     Case: 17-40861      Document: 00514600520         Page: 1    Date Filed: 08/15/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit


                                      No. 17-40861                              FILED
                                                                          August 15, 2018
                                                                           Lyle W. Cayce
ERICA CHAVEZ,                                                                   Clerk

              Plaintiff - Appellant

v.

STATE FARM LLOYDS,

              Defendant - Appellee




                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 7:15-CV-487


Before KING, SOUTHWICK, and HO, Circuit Judges.
PER CURIAM:*
       The plaintiff homeowner brought suit against her insurer concerning the
costs necessary to repair her home after it was damaged in a storm. After trial,
a jury found the insurer had underpaid the claim, but the plaintiff had made
an excessive demand. Judgment for much less than was sought was entered
for the plaintiff. Plaintiff appeals, seeking more. We AFFIRM.




       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                No. 17-40861
              FACTUAL AND PROCEDURAL BACKGROUND
      Erica Chavez purchased an insurance policy from State Farm Lloyds for
her home in Rio Grande City, Texas. Chavez’s home was damaged during a
hail and wind storm in May 2014. In January 2015, Chavez submitted an
insurance claim to State Farm. Sylvia Garza, a State Farm adjuster, inspected
the property in February and estimated repair costs payable under the policy
to be $6,531.60. Accordingly, State Farm paid Chavez $2,008.74, the cost of
covered repairs less depreciation and the policy deductible. State Farm made
a supplemental payment of $60.86 in April 2016.
      Chavez then sent State Farm an estimate she obtained from an
independent inspector. That inspector estimated the cost of repairs to be
$25,459.58. After receiving that estimate, Garza inspected the property again.
She concluded that her original estimate was accurate.
      On May 27, 2015, Chavez’s counsel sent State Farm a demand letter
seeking $40,776.74 to resolve her claim. The demand sought compensation for
$25,459.58 in property damages, based on her inspector’s estimate, as well as
18 percent penalty interest, mental anguish, attorney’s fees, estimated taxable
court costs, and prejudgment interest. The letter stated: “If we have not
received payment by [June 26, 2015] this settlement demand is withdrawn and
we will file suit.” State Farm did not make a payment.
      Chavez filed suit in Texas state court, claiming negligence, negligent
misrepresentation, breach of the duty of good faith and fair dealing, breach of
contract, money had and received/unjust enrichment, and violations of the
Texas Insurance Code.      She sought actual and consequential damages,
punitive damages, statutory interest, and attorney’s fees.
      State Farm removed the action to the United States District Court for
the Southern District of Texas based on diversity jurisdiction. Chavez moved
for remand, contending the amount in controversy was not met because her
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$40,776.74 demand was the top-end value of her claim. The district court
denied remand because, in light of the damages sought in her petition but not
included in her demand letter, the amount in controversy was exceeded.
      State Farm then moved for partial summary judgment on Chavez’s non-
contractual claims and her request for punitive damages, contending the case
was nothing more than a bona fide contract dispute. The district court granted
the motion in January 2017.
      Before trial, the attorneys “agreed that their attorney’s fees will be
capped in the aggregate through trial, through appeal, at $25,000.” That was
conditional on the plaintiffs “put[ting] on proof.” The court stated that, for
attorney’s fees to be entered, there must be “a legal basis for entering that
judgment.” In April 2017, there was a jury trial on Chavez’s breach-of-contract
claim and State Farm’s excessive-demand defense. The jury found State Farm
breached the contract and that $8,322.22 would fairly and reasonably
compensate Chavez for her property damage caused by the storm. The jury
next found that Chavez’s $40,776.74 demand was excessive.
      The court entered final judgment on June 12, 2017. After offsetting costs
taxed against Chavez, the insurance deductible, and amounts already paid, the
court awarded Chavez $2,745.42 in actual damages plus post-judgment
interest. Chavez sought a new trial on the grounds that the court’s decision to
not permit her to seek attorney’s fees constituted a constructive sanction. The
court denied the motion, and Chavez timely appealed.


                                DISCUSSION
      On appeal, Chavez contends (1) the district court lacked subject-matter
jurisdiction; (2) her Texas Insurance Code claims were improperly dismissed;
(3) her requests for attorney’s fees and statutory interest were improperly
dismissed; (4) the district court abused its discretion in excluding testimony;
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and (5) the jury’s excessive-demand finding was not supported by the
evidence. 1 We will review those issues in order.


