                               COURT OF APPEALS
                               SECOND DISTRICT OF TEXAS
                                    FORT WORTH

                                  NO. 02-11-00437-CV


Fire Insurance Exchange                   §    From the 17th District Court

                                          §    of Tarrant County (17-224686-07)
v.
                                          §    January 31, 2013

Judy Kennedy                              §    Opinion by Justice Walker



                                     JUDGMENT

       This court has considered the record on appeal in this case and holds that

there was no error in the trial court’s judgment. It is ordered that the judgment of

the trial court is affirmed.

       It is further ordered that appellant Fire Insurance Exchange shall pay all of

the costs of this appeal, for which let execution issue.


                                       SECOND DISTRICT COURT OF APPEALS



                                       By_________________________________
                                         Justice Sue Walker
                          COURT OF APPEALS
                           SECOND DISTRICT OF TEXAS
                                FORT WORTH

                               NO. 02-11-00437-CV


FIRE INSURANCE EXCHANGE                                                   APPELLANT

                                          V.

JUDY KENNEDY                                                               APPELLEE


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          FROM THE 17TH DISTRICT COURT OF TARRANT COUNTY

                                       ----------

                         MEMORANDUM OPINION1

                                       ----------

                                  I. INTRODUCTION

      A jury returned a verdict for Appellee Judy Kennedy on her claims against

her homeowner’s insurance carrier, Appellant Fire Insurance Exchange. The trial

court entered judgment on the jury’s verdict and FIE perfected this appeal. For

the reasons set forth below, we will affirm the trial court’s judgment.



      1
       See Tex. R. App. P. 47.4.


                                           2
                  II. FACTUAL AND PROCEDURAL BACKGROUND

      The facts giving rise to Judy’s suit are as follows. Judy testified that she

awoke very early on October 10, 2006, to discover water pouring from her

ceiling; it was running from a light can and an air conditioning vent. She soon

realized that the water was coming from the upstairs bathroom of her home;

when she made her way upstairs, the water both downstairs and upstairs was

over her feet. The water was dark brown. Judy called her FIE agent and made a

claim under her policy with FIE, and she called a plumber. The plumber put in a

new commode, and that remedied the leak.

      Jennifer Ramirez, the FIE adjuster assigned to Judy’s claim, called Judy

later that morning and told her that FIE would send someone out to extract the

water. Judy suggested that a friend of hers was in the business and could do the

water extraction work; Jennifer declined and said Judy had to use FIE’s people.

Jennifer said that FIE had a vendor and would send someone out. FIE contacted

a local “emergency preferred vendor” of water mitigation services named

ServiceMaster and sent them to Judy’s home that day.

      Judy was not satisfied with FIE’s handling of her claim, and eventually she

filed suit against FIE; she alleged causes of action directly against FIE for its

conduct and also alleged that ServiceMaster was FIE’s apparent agent and that

FIE was liable for any negligence of ServiceMaster under the doctrine of

respondeat superior. The case proceeded to a jury trial, and the jury found for

Judy and against FIE on Judy’s breach of contract claim, her DTPA claim, and


                                        3
her breach of the duty of fair dealing claim. The jury also made attorneys’ fees

findings for Judy.2 The jury found that ServiceMaster was the apparent agent of

FIE but that ServiceMaster was not negligent.         After the trial court entered

judgment on the jury’s verdict, FIE brought this appeal, raising eleven issues.

   III. NO ABUSE OF DISCRETION IN SUBMISSION OF JURY QUESTIONS 10 AND 11

       FIE’s second through fifth issues raise various challenges to the

submission of questions 10 and 11 in the court’s charge.3 Question 10 asked

whether ServiceMaster was the apparent agent of FIE.           The jury answered,

“Yes.” Question 11 was conditioned on a “yes” answer to question 10 and asked

whether any negligence of ServiceMaster as apparent agent of FIE proximately

caused the occurrence in question.       The jury answered, “No.”       Accordingly,

because the jury answered “no” to question 11, it did not reach question 12,

submitting damages from any negligence of ServiceMaster. FIE’s sixth issue

complains that FIE is somehow erroneously being held responsible for

ServiceMaster’s negligence.

