Motions for Rehearing Denied, Reversed and Remanded, and Substitute
Majority and Dissenting Opinions filed October 4, 2018.




                                           In The

                       Fourteenth Court of Appeals

                                  NO. 14-16-00474-CV

       TEXAS WINDSTORM INSURANCE ASSOCIATION, Appellant
                                              V.
        DICKINSON INDEPENDENT SCHOOL DISTRICT, Appellee

                      On Appeal from the 405th District Court
                             Galveston County, Texas
                        Trial Court Cause No. 12-CV-2012

                                                                                      1
       SUBSTITUTE DISSENTING OPINION

       In two summary-judgment orders, the trial court determined as a matter of
law that the defendant insurance association could not challenge (1) the appraisal-

1
  Today the court denies the parties’ motions for rehearing and issues a Substitute Majority
Opinion. The Dissenting Opinion issued in this case on May 31, 2018, is withdrawn. Appellee
Dickinson Independent School District’s Motion for Rehearing should be granted to the extent it
raises the issues addressed in this Substitute Dissenting Opinion.
award finding as to the amount of loss caused by wind damage, and (2) the
appraisal-award finding of the amount of loss or property damage. On appeal, the
association has challenged the first finding by arguing that the appraisal panel
determines the amount of loss but not the amount of loss caused by wind damage.
But, the association has not challenged the second finding. Though the association
has shown reversible error in the trial court’s final judgment without challenging
the second finding, this court should not conclude that the trial court erred as to the
unchallenged second finding.

                       The District’s Claim under the Policy

      Hurricane Ike made landfall in Galveston County on September 13, 2008.
Nearly four years later, appellee/plaintiff Dickinson Independent School District
(the “District”) sued the Texas Windstorm Insurance Association (“TWIA”)
asserting a breach-of-contract claim under Policy Number 56390701, a commercial
windstorm and hail insurance policy TWIA issued to the District (the “Policy”).
Under the Policy, TWIA “insure[s] for direct physical loss to the covered property
caused by windstorm or hail unless the loss is excluded in the Exclusions.” The
District seeks to recover under the Policy based on alleged damage to its covered
property caused by Hurricane Ike.

                 TWIA’s Invocation of Appraisal under the Policy

      The Policy allows either the District or TWIA to make written demand for
an appraisal if the parties cannot agree on the actual cash value, the amount of loss,
or the cost of repair or replacement:

      10. Appraisal. If you and we fail to agree on the actual cash value,
          amount of loss, or cost of repair or replacement, either can make
          a written demand for appraisal. Each will then select a competent
          and independent appraiser and notify the other of the appraiser’s
          identity within 20 days of receipt of the written demand. The two

                                          2
           appraisers will choose a competent and independent umpire. If
           they cannot agree upon an umpire within 15 days, you or we may
           request that the choice be made by a judge of a district court of a
           judicial district where the loss occurred. The two appraisers will
           then determine the amount of loss, stating separately the actual
           cash value and loss to each item.
           If the appraisers fail to agree, they will submit their differences to
           the umpire. An itemized decision agreed to by any two of these
           three and filed with us will determine the amount of the loss.
           Each party will pay its own appraiser and bear the other expenses
           of the appraisal and umpire equally.
Four months after the District filed suit, TWIA made written demand for appraisal
“regarding the actual cash value, amount of loss, or cost of repair or replacement.”

                               The Appraisal Award

      After an appraisal process that lasted two years and four months, the
District’s appraiser and the umpire issued an Amended Appraisal Award (the
“Award”) stating that they had “carefully examined the damages pursuant to the
loss described herein above, and/or any evidence thereof,” and that they had
“determined the following amounts of this loss to the commercial property
described in the attached page ‘Appraisal Award Summary.’” They stated in the
Award that the loss totals determined and awarded by the appraisal panel were
$11,203,527.47 in aggregate replacement cost value, $387,560.04 in aggregate
depreciation, and $10,815,967.43 in aggregate actual cash value. They included in
the Award a list of property items with a stated amount for the replacement cost
value, depreciation, and actual cash value for each item. The Award does not
expressly address the repair cost for any property item.

