In re Bent

• Decision Date: 01 April 2016
• Docket Number: NO. 14–1006,14–1006
• Citation: 487 S.W.3d 170
• Parties: In re Stacey Bent and Mark Bent, Relators
• Court: Texas Supreme Court

487 S.W.3d 170

In re Stacey Bent and Mark Bent, Relators

NO. 14–1006

Supreme Court of Texas.

Argued November 4, 2015

OPINION DELIVERED: April 1, 2016

Ana Ene, Richard D. Daly, Daly & Black, P.C., Eric Michael Adams, Mehaffy & Weber PC, Ernest W. Boyd, Butch Boyd Law Firm, Jonathan Daniel Simon, Simon Law Firm, Marilyn Vilandos, The Vilandos Firm, P.C., Houston, Melissa Waden Wray, Daly & Black, P.C., Waco, for Relators.

Russell S. Post, Beck Redden LLP, Houston, for Amicus Curiae.

Christopher Avery, Thompson, Coe, Cousins & Irons, LLP, Christopher W. Martin, Levon G. Hovnatanian, Robert T. Owen, Martin Disiere Jefferson & Wisdom, L.L.P., Tanya Dugas, Raley & Bowick, LLP, Houston, for Real Party in Interest.

Justice Brown

delivered the opinion of the Court.

In recent years this Court has sought to protect the constitutional right to a trial by jury by requiring trial courts to provide litigants with “an understandable, reasonably specific explanation” for setting aside a jury verdict and ordering a new trial. In re Columbia Med. Ctr. of Las Colinas, Subsidiary, L.P., 290 S.W.3d 204, 213 (Tex.2009)

. Generally, this requirement is satisfied when a trial court's stated reason is “a reason for which a new trial is legally appropriate” and “is specific enough to indicate that the trial court did not simply parrot a pro forma template, but rather derived the articulated reasons from the particular facts and circumstances of the case at hand.” In re United Scaffolding, Inc., 377 S.W.3d 685, 688–89 (Tex.2012). When a new-trial order satisfies these facial requirements, we have further empowered appellate courts to “conduct a merits review of the bases for a new trial order” and grant mandamus relief “[i]f the record does not support the trial court's rationale for ordering a new trial.” In re Toyota Motor Sales, U.S.A., Inc., 407 S.W.3d 746, 749 (Tex.2013).

In this case, the court of appeals concluded the trial court abused its discretion in ordering a new trial because each basis for doing so was either facially insufficient or could not withstand a Toyota

merits review. Relators Stacey and Mark Bent now ask us to uphold the trial court's new-trial order and both parties seek this Court's guidance on the scope of the merits review we established in Toyota. Specifically, the parties have inquired as to the court of appeals' authority, within the context of an abuse-of-discretion standard of review, to re-weigh evidence considered by the trial court in determining whether there is insufficient evidence to support a jury's finding or that a finding is against the great weight and preponderance of the evidence. We ultimately do not reach that issue because we conclude the bases for the trial court's order implicating factual-sufficiency analysis did not comply with the facial requirements we established in Columbia and United Scaffolding. Therefore, we need not determine whether the court of appeals properly conducted its merits review of those bases. Though we would not have been as generous in applying our facial-requirements precedents, we nonetheless agree with the court of appeals' ultimate disposition of the trial court's bases for a new trial. Accordingly, we deny the Bents' mandamus petition.

I

Stacey and Mark Bent owned a home in Piney Point Village, a small municipality surrounded by Houston's sprawling city limits. The Bents' home, purchased in 2005 and insured by USAA, suffered a hurricane, a flood, and eventually foreclosure. Their dispute with USAA spans each of these unfortunate events.

This case began as a routine claim on a homeowner's policy for damage sustained in September 2008 from Hurricane Ike. A USAA adjuster inspected the Bents' home and assessed damages at $14,302.33. Not included in this amount was the cost of removing fallen trees on the Bents' lot, which the adjuster told the Bents their policy did not cover. USAA sent the Bents two letters on October 23, 2008: one informing them that USAA had approved their claim, and another including a $1,162.33 check to cover the Bents' claim minus their one-percent deductible.

The Bents' home later sustained flood damage in April 2009. The homeowner's policy at issue in this case did not cover flood damage; however, the Bents held a separate flood-insurance policy with an affiliated carrier. While repairing the flood damage, workers discovered mold within the walls of the Bents' home. At trial, the Bents argued that Ike-related roof damage, undiscovered by USAA, caused water to leak into the home, which eventually developed into mold.