      2
       A copy of the jury’s verdict is attached hereto as Appendix A.
      3
        FIE’s first issue complains that “[t]here is no evidence, or insufficient
evidence, that non-party ServiceMaster was Appellant’s apparent agent” as the
jury found in question 10. But the jury found in question 11 that ServiceMaster
was not negligent, so––as discussed later in this memorandum opinion––the
judgment against FIE does not impose any liability on FIE as a result of the jury’s
apparent agency finding. Because the jury’s answer to question 10, even if not
supported by legally and factually sufficient evidence, did not, in light of its “no”
answer to question 11, cause rendition of an improper judgment, we need not
address FIE’s first issue. See Tex. R. App. P. 47.1 (requiring appellate court to
address only issues necessary to final disposition of an appeal).


                                         4
      We review a trial court’s submission of jury questions under an abuse-of-

discretion standard. See Fin. Ins. Co. v. Ragsdale, 166 S.W.3d 922, 926 (Tex.

App.––El Paso 2005, no pet.). The trial court must submit a requested question

to the jury if the pleadings and any evidence support it. Tex. R. Civ. P. 278;

Elbaor v. Smith, 845 S.W.2d 240, 243 (Tex. 1992).

      Judy pleaded that ServiceMaster was FIE’s apparent agent and that

ServiceMaster (and FIE) were negligent. The record before us contains some

evidence   supporting    the   submission   of   question   10   asking   whether

ServiceMaster was FIE’s apparent agent and some evidence supporting the

submission of question 11 asking whether ServiceMaster was negligent.4

Moreover, as pointed out by Judy, even if submission of questions 10 and 11

could be considered erroneous, any error was harmless because the jury

answered question 11 in FIE’s favor, finding that ServiceMaster was not

negligent. See, e.g., 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.”);


      4
        For example, Judy testified that FIE sent ServiceMaster to her home; that
FIE told her she had to use ServiceMaster; and that ServiceMaster reported
directly to FIE not to her. Judy’s FIE claims adjuster, Jennifer Ramirez, testified
that she called ServiceMaster within an hour of receiving Judy’s claim; that she
was taught in training to call ServiceMaster; that she has never called any other
company; that ServiceMaster was an emergency preferred vendor (EPV) for FIE;
that FIE has employees who work as EPV coordinators and communicate with
the EPVs; and that EPVs submit estimates to the FIE EPV coordinators who
either approve or disapprove them.


                                        5
Boatland of Houston, Inc. v. Bailey, 609 S.W.2d 743, 750 (Tex. 1980) (holding

that the potentially erroneous submission of defensive theories was harmless

error because the jury found for the defendant on independent grounds and the

complaining party failed to show how it probably resulted in an improper verdict).

Because the pleadings and some evidence supported submission of jury

questions 10 and 11, we hold that the trial court did not abuse its discretion by

submitting them; and because, in any event, any error in the submission of

questions 10 and 11 was harmless in light of the jury’s answer to question 11, we

overrule FIE’s issues two through five.

      In its sixth issue and in its reply brief, FIE argues that despite jury’s “no”

answer to question 11, asking whether ServiceMaster was negligent, the error in

submitting questions 10 and 11 cannot be considered harmless here.              FIE

contends that the jury could have “worked backwards” by erroneously utilizing

the definition of “occurrence in question” that was provided in conditionally-

submitted question 11 when it answered question 10. According to FIE, the jury

could have substituted question 11’s definition of “occurrence in question” in

place of question 10’s use of the undefined phrase “occasion in question” to

thereby somehow attribute ServiceMaster’s conduct (even though the jury did not

find ServiceMaster negligent) to FIE in the preceding questions concerning FIE’s

liability. But the jury was specifically instructed not to answer question 11 unless

it had already answered question 10; unless the record demonstrates otherwise,

we must presume that the jury followed the instructions given in the charge. See


                                          6
Columbia Rio Grande Healthcare, L.P. v. Hawley, 284 S.W.3d 851, 861–62 (Tex.

2009). There is nothing in the record supporting FIE’s contention that the jury

worked backwards—first deliberating on question 11, which was conditionally

submitted based on a prior “yes” answer to question 10; then using a definition of

a term in question 11 as a substitute for an undefined, different term in question

10; and then somehow using its apparent agency answer in question 10 to work

backwards and answer other questions (contained earlier in the charge prior to

question 10) concerning FIE’s liability (even though those questions asked

specifically about FIE’s conduct) to erroneously affirmatively answer the prior

liability questions against FIE. We overrule FIE’s sixth issue.

            IV. COVERED DAMAGES WERE SEGREGATED BY EVIDENCE,
         BY CHARGE INSTRUCTIONS, AND BY UNCHALLENGED JURY FINDING

      In its ninth issue, FIE argues that Judy “failed to segregate her covered

damages from her non-covered damages under the Doctrine of Concurrent

Causation.” In its tenth issue, FIE argues that the trial court erred by denying

FIE’s no-evidence motion for summary judgment and its motion for directed

verdict––both asserting that no evidence existed that the damages or problems

caused by ServiceMaster’s substandard remediation efforts were covered

damages under Judy’s homeowner’s policy.

