accord good morning my name is joshua davis i represent i want a job that there are a half dozen issues that have been brief but i'd like to focus the court's attention on three of the more salient issues certainly the issues that would have allowed the court an opportunity to exercise that judicial economy that everyone desires and in the event that appellate prevails reverse and render the case concerns a small matter of my client's roof but in the context of the litigation the court erred in a variety of ways but i do want to address  specific argument offered in state farm's response brief that is the failure to preserve air concerning the excessive demand affirmative defense if the court would look at the record on tape just three eleven thrifts three sixteen you will see plaintiff's partial motion for summary judgment that specifically addresses the improper affirmative defense of excessive demand that motion w ruled upon denied by the district court in the record at seven zero one and it's a written order outlining the court's the district court's views of that particular motion and allowing that excessive demand that affirmative defense to proceed so with respect to preservation of error concerning that legal issue and whether it was properly improper so you allow the affirmative defense to proceed  plaintiff clearly preserved air there and i'm sorry that our opening brief didn't address that and given that state farm took bridge with the fact that plaintiff failed to challenge that particular portion of the charge i wanted to make sure the court was aware of that preservation pivoting to the most recent texas supreme court decision on that very issue state farm the fuente us the june two thousand eight hundred case that was the subject of appellants letter brief  maybe a week and a half ago this the texas supreme court specifically addressed the question of whether the district court committed error in that case for granting the plaintiff's  motion dismissing the affirmative defense of excessive demand and the court specifically identified the fact that the texas supreme court has never held that that common law affirmative defense would ever apply in an insurance contract it even in its language affirming that decision identified that the plaintiffs demand is excessive can be excessive and yet it is a two part theory under finlay v cave not only must the demand be outlandish or excessive but the defended is obligated to demonstrate that it tendered the amount actually do there are several district court cases from around the state of texas federal cases and there are a i think t court of appeals opinions that addressed excessive demand that you know state farm relies upon when it moves to submit this affirmative defense in insurance claim cases but that in this this case the court clearly rejects that argument and in that particular case the demand for a suit was three hundred and i want to make sure it's right over three hundred ninety two thousand dollars that was the demand for the plaintiff the actual damages awarded a trial was eighteen thousand dollars and so even in that context in which influence has the tech supreme court is aware of the extreme variance between that which was demanded preceded and that which was awarded at trial it still nonetheless said the district court properly ruled in granting the plaintiffs motion for summary judgment on that affirmative defense because it the as the court stated we have never addressed whether the defense applies wind insureds make an excessive demand of their ensure that is they are presuming the demand was excessive and nonetheless refused to find or hold that excessive demand can be a an affirmative defense in an insurance contract case and so plaintiff both in this case preserved that issue when it when she filed her motion for summary judgment and the court denied it so there is no further no need to preserve that legal issue in that legal question certainly the district court would be making new texas law and did to the extent that miss that question to the jury the finding came back is yes excessive and to the extent this court would uphold that submission and that refusal to grant a motion for summary judgment especially based on this very recent tax return just saying that is not the law of the state or that the contrary is a law of the state are just saying we have not yet ruled on whether this defense is available if it please accord it in the letter i cite the key language and if i could refer to it but we have never addressed whether the decided in the favor that you're saying in favor of the insured i guess is fair enough your honor but then i mean you know leaves us with the question but it doesn't seem to me that it's rejected the issue  i mean i suppose you tell me that it does and you've studied it more than i have well i think that the opinion speaks for itself and to the extent that the court did not clearly state definitively excessive demand defense can never apply an insurance contract case i would submit yes that's correct it does not state that where we have never addressed me like they have been held one way or the other is what they're saying there i agree that they have never addressed but i think that what i focus on is applies when insurers make an excessive demand on their insured right so they're there presuming that the demand is excessive but then identifying the fact that we've never said that the excessive demand doctrine can be asserted and in this particular case when they say uphold the lower court granting of the motion for summary judgment on this issue it seems that if they wanted to allow that defense to be permitted in this context especially given the string demand compared to the eighteen thousand  ward they certainly would have done so and did not and so absent any case law that says it does apply and with this precedent that says that the district court did not abuse its discretion excuse me it's a so it's even lighter in terms of the air the district court did not err in granting the plaintiffs motion for summary judgment i appreciate that as a pretty significant indicator by the texas supreme court that at least as applied here the excessive demand defense should not have been permitted in the context that it was given the applicability of that precedent dispositive motion that the district court granted but rather on the eve of trial motions in limine e that the district court viewed as having prohibited the plaintiff from putting on any evidence of attorneys now there may be a question that the court has it why wasn't this all done under rule fifty four post verdict given that attorneys fees under rule fifty four typically awarded