MATTIE BROWNLOW v. UNITED SERVICES AUTOMOBILE ASSOCIATION--Appeal from County Court at Law No 4 of Nueces County

NUMBER 13-03-758-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

MATTIE BROWNLOW, Appellant,

v.

UNITED SERVICES AUTOMOBILE

ASSOCIATION, Appellee.

On appeal from the County Court at Law No. 4

of Nueces County, Texas.

MEMORANDUM OPINION

Before Justices Ya ez, Castillo and Garza

Memorandum Opinion by Justice Garza

Appellant, Mattie Brownlow, appeals from a take-nothing judgment entered against her in a suit against appellee, United Services Automobile Association ( USAA ), arising from her homeowner s claim for a plumbing reroute. In two issues, appellant contends the trial court erred in not entering a judgment for attorney s fees because (1) the stipulated facts establish as a matter of law that USAA breached its contract; and (2) USAA violated article 21.55 of the insurance code. Because there was no finding of breach of contract, actual damages, or a violation of article 21.55, we conclude that the trial court did not err in rendering the take-nothing judgment against appellant. 1.Attorney s Fees under Texas Civil Practice and Remedies Code Sections 38.001 and 38.002

Appellant claims that she is entitled to attorney s fees under section 38.002 of the civil practice and remedies code, which provides:

To recover attorney s fees under this chapter:

(1)the claimant must be represented by an attorney;

(2)the claimant must present the claim to the opposing party or to a duly authorized agent of the opposing party; and

(3) payment for the just amount owed must not have been tendered before the expiration of the 30th day after the claim is presented.

Tex. Civ. Prac. & Rem. Code Ann. 38.002 (Vernon 1997). Although section 38.002 is applicable to this case, appellant has failed to address the requirements set forth in section 38.001 for recovering attorney s fees. In relevant part, section 38.001 provides:

A person may recover reasonable attorney s fees from an individual or corporation, in addition to the amount of a valid claim and costs, if the claim is for:

. . .

(8) an oral or written contract.

Tex. Civ. Prac. & Rem. Code Ann. 38.001(8) (Vernon 1997). To recover attorney s fees under section 38.001, a party must both prevail on a claim for which attorney s fees are recoverable and recover damages. Green Int l v. Solis, 951 S.W.2d 384, 390 (Tex. 1997); Ed Rachal Found. v. Unger, 117 S.W.3d 348, 357 (Tex. App. Corpus Christi 2003, pet. filed) (en banc). A party seeking to recover attorney s fees carries the burden of proof to show entitlement to the fees. Llanes v. Davila, 133 S.W.3d 635, 640 (Tex. App. Corpus Christi 2003, pet. denied) (citing Stewart Title Guar. v. Sterling, 822 S.W.2d 1, 10 (Tex. 1991)). Courts have long interpreted sections 38.001 and 38.002 as requiring that a party must plead, prove, and prevail on a claim that permits recovery of attorney s fees. See State Farm Life Ins. Co. v. Beaston, 907 S.W.2d 430, 437 (Tex. 1995); Ellis v. Waldrop, 656 S.W.2d 902, 905 (Tex. 1983).

Appellant claims that she is entitled to recover attorney s fees because she prevailed on her breach of contract claim; however, the trial court did not make any determinations as to whether or not a breach of contract occurred, and the issue was not submitted to the jury.

Appellant argues that there was no need to submit the breach-of-contract issue to the jury because the issue had been stipulated to by the parties, but we find no support for this contention in the record. Although it is undisputed that both parties stipulated to the amount of the umpire s award // , the record reflects that USAA did not stipulate to anything beyond the amount of the umpire s award. //

Appellant also argues that she is entitled to attorney s fees because she prevailed as a matter of law on her breach-of-contract claim. According to appellant, under Allstate,USAA breached the contract as a matter of law by failing to pay the full value of the re-route job. See In re Allstate County Mut. Ins. Co., 85 S.W.3d 193, 195 (Tex. 2002). We disagree. The issue in Allstate was whether the trial court abused its discretion by refusing to uphold an appraisal clause in an automobile insurance policy. Id. The supreme court held that the trial court should have enforced the appraisal clause, explaining, the parties have agreed in the contracts appraisal clause to the method by which to determine whether a breach has occurred. That is, if the appraisal determines that the vehicle s full value is what the insurance company offered, there would be no breach of contract. Id. at 196.

