AFFIRM; and Opinion Filed November 19, 2014.




                                           SIn The
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                     No. 05-12-01313-CV

                 INSURANCE ALLIANCE, Appellant/Cross-Appellee
                                   V.
              LAKE TEXOMA HIGHPORT, LLC, Appellee/Cross-Appellant
                                  AND
               BOWOOD PARTNERS, LIMITED, Appellee/Cross-Appellee

                      On Appeal from the 397th Judicial District Court
                                  Grayson County, Texas
                           Trial Court Cause No. 08-0604-397

                                           OPINION
                          Before Justices Bridges, O'Neill, and Brown
                                   Opinion by Justice Brown
       After its marina on Lake Texoma was damaged in a flood, Lake Texoma Highport, LLC

sued its insurance broker, Insurance Alliance, and a London broker, Bowood Partners, Limited,

because the policy in place at the time of the flood was not the policy Highport had requested. A

jury returned a verdict in Highport’s favor. The trial court’s judgment ordered that Highport

recover damages and attorney’s fees from Insurance Alliance for breach of contract, that

Highport take nothing on its claims against Bowood, and that Insurance Alliance take nothing on

cross claims it asserted against Bowood.

       In this appeal, Insurance Alliance contends there is no evidence to support the jury’s

findings on Highport’s damages and also challenges the attorney’s fee award.           Insurance

Alliance further contends the jury’s finding that Bowood did not violate the insurance code is
contrary to the conclusive evidence and that the court should have submitted other theories of

Bowood’s liability to the jury.    In a cross-point, Highport contends that in addition to its

judgment against Insurance Alliance for breach of contract, it was entitled to recover 10% of its

damages from Bowood on a tort theory. For reasons that follow, we affirm the trial court’s

judgment.

                                         BACKGROUND

       Highport owns and operates a large marina located on Lake Texoma. The property

includes many boat docks, a service center, a fuel station, an administration building, and

multiple restaurants and bars. In 2005, Highport hired Insurance Alliance to perform a risk

assessment on Highport’s property.     After doing so, Insurance Alliance recommended that

Highport get blanket insurance coverage, where one limit covers all losses, with no coinsurance

penalties or sublimits and with replacement-cost coverage. Highport hired Insurance Alliance to

obtain the recommended coverage for 2005 and again for 2006. In 2007, Insurance Alliance

acted as Highport’s broker again, and Highport sought $15 million blanket coverage for the

policy period of March 31, 2007 to March 31, 2008. Several entities were involved in procuring

the insurance policy. The insurance carrier was Lloyd’s of London. Insurance Alliance used

CRC Insurance Services Inc. as a middle broker. CRC’s sister company Southern Cross hired

Bowood, a London broker, to deal directly with Lloyd’s.

       In June 2007, during Highport’s busy season, a flood damaged the marina, leaving some

of its buildings completely submerged. It was several months before the flood waters receded.

Pompanos Restaurant, a Highport destination for dining and nightlife, was destroyed in the flood,

as were the Clipper Bar and the Waterfront Club.

       In the months after the flood, Highport learned it did not have the $15 million blanket

coverage it asked Insurance Alliance to get and thought it had. Instead, the marina was covered

                                              –2–
by a $15 million policy that had sublimits and coinsurance penalties. 1 In November 2007, the

loss had not been resolved, so Highport borrowed money to demolish and rebuild Pompanos

Restaurant, which reopened as the Island Bar and Grill in May 2009.

           In April 2008, Highport filed suit against Insurance Alliance and Lloyd’s in state district

court in Grayson County. Lloyd’s removed the case to federal court, claiming the federal court

had jurisdiction because the policy contained an arbitration agreement and Lloyd’s is not a

United States citizen. See 9 U.S.C.A. §§ 201–205 (West 2014) (Convention on the Recognition

and Enforcement of Foreign Arbitral Awards). In federal court, Insurance Alliance filed a third-

party complaint against Bowood and CRC, alleging they were liable to it for violations of the

deceptive trade practices act and insurance code, as well as for breach of warranty. Thereafter,

Highport amended its pleadings to add Bowood and CRC as defendants. In June 2009, Highport

settled with Lloyd’s for $6.7 million, after which the federal court granted Highport’s motion to

dismiss its claims against Lloyd’s with prejudice. CRC then moved to compel arbitration based

on an arbitration provision in the brokerage agreement between it and Insurance Alliance. In

January 2010, the federal court granted CRC’s motion and stayed Highport’s claims against

CRC. In June 2010, upon agreed motion of the parties, the federal court remanded the case to

the state district court. Highport and CRC agreed to hold the arbitration in abeyance until the

conclusion of the trial in Grayson County.

           Highport’s operative pleading asserted various causes of action against Insurance

Alliance and Bowood, including breach of contract, fraud, conspiracy, violations of the DTPA,

and negligence. Highport’s claims against these two defendants, and Insurance Alliance claims

against Bowood, went to trial before a jury in April 2012. Insurance Alliance’s CEO admitted at

     1
       One of Highport’s witnesses, an Insurance Alliance employee, explained coinsurance as follows: “[I]f there was an 80 percent co-
insurance you have to ensure [sic] that property for at least 80 percent of what it would cost to replace that. If you don’t meet the 80 percent
requirement then there is a penalty involved in the event of a loss.”



                                                                     –3–
trial that “something went wrong” in the process of securing Highport’s policy and that his

company bore some responsibility for the fact that Highport did not have the policy it wanted.

But Insurance Alliance also claimed that Bowood made unauthorized changes to the terms of the

policy.    Specifically, a Bowood employee used information in the application prepared by

Insurance Alliance and information Southern Cross provided about Highport’s property values to

create a document called the “Bowood Underwriting Submission,” which contained detailed

property schedules.      Bowood presented the Bowood Underwriting Submission, not the

application documents, to the underwriters to request insurance for Highport. Bowood in turn

claimed that the insurance application documents Insurance Alliance prepared and provided to

CRC, which were ultimately passed on to Bowood, were incomplete and inaccurate. Both

Insurance Alliance and Bowood blamed CRC for failing to communicate to Insurance Alliance

that the policy obtained did not provide blanket coverage when CRC knew that was what

Highport sought.

          After a three-week trial, the jury found that Insurance Alliance agreed to procure for

Highport an insurance policy with $15 million in blanket coverage, with no sublimits and no

coinsurance and with replacement-cost coverage, and that Insurance Alliance failed to comply

with that agreement. It further found that Insurance Alliance, Bowood, CRC, and Lloyd’s were

negligent.    The jury also found that Insurance Alliance and CRC, but not Bowood, made

negligent misrepresentations and engaged in an unfair or deceptive act or practice that was a

producing cause of damages to Highport. The jury also made the following proportionate

responsibility findings: Insurance Alliance was 45% responsible for Highport’s injury, CRC was

40% responsible, Bowood was 10% responsible, and Lloyd’s was 5% responsible.

