                                                                                     ACCEPTED
                                                                                      2012-68212
                                                                      FIRST COURT OF APPEALS
                                                                              HOUSTON, TEXAS
                                                                          11/25/2015 10:34:36 AM
                                                                           CHRISTOPHER PRINE
                                                                                          CLERK

                   Case No. 01-15-00257-CV
                                                                 FILED IN
                                                          1st COURT OF APPEALS
               IN THE COURT OF APPEALS FOR THE                HOUSTON, TEXAS
                    FIRST DISTRICT OF TEXAS              11/25/2015 10:34:36 AM
                                                          CHRISTOPHER A. PRINE
                                                                  Clerk

                     VANESSA ANDERSON,

                                        Plaintiff/Appellant,

                                   v.

      AMERICAN RISK INSURANCE COMPANY, INC.,

                                        Defendant/Appellee.


          ON APPEAL FROM CAUSE NO. 2012-68212
         295TH DISTRICT, HARRIS COUNTY, TEXAS


                     BRIEF OF APPELLANT


Prepared and Submitted by:
Scott G. Hunziker
The Voss Law Firm, P.C.
26619 Interstate 45 South
The Woodlands, Texas 77380
(713) 861-0015 Telephone
(713) 861-0021 Facsimile
Scott@VossLawFirm.com
Attorney for Plaintiff/Appellant


               ORAL ARGUMENT REQUESTED



                                   1
               CERTIFICATE OF INTERESTED PERSONS

      The undersigned counsel of record certifies that the following listed
individuals and entities have an interest in the outcome of this case.

APPELLANT:
                 Vanessa Anderson

APPELLANT’S TRIAL AND APPELLATE ATTORNEY:

                 Scott G. Hunziker
                 The Voss Law Firm, P.C.
                 26619 Interstate 45 South
                 The Woodlands, Texas 77380
                 Email: Scott@VossLawFirm.com
                 Telephone: (713) 861-0015
                 Facsimile: (713) 861-0121

APPELLEE:        American Risk Insurance Company, Inc.

APPELLEE’S TRIAL AND APPELLATE ATTORNEY:

                 George Arnold
                 Thompson, Coe, Cousins & Irons, L.L.P.
                 One Riverway Ste. 1600
                 Houston, Texas 77056
                 Telephone: (713) 403-8210
                 Facsimile (713)403-8299




                                     2
                        SUMMARY OF THE CASE AND
                       REQUEST FOR ORAL ARGUMENT

       The outcome of this appeal will genuinely affect the lives of policyholders

across Texas who own homes and businesses alike. Appellant, Vanessa Anderson,

suffered incredible structural damage to her residential property (the "Property")

due to a tree falling upon and literally splitting her home in half.         Worse yet,

although Appellee, her own carrier, systematically collected premiums from Ms.

Anderson, it nevertheless underpaid policy proceeds and abandoned its own

insured when tragedy struck and coverage was clear.           Adding to the above,

payment was (and remains) desperately needed by Appellant to repair the Property,

which still has not been fully restored as a result of Appellee’s conduct.

       From the outset of Appellant’s claim, Appellee not only delayed and denied

payment to Ms. Anderson on her loss, but then sought to additionally deny justice

to its insured once more through a hollow motion for summary judgment, aimed at

all of Appellant’s claims and causes of action. This was filed immediately after the

completion of the appraisal process, which Appellee conveniently waited to invoke

until after Appellant was forced to hire a lawyer, incur undue costs, and initiate a

lawsuit in order to survive. However, as can be seen from the evidence supplied to

the Trial Court during the summary judgment process, material issues of fact

existed, and summary judgment was granted in error.         The same must now be

reversed if justice is to prevail.