      Texas courts hold that appraisal awards made under the provisions of an
insurance contract are binding and enforceable, and courts indulge every


                                          3
reasonable presumption to sustain an appraisal award.2 If a party seeks to avoid
enforcement of an appraisal award, the party must carry the burden of proving a
ground for setting aside the appraisal award. 3 A party seeking to set aside an
appraisal award may amend the party’s pleadings to assert that the trial court
should set aside the award, move the trial court to set aside the award, or respond
in opposition to a summary-judgment motion by asserting a ground for setting
aside the award and raising a fact issue as to the ground.4

                         The Live Pleadings Regarding the Award

        The District demanded that TWIA pay the aggregate actual cash value stated
in the Award. TWIA refused. In the District’s live pleading, the District sought to
recover in part based on TWIA’s refusal to “pay the appraisal award.” In its
answer, TWIA sought to avoid enforcement of the Award by asserting various
grounds for setting aside the Award. TWIA also asserted various other defenses to
the District’s breach-of-contract claim.

                                  The Causation Motion

        In its motion for summary judgment on the causation issue (the “Causation
Motion”) the District sought an interlocutory summary judgment that, as a matter
of law, TWIA is precluded from challenging the determination in the Award that
the amount of loss is $10,815,967.43 and that this loss was caused by wind
damage. In the Causation Motion, the District asserted the following grounds:



2
  See Zhu v. First Comm’n Ins. Co., 543 S.W.3d 428, 433 (Tex. App.—Houston [14th Dist.]
2018, pet. filed); Franco v. Slavonic Mut. Fire Ins. Ass’n, 154 S.W.3d 777, 786 (Tex. App.—
Houston [14th] 2004, no pet.).
3
  See Zhu, 543 S.W.3d at 433; Lundstrom v. USAA, 192 S.W.3d 78, 87 (Tex. App.—Houston
[14th Dist.] 2006, pet. denied).
4
    See Zhu, 543 S.W.3d at 433.

                                              4
      (1) Appraisal clauses in Texas property-insurance policies provide a
      method to resolve disputes regarding a covered claim, and, if invoked,
      these clauses bind the parties to have the extent or amount of loss
      determined by appraisal.
      (2) The Award determined that the “‘amount of loss’ — what was
      caused by windstorm and the cost to repair or replace such loss” —
      was $10,815,967.43.
      (3) The Award is binding and enforceable.
      (4) Because the binding and enforceable Award determined the
      amount of loss, TWIA is precluded from challenging the amount of
      loss.
      (5) Because the binding and enforceable Award determined the
      causation issue, TWIA is precluded from challenging the cause of the
      amount of loss.
      (6) A strong public policy favors enforcement of appraisal clauses.
      The Award is final and binding and every reasonable presumption
      should be indulged to sustain an appraisal award. The party seeking
      to avoid enforcement of an appraisal award has the burden of proving
      that the court should not enforce the award.
      (7) TWIA can avoid enforcement of the Award only if TWIA can
      demonstrate that the Award was made without authority, did not
      comply with the Policy’s terms, or resulted from fraud, accident, or
      mistake. TWIA cannot demonstrate any of these bases for avoiding
      enforcement of the Award.
                               The Damages Motion

      In its motion for summary judgment on the amount of the loss (the
“Damages Motion”) the District sought an interlocutory summary judgment that,
as a matter of law, TWIA is precluded from challenging the determination in the
Award that the amount of loss or the amount of property damage is $10,815,967.43
and that this loss was caused by wind damage. In the Damages Motion, the
District asserted the following grounds:

      (1) Appraisal clauses in Texas property-insurance policies provide a
      method to resolve disputes regarding a covered claim, and, if invoked,
                                           5
      these clauses bind the parties to have the extent or amount of loss
      determined by appraisal.
      (2) The Award determined that the “‘amount of loss’ caused by
      windstorm, consistent with the terms of the [P]olicy” was
      $10,815,967.43.
      (3) The Award is binding and enforceable.
      (4) Because the binding and enforceable Award determined the
      amount of loss, TWIA is precluded from challenging the amount of
      loss.
      (5) A strong public policy favors enforcement of appraisal clauses.
      The Award is final and binding and every reasonable presumption
      should be indulged to sustain an appraisal award. The party seeking
      to avoid enforcement of an appraisal award has the burden of proving
      that the court should not enforce the award.
      (6) TWIA can avoid enforcement of the Award          only if TWIA can
      demonstrate that the Award was made without          authority, did not
      comply with the Policy’s terms, or resulted from     fraud, accident, or
      mistake. TWIA cannot demonstrate any of these        bases for avoiding
      enforcement of the Award.
                    TWIA’s Two Summary-Judgment Responses

      TWIA filed responses opposing the Causation Motion and the Damages
Motion.5 In each response, TWIA relied on a substantial amount of summary-
judgment evidence, and TWIA asserted various grounds in opposition to the
District’s motions. In each response, TWIA sought to avoid enforcement of the
Award by alleging grounds for setting aside the Award and asserting that the
summary-judgment evidence raised a fact issue as to each of these grounds.

             The District’s No-Evidence Motion and TWIA’s Response

      The District filed a no-evidence motion for summary judgment in which it
asserted that the Award is valid and enforceable and the burden is on TWIA to
5
  In its response to the Damages Motion, TWIA adopted by reference its response to the
Causation Motion.

                                          6
show that the Award should be set aside. The District argued that the trial court
may disregard the Award only if TWIA proves one of the following: (1) lack of
authority; (2) fraud, accident, or mistake; or (3) lack of substantial compliance with
the terms of the contract (collectively, the “Three Grounds”). The District asserted
that there is no evidence of each of the Three Grounds.

         In its response to the no-evidence motion, TWIA asserted that the trial court
should deny the motion because (1) an adequate time for discovery had not passed;
(2) almost none of the discovery TWIA needed to respond to the motion had been
provided or taken place, and (3) the summary-judgment evidence submitted by
TWIA raised a fact issue as to each of the Three Grounds.

                  The Trial Court’s Three Summary-Judgment Orders

         The trial court signed an order granting the Causation Motion and an order
granting the Damages Motion, giving the District the relief sought in each motion.6
Thus, in its order granting the Causation Motion, the trial court ruled as a matter of
law that TWIA was precluded from challenging the determinations in the Award
that the amount of loss is $10,815,967.43 and that this loss was caused by wind
damage.7 Likewise, in its order granting the Damages Motion, the trial court
determined as a matter of law that TWIA was precluded from challenging the
finding in the Award that the amount of loss or the amount of property damage is
$10,815,967.43 and that this loss was caused by wind damage. 8

6
  See WesternGeco, L.L.C. v. Input/Output, Inc., 246 S.W.3d 776, 778 (Tex. App.—Houston
[14th Dist.] 2008, no pet.).
7
    See id.
8
  See id. The District asserts that the Award contains a determination or finding that the amount
of loss or property damage is $10,815,967.43. By granting the Causation Motion and the
Damages Motion, the trial court determined that the Award contains this finding. In this opinion,
reference is made to this finding; however, to adjudicate this appeal, the court need not and
should not address whether the Award contains this finding.