          In Question 15, the jury was asked to determine Highport’s damages. The jury was

specifically asked to determine the amount of coverage that would have been available under the

                                               –4–
policy sought to repair and/or replace property damaged in the flood, less the amount of coverage

that was provided by the policy obtained. The jury’s answer to this question was $8.3 million. It

also determined that the amount of coverage available to reimburse Highport’s business

interruption damages under the policy sought, less the amount of coverage available under the

policy obtained, was $438,598. The jury further found that Highport’s reasonable attorney’s fees

for representation in its claims against Insurance Alliance in the trial court were $2,754,446, with

additional amounts for representation on appeal.

       After the verdict, Highport filed a “Motion to Sign Judgment,” in which it sought to

recover on its breach of contract theory against Insurance Alliance and on its negligence theory

against Bowood. An attached proposed judgment sought to recover 100% of the damages from

Insurance Alliance and 10% from Bowood. At a hearing on the motion, the trial court indicated

that if Highport elected to recover from Insurance Alliance on the contract, it was not entitled to

recover against Bowood. Highport objected to being forced to elect. The trial court then stated

that it would order judgment on Highport’s breach of contract claim against Insurance Alliance

because that claim afforded Highport the highest recovery.

       The court subsequently rendered judgment for Highport on its breach of contract claim

against Insurance Alliance. The court ordered that Highport recover from Insurance Alliance

$8,738,598, plus court costs, pre- and post-judgment interest, and attorney’s fees. The court

rendered a take-nothing judgment on Highport’s claims against Bowood and on Insurance

Alliance’s claims against Bowood. The judgment severed Highport’s claims against CRC. This

appeal followed.

                                            DAMAGES

       In its first issue, Insurance Alliance contends there is no evidence to support the jury’s

answers to Question 15 on Highport’s property and business interruption damages. The jury was

                                                –5–
asked to answer Question 15 if it had answered “Yes” to any of the various liability questions.

Question 15 provided:

       What sum of money, if any, if paid now in cash, would fairly and reasonably
       compensate Highport for its damages, if any, that resulted from such conduct?

       ....

       Consider the following elements of damages, if any, and none other.

       Answer separately in dollars and cents for damages, if any.

       a.      The amount of coverage that would have been available under the 2007
       policy sought by Highport to repair and/or replace the overwater electrical system
       damages in the flood, less the amount of coverage that was provided by the 2007
       policy actually obtained.

               Answer:        0

       b.      The amount of coverage that would have been available under the 2007
       policy sought by Highport to repair and/or replace the property damaged in the
       flood, other than the overwater electrical system, less the amount of coverage that
       was provided by the 2007 policy actually obtained.

               Answer:        8,300,000.00

       c.      The amount of coverage that would have been available to reimburse
       Highport’s Business Interruption damages resulting from the flood under the 2007
       policy sought by Highport, less the amount of coverage that was provided by the
       2007 policy actually obtained.

               Answer:        438,598.00

Insurance Alliance contends there is no evidence to support the jury’s answers to 15(b) and (c).

       We measure the evidence of damages by the charge given to the jury. McGinty v.

Hennen, 372 S.W.3d 625, 628 (Tex. 2012) (per curiam). On an issue where the opposing party

bears the burden of proof, we sustain a legal sufficiency challenge to an adverse finding if our

review of the evidence demonstrates a complete absence of a vital fact, or if the evidence offered

is no more than a scintilla. Burbage v. Burbage, No. 12-0563, 2014 WL 4252274, at *8 (Tex.

Aug. 29, 2014); see City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). More than a

scintilla exists when the evidence would enable reasonable and fair-minded people to reach

                                               –6–
different conclusions. Burbage, 2014 WL 4252274, at *8. Evidence does not exceed a scintilla

if it is so weak as to do no more than create a mere surmise or suspicion that the fact exists. Id.;

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

115 (Tex. 2009).      We consider the evidence in the light most favorable to the judgment,

“crediting favorable evidence if reasonable jurors could, and disregarding contrary evidence

unless reasonable jurors could not.” Burbage, 2014 WL 4252274, at *8 (quoting City of Keller,

168 S.W.3d at 807). The jury generally has broad latitude in determining damages. Id. at *9.

a. Property Damages

       Insurance Alliance first contends there is no evidence to support the award of $8.3

million in property damages for two reasons: 1) there is no evidence of the amount of coverage

the policy obtained provided for the losses at the marina, and 2) there is no evidence of the

amount of coverage that the policy requested would have provided. We begin with Insurance

Alliance’s assertion that there is no evidence of the amount of money Highport was entitled to

for property damage under the policy it actually had from Lloyd’s.

       Jon McNaught, an attorney Highport hired in June 2007 to assist with documentation of

its insurance claim, testified for Highport. On July 19, 2007, Insurance Alliance sent Highport

an email informing it that although it had a policy with a $15 million limit, the policy had

sublimits, including a sublimit of $4,075,000 for property damage. Attached to the email was a

copy of a policy page referencing the limits for five categories: Piers/Docks ($12,806,756),

Property ($4,075,000), Equipment ($125,350), Business Interruption ($4,000,000), and Contents

($1,375,000). According to McNaught, this was “a huge erosion of the coverage” he thought

Highport had in place. About a week later, Insurance Alliance emailed Highport and attached

the “2007-2008 Lloyd’s of London Property Policy.” McNaught reviewed this document and

confirmed that the policy appeared to have a sublimit of $4,075,000 for dry property. McNaught

                                                –7–
later learned of a “further erosion of the policy.” Specifically, Highport’s property coverage was

going to be reduced from $4,075,000 because Highport did not have replacement-cost coverage,

but instead would be paid for “a diminished or depreciated value” due to coinsurance penalties.

The only way to move forward on the claim was for Highport to allow a valuation, which it

ultimately agreed to do. Highport focused its claim documentation on the dry property and tried

to get that claim prepared and submitted to the carrier for reimbursement. In late November

2007, Highport filed with Lloyd’s a “Partial Proof of Loss” for $8,291,598.48. McNaught

testified he was told this document had to be submitted in order for Highport to receive a partial

payment on its business interruption claim.

       In December, McNaught asked Insurance Alliance’s CEO to provide “a full ‘certified’

copy of the policy and all of its attachments.” McNaught testified that he made this request

because every time Highport asked for a set of policy documents, they changed.             In late

December 2007, McNaught received a cover note dated May 9, 2007. The first time a Lloyd’s

signed policy was issued in this case was in June 2011. There was evidence that when insured

by Lloyd’s, the insured rarely gets a policy; instead it gets a cover note or a slip evidencing

insurance. The cover note or slip is never issued by Lloyd’s; it is issued by the Lloyd’s broker.

All of the policy documents up until 2011 were prepared and issued by Bowood.

       Two months after it filed its Partial Proof of Loss, Highport had not received written

acceptance or denial of its claim. On February 1, 2008, McNaught sent an email to a Texas

lawyer representing Lloyd’s and to a representative of Lloyd’s adjustor, and copied an Insurance

Alliance representative. In the email, McNaught listed the scheduled values for various property,

which correspond to those in the Bowood Underwriting Submission, including the administration

building, the Clipper Bar, and an unnamed restaurant. He stated that, “The above referenced

scheduled values, in the light most favorable to your clients, represent undisputed amounts owed

                                               –8–
to Highport of $2,915,000.”        (McNaught did not seek the full scheduled value for the

administration building.) McNaught requested, on behalf of Highport, that “your clients make a

good faith payment to Highport of the undisputed amounts owed.” McNaught explained at trial

that he did this to get some money flowing. He was trying to find undisputed amounts that could

be paid to Highport. According to McNaught, at the time of his email in February 2008,

Insurance Alliance, Bowood, and Lloyd’s all agreed that the policy had coinsurance and

sublimits.