USAA re-inspected the house in May 2009. Based on that inspection, USAA approved an additional payment. Furthermore, and contrary to the previous adjuster's representation, the adjuster told the Bents their homeowner's policy did in fact cover at least some of the tree-removal costs. Once again, USAA issued two letters—one notifying the Bents of claim approval and another with a $49,471.67 check—on June 6, 2009.

The following month USAA received notice from Stacey claiming additional Ike-related damage had been discovered. USAA performed a third inspection of the house on July 21, 2009. And as before, USAA revised its estimate and again separately issued, on July 25, 2009, a claim-approval letter and apparently issued a $11,072.78 check the day before.

On October 1, 2009, the Bents again contacted USAA regarding additional and previously unclaimed Ike-related damage. This time, however, USAA took the position that it could not consider the new claim without more specific itemization of the alleged damage. After a series of letters and phone calls, the Bents requested yet another inspection, and USAA obliged. At this November 11, 2009 re-inspection, the adjuster explained what additional information was needed for USAA to consider the Bents' claim. After receiving nothing further from the Bents, USAA invoked the policy's appraisal provision. USAA finally heard from the Bents in December 2009 when their attorney sent a letter contesting USAA's right to an appraisal.

Negotiations wore on between USAA and the Bents' first attorney, and then with the Bents themselves, and then with a second attorney retained in July 2010. Following yet another re-inspection, USAA sent a letter to the Bents' counsel in August 2010 presenting a “revised dwelling estimate,” detailing $136,539.41 in damages attributable to Hurricane Ike, which USAA asked counsel to “review ... with Mr. and Mrs. Bent.” After accounting for depreciation and the Bents' deductible, USAA stated it was “prepared to send an additional actual cash value payment” of $27,416.86, an amount that would bring total payments made by USAA to $89,123.64. In the letter, USAA described that amount as an “actual cash value settlement” and stated: “The Loss Settlement Provision stipulates that the loss to your covered property be settled at actual cash value.” Unlike with USAA's previous letters, no concurrent payment accompanied this one. USAA argued at trial that the August 2010 letter was a settlement offer not payable without the Bents' acceptance. But the Bents did not accept the offer and instead sued USAA for breach of their homeowner's policy and various violations of the Texas Insurance Code. In March 2012, with litigation ongoing, USAA nonetheless mailed the Bents a check for $27,416.86 plus interest. USAA characterizes this payment as “an unsuccessful attempt to resolve the claim ... even though the Bents never indicated any agreement with USAA's proposed compromise.”

As this saga between the Bents and USAA unfolded, the Bents were also dealing with the City of Piney Point Village's restrictions on their efforts to repair their home. After Ike, Stacey met several times with Annette Arriaga, Piney Point Village's director of planning, development, and permits and secretary of both the city's Planning and Zoning Commission and Board of Adjustments. These meetings culminated in a June 2010 letter from Arriaga to the Bents informing them that the city estimated the extent of the damage triggered an ordinance requiring the home to be rebuilt one foot above the floodplain in which it sat. Arriaga further wrote that she was “apprehensive about the [overall] health and welfare of the structure” and recommended the home be “replaced” or “re-built.” The Bents therefore argued their home was, in effect, a total loss.

In late 2010 the Bents stopped making mortgage payments and their lender foreclosed on their home. The Bents' case against USAA, however, proceeded to trial. At its conclusion, the jury found that USAA had not breached the homeowner's policy but that it did make a “statement in such a manner as to mislead a reasonably prudent person to a false conclusion of a material fact” in violation of chapter 541 of the Insurance Code. This finding was apparently based on the initial adjuster's misrepresentation that the Bents' policy did not cover tree removal. Based on this finding, the jury awarded damages of $150,000 for the diminished value of the home and $250,000 for mental anguish. The jury further awarded the Bents $185,000 in attorney's fees through trial but awarded no appellate attorney's fees.

The trial court initially entered judgment on the jury's verdict but later granted the Bents' motion for new trial. The trial court gave five bases in its order: (1) the jury's finding that USAA did not breach the homeowner's policy was contrary to the great weight and preponderance of the evidence; (2) USAA violated the trial court's order in limine regarding the Bents' failure to seek a variance from the relevant Piney Point Village city ordinance; (3) the evidence did not support the jury's award for the diminished value of the Bents' home; (4) the jury improperly failed to award appellate attorney's fees; and (5) the jury's finding as to mental-anguish damages was not supported by a finding that USAA “knowingly” violated the Insurance Code, a predicate for which both sides failed to argue.

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