                                          3
                                          TABLE OF CONTENTS


Certificate of Interested Parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                2

Summary of the Case and Request for Oral Argument                                      ........            3

Table of Authorities & Statutes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Statement of the Jurisdiction                   .............................                              6

Procedural Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Statement of the Issues               ................................... 7

Statement of the Case                 ................................... 8

Summary of the Argument                         .............................. 9

Argument           . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

A.        Applicable Standard of Review Demonstrates Summary
         Judgment Must be Reversed . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

B.       The Trial Court Erred in Granting Summary Judgment in
         Favor of the Appellee, as Material Issues of Fact Clearly
         Existed in this Matter as to all Appellant’s Claims and Causes
         of Action . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

C.       The Trial Court Erred in Granting Summary Judgment in
         Favor of the Appellee, as Texas Law Has Recognized that
         Payment of an Appraisal Award Does Not at all Preclude a
         Policy Holder From Proceeding to Trial on Certain of the
         Claims Within the Subject Litigation . . . . . . . . . . . . . . . . . . . . 16

Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .       20


Certificate of Service . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . ....           23


                                                              4
                                     TABLE OF AUTHORITIES

Cases

Am. Tobacco Co. v. Grinnell, 951 S.W.2d 420, 425 (Tex. 1997) . . . . . 10

City of Keller v. Wilson, 168 S.W.3d 802, 816 (Tex. 2005) . . . . . . . . . 10, 12

Cmty. Initiatives, Inc. v. Chase Bank, 153 S.W.3d 270, 280
(Tex. App.–El Paso 2004, no pet.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Joe v. Two Thirty Nine Joint Venture,
145 S.W.3d 150, 157 (Tex. 2004)(emphasis supplied) . . . . . . . . . . . . . 10

Lowe’s Home Ctrs., Inc. v. GSW Mktg., Inc., 293 S.W.3d 283, 287
(Tex. App.–Houston [14th Dist.] 2009, pet. denied). . . . . . . . . . . . . . . 11

Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 581-82 (Tex. 2006) . . 12

Valence Opera-ting Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005) . 11

Westland Oil Dev. Corp. v. Gulf Oil Corp., 637 S.W.2d 903, 907
(Tex. 1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10




                                                          5
                    STATEMENT OF THE JURISDICTION

       The present appeal arises from a state court matter, originally pending

before the 295th District of Harris County, Texas. As such, and because it was

appealed directly to the Court of Appeals for the First District, this matter is

properly before this Honorable Court.

                       PROCEDURAL BACKGROUND

      As stated in Appellant’s Original Petition, Ms. Anderson sued at the Trial

Court level for both contractual and extra-contractual remedies, due to the severe

and continuing damages suffered by her, and specifically to her property, which

made basis of said lawsuit. Appellant’s present causes of action included contractual

and extra-contractual claims for (1) breach of contract; (2) violations of the Texas

Deceptive Trade Practices Act; (3) violations of the Texas Insurance Code; and (4)

breach of the duty of good faith and fair dealing. As the Texas law supplied below

will show, Appellant’s extra-contractual claims against Appellee exist

independently of its contractual cause of action, and are well-founded based upon

Appellee’s abhorrent conduct in this matter.

      Specifically, after attempting yet failing to resolve this matter on her own,

Appellant was forced to retain legal representation. Nevertheless, Appellee

thereafter not only continued to delay and deny payment to Appellant, which

endured for more than a year after the date of loss, but then predictably sought to

invoke appraisal after an unsuccessful mediation.      Notably, no other efforts by

                                         6
Appellee to resolve this claim had been attempted since this matter was made, until

after suit was filed and subsequent to an unsuccessful mediation. Appellee then

filed the baseless motion for summary judgment, asking the Trial Court to to

disregard its pattern of bad faith conduct. Accordingly, the resulting Court Order

granting the same, and the accompanying Judgment reflecting this ruling, was a

product of error and must be reversed.

                          STATEMENT OF THE ISSUES

      The following issues are subject of the present appeal, and require reversal

of the Trial Court’s Order granting summary judgment, as well as the resulting

Final Judgment, as both were clearly derived in error:

      A.     The Trial Court erred in granting summary judgment in favor of the

Appellee, as material issues of fact clearly existed in this matter as to all

Appellant’s contractual and extra-contractual claims and causes of action, based

upon Appellant’s own sworn testimony, which speaks directly to the untoward

conduct of the Appellee; and

      B.     The Trial Court erred in granting summary judgment in favor of the

Appellee, as Texas law has recognized that payment of an appraisal award does not

at all preclude a policy holder from proceeding to trial on certain of its remaining

claims within the subject litigation.