          When asked at trial if the $2.9 million figure was his analysis of the maximum amount

that could be paid under the actual policy issued, McNaught responded, “That was my sense of at

or near the maximum recoverable value under the policy with all of those limitations as they had

been presented.” He also said, “I’m not a hundred percent sure that every single category, like

contents, was in there but it would have been a number really close to that.” McNaught

explained that this amount was for property and did not include business interruption or

electrical. He further explained the number represented the “best amount we could seek to get

under the policy as explained.” No money was paid to Highport as a result of McNaught’s

email, and Highport filed suit.

          One reason Insurance Alliance maintains that Highport’s evidence of what it was entitled

to under the policy it had fails is because Highport never requested a coverage determination

from the trial court.     Insurance Alliance asserts that given the “seventeen different policy

versions furnished by Bowood,” Highport should have asked the trial court to determine what

coverage it had, because it was a legal question for the court. As a result, Insurance Alliance

argues, the jury had no way to calculate the amount Highport was entitled to under the Lloyd’s

policy.




                                                –9–
       In support of its argument that Highport was required to get a coverage finding from the

trial court, Insurance Alliance cites one summary judgment case, stating that the insured has the

burden of establishing coverage under the terms of the policy and discussing general rules courts

use in interpreting policies. See Gilbert Tex. Constr., L.P. v. Underwriters at Lloyd’s London,

327 S.W.3d 118, 124–26 (Tex. 2010). We are not persuaded that Highport had any procedural

responsibility or other obligation to ask the court for a coverage determination.        Further,

Highport’s coverage could not be determined by the court as a matter of law. There was

conflicting evidence about the content of the policy issued. For example, Bowood employee

Mark Shepherd testified the Bowood Underwriting Submission, and its detailed schedule of

property values, became part of the policy, while former Insurance Alliance employee Doyle

Fletcher and Highport’s expert Ronald Hendy testified it was not part of the policy. Under the

facts of this case, where the parties disputed what terms were part of the policy, we cannot say

that Highport’s failure to ask the court for a coverage determination means the evidence is

insufficient to support the damages awarded. We presume the jury resolved any questions about

Highport’s coverage when it made its damage findings.

       Insurance Alliance also contends expert testimony was necessary to calculate the money

owed under the policy obtained. See Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 583 (Tex.

2006) (“Expert testimony is required when an issue involves matters beyond jurors’ common

understanding.”) McNaught, the attorney hired by Highport to be the “point person” for the

documentation of its insurance claim, testified he had some experience in procuring insurance in

his work as general counsel for various people. During McNaught’s testimony about coverage

under the policy, Insurance Alliance objected on grounds that he had not been designated and

was not qualified as an expert on policy benefits. The court overruled the objection, reasoning

that it was going to let McNaught explain his email. Outside the presence of the jury, the trial

                                              –10–
court noted that it did not allow McNaught to testify as an expert. On cross-examination,

Insurance Alliance’s trial counsel asked McNaught if he was an “expert,” meaning if he was

qualified to read the policy and tell Highport what it was entitled to. 2 McNaught indicated that

he considered himself an expert in that regard and testified that he was qualified to determine the

coverage Highport had under the policy in place. Even if expert testimony was needed regarding

the amount of coverage provided by the policy, McNaught testified that he was an expert, and

the jury was never told to limit its consideration of his testimony in any way.

          Insurance Alliance contends McNaught’s email was only about dry property, such as

buildings, and did not include any amounts Highport was entitled to under the policy for wet

property damage, such as piers and docks.                              While his email does refer to dry property,

McNaught’s testimony at trial did not contain such a limitation. McNaught testified that $2.9

million was “at or near” the maximum amount Highport could recover under the policy issued.

He also testified that $4,075,000 was the limit on property damage under the policy. We

conclude McNaught’s testimony was competent evidence, and more than a scintilla of evidence,

of the property coverage Highport had under the policy in place.

          Insurance Alliance next contends that there was no evidence of the amount of coverage

that the policy sought would have provided for Highport’s losses. It asserts there is no evidence

that the policy would have paid its full $15 million limit. According to Insurance Alliance,

because the marina buildings were not capable of being repaired, under the policy requested they

had to be replaced with buildings of “like kind and quality.” Insurance Alliance maintains there

is no evidence the Island Bar and Grill, and the other planned replacement buildings, were of

“like kind and quality” or that the cost to rebuild them was reasonable.

     2
       Before trial, Insurance Alliance moved to exclude testimony from two of Highport’s experts, David Hann and Ronald Hendy, regarding
the amount of coverage the policy obtained provided on grounds that their opinions in that regard were first disclosed after the deadline for
discovery. The trial court agreed and refused to allow the testimony.



                                                                  –11–
       Highport’s adjustor, Adjusters International, initially presented an estimate of Highport’s

repair costs in the amount of $8,975,656.49. David Hann, a public insurance adjuster who

reviewed the documents and bids in this case, testified that the 2007 estimate was a partial

preliminary estimate based on the information available at that time. In 2012, Hann issued a

supplemental opinion regarding damages. His estimate of Highport’s total damages before legal

fees was $15,940,456.48.

       Hann explained that there were two reasons for the increase in the damage estimate.

First, the $8.9 million estimate was a repair estimate because the initial opinion by Adjustors

International was that the buildings appeared to be structurally sound and needed only cosmetic

repairs. It was eventually determined that three of the buildings (Pompanos, the Clipper Bar, and

the Waterfront Club) were a total loss and needed to be replaced.         (By the time of trial,

Pompanos had been rebuilt as the Island Bar and Grill, but other buildings had not been

replaced.) Second, Adjustors International’s original estimate was based on its understanding of

costs using estimating software. By the time Hann became involved, the Island Bar and Grill

had been rebuilt. The actual costs of that rebuild were used to estimate the costs of rebuilding

the other buildings, yielding more accurate numbers. Deducting Highport’s business interruption

damages and the cost of the overwater electrical system (which were submitted to the jury in

separate questions) from Highport’s total damages before legal fees of $15,940,456.48, leaves an

amount of $11,220,858.40.

       Highport also called Scott Bates, owner of Ceci Bates Commercial, as a witness. Bates

was responsible for demolition of Pompanos and construction of the new restaurant in its place.

After the flood subsided, according to Bates, it was a “foregone conclusion there wasn’t anything

to use left there.” Bates provided an estimate for repair and rebuild of all the damage to the

marina caused by the flood. Before consulting and legal fees, Bates’s estimate of the marina’s

                                              –12–
damages was $18,010,393.43, which included about $3.4 million for overwater electrical work.

Deducting that amount leaves a balance of $14,610,393.