                                               7
         On the same date (August 7, 2015), the trial court also denied the District’s
no-evidence motion for summary judgment, without specifying the reasons for its
denial. On appeal, TWIA asserts in a conclusory manner that the only logical
interpretation of the trial court’s denial of the no-evidence motion on the same day
that the court granted the Causation Motion and the Damages Motion is that the
trial court intended for TWIA to proceed to trial on its affirmative defenses to
enforcement of the Award. According to TWIA, if the trial court did not intend
TWIA to try these defenses to the jury, the trial court would have granted the no-
evidence motion. 9

         Though the trial court signed a separate order on each of the three motions,
the court signed the orders on the same day, and this court should construe these
orders together.10 In doing so, this court should consider the orders as a whole
toward the end of harmonizing and giving effect to all the trial court has written. 11

         For the trial court to have granted the relief in the Causation Motion and the
Damages Motion, the trial court would have to have concluded as a matter of law
that (1) TWIA was precluded from challenging the finding in the Award that the
amount of loss is $10,815,967.43 and that this loss was caused by wind damage;
(2) TWIA was precluded from challenging the finding in the Award that the
amount of loss or the amount of property damage is $10,815,967.43 and that this
loss was caused by wind damage; and (3) the summary-judgment evidence did not
raise a genuine fact issue as to any of the Three Grounds that TWIA had asserted




9
    TWIA does not present any analysis or citations to legal authorities on this issue.
10
   See Henderson v. Shanks, 449 S.W.3d 834, 838 (Tex. App.—Houston [14th Dist.] 2014, pet.
denied).
11
     See Constance v. Constance, 544 S.W.2d 659, 660 (Tex. 1976).

                                                   8
in its response.12 For the trial court to have denied the District’s no-evidence
motion, the trial court could have concluded that (1) an adequate time for
discovery had not passed; (2) almost none of the discovery TWIA needed to
respond to the motion had been provided or taken place, or (3) the summary-
judgment evidence submitted by TWIA raised a fact issue as to each of the Three
Grounds. TWIA did not assert either of the first two grounds in opposition to
either the Causation Motion or the Damages Motion, which were traditional
summary-judgment motions. Denying the no-evidence motion on either of the first
two grounds would not conflict with the trial court’s granting of the other two
motions. Denying the no-evidence motion on the third ground would conflict with
the granting of the Causation Motion and the Damages Motion.

         TWIA asserts that the trial court’s denial of the no-evidence motion means
that the trial court must have found a fact issue as to the Three Grounds and that
the trial court did not conclude there was no fact issue on the Three Grounds when
the court granted the other two motions. But, to grant the other two motions, the
trial court had to enforce the Award as a matter of law, and the trial court could not
do so if it found a fact issue as to any of the Three Grounds.13 Thus, if we were to
construe the orders as including an implicit finding of a fact issue as to the Three
Grounds, to be tried to the jury, that construction would vitiate the trial court’s
granting of the Causation Motion and the Damages Motion, and we would fail to
harmonize and give effect to all the trial court wrote in the orders. 14


12
   See Zhu, 543 S.W.3d at 433 (explaining that trial court cannot enforce appraisal award by
summary judgment if the non-movant raises a valid ground for setting aside the award in its
response and the summary-judgment evidence raises a fact issue as to that ground);
WesternGeco, L.L.C., 246 S.W.3d at 778.
13
     See Zhu, 543 S.W.3d at 433.
14
     See Constance, 544 S.W.2d at 660.

                                             9
         Instead, this court should construe the orders as granting the relief requested
in the Causation Motion and the Damages Motion and as denying the District’s no-
evidence motion only on the first two grounds TWIA asserted in opposition. 15 In
doing so, the court would construe these trial court orders as a whole toward the
end of harmonizing and giving effect to all of the trial court’s writings — the trial
court’s orders granting the Causation Motion and the Damages Motion and its
order denying the no-evidence motion. 16

                          The Jury Trial and the Final Judgment

         After a five-day trial, the trial court asked the jury to decide a single issue:
“Did Texas Windstorm Insurance Association fail to comply with the agreement
entitled Texas Windstorm Insurance Association Policy Windstorm and Hail?”
The jury answered, “Yes.” Based on the jury’s verdict, the District moved for
rendition of judgment; TWIA opposed the motion on various grounds. The trial
court signed a final judgment ordering that the District recover from TWIA actual
damages of $8,193,168.85, plus prejudgment interest and attorney’s fees.                 In
rendering the final judgment the trial court relied upon the Award as setting the
amount of damages resulting from TWIA’s alleged breach of contract, and the trial
court deducted from the amount in the Award “prior payments, deductibles, and
sales tax.” 17