                                         7
                         STATEMENT OF THE CASE

      This appeal involves a very simple matter, which is unencumbered by

peripheral and unrelated issues.    Simply put, a policy holder endured horrible

conditions leading up to the underlying litigation, as to which she was forced to

hire counsel to pursue. After her lawsuit began, the insurance company attempted

to unduly preclude the ability of this Appellant to have her day in court by making

an untimely invocation of the appraisal process. The same was ultimately allowed

by the Trial Court, a finding which was erroneous in itself, yet the process ensued

and ultimately, an award of additional funds was derived.

      After the above exercises took place, the award funds were paid by the

Appellee carrier, who then quickly moved for a summary judgment as to not only

the contractual parts of Appellant’s lawsuit, but also as to all extra-contractual

causes of action, including but not limited to allegations under the Texas Insurance

Code, Deceptive Trade Practices Act, as well as violations of the duties of good

faith and fair dealing, to which it was incumbent upon the Appellee to adhere (both

during the original claims process and throughout the litigation to follow).

Summary Judgment was ultimately granted, in the face of the evidence showing

what horrific circumstances led up to the same, thereby making this appeal

necessary. Based upon the above-referenced facts, as well as existing opinions to

the contrary by Texas courts, the Trial Court’s Order granting summary judgment

in favor of the Appellee must be reversed.

                                         8
                       SUMMARY OF THE ARGUMENT

      The Trial Court’s Order granting summary judgment on all contractual and

extra-contractual claims advanced by the Appellant in this matter was derived in

error due, to the circumstances leading up to the appraisal process. All of the same

took place after Appellant was forced to hire counsel and proceed into litigation.

Essentially, Appellant was treated horribly at worst, and unprofessionally at best,

by its own insurance company, during the months subsequent to a large tree

literally falling onto her home and cutting her residence in two. All such facts

show that this matter must proceed to trial as to both contractual and extra-

contractual portions of this case.

      Moreover, recent opinions from the United States District Court for the

Northern District of Texas - Dallas Division, agree that even upon payment of an

appraisal award in full, certain of Appellant’s causes of action survive.    In the

present case, claims were made under these exact tenents of Texas Law, including

the Deceptive Trade Practices Act and the Texas Insurance Code.             As the

referenced opinion speaks to these exact causes of action, the same should be

allowed to proceed to trial, and the Trial Court’s Order granting summary judgment

to these specific parts of the litigation must be reversed in its entirety, and

remanded to the Trial Court for a full trial on the merits.




                                           9
                                    ARGUMENT

      As will be shown below, the rudiments of Texas law in regard to the granting

of sumamry judgment, taken in light of the facts at issue in the presnt matter, make

it clear that no summary judgment should ever have been granted in this case.

Accordingly, both the Order granting the same, as well as the final Judgment based

thereon, were derived at in error and now must be reversed as to the causes of

action specified and addressed below.

      A.     The Applicable Standard of Review Demonstrates That Summary
             Judgment Must be Reversed.

      Under Texas law, regardless of whether a movant seeks summary judgment

on a traditional basis or on no-evidence grounds, the reviewing court is to apply the

standard of review appropriate for each type of summary judgment, taking as true

all evidence favorable to the non-movant and indulging every reasonable inference

and resolving any doubts in the non-movant’s favor. See Joe v. Two Thirty Nine

Joint Venture, 145 S.W.3d 150, 157 (Tex. 2004)(emphasis supplied).                 In a

traditional motion for summary judgment, the movant has the burden of showing

that there is no genuine issue of material fact and that it is entitled to judgment as a

matter of law. Tex. R. Civ. P. 166a(c); Am. Tobacco Co. v. Grinnell, 951 S.W.2d

420, 425 (Tex. 1997).

      Specifically, to be entitled to traditional summary judgment, a Defendant

must conclusively negate at least one essential element of each of the Plaintiff’s

causes of action or conclusively establish each element of an affirmative defense.
                                          10
Id. Moreover, evidence is conclusive only if reasonable people could not differ in

their conclusions.   City of Keller v. Wilson, 168 S.W.3d 802, 816 (Tex. 2005).