       Bates testified about the similarities and differences between Pompanos and the Island

Bar and Grill. Pompanos was twenty to twenty-five years old at the time of the flood. Bates

testified that the old restaurant and the new restaurant have the same function. Bates did not

prepare a bid to replace Pompanos exactly as it was before the flood. He explained that it would

have cost “way too much money to build it back that way.” He described changes made in the

design of the restaurant to reduce costs. For example, Pompanos had a floating kitchen, but the

new restaurant does not because that kind of kitchen costs “way too much money.” Also, the

new restaurant has glass garage doors rather than solid walls. Further, the kitchen in the Island

Bar and Grill is considerably smaller, and the HVAC system has much less capacity than the old

system. Bates testified that by making changes to the original design of Pompanos, Highport

saved over half of the building costs. Bates testified that the new restaurant was of “like kind” to

the old restaurant. He further testified that based on the bids he put together for reconstruction of

the other buildings, those structures were to be “like kind” with the buildings that were there

previously. His plans were to build back everything that was there before the flood, but not more

than was there before. No additional restaurants or bars were planned. There was no increase in

the size or functionality or the number of buildings compared to what was there before.

       The jury heard a great deal of testimony about the design features and materials used in

the Island Bar and Grill and how they were the same or different in nature and quality from the

restaurant it replaced. While some individual elements were more expensive than the originals,

there was evidence that rebuilding Pompanos as it stood before the flood would have been twice

as expensive as it was to build the Island Bar and Grill. Further, Bates testified that both the

Island Bar and Grill and the proposed buildings were of “like kind” to the originals. We

                                               –13–
conclude there is more than a scintilla of evidence to prove the replacement buildings were of

like kind and quality to the originals.

       Insurance Alliance also contends that Highport failed to prove that its repair/replacement

costs were reasonable. Insurance Alliance asserts that neither Bates nor Hann testified that the

estimated costs for rebuilding the marina were reasonable. Insurance Alliance relies on the

following language in the Texas Supreme Court’s opinion in McGinty in support of this

argument: “Estimated-out-of-pocket expenses, like paid out-of-pocket expenses, do not establish

that the cost of repair was reasonable. Some other evidence is necessary.” McGinty, 372 S.W.3d

at 627–28.

       McGinty involved the plaintiff homeowner’s remedial damages for breach of a

construction contract after water leaks and mold were found in the home. In such a case, the

party seeking remedial damages must specifically prove they are reasonable. Id. at 627. Further,

the jury in McGinty was specifically asked to determine the reasonable and necessary cost to

repair the home. Id. at 626.

       We are required to measure the sufficiency of the evidence using the charge given, and

the charge here did not require the jury to make a finding that Highport’s repair costs and

estimates were reasonable. See United Nat’l Ins. Co. v. AMJ Inv., LLC, No. 14-12-00941-CV,

2014 WL 2895003, at * 7 (Tex. App.—Houston [14th Dist.] June 26, 2014, no pet. h.). Further,

even if Highport needed to prove reasonableness, as noted in McGinty, “In some cases, the

process will reveal factors that were considered to ensure the reasonableness of the ultimate

price.” See McGinty, 372 S.W.3d at 628. Pursuant to section 18.001 of the civil practice and

remedies code, Highport’s general manager Timothy Hayes made an affidavit concerning the

costs and necessity of services. See TEX. CIV. PRAC. & REM. CODE ANN. § 18.001 (West Supp.

2014). Attached to the affidavit was an itemized summary of the services provided to Highport

                                             –14–
by various vendors as a result of the flood through December 2009, along with copies of the

corresponding invoices, including invoices from Ceci Bates. Hayes stated in the affidavit that

the amounts charged for the services were “reasonable at the time and place that the services

were provided.” When uncontroverted, such an affidavit is sufficient evidence to support a jury

finding that the amount charged was reasonable. Id. Thus, there was sufficient evidence the cost

of building the Island Bar and Grill was reasonable. Bates used the actual costs of rebuilding

that restaurant to estimate the future costs of rebuilding other marina buildings. Based on his

experience as a contractor, Bates testified his numbers were reliable and were more reliable than

bid numbers. The jury could have inferred from Bates’s testimony that the estimates for future

repairs were reasonable. See Bernstein v. Thomas, 298 S.W.3d 817, 826 (Tex. App.—Dallas

2009, no pet.).

       In summary, there was evidence that Highport’s property damages, excluding overwater

electrical, were as high as $14.6 million and that it could have recovered that amount under the

$15 million blanket policy it sought. There was also evidence from McNaught that Highport was

entitled to a maximum of $2,915,000 under the policy it actually had; $14.6 million less

$2,915,000 is $11,685,000.      Even if the jury had determined Highport was entitled to

$4,075,000, the property limit under the policy, $14.6 million minus $4,075,000 is $10.5 million.

Further, the difference between Hann’s estimate of Highport’s property damage, $11.2 million,

and $2.9 million is $8.3 million, the amount found by the jury. As a general rule, a reviewing

court will not interfere with the fact finder’s determination of the amount to award as damages if

there is any probative evidence to sustain the award. David McDavid Pontiac, Inc. v. Nix, 681

S.W.2d 831, 837 (Tex. App.—Dallas 1984, writ ref’d n.r.e.). We conclude there is more than a

scintilla of evidence to support the jury’s finding that Highport’s property damages were $8.3

million.

                                              –15–
b. Business Interruption Damages

          Insurance Alliance also contends there is no evidence to support the $438,598 in business

interruption damages awarded by the jury in Question 15(c). It asserts there is no evidence of the

amount of coverage for business interruption under the policy obtained. Insurance Alliance

again asserts that a coverage determination was needed. We have already rejected this argument.

          The jury determined that $438,598 was the amount of coverage that would have been

available for business interruption damages under the policy sought by Highport, less the amount

of coverage provided by the policy actually obtained.                                    CPA Michael Militescu evaluated

Highport’s damages due to business interruption resulting from the flood. He testified that

Highport’s business interruption damages were $1,438,598. 3 Further, there was evidence that the

policy sought would have provided $4 million worth of business interruption coverage and thus

covered that entire amount. There was evidence that the policy Highport actually had provided

$3 million of coverage for business interruption over wet property (boat slips, etc.) and $1

million of coverage for business interruption over dry property (restaurants, bars, etc.). Hayes,

Highport’s general manager, testified that Highport’s primary business was boat slip rental, and

Highport still generated cash from its rentals after the flood. Hayes testified about the areas of

revenue impacted by the flood – gas sales, parts sales, service revenue, and jet ski sales, as well

as income from the marina’s restaurants/bars, Pompanos, the Waterfront Club, and the Clipper

Bar. From the evidence, the jury could have determined that Highport’s business interruption

losses were due to the fact that its dry property was not operational. It could have further

determined that the policy sought would have paid $1,438,598 for business interruption and the

policy obtained would have paid $1,000,000, leaving a difference of $438,598, the amount found

     3
       The reporter’s record indicates Militescu actually gave a figure of $1,438,000 even. He may have misspoken or the court reporter may
have made a typographical error. When asked to deduct the $188,000 Highport received from Lloyd’s pre-litigation for business interruption, the
witness stated the difference was $1,250,598.



                                                                   –16–
by the jury. We conclude there is more than a scintilla of evidence to support the jury’s answer

regarding business interruption damages. Having found that the evidence supports the jury’s

answers to Question 15, we resolve Insurance Alliance’s first issue against it.