1. Subject-Matter Jurisdiction
       State Farm removed the suit based on diversity jurisdiction.                     Both
parties agree complete diversity exists. The sole question, then, is whether
Chavez’s claims exceed the $75,000 threshold. Denial of a motion to remand
is reviewed de novo. Manguno v. Prudential Prop. & Cas. Ins. Co., 276 F.3d
720, 722 (5th Cir. 2002). “The removing party bears the burden of showing
that federal jurisdiction exists and that removal was proper.” Id. at 723.
       The court determines whether there is federal jurisdiction based on “the
claims in the state court petition as they existed at the time of removal.” Id.
In general, the amount claimed in the state court petition determines the
amount in controversy. St. Paul Reinsurance Co., Ltd. v. Greenberg, 134 F.3d
1250, 1253 (5th Cir. 1998). Some state like Texas, though, prohibit plaintiffs
from pleading a specific amount of damages. See TEX. R. CIV. P. 47(b)–(c). In
cases such as these, the removing party “must establish by a preponderance of
the evidence that the amount in controversy exceeds $75,000.” Manguno, 276
F.3d at 723. “This requirement is met if (1) it is apparent from the face of the
petition that the claims are likely to exceed $75,000, or, alternatively, (2) the
[removing party] sets forth ‘summary judgment type evidence’ of facts in
controversy that support a finding of the requisite amount.”                   Id. (citation
omitted). If State Farm makes that showing, Chavez may avoid removal by




       1 Chavez’s requests for attorney’s fees and statutory interest were presented as
separate issues in the plaintiff’s statement of the issues, but she briefed them as one issue.
We discuss them as one issue as well. We also discuss her issues in a different order than
was followed in Chavez’s brief, assessing the jurisdictional question first.
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showing, to a legal certainty, that recovery will not exceed the jurisdictional
threshold. De Aguilar v. Boeing Co., 47 F.3d 1404, 1409 (5th Cir. 1995).
      Chavez contends State Farm did not meet its burden and that her
demand letter shows her claims’ maximum value was $40,776.44. The demand
letter, though, did not account for exemplary damages. Under Texas law,
plaintiffs may be awarded exemplary damages up to “two times the amount of
economic damages; plus . . . an amount equal to any noneconomic damages . .
. not to exceed $750,000.” TEX. CIV. PRAC. & REM. CODE § 41.008(b)(1)(A)–(B).
Considering Chavez’s demand letter asserted $40,776.74 in damages, at least
$25,459.58 of which is economic, the requisite $75,000 could easily have been
met. As shown by State Farm, then, “it is apparent from the face of the petition
that the claims are likely to exceed $75,000.” Manguno, 276 F.3d at 723. In
response, Chavez has not filed a binding stipulation to accept only less than
the jurisdictional amount, cited a law limiting her recovery, nor otherwise
proved to a legal certainty that her recovery would be less than $75,000. See,
e.g., id.; De Aguilar, 47 F.3d at 1412.
      Removal was proper.


2. Texas Insurance Code Claims
      Chavez’s petition claimed violations of the Texas Insurance Code. The
district court granted partial summary judgment because Chavez offered no
evidence State Farm acted in bad faith. On appeal, Chavez asserts that there
were genuine disputes of material fact, making summary judgment improper,
and recent Texas Supreme Court precedent was improperly applied.
      “We review a grant of summary judgment de novo.” Smith v. Reg’l
Transit Auth., 827 F.3d 412, 417 (5th Cir. 2016). Texas law gives a private
right of action to individuals damaged by “an unfair method of competition or
an unfair or deceptive act or practice in the business of insurance.” TEX. INS.
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CODE § 541.151(1). Prohibited unfair practices include “failing to attempt in
good faith to effectuate a prompt, fair, and equitable settlement of . . . a claim
with respect to which the insurer’s liability has become reasonably clear.” Id.
§ 541.060(a)(2)(A). A suit for violation of this provision parallels a common-
law bad-faith claim; to succeed, Chavez must show State Farm failed to settle
the claim even though it “knew or should have known that it was reasonably
clear that the claim was covered” by her policy. Universe Life Ins. Co. v. Giles,
950 S.W.2d 48, 55–56 (Tex. 1997).
      Importantly, in reviewing a bad-faith claim, “we must distinguish
between the evidence supporting the contract issue and the tort issue,” because
the bad-faith tort issue “does not focus on whether the [property-damage] claim
was valid.” Southland Lloyds Ins. Co. v. Cantu, 399 S.W.3d 558, 569 (Tex.
App.—San Antonio 2011, pet. denied) (citing Lyons v. Millers Cas. Ins. Co. of
Texas, 866 S.W.2d 597, 601 (Tex. 1993)). Accordingly, summary-judgment
evidence must relate to whether liability had become reasonably clear, not
merely the existence of liability. Lyons, 866 S.W.2d at 600. Evidence that
shows a “bona fide coverage dispute does not, standing alone, demonstrate bad
faith.” State Farm Lloyds v. Nicolau, 951 S.W.2d 444, 448 (Tex. 1997).
      Chavez references three pieces of evidence to support her bad-faith
claim: (1) State Farm’s estimate was less than half of her expert’s estimate;
(2) the small supplemental payment State Farm issued nearly one year after
the loss; and (3) letters in which State Farm refused to give her a copy of her
policy. As to the conflicting estimates, they show only that this was a bona fide
dispute regarding the extent of liability.       Chavez provided no summary-
judgment evidence casting doubt on the reliability of State Farm’s estimate or
suggesting State Farm’s decision to rely on its own estimate, rather than
another’s, was unreasonable. Additionally, Chavez failed to explain how the
supplemental payment of $60.86 made in April of 2016 was unreasonably
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                                  No. 17-40861
delayed in bad faith. Finally, Chavez’s contention that State Farm’s declining
to provide a copy of her policy supports a finding of bad faith is unpersuasive
because those letters advised her she could easily obtain a copy online.
      Chavez’s arguments based on a recent Texas Supreme Court opinion also
fail. The opinion clarified when an insured who has shown bad faith can
recover damages. See USAA Texas Lloyds Co. v. Menchaca, 545 S.W.3d 479,
490–95 (Tex. 2018). It does not, however, change the standard for showing bad
faith. See generally id. Because Chavez did not provide summary-judgment
evidence of bad faith, Menchaca has no bearing on her claims. Accordingly,
the district court correctly granted summary judgment on Chavez’s Texas
Insurance Code claims.