      Under the doctrine of concurrent causation, where covered and

noncovered perils combine to create a loss, the insured is entitled to recover only

that portion of the damage caused solely by the covered peril.           Travelers



                                         7
Indemnity Co. v. McKillip, 469 S.W.2d 160, 163 (Tex. 1971); Wallis v. United

Servs. Auto. Ass’n, 2 S.W.3d 300, 302–03 (Tex. App.—San Antonio 1999, pet.

denied). The doctrine of concurrent causation is not an affirmative defense or an

avoidance issue; rather, it is a rule embodying the basic principle that insureds

are not entitled to recover under their insurance policies unless they prove their

damage is covered by the policy. Wallis, 2 S.W.3d at 303.

      Although FIE contends that Judy failed to segregate covered damages

from uncovered damages, question 2 of the court’s charge authorized the jury to

award damages only for a covered peril, and FIE fails to challenge on appeal the

legal or factual sufficiency of the evidence to support the jury’s finding in

response to question 2 that the repair costs to Judy’s residence was $42,000.

The jury was instructed in connection with question 2 that “repair costs” “means

reasonable and necessary costs of repair to the residence, caused solely by a

covered peril, with material of like kind and quality, with proper deduction for

depreciation.”   [Emphasis added.]   Judy’s expert, Herschel Postert, who has

been employed as a multi-lines claims adjuster for twenty-four years, used a

software program called Xactimate that is used by FIE and other insurers to

estimate losses and calculated that the cost to repair Judy’s home from the water

damage was $51,930. In closing argument, Judy’s attorney asked the jury to

deduct $4,800 from Postert’s $51,930 figure for mold damages included in that

total; the jury awarded $42,000. Judy asked the jury to also award $150,000 for

the additional damages to her home resulting from the negligence of


                                        8
ServiceMaster, but the jury declined to find ServiceMaster negligent. Thus, the

jury specifically awarded $42,000 in damages to Judy as a result of damages

caused solely by a covered peril. FIE does not challenge the legal or factual

sufficiency of the evidence to support the jury’s finding that $42,000 was the cost

to repair Judy’s home for damages caused by a covered peril. And the evidence,

including Postert’s testimony, supports this finding.    Thus, this unchallenged

finding is binding upon us on appeal. See, e.g., Bedford v. Moore, 166 S.W.3d

454, 466 (Tex. App.—Fort Worth 2005, no pet.) (Cayce, C.J., concurring) (stating

that an unchallenged jury finding is binding on appellants); Hotel Partners v.

KPMG Peat Marwick, 847 S.W.2d 630, 632 (Tex. App.—Dallas 1993, writ

denied) (same); see also McGalliard v. Kuhlmann, 722 S.W.2d 694, 696 (Tex.

1986) (unchallenged finding of fact is binding on appellants).

      We overrule FIE’s ninth issue contending that Judy failed to segregate

covered damages from uncovered damages.           We overrule FIE’s tenth issue

complaining of the trial court’s failure to grant a no-evidence motion for summary

judgment and a directed verdict on this basis, to the extent FIE’s tenth issue

presents anything for our review.

           V. SUFFICIENT EVIDENCE EXISTS SUPPORTING JURY FINDING
                 THAT FIE BREACHED ITS CONTRACT WITH JUDY

      In its eighth issue, FIE asserts that the evidence is legally and factually

insufficient to support the jury’s finding that FIE failed to comply with the

insurance policy. Judy’s homeowner’s insurance policy with FIE required FIE to



                                         9
indemnify Judy for the losses caused by sudden and accidental discharge of

water. Judy testified extensively concerning the damage to her home from the

sudden and accidental discharge of water from her upstairs toilet on October 10,

2006. She explained that dark brown water “was pouring” through the ceiling,

from a light can and an air conditioner vent. Using a diagram of her home, Judy

described the damage to the upstairs bathroom, to her office, to a bedroom, and

to the downstairs living room. Judy testified concerning furniture that was ruined

because of the water discharge, specifically a desk and a sectional couch. She

testified that her carpet was ruined.        Judy said that immediately after the

damage, she obtained an estimate from Carpet One for the replacement of her

carpet for $14,477.30.5 She testified that the wallpaper was peeling off the wall