afterward so long as you're not co mingled with issues other issues in the case in this in this particular district court's view when the excessive demand defense had been previously submitted in another case the attorney's fees are likewise submitted because the attorney's fees are part of the damages that plaintiff allegedly suffers that comprise the allegedly excessive demand and so to assess the quality and the good faith of the priest who demand that is  alleged to be excessive the attorney's fees are presented to the fact finder to provide a full picture of the overall damages that plaintiff is entitle to seek in their precinct demand  so the fees go to the jury when the court's admits that excessive demand in this particular case though state farm was able to put on their excessive demand defense absent any context of any attorney's fees the plaintiff might be entitle to seek because of the court's motion in limine he ruled that motion alemany ruling provided six substantial dis positive relief on an item of damage on the eve of trial without the benefit of permitting the plaintiff an opportunity to brief the issue there was no twelve b six motion on this issue of attorney's fees not being sought under five forty two the insurance co there was no motion for trial actually the morning of trial the plaintiff was essentially extremely harmed because even though she prevailed on the underlying case of her claim not being paid by state farm the inability to put on attorney's fees certainly prejudiced her ability to defend against excessive demand right because the the jury never saw the demand in the context of her right to obtain those attorneys fees and it certainly prejudiced her ability in any way be made whole because all of the actual damages awarded go to the costs of the litigation and to the attorney's fees that is obligated to pay as she seeks the benefits of her insurance policy and that is completely counter intuitive when we view the texas insurance code as one of the premier consumer protection statutory remedies in the country you know prior to the one nine hundred ninety s when the two thousand and seventeen amendment most recently to the code the texas insurance code was in terms of protecting consumers of insurance products the premier example of such a protection and yet the application that the court provides in its motion in lemony ruling completely flips that statute on its head and ensures as was made clear to the district court that mrs charges even if she wins will never win she would have been better off not wasting the two years or three years of her efforts pursuing her wrongfully withheld insurance policy proceeds because she got nothing less than nothing really in the sense that there are bills that were owed to get her to the point where a jury came back and did render a verdict in her favor on the actual damages she was seeking and so forth for those reasons it's our view that the motion lemony ruling was a dispositive ruling that prevented any of the kind of briefing that we had provided this court and certainly would have provided the district court had that opportunity been presented and we addressed that in argument we even brought up that given the significance of those motion let me rulings and how it prejudices the plaintiffs ability to present a case why not give an opportunity to brief that issue but rather than doing that the parties reached a stipulation that is state farm and plaintiffs agreed that attorneys fees can be submitted but that they would be ca at twenty five thousand dollars to avoid an adverse ruling from the court on that issue that like lee would create a very appealable issue and demonstrated the party's willingness to view that issue as something that could be resolved in this particular way so that's what the stipulation was designed to do yet the district court rejected that stipulation again right on the eve of trial  in ruling that these motions in limine prohibited plaintiff's ability from putting on any evidence of attorneys fees and obtaining eighteen percent penalty interest under five forty two even though those particular claims are seven case that says a failure to pay under the prompt payment statute requires no showing of bad faith it just requires a showing that an insurance claim should have been paid in was not and yet the court did not award eighteen percent penalty on even the amount that the jury said should have is owed but was never paid it's unclear what about the plaintiff's case the year and i see i've got five minutes and i think if you do i didn't show up very well for a lot of counsel so that's all right issues that were stated in the by appellant at the beginning of the presentation there is no challenge with regard to the court's ruling on the denial of the plaintiff motion for summary judgment that's before the court it wasn't raised in the brief  this actually supports the position of apple late indeed the court in point just did not say that the excessive demand doctrine did not apply in the insurer insured context the legal application of that there was insufficient evidence to support that the demand was in bad faith and two that there was insufficient evidence of state farm either tendered the correct amount due or had established that the plaintiff it indicated it would refuse the amount due if it had been tender evidence that the insurer had been relieved of the obligation of tender because the demand letter did not indicate that no other amount would be accepted we'll find that the excess demand doctrine shouldn't have been found doctrine has not yet been identified by us as being applicable in a case like well i guess two points judge it has been applied by texas intermediate courts to ensure insured context because there was no issue raised in the brief that is nothing about the way the trout the texas supreme court has applied the doctrine in other breach of contract cases whether liquidated are only dated which would suggest that it would somehow be different because this contract involves an insurer and an  insured and so yes it is true i suppose as a statement of appellate fact that the supreme court has not yet addressed the issue but the supreme court has in many other cases approved the use in breach of contract claims very similar to this and has not drawn a distinction that one would from which one could derive that in an insurance context there would be some different application as opposed to any other breach of contract case indeed  cave the court specifically says this applies liquidated it also applies them liquidated claims and so there isn't anything here that would suggest otherwise and in fact we have again they weren't sided