                                        ATTORNEY’S FEES

       In its second issue, Insurance Alliance contends the attorney’s fee award must fail

because Highport did not segregate its fees between Insurance Alliance and Bowood, and the

jury assessed all the requested fees against Insurance Alliance, contrary to the evidence.

Insurance Alliance asks us to reverse and remand on this issue.

       Highport’s attorney testified that his client’s necessary attorney’s fees were $2.8 million.

To arrive at that amount, the attorney deducted about $271,000 attributable to the CRC

arbitration and $160,000 for fees spent on the settlement with Lloyd’s. He also reduced the total

amount of attorney’s fees by 15% to account for work performed on legal theories that did not

allow for recovery of attorney’s fees. He testified that there was a “commonality of facts” or

“intertwined facts” between the various claims and noted that there was a single transaction or

stream of transactions between the brokers. Highport’s attorney also testified about attorney’s

fees in the event of an appeal. Over 500 pages of detailed legal bills were admitted into

evidence, as well as a summary of the fees. Highport’s expert on attorney’s fees supported the

attorney’s testimony.    He testified that Highport’s total attorney’s fees were $3,747,584.

Reducing this amount by 15% left $3,185,446. Deducting the amounts attributable to the CRC

arbitration and the Lloyd’s settlement resulted in fees of $2,754,446.

       The jury was asked about attorney’s fees in Question 18, which it was instructed to

answer as to a particular defendant only if it answered “Yes” to the breach of contract or DTPA

liability questions as to that defendant. Question 18 asked in part:




                                               –17–
           What is a reasonable fee for the necessary services of Highport’s attorney for
           representation in its claim(s) against Insurance Alliance and/or Bowood, stated in
           dollars and cents?

           ....

           Answer with an amount for each of the following:

           a.         For representation in the trial court.

                      1. Insurance Alliance: 2,754,446.00

                      2. Bowood:

Having not found any breach of contract or DTPA violations by Bowood, the jury answered

Question 18 only as to Insurance Alliance and left the space for Bowood’s attorney’s fees blank. 4

It determined Highport’s attorney’s fees for its claims against Insurance Alliance to be

$2,754,446, the full amount of fees sought.

           Texas law does not allow 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 (Tex. 2006). A plaintiff is

required to show that attorney’s fees were incurred while suing the defendant sought to be

charged with the fees on a claim which allows recovery of such fees. Id. at 311; see DMC Valley

Ranch L.L.C. v. HPSC, Inc., 315 S.W.3d 898, 906 (Tex. App.—Dallas 2010, no pet.); Clearview

Props., L.P. v. Prop. Tex. SC One Corp., 287 S.W.3d 132, 144 (Tex. App.—Houston [14th Dist.]

2009, pet. denied). A plaintiff is required to segregate fees between claims for which they are

recoverable and claims for which they are not unless “the discrete legal services advance[d] both

[the] recoverable claim and the unrecoverable claim.” Tony Gullo Motors, 212 S.W.3d at 313–

14; Goldman v. Olmstead, 414 S.W.3d 346, 367–68 (Tex. App.—Dallas 2013, pet. denied); see

Varner v. Cardenas, 218 S.W.3d 68, 69 (Tex. 2007) (per curiam). The need to segregate fees is

     4
       Insurance Alliance erroneously refers to the jury’s zero finding against Bowood when the jury did not make a finding that Highport
incurred no legal fees for its claims against Bowood. As per the instructions in the charge, the jury did not answer the question regarding
Highport’s fees as to Bowood because it did not find any breach of contract or DTPA violations by Bowood. We understand Insurance
Alliance’s complaint to be with the sufficiency of the evidence to support the jury’s finding that Insurance Alliance was responsible for the full
amount of Highport’s fees.



                                                                     –18–
a question of law, while the extent to which certain claims can or cannot be segregated is a

mixed question of law and fact. Tony Gullo Motors, 212 S.W.3d at 312–13; Goldman, 414

S.W.3d at 367–68.

           Highport presented evidence that it segregated those fees related to claims for which

attorney’s fees are not recoverable. Insurance Alliance does not challenge this aspect of fee

segregation. Instead, it complains of Highport’s failure to segregate attorney’s fees between it

and Bowood.

           Unlike most cases in which there is an issue on appeal about fee segregation, the jury

here was asked to segregate the fees between the two defendants. The jury found that Highport

was entitled to $2.7 million in fees for its claims against Insurance Alliance.                                                      Insurance

Alliance’s complaint is essentially a factual sufficiency challenge to the jury’s answer to the

segregated question on attorney’s fees, which it preserved by raising in its motion for new trial. 5

See Dal-Chrome Co. v. Brenntag Sw., Inc., 183 S.W.3d 133, 145 (Tex. App.—Dallas 2006, no

pet.); see also Arrow Marble, LLC v. Estate of Killion, 441 S.W.3d 702, 709 (Tex. App.—

Houston [1st Dist.] 2014, no pet.) (proof of full amount of fee is some evidence of segregated

amount and remand is appropriate to determine correct amount).                                               In reviewing the factual

sufficiency of the evidence to support a jury finding for which the party did not have the burden

of proof, we consider and weigh all of the evidence and set aside the verdict only if the evidence

that supports the finding is so weak as to make the verdict clearly wrong and manifestly unjust.

See Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986).

           The jury determined that Highport was entitled to $2.7 million in fees, the total amount of

fees it sought, for its claims against Insurance Alliance. Insurance Alliance maintains this

     5
        Highport asserts that Insurance Alliance has waived its complaint about Highport’s failure to segregate fees. See, e.g., Lee v. Lee, 411
S.W.3d 95, 114 (Tex. App.—Houston [1st Dist.] 2013, no pet.). Highport cites Insurance Alliance’s failure to object to lack of segregation
during the testimony of Highport’s two witnesses on attorney’s fees and its failure to object to the jury charge. Highport first raised the issue of
lack of segregation in its motion for JNOV and raised it again in its motion for new trial.


                                                                      –19–
finding is contrary to the evidence at trial. It asserts Highport’s attorney testified that Highport

incurred fees “specific to actions by Bowood.”                                  Insurance Alliance refers us only to the

attorney’s testimony about efforts made to get the final insurance policy from Bowood between

June and October of 2011. Highport’s attorney testified:

           Highport had made a number of requests, both directly by Highport and then
           through counsel in the litigation to get a copy of its policy for 2007. When the
           document was first delivered, . . . there were inconsistencies with that policy. It
           required additional legal work, it required a second trip back to London to take
           depositions, again, of witnesses that had already been deposed but had not
           disclosed some of the problems with the 2011 policy.

           Highport’s claims against Insurance Alliance and Bowood arise out of the same

transaction, and Highport had a single injury in that it did not have as much insurance coverage

as it requested when its marina was damaged. Insurance Alliance and Bowood were both part of

the brokerage chain through which Highport obtained its insurance policy. At some point, there

was a breakdown in communication along the chain resulting in Highport not getting the correct

coverage.         Insurance Alliance and Bowood each blamed each other, as well as CRC and

Highport. The jury could have determined that any fees Highport spent to get a final version of

the policy from Bowood would have been incurred anyway to bring its claims against Insurance

Alliance. We cannot say that the evidence to support the jury’s finding that Highport was

entitled to $2.7 million in attorney’s fees for bringing its claims against Insurance Alliance is so

weak as to make the verdict clearly wrong and manifestly unjust. 6 We resolve Insurance

Alliance’s second issue against it.