Once the Defendant establishes its right to summary judgment as a matter of law,

the burden shifts to the Plaintiff to present evidence raising a genuine issue of

material fact. Westland Oil Dev. Corp. v. Gulf Oil Corp., 637 S.W.2d 903, 907

(Tex. 1982).    Finally, rulings on summary judgments are reviewed de novo on

appeal.   Valence Opera-ting Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005)

(emphasis added).

      In a no-evidence summary judgment, the movant must show that there is

absolutely no evidence of one or more essential elements of the claims for which

the non-movant bears the burden of proof at trial. Tex. R. Civ. P. 166a(i); Lowe’s

Home Ctrs., Inc. v. GSW Mktg., Inc., 293 S.W.3d 283, 287 (Tex. App.–Houston

[14th Dist.] 2009, pet. denied). A no-evidence summary judgment may be granted

when (a) there is a complete absence of evidence of a vital fact, (b) the court is

barred by rules of law or of evidence from giving weight to the only evidence

offered to prove a vital fact, (c) the evidence offered to prove a vital fact is no more

than a mere scintilla, or (d) the evidence conclusively establishes the opposite of

the vital fact. Lowe’s, 298 S.W.3d at 287-88 (citing Merrell Dow Pharms., Inc. v.

Havner, 953 S.W.2d 706, 711 (Tex. 1997)).

      “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 challenged fact exists. Akin, Gump,

                                          11
Strauss, Hauer & Feld, L.L.P. v. Nat’l Dev. & Research Corp., 299 S.W.3d 106,

115 (Tex. 2009) (quoting Kroger Tex. L.P. v. Subaru, 216 S.W.3d 788, 793 (Tex.

2006). Once again, within this particular context, rulings on summary judgments

are reviewed de novo on appeal. Valence Operating Co. v. Dorsett, 164 S.W.3d

656, 661 (Tex. 2005) (emphasis added).

      Continuing, a non-moving party is “not required to marshal its proof; its

response need only point out evidence that raises a fact issue on the challenged

elements.” Tex. R. Civ. P. 166a (Notes & Comments 1997). The non-movant must

only point to some, but not all, evidence supporting challenged elements. Cmty.

Initiatives, Inc. v. Chase Bank, 153 S.W.3d 270, 280 (Tex. App.–El Paso 2004, no

pet.). In addition, a no-evidence summary judgment motion is essentially a motion

for a pretrial directed verdict. Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 581-82

(Tex. 2006). The reviewing court is required to apply the same legal sufficiency

standard of review that is applied when reviewing a directed verdict. City of Keller

v. Wilson, 168 S.W.3d 802, 823 (Tex. 2005).

      Further, the reviewing court is required to review a no-evidence summary

judgment for evidence that would enable reasonable and fair-minded jurors to

differ in their conclusions.   Hamilton v. Wilson, 249 S.W.3d at 425, 426 (Tex.

2008) (citing City of Keller, 168 S.W.3d at 822). Ultimately, the court views the

summary judgment evidence in the light most favorable to the party against whom

summary judgment is sought, crediting evidence favorable to that party if

                                         12
reasonable jurors could, and disregarding contrary evidence unless reasonable

jurors could not. See Mack Trucks, 206 S.W.3d at 582; City of Keller, 168 S.W.3d

at 822.

      B.    The Trial Court Erred in Granting Summary Judgment in Favor
            of the Appellee, as Material Issues of Fact Clearly Existed in this
            Matter as to all Appellant’s Claims and Causes of Action.

      The affidavit testimony of Vanessa Anderson shows exactly why summary

judgment must be reversed.      On June 12, 2012 at approximately 5:30 p.m.,

Appellant called the American Risk Insurance Company claims department after

receiving a call from her father informing her that a tree fell through her house.

When the stormed happened, Appellant’s brother, Sean Anderson, was present in

Appellant’s son’s room, just before an enormous tree literally crashed through that

exact room. Sean was able to make it to the hallway safely and saw water gushing

out of the hallway bathroom because it too, had been crushed.