in the bathroom where the leak occurred.         Judy explained that in the rooms

adjacent to the bathroom where the leak occurred, she could see water soaked

into the walls; “the sheetrock was soaking it up.” When asked how she knew that

the water was soaking into the walls, Judy said that she knew because her FIE

adjuster had pointed it out to her. Immediately after the damage, Judy obtained

an estimate to have the wallpaper and border in the bathroom pulled down and to

have new wallpaper installed, and the estimate, including the cost of new

wallpaper, was $3,000.6 Judy explained that her FIE adjuster came to her home


      5
       Judy forwarded this estimate to FIE and it was in FIE’s claims file.
      6
       Judy forwarded this estimate to FIE and it was in FIE’s claims file.


                                        10
and saw all of this damage. On cross-examination, Judy identified buckling in

her living room ceiling that “existed at the time of the claim” and a large brown

water stain on her ceiling. In response to Judy’s claim on her FIE homeowner’s

policy, FIE paid ServiceMaster $1,299.46 to place fans and a dehumidifier in

Judy’s home to dry out the carpet, to replace portions of the carpet pad, and to

put the same carpet back down. FIE also issued Judy several checks totaling

about $1,000 for the remainder of the damage to her home and personal

property.

      The jury found in response to question 1 that FIE had failed to comply with

the insurance policy; the jury was instructed in question 1 that FIE “is not

required to pay for any damages that are not attributable solely to a peril covered

under its policy.” We may sustain a legal sufficiency challenge only when (1) the

record discloses a complete absence of evidence of a vital fact; (2) the court is

barred by rules of law or of evidence 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 establishes conclusively the

opposite of a vital fact. Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328,

334 (Tex. 1998), cert. denied, 526 U.S. 1040 (1999); Robert W. Calvert, “No

Evidence” and “Insufficient Evidence” Points of Error, 38 Tex. L. Rev. 361, 362–

63 (1960). In determining whether there is legally sufficient evidence to support

the finding under review, we must consider evidence favorable to the finding if a

reasonable factfinder could and disregard evidence contrary to the finding unless


                                        11
a reasonable factfinder could not. Cent. Ready Mix Concrete Co. v. Islas, 228

S.W.3d 649, 651 (Tex. 2007); City of Keller v. Wilson, 168 S.W.3d 802, 807, 827

(Tex. 2005).     When reviewing an assertion that the evidence is factually

insufficient to support a finding, we set aside the finding only if, after considering

and weighing all of the evidence in the record pertinent to that finding, we

determine that the credible evidence supporting the finding is so weak, or so

contrary to the overwhelming weight of all the evidence, that the answer should

be set aside and a new trial ordered. Pool v. Ford Motor Co., 715 S.W.2d 629,

635 (Tex. 1986) (op. on reh’g); Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986);

Garza v. Alviar, 395 S.W.2d 821, 823 (Tex. 1965).

      Considering the evidence favorable to the jury’s finding that FIE failed to

comply with its contract with Judy because a reasonable factfinder could and

disregarding any contrary evidence because a reasonable factfinder could, the

evidence is legally sufficient to support the jury’s finding that FIE breached its

contract with Judy. And considering and weighing all evidence in the record, the

evidence that FIE breached its contract with Judy is not so weak or the contrary

evidence so overwhelming that the jury’s finding should be set aside, so the

evidence is factually sufficient to support the jury’s finding that FIE breached its

contract with Judy. See, e.g., In re Universal Underwriters of Tex. Ins. Co., 345

S.W.3d 404, 406 (Tex. 2011) (dealing with insured’s suit against insurer for

breach of contract by underpayment of claim); State Farm Lloyds v. Fitzgerald,

No. 03-99-00177-CV, 2000 WL 1125217, at *5 (Tex. App.––Austin Aug. 10,


                                         12
2000, no pet.) (not designated for publication) (upholding jury verdict against

insurer on homeowner’s policy claim based on breach of contract by underpaying

claim for costs of repair). We overrule FIE’s eighth issue.7

     VI. FIE WAIVED SEGREGATION OBJECTION; SUFFICIENT EVIDENCE EXISTS
            SUPPORTING JURY’S VERDICT ON JUDY’S ATTORNEYS’ FEES

      In its eleventh issue, FIE claims that the evidence is legally or factually

insufficient to prove that Judy’s reasonable attorneys’ fees through the time of

trial were $129,320. FIE’s sole challenges to the sufficiency of the evidence are

its contention that Judy failed to segregate her fees between fees incurred in

prosecuting Judy’s breach of contract claim, which are recoverable, and fees

incurred in prosecuting Judy’s extra-contractual claims, which are not

recoverable, and its contention that fees incurred in connection with a prior trial in

the case that ended in a mistrial are not recoverable.