     6
        Insurance Alliance urges that this case is similar to DMC Valley Ranch, in which this Court reversed an attorney’s fee award because the
plaintiff put on evidence only of its total fees instead of segregating them between multiple defendants. See DMC Valley Ranch, 315 S.W.3d at
906–07. The case is distinguishable for two reasons. First, it was a summary judgment, not a jury trial. Second, it involved the breach of two
separate finance and security agreements. After the borrowers — DMC Valley Ranch and DMC Frisco — defaulted, the lender sued them and a
common set of guarantors. Thus, as we noted in our opinion, because the plaintiff sued on two separate agreements, it had to prove different facts
to recover against DMC Valley Ranch from those it had to prove against DMC Frisco. Id. at 906. And it had to prove different facts to recover
on the guaranty agreements. The plaintiff put on evidence only of its total fees, and the trial court allocated 14 % of the fees to DMC Valley
Ranch and the other 86% to DMC Frisco, without evidence to support such an allocation. We concluded the plaintiff did not conclusively prove
the facts necessary to support the court’s fee awards. Id. at 906–07.



                                                                     –20–
                       BOWOOD’S LIABILITY TO INSURANCE ALLIANCE

       In its third issue, Insurance Alliance contends that the evidence is legally and factually

insufficient to support the jury’s finding that Bowood was not liable to Insurance Alliance under

the insurance code. Insurance Alliance’s insurance code claim against Bowood was submitted to

the jury in Question 19. Question 19 asked:

       Did Bowood engage in any unfair or deceptive act or practice that caused
       damages to Insurance Alliance?

              “Unfair or deceptive act or practice” means any of the following:

                             Making or caused [sic] to be made an assertion,
                             representation, or statement with respect to insurance that
                             was untrue, deceptive, or misleading; or

                             Failing to state a material fact about an insurance policy
                             that is necessary to make other statements not misleading,
                             considering the circumstances under which the statements
                             were made; or

                             Making a statement about an insurance policy in such a
                             manner as to mislead a reasonable prudent person to a false
                             conclusion of a material fact; or

                             Failing to disclose any matter about an insurance policy
                             that is required by law to be disclosed; or

                             Making or causing to be made any statement
                             misrepresenting the terms[,] benefits or advantages of an
                             insurance policy.

See TEX. INS. CODE ANN. arts. 541.051, 541.061 (West 2009). The jury answered, “No.”

       Citing evidence that a Bowood employee modified Highport’s insurance application

documents to delete the word “blanket,” Insurance Alliance maintains the evidence conclusively

established that Bowood violated the insurance code.       Alternatively, it contends the jury’s

finding that Bowood did not violate the insurance code is against the great weight of the

evidence. When a party attacks the legal sufficiency of an adverse finding on an issue on which

it had the burden of proof, it must demonstrate on appeal that the evidence establishes, as a

                                              –21–
matter of law, all vital facts in support of the issue. Dow Chemical Co. v. Francis, 46 S.W.3d

237, 241 (Tex. 2001). When a party attacks the factual sufficiency of an adverse finding on an

issue on which it has the burden of proof, it must demonstrate on appeal that the adverse finding

is against the great weight and preponderance of the evidence. Id. at 242.

       It is undisputed that Bowood had no direct contact with Insurance Alliance. Insurance

Alliance hired CRC. CRC hired Southern Cross. Southern Cross hired Bowood to place the

insurance coverage with Lloyd’s. Bowood’s client was Southern Cross.

       There was evidence that Danny Whiteside, a Bowood employee, modified Highport’s

insurance application documents to delete the word “blanket.”          Whiteside had a different

understanding of what the term “blanket” meant from Highport’s understanding, and based on

his definition of the term, he did not think it was important. He was not aware that the definition

of “blanket” in the United States might be different from the definition in England. Whiteside

testified he was never told that the insured wanted blanket coverage. Whiteside testified the

application was incomplete, and he asked Bill Sampson at Southern Cross for clarification.

Whiteside asked for descriptions, ages, and values of the items being insured and was provided

that information. Whiteside used the information to create the Bowood Underwriting

Submission.    Bowood presented the Bowood Underwriting Submission, not the application

documents, to the underwriters to request insurance for Highport containing schedules, sublimits,

and coinsurance with penalties.

       Sampson with Southern Cross testified that his company did not ask Bowood to procure a

quote for insurance that was blanket rather than scheduled or to procure a quote that did not have

a coinsurance requirement. When Sampson received a quote from Bowood in March 2007, he

understood that the quote was for scheduled coverage instead of blanket coverage and




                                              –22–
understood that it had coinsurance. Sampson indicated it was Insurance Alliance’s job to assess

Highport’s insurance needs and whether a particular policy being offered met those needs.

       Insurance Alliance asserts that even though Bowood did not speak directly to anyone at

Insurance Alliance or Highport, because Bowood knew Insurance Alliance would rely on

information it gave CRC, the fact that Bowood did not make any direct representations to

Insurance Alliance does not absolve it from liability. But the jury heard evidence that Bowood’s

client Southern Cross did not ask Bowood to procure blanket coverage or coverage without

coinsurance. And when Southern Cross got the policy back, it knew it was not blanket coverage.

While clearly there was a miscommunication at some point in the process, Bowood maintained it

happened between CRC and Insurance Alliance, and based on the jury’s findings attributing a

total of 85% of the responsibility for Highport’s injury to CRC and Insurance Alliance and just

10% to Bowood, it appears the jury believed its version of the events. Because the policy

Bowood procured from Lloyd’s was in line with what its client requested from it, the jury could

have determined that Bowood made no deceptive representations or omissions regarding the

policy. Likewise, having considered all of the evidence, we cannot say the jury’s finding was

against the great weight of the evidence.

       Insurance Alliance also contends the trial court erred in refusing to allow it to submit

other liability and damage theories against Bowood to the jury. Specifically, Insurance Alliance

contends it was entitled to jury questions on negligence, negligent misrepresentation, fraud, and

fraud by omission, and corresponding questions on its damages and attorney’s fees. It maintains

that these theories were improperly omitted from the charge based on Bowood’s assertion that it

never interacted with Insurance Alliance. Insurance Alliance seeks a remand for a new trial on

these claims.




                                              –23–
           The trial court is required to submit to the jury a properly requested question that is raised

by the pleadings and evidence and is necessary to enable the jury to render a verdict. TEX. R.

CIV. P. 278; Park N. Serv. Ctr., L.P. v. Applied Circuit Tech., Inc., 338 S.W.3d 719, 721 (Tex.

App.—Dallas 2011, no pet.). We review a trial court’s decision to submit or refuse a particular

question for an abuse of discretion. Park N. Serv. Ctr., 338 S.W.3d at 721.              Even if the trial

court erred by failing to submit a requested question to the jury, we may not reverse unless the

error is harmful. Id. Error in a jury charge is harmful only if it probably caused the rendition of

an improper judgment. Id.; see TEX. R. APP. P. 44.1(a)(1).