      After several attempts, Sean was unable to reach Appellant because there

was no cellular service. Appellant’s brother was finally able to reach Appellant’s

father, Michael Anderson. Appellant’s father then called to let Appellant know her

house was damaged. Appellant called her insurance company to report the claim,

but reached an answering service.      A representative informed Appellant that

someone would be in contact with her. See Tab “1” para. 2. On June 12, 2012 at

approximately 7:00 p.m. Appellant arrived at her house and it was still raining.

Her neighbor, Cathy Vantreese, already had a tree company removing the tree that

                                        13
had punctured her garage and already had a tarp in place to cover the holes to

prevent further damage. See Tab “1” at para. 2.

      June 12, 2012, at approximately 7:30 p.m., Appellant called the claims

department again to tell them that she had no running water or electricity, and

asked what she was suppose to do. Appellant, who is a single mom and did not

have the funds to relocate, expressed her frustration with the situation and the fact

that she was faced with an emergency, and still was not able to talk to anyone at

American Risk. Despite the damage suffered to Appellant’s home, her house did

not get tarped that evening, but instead it remained open, risking both further

structural damage as well as the possibility of having her property stolen. See Tab

“1” at para. 4.

      On June 13, 2012, and after not receiving a return call from American Risk,

Appellant called their office once they opened and she spoke to Chad Pleasant.

Mr. Pleasant was not even aware that Appellant had event called the answering

service the night before with an emergency. Mr. Pleasant didn’t ask Appellant if

she was okay, and never informed her of what steps were required to protect the

home. Mr. Pleasant told Appellant that someone would be out to the home in a few

days. See Tab “1” at para. 5.

      Appellant also inquired about money to secure a temporary place to live

since her home was so badly damage. She told Mr. Pleasant that she was a single

mother who didn’t have the money to cover the unexpected expenses. Appellant

                                         14
was told she would have to submit any receipts and that she would be held

responsible for any further damage to her property. Mr. Pleasant told Appellant he

would call her back right away, but he did not promptly return her call, as

promised. Accordingly, despite all her referenced efforts, Appellant still had no

answers from the insurance company, still had a tree though the roof of her home

and nowhere to live. See Tab “1” at para. 5.

        Appellant submitted receipts to her insurance carrier as requested. However,

the reimbursements were severely delayed and caused a financial strain on her and

her family.    Had she been told this from the beginning, and after having been

displaced from her home for four (4) months, she could have rented an apartment

that was affordable. Accordingly, Appellant was finally forced to sign a short term

lease at The Marquis at The Woodlands from August 11, 2012 until October 10,

2012.     During this time, Appellant accrued late fees because American Risk was

slow to reimburse her, although she was very prompt in submitting her receipts.

See Tab “1” at para. 6 and 7.

        Appellant also submitted e-mails containing the date and time of alternative

living expenses, pictures of the damage to the house and personal belongings, and

a video of damage done to her home, which showed that her neighbor had workers

tarping the garage. She also videoed that no was was working at her property on

that day. Appellant was not able to reach a live person at American Risk on the day



                                         15
of the damage, and was merely told by the answering service that she would

receive a return call. See Tab “1” at para. 8.

      Ultimately, Appellant received very little to no response from American

Risk. There are still unpaid debts owed to relatives for loans, to the apartment

complex, and to the utility companies. Clearly, Ms. Anderson has outstanding debt

from Appellee’s conduct, and now, her credit is in jeopardy. See Tab “1” at para. 9.

      Based upon the abundance of proper and timely evidence submitted above, it

is clear that material issues of fact exist regarding Appellant’s claims. Appellee

was therefore not entitled to summary judgment relief granted by the Trial Court.

Accordingly, and based upon the arguments and authority set forth below, the Trial

Court’s granting of Appellee’s Summary Judgment must be reversed in its entirety.

      C.     The Trial Court Erred in Granting Summary Judgment in Favor
             of the Appellee, as Texas Law has Recognized That Payment of an
             Appraisal Award Does Not Preclude a Policy Holder From
             Proceeding to Trial on Certain of the Claims Within the Subject
             Litigation.

