In re United Services Automobile Ass'n
521 S.W.3d 920
Tex. App.2017Background
- Mark and Stacey Bent owned a Piney Point home damaged by Hurricane Ike (Sept. 2008) and a subsequent flood (Apr. 2009); their USAA homeowner’s policy excluded mold and capped coverage at $1.34M.
- USAA made multiple inspections and incremental payments after Ike; disputes arose over scope, timing, and whether USAA had ‘‘notified it would pay’’ triggering the policy/Insurance Code 5‑business‑day payment rule (with a 15‑day extension for disasters).
- The Bents alleged additional Ike damage discovered later (including roof/tree removal and mold they say stemmed from missed Ike damage) and submitted larger estimates; USAA requested further documentation and invoked appraisal; the parties litigated coverage and payment timing.
- Jury trial: verdict found no breach of contract but found USAA made a misleading statement; damages awarded $150,000 diminished value, $250,000 mental anguish, $185,000 trial attorney’s fees, and $0 appellate fees.
- Trial court granted a new trial in 2013 (five listed grounds); this court granted mandamus vacating the 2013 new‑trial order in 2014 (In re United Servs. Auto. Ass’n, 446 S.W.3d 162). After remand the trial court again granted a new trial in 2016 citing three of the same grounds the appellate court had rejected.
- This opinion holds the law‑of‑the‑case doctrine bars relitigation of the three issues (breach/timeliness, diminished‑value award, appellate fees), conditions mandamus relief, and directs the trial court to vacate the 2016 new‑trial order and enter judgment on the jury verdict.
Issues
| Issue | Bent’s Argument | USAA’s Argument | Held |
|---|---|---|---|
| Whether evidence was insufficient to support jury’s finding of no breach (timely payment) | USAA failed to pay within 5 business days after notifying it would pay (August 2010 letter constituted notice) | No evidence that USAA ever notified it would pay an amount and then failed to pay within 5 days; August 2010 letter was a settlement offer requiring acceptance | The appellate court previously held the record supports a finding that USAA did not breach; law of the case bars relitigation — trial court abused discretion |
| Whether $150,000 diminished‑value award was unsupported/manifestly too small | Award was arbitrary given evidence | Evidence established a range that included $150,000; award was within the evidence range | Previously held that $150,000 was supported by the evidence; law of the case bars relitigation — trial court abused discretion |
| Whether $0 appellate attorney’s fees was against the weight of evidence / mandatory | Plaintiffs prevailed on Insurance Code claims and thus were entitled to appellate fees | Verdict showed no breach and the jury awarded trial fees but $0 for appeal; appellate fees are not automatic here given findings | Previously held trial court erred to mandate a new trial on this ground; law of the case bars relitigation — trial court abused discretion |
| Whether law‑of‑the‑case applies to bar the 2016 new‑trial order | The 2014 opinion did not bind because Supreme Court denied mandamus on other grounds and issues/facts differ | 2014 merits decision resolved the same legal issues and is binding as law of the case | Law of the case applies; the 2014 merits determinations foreclose the trial court’s 2016 bases for new trial |
Key Cases Cited
- In re United Servs. Auto. Ass’n, 446 S.W.3d 162 (Tex. App.—Houston [1st Dist.] 2014) (appellate merits decision rejecting trial court’s 2013 new‑trial grounds)
- In re Bent, 487 S.W.3d 170 (Tex. 2016) (Texas Supreme Court denied mandamus on faciality grounds; three grounds characterized as facially deficient)
- In re Toyota Motor Sales, U.S.A., Inc., 407 S.W.3d 746 (Tex. 2013) (standards for mandamus review of new‑trial orders and requirement that articulated reasons be supported by record)
- In re United Scaffolding, Inc., 377 S.W.3d 685 (Tex. 2012) (mandamus available to review new‑trial orders; facial requirements for new‑trial reasons)
- Briscoe v. Goodmark Corp., 102 S.W.3d 714 (Tex. 2003) (discretionary application of law‑of‑the‑case doctrine and its limits)
- Hudson v. Wakefield, 711 S.W.2d 628 (Tex. 1986) (definition and purpose of law‑of‑the‑case doctrine)
- In re Guardianship of Cantu de Villarreal, 330 S.W.3d 11 (Tex. App.—Corpus Christi 2010) (merits determination in prior mandamus proceeding operates as law of the case)