           Bowood became a party to this lawsuit when Insurance Alliance filed a third-party

complaint against it in federal court. Insurance Alliance asserted claims against Bowood for

DTPA violations, violations of various sections of the Texas Insurance Code, breach of warranty,

fraud, 7 negligent misrepresentation, and breach of contract under a third-party beneficiary theory,

as well as a claim for contribution under the civil practice and remedies code. On Bowood’s

motion to dismiss under federal rule of civil procedure 12(b)(6), the federal court dismissed

some of Insurance Alliance’s claims. Insurance Alliance did not amend its pleadings after the

federal court’s order. Thus, at the time of trial, Insurance Alliance’s pleadings did not allege

negligence or fraud by omission against Bowood. The trial court did not abuse its discretion in

refusing to submit questions on these claims because they were not supported by the pleadings.

           Insurance Alliance did allege in its third-party complaint that Bowood was liable to it for

fraud and negligent misrepresentation regarding the insurance procured. For purposes of our

discussion we will assume, without deciding, that the trial court erred in refusing to submit the

requested questions on these claims. Even so, we cannot conclude the error probably caused the

rendition of an improper judgment. See TEX. R. APP. P. 44.1(a)(1).

   7
       Insurance Alliance’s pleadings refer to its fraud claim as “misrepresentation.”



                                                                      –24–
           Insurance Alliance’s requested fraud question stated in part that fraud occurs when a

party makes a material misrepresentation with knowledge of its falsity or made recklessly.

Insurance Alliance’s requested question on negligent misrepresentation asked if Bowood made a

negligent misrepresentation on which Insurance Alliance justifiably relied.                                                       “Negligent

misrepresentation” was defined in part as a representation that supplies false information for the

guidance of others in their business. In Question 19, asking about any insurance code violations

by Bowood against Insurance Alliance, the jury was asked if Bowood made any untrue

representations. The jury answered negatively. Further, the jury was asked about Bowood’s

proportionate responsibility for Highport’s tort claims. In Question 7, the jury was asked if

Insurance Alliance, CRC, or Bowood made a negligent misrepresentation on which Highport

relied. The jury answered “Yes” as to Insurance Alliance and CRC and “No” as to Bowood. In

Question 11, the jury was asked if Insurance Alliance, CRC, or Bowood committed fraud against

Highport by failing to disclose information. It answered negatively for all three defendants. It is

clear from the charge as a whole that the jury did not find that Bowood made any

misrepresentations, and we have found the evidence sufficient to support this conclusion. Thus,

any error in refusing the requested questions on fraud and negligent misrepresentation did not

probably cause the rendition of an improper judgment and was thus harmless.                                                         Insurance

Alliance’s third issue is without merit.

                                                  HIGHPORT’S CROSS-APPEAL

           Highport raises two issues as to Bowood as a cross-appellant. 8 In its first issue, Highport

contends it was entitled to its judgment against Insurance Alliance for breach of contract and to a


     8
        Highport raised these issues in its “Brief of Appellee and Cross-Appellant” filed after Insurance Alliance filed its appellant’s brief.
Bowood complains about the timeliness with which Highport briefed these issues. Bowood contends that Highport is not in fact a “cross-
appellant,” but rather a regular appellant. According to Bowood, Highport should have filed its brief complaining of the judgment against
Bowood within thirty days after the date the clerk’s record or the reporter’s record was filed, whichever is later. See TEX. R. APP. P. 38.6(a). We
conclude Highport’s issues against Bowood were timely raised in its appellee’s brief. Further, even if the issues were not timely raised, the Court
has the authority to extend the time for filing briefs. We note there is no question Highport timely filed its notice of appeal.


                                                                     –25–
judgment against Bowood for 10% of its damages on a negligence theory, subject to the one-

satisfaction rule. 9 Based on the jury’s findings that Bowood was negligent and bore 10% of the

responsibility for Highport’s injury, Highport sought to recover 10% of the damages found by

the jury from Bowood. At a hearing on the issue, the court asked Highport to elect and it did not,

arguing it was entitled to recover from both Insurance Alliance and Bowood. After Highport

refused, the trial court rendered the judgment that gave Highport its greatest recovery.                                                        It

rendered judgment against Insurance Alliance on Highport’s breach of contract claim and

ordered that Highport recover $8,738,598, plus court costs, pre- and post-judgment interest, and

attorney’s fees from Insurance Alliance.                             The court rendered a take-nothing judgment on

Highport’s claims against Bowood. Highport asks this Court to modify the judgment to reflect

that Bowood is liable for 10% of Highport’s damages. We decline to do so.

           A party may sue and seek damages on alternative theories of liability. McCullough v.

Scarbrough, Medlin & Assocs., 435 S.W.3d 871, 916 (Tex. App.—Dallas 2014, pet. denied)

(citing Waite Hill Servs., Inc. v. World Class Metal Works, Inc., 959 S.W.2d 182, 184 (Tex.

1998) (per curiam)). But for one injury, there can only be one recovery. Id.; see Tony Gullo

Motors, 212 S.W.3d at 303. A judgment awarding damages on alternate theories may be upheld

if the theories depend on separate and distinct injuries and if separate and distinct damages

findings are made as to each theory. McCullough, 435 S.W.3d at 916. When a defendant’s acts

result in a single injury and the jury returns favorable findings on two or more theories of

liability, a plaintiff has the right to judgment on the theory entitling it to the greatest or most




     9
        Under the one-satisfaction rule, a plaintiff is entitled to only one recovery for any damages suffered. Crown Life Ins. Co. v. Casteel, 22
S.W.3d 378, 390 (Tex. 2000). In its appellate brief, Insurance Alliance is clear that it does not seek to recover 110% of the damages awarded.
However, its proposed judgment sought $8,738,598 in damages from Insurance Alliance and 10% of that amount, $873,859.80, from Highport. It
later sought to include the following language in the judgment to limit its recovery: “In no event shall Highport recover a total amount under this
judgment that exceeds the amount of the judgment against Insurance Alliance.”




                                                                     –26–
favorable relief. Id. (citing Boyce Iron Works, Inc. v. Sw. Bell Tel. Co., 747 S.W.2d 785, 787

(Tex. 1988)). Where the prevailing party fails to make an election, the trial court should use the

findings affording the greatest recovery and render judgment accordingly.               Birchfield v.

Texarkana Mem’l Hosp., 747 S.W.2d 361, 367 (Tex. 1987).

       The fact that there were two defendants in this case does not change our analysis. Here,

Insurance Alliance and Bowood committed technically different acts that caused Highport to

suffer a single injury — Highport had an insurance policy that was inferior to the one it

requested. For its single injury, Highport was only entitled to recover under one theory of

liability. When it refused to elect a theory of liability, the trial court properly picked the theory,

breach of contract, that afforded Highport the greatest recovery — 100% of its damages and

attorney’s fees. Had Highport wanted to recover from both Insurance Alliance and Bowood, it

could have elected to recover on its negligence theory.         But, with the jury’s findings that

Insurance Alliance was 45% responsible and Bowood was 10% responsible, Highport would not

have been entitled to 100% of the damages or to attorney’s fees under such a theory. We note

that the proportionate responsibility scheme found in chapter 33 of the civil practice and

remedies code does not apply to contract actions. See TEX. CIV. PRAC. & REM. CODE ANN. §

33.002(a) (West 2008).