      Clearly, Appellant has made a colorable claim for extra-contractual damages

in this matter, under both the Deceptive Trade Practices Act, and pursuant to both

Chapters 541 and 542 of the Texas Insurance Code, based upon the evidence

submitted herewith.     Under the strict provisions of the DTPA, as it relates to

violations under the Texas Insurance Code, the law provides that “[i]n an action for

violation of chapter 541, the Appellant can recover additional damages. See Sec.

541.152(b), Tex. Ins. Code. Specifically, “[t]he total damages may amount to up to
                                          16
three times the amount of actual damages. See id. Moreover, “[i]n an action for

violation of chapter 542, the Appellant can recover statutory damages of 18% per

year on the amount of the claim. See Sec. 542.060(b), Tex. Ins. Code.

      Moving forward, the same arguments, couched in long-standing case law,

applies to the extra-contractual and penalty-based remedies also sought by

Appellant. Under the strict provisions of the DTPA, as it relates to violations under

the Texas Insurance Code, the law provides that “[i]n an action for violation of

chapter 541, the Appellant can recover additional damages. See Sec. 541.152(b),

Tex. Ins. Code. Specifically, “[t]he total damages may amount to up to three times

the amount of actual damages. See id. Moreover, “[i]n an action for violation of

chapter 542, the Appellant can recover statutory damages of 18% per year on the

amount of the claim. See Sec. 542.060(b), Tex. Ins. Code.

      Moving forward, Appellant contends that Appellee breached their duty of

good faith and fair dealing by failing to take many of the actions required by the

Texas Insurance Code. As discussed above, in this case, Appellant has at least

raised a fact issue as to Appellee’s breach of the Policy, numerous statutory

violations, and bad faith. This is, at a minimum, certain evidence of bad faith and

unreasonable investigation practices by Appellee, which defeats summary

judgment. As Appellant has presented proper evidence of Appellee’s breach of the

duty of good faith and fair dealing, Appellee was never entitled to summary

judgment, and the same must be reversed accordingly.

                                         17
      Adding to the above, Under Texas law, Section 542.054 of the Texas

Insurance Code states “this Subchapter shall be liberally construed to promote the

prompt payment of insurance claims.” See Tex. Ins. Code Ann. § 542.054 (Vernon

Supp. 2010). Specifically, Chapter 542 requires insurers to promptly investigate

claims, promptly request additional information, promptly make payments, and

promptly provide explanations for non payment within the time periods prescribed

by the rules. See id.; See also Tex. Ins. Code §§ 542.055, 542.056, 542.057.

      Based on both the letter and the spirit of the above, it is absolutely patently

unreasonable for an insurer to argue that it is in compliance with a prompt payment

provision of the Insurance Code if it has failed to make any payments after

conducting an investigation and evaluation.        Appellee was therefore not in

compliance with the liberal construction of Subchapter 542, especially if read in

conjunction with the “fair and equitable” requirements of Chapter 541, which is

also to be liberally construed. In fact, Appellee failed to make any payments to

Appellant until the completion of the appraisal process. Therefore, the evidence

presented in this matter clearly raises genuine issues of material fact as to whether

Appellee violated these provisions. Accordingly, this Court must reverse the Trial

Court’s granting of Appellee’s Summary Judgment in its entirety.

      Regarding Appellant’s claims for attorneys fees, “in an action for deceptive

insurance practices, the [Appellant] . . . can recover attorneys fees.”     See Sec.

541.152(a)(1), Tex. Ins. Code. Finally, in an action for violation of Section 542 of

                                         18
the Texas Insurance Code, the Appellant can also recover reasonable attorneys fees.

See Sec. 542.060(b), Tex. Ins. Code. As evidence exists in the present matter to

allow for all such causes of action to proceed past summary judgment, the Trial

Court’s granting of Appellees’ motion must be reversed in this regard.

      Objectively, all such claims allow for an Appellant to recover attorneys fees

and penalty damages. “In an action for breach of contract, the parties may be

entitled to reasonable attorney fees . . . .” See Sec. 18.001, Tex. Civ. Prac. & Rem.

