on chapter 21 of the Texas Insurance Code, the Deceptive Trade

Practices Act, and fraud arising from the misrepresentations of Caliber One and Acordia

in marketing the policy and in dealing with the claim.


                                    Standard of Review


       A writ of mandamus will only issue to correct a clear abuse of discretion or violation

of a duty imposed by law when there is no adequate remedy by appeal, and the relator has

the burden to present the appellate court with a record sufficient to establish the right to

mandamus. Walker v. Packer, 827 S.W.2d 833, 837-39 (Tex. 1992) (orig. proceeding).

With respect to factual matters committed to the trial court’s discretion, the appellate court

may not substitute its judgment for that of the trial court. Id. However, a review of a trial

court’s determination of controlling legal principles is entitled to much less deference. Id.

at 840. In our analysis, we “must focus on the record that was before the court and



       2
        This provision is substantially different to the provision for appraisal contained in
the Texas Standard Homeowners Policy presented in Vanguard Underwriters Ins. Co. v.
Smith, 999 S.W.2d 448, 450 (Tex.App.--Amarillo 1999, no pet.). The provision for appraisal
contained in a personal automobile policy promulgated by the Texas Department of
Insurance is not set out in In re Allstate County Mut. Ins. Co., 85 S.W.3d 193 (Tex. 2002).

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whether the decision was not only arbitrary but also amounted to a clear and prejudicial

error of law.” Bristol-Myers Squibb Co., 975 S.W.2d 601, 605 (Tex. 1992).


                                         Abatement


       Although by its issues Caliber One does not expressly address abatement which

relator sought in the trial court, because it seeks an order directing the trial court to grant

its motion, we first address that issue. Regarding abatement, it has been held that the

failure of a trial court to grant a motion to abate is not subject to mandamus. In Re Allstate

County Mut. Ins. Co., 85 S.W.3d 193, 196 (Tex. 2002). Accordingly, we hold the trial court

did not abuse its discretion in denying the request for abatement.


                                          Appraisal


       By its first issue, Caliber One contends the trial court abused its discretion in denying

its motion to invoke the appraisal provision of the insurance policy, and by its second issue

contends it has no adequate remedy by appeal for the improper denial of contractual

appraisal. We disagree.


       By its finding of fact number four, the trial court found that McDougal does not allege

or seek recovery for breach of contract but that all of its claims are extra-contractual.

Because the complete record was before the trial court, we are bound by its factual

determination. See Walker, 827 S.W.2d at 837-39.




                                               4
       In addition to findings of fact, three of the trial court’s 21 conclusions of law address

the appraisal provisions in the policy.


       No. 5. An appraisal is inappropriate to resolve extra-contractual claims in the
       absence of a contractual claim. Thus, an appraisal is inappropriate to
       resolve the plaintiff’s claims.

       No. 6. An appraisal may only be used to resolve disputes under the contract
       that relate to value determinations.

       No. 17. An appraisal is inappropriate to resolve extra-contractual claims in
       the absence of a contractual claim. Thus, an appraisal is inappropriate to
       resolve the plaintiff’s claims.

       Citing Vanguard Underwriters Ins. Co. v. Smith, 999 S.W.2d 448 (Tex.App.--Amarillo

1999, no pet.), Caliber One argues the trial court abused its discretion in denying its motion

to invoke the appraisal provision of the contract. However, Vanguard is not controlling

because there, real parties sought to recover on multiple grounds, including damages

under the policy in addition to their claims under the Deceptive Trade Practices Act and

exemplary damages. Here, however, McDougal does not seek to recover under the policy

or contract. Also, the insured in Vanguard did not join the insurance agent alleging fraud

or violations of the Deceptive Trade Practices Act.


       Caliber One also cites In re Terra Nova Insurance Co., 992 S.W.2d 741 (Tex.App.--

Texarkana 1999, no pet.). However, Terra Nova does not hold that a provision for

appraisal is applicable in the absence of a suit or claim based on the policy or contract of

insurance. The trial court concluded that the provision for appraisal was appropriate



                                               5
because the suit asserted contract claims under the policy and extra-contractual claims.