       In its brief, Highport relies on a 1973 Texas Supreme Court case to support its position

that it can recover simultaneously from Insurance Alliance in contract and Bowood in tort. See

Custom Leasing Inc. v. Tex. Bank & Trust Co., 491 S.W.2d 869 (Tex. 1973). Highport cites the

following language from that case:

       “Where remedies pursued against different persons are repugnant and
       inconsistent, the election of one bars the other, but concurrent and consistent
       remedies may all be pursued until satisfaction is had. The bar of an election does
       not apply to the assertion of distinct causes of action against different persons
       arising out of independent transactions with such persons.”

                                                –27–
Id. at 871 (quoting 28 C.J.S. Election of Remedies § 8).

       While the term “election of remedies” can be used to refer to electing a theory of

recovery after a jury returns favorable findings on two or more theories, see, e.g., Tony Gullo

Motors, 212 S.W.3d at 303, that is not how the term was used in Custom Leasing. The term as

used in Custom Leasing referred to the affirmative defense of election of remedies. Under

certain circumstances, this doctrine bars a plaintiff from pursuing two inconsistent remedies.

Medina v. Herrera, 927 S.W.2d 597, 600 (Tex. 1996); Pipes v. Hemingway, 358 S.W.3d 438,

449 (Tex. App.—Dallas 2012, no pet.). The election of remedies doctrine may bar relief when a

party successfully exercises an informed choice between two or more remedies which are so

inconsistent as to constitute manifest injustice. Pipes, 358 S.W.3d at 449; see City of Glenn

Heights v. Sheffield Dev. Co., 55 S.W.3d 158, 164 (Tex. App.—Dallas 2001, pet. denied).

       In Custom Leasing, Custom Leasing entered into an agreement with James Lyles,

purportedly acting on behalf of a construction company, to buy trucks and equipment and then

lease them back to the company. Custom Leasing, 491 S.W.2d at 871. A year earlier, Lyles had

negotiated a bank loan on behalf of the construction company. Id. at 870. The equipment that

was the subject of the later lease had been mortgaged to secure the loan. To obtain the loan,

Lyles forged the signature of the construction company’s president on the note and mortgage

documents. See id. at 870. After the payments on the two leases became delinquent, Custom

Leasing sued Lyles, the construction company, and the company president to collect the amount

due on the leases. Id. at 870–71. Custom Leasing obtained a default judgment against Lyles and

later learned that the construction company president did not sign any of the loan documents or

any of the lease documents. Custom Leasing amended its pleadings to add the bank as a

defendant. Id. at 871. After the bank had learned of the forgery, it nevertheless affirmed to

Custom Leasing that the construction company owed the bank money. As a result, Custom

                                              –28–
Leasing paid the bank money to release the mortgage on the equipment. The bank pleaded the

defense of election of remedies. It argued that by Custom Leasing’s judgment against Lyles for

the entire amount of the leases, Custom Leasing waived and abandoned any right to pursue a

claim against the bank. Id. The supreme court held that Custom Leasing’s suit against Lyles on

the lease agreements did not preclude Custom Leasing’s suit against the bank for its alleged false

representation regarding the chattel mortgage. Id. at 872. It reasoned that there was nothing

inconsistent in suing the “perpetrator of the forgery” of the lease documents and also the bank

which falsely reported that the construction company owed it money on a note secured by the

equipment. Id.

       Highport relies on Custom Leasing to argue that because the theories under which

Insurance Alliance and Bowood are liable to it are consistent, it can recover under both theories.

We do not read Custom Leasing to stand for or support the proposition that Highport can recover

damages under more than one theory of liability for its single injury for which one damage

finding was made. We overrule Highport’s first issue.

       In its second issue, Highport contends that in the event of a retrial on damages, it is

entitled to submit a surplus lines cause of action to the jury. Because we have upheld the

damage award, we need not address Highport’s second issue.

                                      PENDING MOTIONS

       During the course of this appeal, the parties filed four motions which were deferred to the

submissions panel and are still pending. Bowood filed a motion to strike a portion of Insurance

Alliance’s reply brief in which Insurance Alliance argued that if the court’s judgment is upheld,

the judgment should be reformed to include a provision making Bowood 10% liable for the

damages and to provide a “dollar-for-dollar credit” for any amount collected from Bowood.

Bowood also filed a motion to strike a portion of Highport’s reply brief in which a similar

                                              –29–
argument is made. Bowood objects to these sections of the briefs on grounds that this argument

was not raised in the parties’ original briefs. Because we are upholding the trial court’s take-

nothing judgment in favor of Bowood on Highport’s claims against it, we need not decide this

issue and deny as moot Bowood’s motions to strike portions of Insurance Alliance’s and

Highport’s reply briefs.

       Next, Insurance Alliance has filed a motion asking this Court to take judicial notice of the

trial court’s January 22, 2014 judgment confirming an arbitration award in favor of Highport

against CRC. In its motion, Insurance Alliance asserts that it is entitled to a dollar-for-dollar

credit for any amount Highport collects from CRC. On October 28, 2014, in a separate appeal

from that judgment in cause number 05-14-00405-CV, this Court granted CRC and Highport’s

joint motion to vacate the January 22, 2014 judgment pursuant to settlement. We vacated the

January 22, 2014 judgment, rendered judgment vacating the arbitrators’ award, and dismissed

the cause with prejudice.    Accordingly, because the judgment has been vacated, we deny

Insurance Alliance’s motion asking us to take judicial notice of it. We also deny Highport’s

November 25, 2013 motion to strike a copy of the arbitrators’ award attached to Insurance

Alliance’s reply brief, but have not considered the award as it has been vacated.

       We affirm the trial court’s judgment.




                                                   /Ada Brown/
                                                   ADA BROWN
                                                   JUSTICE



121313F.P05




                                               –30–
                                         S
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                        JUDGMENT

INSURANCE ALLIANCE,                                  On Appeal from the 397th Judicial District
Appellant/Cross-Appellee                             Court, Grayson County, Texas
                                                     Trial Court Cause No. 08-0604-397.
No. 05-12-01313-CV          V.                       Opinion delivered by Justice Brown. Justices
                                                     Bridges and O'Neill participating.
LAKE TEXOMA HIGHPORT, LLC,
Appellee/Cross-Appellant
and
BOWOOD PARTNERS, LIMITED,
Appellee/Cross-Appellee

              In accordance with this Court’s opinion of this date, the judgment of the trial
court is AFFIRMED.

           It is ORDERED that INSURANCE ALLIANCE and LAKE TEXOMA
HIGHPORT, LLC each bear its own costs of this appeal. It is ORDERED that BOWOOD
PARTNERS, LIMITED recover its costs of this appeal from appellant INSURANCE
ALLIANCE and cross-appellant LAKE TEXOMA HIGHPORT, LLC.


Judgment entered this 19th day of November, 2014.




                                              –31–