Code. Moreover, “under the DTPA, each prevailing Appellant must be awarded

reasonable and necessary attorney fees and costs . . . .” See Sec. 17.50(c), Tex.

Bus. & Com. Code.

      In addition to the above, this issue was also squarely addressed in the matter

of Kenneth Graber vs. State Farm Lloyds, Case No. 3:13-cv-2671-B, pending

before the Honorable Jane J. Boyle, in the United States District Court for the

Northern District of Texas - Dallas Division. In Graber, State Farm argued that

because it timely paid an appraisal award in full, that all contractual and extra-

contractual damages were eliminated as a matter of course. However, the Court

disagreed, concluding “that State Farm’s fully and timely payment of the appraisal

award” does not preclude certain of Appellant’s remaining claims.         The Court

further concluded that State Farm’s payment of the appraisal award also fails to

preclude Appellant from continuing to trial on certain of its extra-contractual

claims, including “Appellant’s claims under §541.061 of the Insurance Code,

                                         19
§§17.50(a)(1) and (3) of the DPTA and the TPPCA. See Graber Memorandum

Opinion and Order at pp. 18 and 19; see also Graber Order denying State Farm’s

Motion for Reconsideration. All such authority demonstrates that Appellant, who

suffered miserably at the hands of Appellee, is due her day in Court.

                                 CONCLUSION

      Appellant in this matter has brought forth an abundance of proper and timely

summary judgment evidence to show that material issues of fact exist regarding all

her causes of action under theories of contract, as well as bad faith and deceptive

trade practices. Essentially, there are a litany of considerations to be made by a

finder of fact as to each and every claim lodged by the Appellant in this matter

against Appellee.

      In light of all the above, and due to such abounding issues, it is simply an

unjust and unfair outcome for Appellant to be deprived of a trial regarding the

damages she suffered due to the actions (or inaction) of the Appellee. All such

extra-contractual causes of action should therefore be allowed to proceed, and be

presented to a jury of Appellant’s peers, so that all such issues can be resolved

justly and appropriately. Because of the same, based upon the well-founded Texas

case law cited above, and as material issues of fact exist regarding all such claims,

summary judgment in this matter must be reversed completely.




                                         20
       WHEREFORE, Appellant prays that this Honorable Court reverse the Trial

Court’s Final Judgment, and that this matter remanded to the Trial Court level for a

full proceeding on the merits, and for all such further relief to which Appellant may

be justly entitled.

                                       Respectfully submitted,


                                       /s/ Scott G. Hunziker
                                       Scott G. Hunziker
                                       Attorney-in-Charge
                                       Texas Bar No. 24032446
                                       Federal I.D. No. 38752

OF COUNSEL:
The Voss Law Firm, P.C.
26619 Interstate 45
The Woodlands, Texas 77380
Telephone: (713) 861-0015
Facsimile: (713) 861-0021
scott@vosslawfirm.com

ATTORNEYS FOR APPELLATE




                                         21
       CERTIFICATE OF COMPLIANCE WITH FED.R.APP.P. 32(a)
       This brief complies with the type-volume limitation of Fed.R.App.P. 2(a) (7)
(B)(iii) because this brief contains 4,775 words, excluding the parts of the brief
exempted by Fed.R.App.P. 32(a)(7) (B)(iii).

	
   This brief complies with the preface requirements of Fed.R.App.P. 32(a) (5)
and the type style requirements of Fed.R.App.P. 32(a)(6) because this brief has
been prepared in a proportionally spaced typeface using Microsoft Word 2003 in
14-point Times New Roman font.




                                        22
                         CERTIFICATE OF SERVICE

      This is to certify that a true and correct copy of the foregoing instrument has
been served upon the following counsel of record in accordance with the Texas
Rules of Civil Procedure on this 25th day of November, 2015.


George Arnold
Thompson, Coe, Cousins & Irons, L.L.P.
One Riverway Ste. 1600
Houston, Texas 77056
Via Facsimile (713)403-8299

                                       /s/ Scott G. Hunziker
                                       ____________________________________
                                       Scott G. Hunziker




                                         23