Id. Although the court held that the carrier had the right to invoke the provision for

appraisal on the policy claims, mandamus was denied because the trial court had discretion

to decide when the appraisal should take place. Id. However, the court did recognize that

the provision for appraisal was not applicable to the extra-contractual claims. Id.


       Caliber One’s reliance on Allstate, 85 S.W.2d at 193, is also misplaced. In Allstate,

the question presented was whether a provision in an automobile policy of insurance was

unenforceable as an agreement to arbitrate. In conducting its analysis to determine that

the enforcement of the appraisal provision was not contrary to public policy, the Court

reasoned:


       •      as to plaintiffs’ breach of contract claim, the parties have agreed in the
              contract’s appraisal clause to the method by which to determine
              whether a breach has occurred;
       •      the appraisals go to the heart of the plaintiffs’ breach of contract claim;
              and
       •      a refusal to enforce the appraisal process will prevent the defendants
              from obtaining the independent valuations that could counter at least
              the plaintiffs’ breach of contract claims.


Id. at 196. Here, however, the public policy question regarding appraisal provisions in an

insurance policy is not presented. Indeed, McDougal has not made any claims under the

policy. Because the Court in Allstate based its holding that the provision for appraisal was

not an agreement to arbitrate on contract principles only and did not address the non-




                                               6
contractual claims, Allstate is not controlling because McDougal does not seek to recover

on the policy.


       We have not overlooked Caliber One’s argument presented in its petition that

McDougal’s claims under article 21.21 and under the Deceptive Trade Practices Act are

inextricably intertwined with a determination that Caliber One failed to pay the value of the

claim. The purposes of pleadings are:


       •         define the issues to be tried; Murray v. O & A Express, Inc., 630
                 S.W.2d 633, 636 (Tex. 1982);
       •         advise the court of the facts that are relied on to sustain or defend the
                 suit; National Life Assurance Company of Texas v. Neves, 370
                 S.W.2d 144, 146 (Tex.Civ.App.--Eastland 1963, writ ref’d n.r.e.); and
       •         record for the benefit of all who may subsequently be concerned the
                 matters actually in issue and determined by the judgment. Glenn v.
                 Dallas County Bois D’Arc Island Levee Dist., 114 Tex. 325, 268 S.W.
                 452, 453 (1925).


       As is common in original proceedings, the record presented here is not as complete

as the record before the trial court. However, the record here does not show that Caliber

One’s contention that McDougal’s claim is inextricably intertwined with a determination that

Caliber One failed to pay the value of the claim was presented to the trial court by pleading

or the motion. Moreover, Caliber One does not contend that it placed the policy or contract

in issue by pleading, whether counterclaim, declaratory judgment, or otherwise. Focusing

on the record that was before the trial court and whether the decision was not only arbitrary




                                                 7
but also amounted to a “clear and prejudicial error of law,” we cannot conclude from the

record that the trial court abused its discretion.


       Accordingly, the petition for writ of mandamus is denied.


                                           Don H. Reavis
                                             Justice


Johnson, C.J., concurring.


                                    NO. 07-04-0271-CV

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                       AT AMARILLO

                                          PANEL A

                                       JUNE 29, 2004

                           ______________________________


               IN RE CALIBER ONE INDEMNITY COMPANY, RELATOR

                         _________________________________


Before JOHNSON, C.J., and REAVIS and CAMPBELL, JJ.


                                 CONCURRING OPINION




                                              8
       As the majority notes, the record in this case differs from that before us in Vanguard.

Here, McDougal’s Original Petition is before us, Caliber One’s Answer is not, and no

contractual claim is being made against Caliber One. Moreover, Caliber One does not

claim that its contract with McDougal contains a provision which precludes this type of suit

from proceeding until after the appraisal provision is complied with.


       To the extent that the majority opinion can be read to say that Caliber One does not

have a contractual right to appraisal, or that its contractual appraisal right is inapplicable

so long as McDougal does not make a contractual claim, I would not go so far in this

mandamus proceeding. I agree that, given the timing of the motion, the status of the

lawsuit’s progress, and the circumstances presented to the trial court as demonstrated by

this mandamus record, the trial court did not abuse its discretion in denying Caliber One’s

motion seeking to invoke the appraisal provision. See Terra Nova, 992 S.W.2d at 742.




                                           Phil Johnson
                                           Chief Justice




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