because it wasn't raised but there are a honor for a few minutes about the excess today in doctrine and the evidence that was presented in taking the issues in the order they were raised in the apple e suggest that the trial court was incorrect and  excluding evidence on attorneys fees that simply and i will say that there is no standard of review set out in a palace brief however this was nothing more than an evidentiary ruling the characterization of this item twenty five and twenty six well if you look at motion limiting item twenty six not only does it not apply it it sought to exclude attorneys fees where timely production of reports had not been made that motion was never argued to the court the court did not rule on motion to emotionally many out of twenty six and even if it had it had nothing to do with whether there was a forty two cleanup likewise motion in limine item twenty five dealt with excluding evidence of payments made under the proper name and statute because there was no five forty to claim pleaded and the court in fact granted that motion and there was an edited version of plaintiff's exhibit twelve which was a payment letter ultimately introduced at trial the discussion of attorney's fees came up because the court noted that there had been no pleading for five forty two and indeed if the court looks at the joint pretrial order appellate mentions the fact that this occurred on the eve of trial in march five weeks before the commencement of evidence the parties filed a joint pretrial order so pages forty eight through seven fifty seven of the record in the joint pretrial order the party state this is a breach of contract case only all other extra contractual claims have been to either voluntarily there is no reference to section five forty two there is no reference to which provision of five forty two appellant would claim state farm failed to comply with the interest under five forty two needs a date from which it runs there is no factual suggestion as to the money should have been paid on a certain date therefore judge the interest should begin running on whatever the date would be and so the pretrial order far from being a looks at the prior pleadings the plaintiff's original petition as we as we refer to them in state court there is no claim for five forty two found anywhere in the petition there is in the damages section a claim for eighteen percent statutory interest but to suggest that one can avoid pleading a cause of action and somehow have it implied into the suit because you have claimed you have pleaded a damage  which could be recovered into the cause of action simply wouldn't be permitted under the texas more liberal pleading statute and certainly not under relate to the federal rules so the court was confronted with a claim fees or which she believed no recoverable cause of action had been fleeted she she and in fact when you go through her order denying the motion for new trial with this was the sole issue that was raised after the judgment she goes through and explains you didn't bring a contract that permitted to recover of attorney's fees chapter thirty eight doesn't apply and i will say is a inside that's not challenged here this morning pleaded it is difficult to imagine how that could possibly be a violation of the abuse of discretion standard you didn't plead to claim you can't put on proof with regard to the excessive you that that set out or whoever counsel was at the time the arguments that we're hearing days so the absence of any claim under five forty two the other things you said was that stated in the motion ok judge there were  it had been raised by apple e both this is back in march we were seeing the exhibits the proposed exhibit for trial and they included a letter which referred by forty to the action pleading i'm seeking is it that the are going to be made today that the problem in all of this is the absence of any claim under the right whenever the available cause of action may be and had not been made that was before the council opposite before that morning really that's true your honor the court brought it up before jury selection i mean the court mentioned by the way apple e has objected to your fees because there's no five forty two upon the letter that reference statutory payment because you didn't make the claim that occurred from the court in april but of course as a point out in the pretrial order which was filed five weeks before that there was no reference to five forty two by the parties in that in that pleading in so it wouldn't there was no motion that the apple leave would have needed to file because in the absence of a cause of action there's there's nothing we can file but it isn't a motion to dismiss with a claim this is not pleaded and but we had where we could object and we made it clear that we objected to five forty two the evidence and in the filing of our motion in limine now when the court took it up and the court will see from the record while the while the court took this up joining the motion in limine a hearing it was that it was separate and apart from motion  fees at the time the parties attempted to make their stipulation the court said not is the sanction but the court said the parties cannot stipulate to the recovery of fees for which there is no legal basis to recover if you want to go outside the courtroom and you want to make some deal in the hallway that's fine but i am not going to enter a judgment for the recovery of damages for which there is no legal ground to recover that once the courtroom and we in fact our stipulation ended with assuming you will accept the stipulation she did not we did not stipulate the damages were twenty five thousand dollars we said you have to stablish them and prove th that is true that was the proposed stipulation that was rejected so if i can your honor in talking about the excess the demand doctrine a couple of points there was no objection to the jury question  argument that gosh if the jury had just seen the evidence of attorney's fees encouraging litigation that would have made a difference that is not relevant to the excessive man doctoring it is that is it excessive as of the day it was made which was made twenty fifteen prior to the lawsuit being filed about six months before a lawsuit was filed four months secondarily what the jury had to consider but regard to the bad faith  jury had the demand letter which set out which attached an estimate from a man named r j molina that's found it fifteen thirty one through fifteen seventy one of the record it was an estimate that appellant counsel argued in closing was too high wrong he said quote let's get real we ask for more than we're entitle to so that we can get what