3. Attorney’s Fees and Statutory Interest
      Chavez’s petition alluded to attorney’s fees under two Texas statutes.
Prior to trial, State Farm moved in limine to prevent Chavez from referring to
attorney’s fees. The court granted the motion because the statutes on which
Chavez based her claim for attorney’s fees were either inapplicable to State
Farm or required her to succeed on the insurance-code claims the court had
already dismissed.    We review the district court’s interpretation of Texas
attorney-fee law de novo and its grant of the motion in limine and exclusion of
evidence for abuse of discretion. See Empire Fire & Marine Ins. Co. v. Brantley
Trucking, Inc., 220 F.3d 679, 681 (5th Cir. 2000); Hesling v. CSX Transp., Inc.,
396 F.3d 632, 643–44 (5th Cir. 2005). If the district court abused its discretion,
we “review the error under the harmless error doctrine, affirming the
judgment, unless the ruling affected substantial rights of the complaining
party.” Bocanegra v. Vicmar Servs., Inc., 320 F.3d 581, 584 (5th Cir. 2003).
      In Texas, attorney’s fees are recoverable only by statute or contract.
Dallas Cent. Appraisal Dist. v. Seven Inv. Co., 835 S.W.2d 75, 77 (Tex. 1992).
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Chavez did not seek attorney’s fees pursuant to her contract, and only two
statutes cited in her petition allow for recovery of attorney’s fees: Section
38.001Texas Civil Practice & Remedies Code and the Texas Insurance Code.
      Chapter 38 allows for the recovery of “reasonable attorney’s fees from an
individual or corporation.” TEX. CIV. PRAC. & REM. CODE § 38.001. State Farm
is a Lloyds plan, which is “an unincorporated association of members.” See
Royal Ins. Co. of Am. v. Quinn-L Capital Corp., 3 F.3d 877, 882 (5th Cir. 1993).
Because Texas courts routinely differentiate between corporations and other
business entities, we will differentiate between corporations and Lloyds plans.
See Alta Mesa Holdings, L.P. v. Ives, 488 S.W.3d 438, 453–54 (Tex. App.—
Houston [14th Dist.] 2016, pet. denied) (discussing precedent supporting strict
construction of “corporation”).    Accordingly, as the district court correctly
concluded, the Lloyds plan is neither an individual nor a corporation, and
Section 38.001 does not provide Chavez a basis for recovering attorney’s fees.
      The Texas Insurance Code provides that, if an insurer is liable for a
violation of chapter 542, the claimant may recover “interest on the amount of
the claim at the rate of 18 percent a year as damages, together with reasonable
and necessary attorney’s fees.” TEX. INS. CODE § 542.060(a). Although Chavez
claimed Texas Insurance Code violations, the district court dismissed them by
granting a partial summary judgment.          The district court correctly ruled
Chavez could not continue to seek relief for the statutory claims that were no
longer viable. Because Chavez is not entitled to attorney’s fees or interest, the
court did not abuse its discretion in preventing her from introducing evidence
pertaining to them.
      Chavez also asserts it was error for the district court to reject the parties’
stipulation regarding attorney’s fees. The stipulation, however, was an agreed-
upon cap to fees that would have applied had Chavez proved she was entitled
to them. Because the district court correctly determined Chavez was not
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entitled to attorney’s fees, the court’s rejection of the stipulation was not error,
let alone prejudicial to her substantial rights.