                               TWIA’s Appellate Complaints

         In its first appellate issue, TWIA asserts that the trial court erred in granting
summary judgment that the Award set the amount of the District’s damages caused

15
     See Constance, 544 S.W.2d at 660; Henderson, 449 S.W.3d at 838.
16
     See Constance, 544 S.W.2d at 660; Henderson, 449 S.W.3d at 838.
17
  The Award included amounts of sales tax that TWIA alleged were erroneously included in the
Award.

                                              10
by the covered peril of wind. TWIA argues that the Award itself did not set the
amount of damages caused by wind and that TWIA’s summary-judgment evidence
did not contain expert testimony or any other evidence conclusively proving this
amount. TWIA asserts three other appellate issues.

         Texas Rule of Appellate Procedure 38.1(i) requires an appellant’s brief to
contain a clear and concise argument for the contentions made, with appropriate
citations to authorities and to the record. 18 Courts must construe briefs “reasonably
yet liberally.” 19 Still, courts require the appellant to put forth some specific
argument and analysis showing that the record and law support the appellant’s
contentions.20 TWIA has not briefed any challenge to the part of the summary-
judgment orders in which the trial court determined as a matter of law that TWIA
was precluded from challenging the determination in the Award that (1) the
amount of loss is $10,815,967.43 and (2) the amount of property damage is
$10,815,967.43. TWIA does not mention anything about these trial-court rulings,
nor does TWIA present argument in support of the proposition that the trial court
erred in granting this relief. 21 By failing to brief any argument as to how the trial
court erred in granting this relief, TWIA has waived its ability to obtain a reversal
of these parts of the summary-judgment orders.22 Therefore, the proper course

18
     Tex. R. App. P. 38.1(i).
19
     Republic Underwriters Ins. Co. v. Mex-Tex, Inc., 150 S.W.3d 423, 427 (Tex. 2004).
20
  See Deutsch v. Hoover, Bax & Slovacek, L.L.P., 97 S.W.3d 179, 198–99 (Tex. App.—
Houston [14th Dist.] 2002, no pet.).
21
    TWIA offers a conclusory statement that the only logical interpretation of the trial court’s
denial of the no-evidence motion on the same day the court granted the Causation Motion and
the Damages Motion is that the trial court intended for TWIA to go to trial on TWIA’s
affirmative defenses to enforcement of the Award. This assertion lacks merit for the reasons
discussed above. But, in any event, this assertion does not constitute a discussion of the above-
referenced trial-court rulings or argument that the trial court erred in granting this relief.
22
   See Ryan Construction Servs., LLC v. Robert Half International, Inc., 541 S.W.3d 294, 301
(Tex. App.—Houston [14th Dist.] 2017, no pet.).

                                               11
would be for this court to reverse only the part of the summary-judgment orders
addressing causation rather than reversing these two orders in their entirety. 23
Doing so would not prevent TWIA from seeking reconsideration of these parts of
the trial court’s orders on remand. Although TWIA has not briefed any challenge
to these parts of the summary-judgment orders, TWIA’s arguments under its first
issue regarding the causation issue suffice to show reversible error in the trial
court’s final judgment. Thus, in reversing the trial court’s final judgment and
remanding for further proceedings, this court should not conclude that the trial
court erred in granting the parts of the Causation Motion and the parts of the
Damages Motion that TWIA has not challenged on appeal. Because the majority
does so, I respectfully dissent.




                                     /s/    Kem Thompson Frost
                                            Chief Justice



Panel consists of Chief Justice Frost and Justices Boyce and Jewell. (Jewell, J.,
majority).




23
     See id.

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