we really think we're entitled to and something below that second estimate that was actually introduced at trial of mr novel by the appellant it was fourteen thousand dollars so we've come from a twenty five thousand dollar estimate to a fourteen thousand dollar estimate and we now have the jury now has before it evidence that the estimate that was originally used was simply for the demand was simply simply overstated the damage it was in terms of bad faith it was that very estimate that a t in his demand letter called quote very credible and so we believe that the plane air standard applies here because there was no objection to the inaugural fifty motion file but regardless of the standard that use the jury had proof of conflicting demands the jury had experts who said the moline estimate was way too high and this was done in the context demand letters and the court said this is sufficient to relieve the insurance company of actually making tender this case was a take it or leave it demand letter pay us forty thousand seven hundred seventy six dollars or you will be sued if you do not pay us by thirty days to demand is with wrong and indeed it wasn't paid and state farm the suit and this litigation moved on and so if you look at when to this if you look at all of those cases where the demand letters have been found not to relieve the insurer of the obligation to make tender they all say yeah we're making a demand but we'll sit down and  this isn't our final number words to those effect that's not the case here there is no question but that this demand letter relieves state farm of the obligation of actually making tender and so with regard to excess of man doctrine the court properly charged the jury there's been no objection to the charge the jury heard the evidence and it was plentiful and heard argument important simply because it set the context of what the jury was saying on the stand and the jury returned a verdict of yes the demand was excessive finally on that issue to suggest that if one seeks damages for which there is no right to recover you can't submit the excess of man dr because the jury won't get to see the full context of simply defies the whole purpose of the excess of the man doctor whether one overstates damages for which it has a cause of action or one six game just for which it doesn't and excessive demand can nevertheless be an excessive demand and in fact the jury may very well consider for example you made a demand for mental anguish in this case a you didn't put on any proof of mentally wish you didn't seek mental anguish recovery that on its own could be sufficient for the jury to believe it was an excessive demand let alone the fact that the estimate was it minutely a trial estimate use the demand letter was overstated and excessive and so judge of those are the issues that were raised i note that my my time is running out we would simply respectfully suggest to the court that the trial judge's rulings were correct or proper and in fact review the record will show that the characterization of both the rulings and the context within which they were made is simply not correct we asked the court to farming talk or through state farm was well aware of the plane and saw five forty two damages and i want to make sure the court understands five forty two point zero six zero so part makes it explicit that these damages  automatic in the event and insured fails to pay a claim as it should have that's why we have in the record evidence of state farm issuing a statutory interest check that is the equivalent of the eighteen percent on the amount that state farm ultimately did pay which was some seven hundred some odd dollars and eight hundred some odd dollars and they issued a statutory penalty interest check on that amount during the litigation because uninsured is entitled to their eighteen percent statutory penalty interest full stop and in the event they prevail and litigation has been necessitated eighteen percent is damages together with reasonable attorney's fees the pleading specifically identifies playtest right to attorneys fees both under section thirty eight of the business and commerce code which yes we're not challenging the alter ruling out of the houston court of appeals that subsequently been adopted by other intermediate courts of appeals concerning corp within that chapter being only corporations and not  chapters in the briefing plaintiff's briefing is five forty one applied to contract claims are only non contract only non contract claims your honor but in the briefing in our briefing we identify all the instances in which state farm itself references in its own briefing and offer letters plaintiff's five forty two damages you know on on and the record it one hundred sixty or two or three plaintiffs specifically is seeking eighteen percent penalty interest under five forty two and the record to await state farm acknowledges plaintiffs right pursuant to sub chapter b of chapter five forty two of the texas insurance code and their offer of judgment they make or a reference violations of chapters five forty one and five forty two of the texas insurance co that's in the record three eighty now do i understand  correctly that the trial court dismissed the non contract climes your out of the non contract claims under five forty one were briefed and dismissed but nowhere in state farm's motion for summary judgment under five forty one claims does it ever address five forty two claims not once and five forty two claims under higginbottom this court's opinion in one nine hundred ninety seven clearly states that bad fa not required for prompt payment violations that lead to eighteen percent penalty interest and attorney's fees you're saying you pleaded fine forty two just not we just didn't say fifty five forty two but when you reference eighteen percent as a statutory penalty interest in your prayers seeking the damages there is only one place in the code that says eighteen percent only one place there's eighteen percent for five forty two point zero six  and there's twelve percent if it's a pick claim a personal injury protection claim those are the interest identified in the code and that's what we reference so with so why does the district court on the morning of trial seem to think that we have not granted the dismissed the five hundred two claims which would not have been on the morning of trial and no you know your honor i've read that order and i don't i did not see five forty two referenced at all but ok something will check thank you and i mean to the extent that the court would have included or intended to include five forty two again that would have been error and of course we briefed the motion for summ