4. Exclusion of Testimony
      Chavez next complains that the district court “repeatedly prohibited
[her] from adequately presenting her case by unnecessarily and improperly
limiting counsel’s cross-examination of State Farm’s witnesses.”               She
references only one example: Chavez asked claims-adjuster Garza, “Has a jury
ever said that you have not paid what is owed under a policy?” That was asked
in order to impeach Garza’s previous statement that she “always” paid what
was owed. State Farm objected. The court sustained on the grounds that it
dealt with a collateral issue and that Garza’s testimony that she “always” paid
what was due was in response to a question posed without a time frame, i.e.,
whether the full claim amount was paid with or without legal proceedings.
Review is for abuse of discretion, and the court must affirm “unless the ruling
affected [Chavez’s] substantial rights.” Bocanegra, 320 F.3d at 584.
      Chavez has not shown the ruling was an abuse of discretion or that it
affected her substantial rights. Instead, her brief cites only broad principles
outlining her right to cross-examine witnesses within the adversarial system.
Along that line, the court allowed extensive cross-examination, and Chavez did
not attempt to rephrase the question to impeach Garza. Accordingly, Chavez
has shown no reversible abuse of discretion.


5. Excessive Demand
      Finally, Chavez contests the jury’s excessive-demand finding on the
grounds that (1) the Texas Supreme Court recently declined to address
whether the defense applies to insurers, (2) she was improperly prevented from


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referring to attorney’s fees, as discussed supra, and (3) it is not supported by
sufficient evidence.
      We are unpersuaded by her first challenge. Though the Texas Supreme
Court declined to decide whether the excessive-demand defense applies to
insurers, it did not foreclose that possibility. See State Farm Lloyds v. Fuentes,
549 S.W.3d 585, 587 (Tex. 2018). Moreover, Texas courts of appeals have
applied the defense in the insurance context. E.g., Hernandez v. Lautensack,
201 S.W.3d 771, 778 (Tex. App.—Fort Worth 2006, pet. denied); Warrior
Constructors, Inc. v. Small Bus. Inv. Co., 536 S.W.2d 382, 386–87 (Tex. App.—
Houston [14th Dist.] 1976, no writ).         We “must follow the decisions of
intermediate state courts ‘unless there is convincing evidence that the highest
court of the state would decide differently.’” City of San Antonio v. Hotels.com,
L.P., 876 F.3d 717, 722 (5th Cir. 2017) (citation omitted). We find nothing
convincing to the contrary.
      We decline to consider her second challenge because she did not present
it to the district court and has not demonstrated “extraordinary circumstances”
that warrant giving it our attention. E.g., AG Acceptance Corp. v. Veigel, 564
F.3d 695, 700 (5th Cir. 2009). “Extraordinary circumstances exist when the
issue involved is a pure question of law and a miscarriage of justice would
result from our failure to consider it.” Id. (citation omitted).
      Chavez similarly did not raise her third challenge in the district court by
either a motion for judgment as a matter of law or new trial. Accordingly, we
review the sufficiency of the evidence for plain error and must affirm so long
as State Farm “presented any evidence in support of” its excessive-demand
defense.   See Polanco v. City of Austin, 78 F.3d 968, 974 (5th Cir. 1996)
(emphasis in original).
      In Texas, “a creditor who makes an excessive demand upon a debtor is
not entitled to attorney’s fees for subsequent litigation required to recover the
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debt.” Findlay v. Cave, 611 S.W.2d 57, 58 (Tex. 1981). The defense requires a
showing that (1) Chavez wrongfully demanded more than was due and (2) she
refused or clearly indicated she would refuse tender of the amount due. E.g.,
Hernandez, 201 S.W.3d at 777.
      Chavez’s counsel conceded during closing argument to the jury that her
independent inspector’s estimate, on which the $40,776.74 demand was based,
was too high, and that her inspector intentionally gave State Farm a high
demand.    Moreover, each of the other estimates presented at trial was
significantly lower than the demand. It follows, then, a jury could reasonably
find Chavez wrongfully demanded more than was due.             State Farm also
presented the demand letter, which stated: “If we have not received payment
by [June 26, 2015] this settlement demand is withdrawn and we will file suit.”
A jury could reasonably find this a clear indication Chavez would refuse tender
of any amount less than her demand. Accordingly, State Farm presented at
least some evidence in support of its defense.
      AFFIRMED.




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