      Texas law prohibits recovery of attorney's fees unless authorized by

statute or contract. Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299, 310


      7
        In light of our disposition of FIE’s eighth and ninth issues, we need not
separately address FIE’s seventh issue, asserting that “[t]he trial court erred in
entering a judgment against [FIE], because the insurance policy does not cover
damages arising out of a service vendor’s failure to perform its contractual
duties.” That is, as set forth above in connection with FIE’s eighth issue,
judgment was entered against FIE on the jury’s legally and factually sufficient
finding that FIE breached its contract with Judy; the judgment against FIE was
not based on any breach of contract by ServiceMaster, and as set forth in
connection with FIE’s ninth issue, the damages awarded by the jury do not
include any damages for an uncovered peril. Thus, our disposition of FIE’s
eighth and ninth issues likewise dispose of FIE’s seventh issue. We overrule
FIE’s seventh issue.


                                         13
(Tex. 2006). If any attorney’s fees relate solely to claims for which fees are not

recoverable, a claimant must segregate recoverable from unrecoverable fees.

Id. at 313. “Intertwined facts do not make tort fees recoverable; it is only when

discrete legal services advance both a recoverable and unrecoverable claim that

they are so intertwined that they need not be segregated.” Id. at 313–14. But, if

no objection is made to a failure to segregate attorney’s fees either at the time

evidence of attorney’s fees is presented or to the jury charge, the error is waived.

Green Int’l, Inc. v. Solis, 951 S.W.2d 384, 389 (Tex. 1997); Hruska v. First State

Bank, 747 S.W.2d 783, 785 (Tex. 1988); Morales v. Rice, No. 08-10-00318-CV,

2012 WL 2499004, at *6 (Tex. App.––El Paso June 29, 2012, no pet. h.); Wagner

v. Edlund, 229 S.W.3d 870, 875 (Tex. App.––Dallas 2007, pet. denied); Cullins v.

Foster, 171 S.W.3d 521, 535–36 (Tex. App.––Houston [14th Dist.] 2005, pet.

denied); see also Ogden v. Ryals, No. 14-10-01052-CV, 2012 WL 3016856, at *4

(Tex. App.––Houston [14th Dist.] July 24, 2012, no pet.) (mem. op.).

      FIE did not object to Judy’s expert testimony on attorneys’ fees. FIE did

not object to question 9, the attorneys’ fees question, which did not require the

jury to segregate fees. FIE did not object to the admission of Judy’s exhibit

showing the tasks performed and the time spent by her attorneys in prosecuting

her case against FIE.     And FIE did not raise the segregation issue in any

postverdict motion. Because FIE failed to raise its segregation complaint in any

way in the trial court, it has waived its segregation complaint on appeal. See,

e.g., Green Int’l, Inc., 951 S.W.2d at 389; Hruska, 747 S.W.2d at 785; Morales,


                                        14
2012 WL 2499004, at *6; see also Tex. R. App. P. 33.1(a)(1)(A) (requiring party,

to preserve a complaint for appellate review, to present to the trial court a timely

request, objection, or motion “with sufficient specificity to make the trial court

aware of the complaint, unless the specific grounds were apparent from the

context”).

      FIE cites no authority for the proposition that the attorneys’ fees Judy

incurred in this case as a result of the first trial that ended in a mistrial are not

recoverable. The law appears to be to the contrary. See Keller Indus., Inc. v.

Reeves, 656 S.W.2d 221, 228 (Tex. App.––Austin 1983, writ ref’d n.r.e.)

(rejecting the appellant’s argument that the trial court erred by awarding

attorneys’ fees “for work done preparatory to and during a mistrial preceding the

trial of this cause which is now on appeal”). And, again, FIE failed to raise any

complaint in the trial court that the jury should not consider the fees Judy incurred

when the first trial of this case ended in a mistrial.       See Tex. R. App. P.

33.1(a)(1)(A). Thus, we hold that FIE waived this complaint on appeal.

      We overrule FIE’s eleventh issue.




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                                VII. CONCLUSION

      Having overruled FIE’s second through eleventh issues and having

determined that we need not address FIE’s first issue, we affirm the trial court’s

judgment.


                                                  SUE WALKER
                                                  JUSTICE

PANEL: DAUPHINOT, WALKER, and MEIER, JJ.

DELIVERED: January 31, 2013




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