Appellant argues that under Allstate, if an appraisal award is different from the amount initially offered or paid by the insurance company, a breach of contract has occurred as a matter of law. We disagree that this conclusion follows from Allstate, particularly in light of the language in the contract between Brownlow and USAA. See Breshears v. State Farm Lloyds, No. 13-03-580-CV, 2004 Tex. App. LEXIS 7816 at *6-9 (Tex. App. Corpus Christi Aug. 27, 2004, pet. denied). The contract between the parties in this case specifies that an appraisal process will be the remedy for any disagreement regarding the amount of loss and that the decision reached by the umpire will set the amount of loss and such an award will be binding. USAA participated in the appraisal process and tendered the amount awarded by the umpire. Because USAA complied with the requirements of the contract, it cannot be found to be in breach. See Toonen v. United Servs. Auto. Ass n, 935 S.W.2d 937, 940 (Tex. App. San Antonio 1996, no writ) (holding that insurer was entitled to summary judgment on breach-of-contract claim because it had tendered appraisal award to claimant pursuant to contract); Providence Lloyds Ins. Co. v. Crystal City Indep. Sch. Dist., 877 S.W.2d 872, 875 (Tex. App. San Antonio 1994, no writ) (holding that appraisal award made pursuant to the insurance contract was binding and that appellee take nothing on its breach-of-contract claim).

In light of our sister court s prior decisions and this Court s holding in Breshears, we hold that appellant did not establish a breach of contract as a matter of law. Accordingly, we overrule appellant s first issue.

2. Attorney s Fees under Texas Insurance Code article 21.55

Appellant also contends that she is entitled to attorney s fees because USAA violated Texas Insurance Code article 21.55 by failing to notify her or her agents within forty-five days that it was either accepting or rejecting her claim. See Tex. Ins. Code Ann. art. 21.55 (Vernon Supp. 2004 05). To successfully maintain a claim under section 6 of article 21.55, a party must establish three elements: (1) a claim under an insurance policy; (2) the insurer s liability for the claim; and (3) the insurer s failure to follow one or more sections of article 21.55 with respect to the claim. Allstate Ins. Co. v. Bonner, 51 S.W.3d 289, 291 (Tex. 2001). If a party satisfies these elements, the insurer shall pay the insured 18 percent per annum of the amount of the claim as damages, together with reasonable attorney fees, in addition to the amount of the claim. Id.

The issue before this Court is whether appellant established a violation of article 21.55. According to appellant, it is undisputed that appellee failed to notify Ms. Brownlow or her agents within 45 days that it was either accepting or rejecting her claim. At trial, appellant supported this contention with deposition testimony in which she testified that she did not remember receiving a letter from USAA notifying her that her claim was either accepted or denied. Appellant argues that because USAA never disputed her testimony, it established that USAA never gave the required notice and therefore violated article 21.55. According to appellant, a fact issue that is established with uncontroverted evidence and is not in dispute should not be submitted to the jury. Robertson County v. Wymola, 17 S.W.3d 334, 342 (Tex. App. Austin 2000, pet denied).

Appellant s statement of the record is misleading. USAA did, in fact, produce evidence to disprove appellant s claim that USAA did not give the required notice. //

Nevertheless, the issue of notice was not submitted to the jury for decision, and there was therefore no finding that USAA failed to provide the required notice. Appellant did not establish a violation of article 21.55. Accordingly, appellant s second issue is overruled, and the judgment of the trial court is affirmed.

_______________________

DORI CONTRERAS GARZA,

Justice

Memorandum Opinion delivered and

filed this the 17th day of March, 2005.