### IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 17

- 40861

ERICA CHAVEZ,
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 cost s 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 5 TH C IR . R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR . R. 47.5.4. United States Court of Appeals Fifth Circuit 

### FILED August 15, 2018

Lyle W. Cayce Clerk Case: 17-40861 Document: 00514600520 Page: 1 Date Filed: 08/15/2018No. 17

- 40861

2 FACTUAL AND PROCEDURAL BACKGROUND Eri ca Chavez purchased a n 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

. Sh e concluded that her original estimate was accurate. On May 2 7 , 2015 , Chavez’s counsel sent State Farm a demand letter seeking $40,776.7 4 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 The letter stated: “If we have not received payment by [ June 26, 2015 ] this settlement demand is withdrawn and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 Te x as base d on diversity juris diction . Chavez moved for remand, contending the amount in controversy was not met because her Case: 17-40861 Document: 00514600520 Page: 2 Date Filed: 08/15/2018No. 17

- 40861

3 $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 petit ion 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 punitiv e damages, contending the case

wa s 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 plainti ffs “put[ting] on proof.” T he 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 def ense. 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 Cha vez $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 c o nst ituted a constructive sanction. The court denied the motion, and Chavez timely appealed.

DISCUSSION On appea l, 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 abuse d its discretion in excluding testimony; Case: 17-40861 Document: 00514600520 Page: 3 Date Filed: 08/15/2018No. 17

- 40861

4 and (5) the jury’s excessive

- demand finding was not supported by the evidence. 1 We wi ll review those issues in order.

1 . Subject

- Matter Jurisdiction State Farm removed the suit based on diversity jurisdiction. Both parties agree complete diversity exists . T he 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 (5 th Cir. 20 02). “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 exist ed 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 (5 th Cir. 1998). Some state like Texas, though, prohibit plaintiffs from pleading a specific amount of damages

. See T EX

. R. C IV

. 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 72 3. “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 fin ding of the requisite amount.” Id. ( citation omitted). If State Farm makes that s h owing, Chavez may avoid removal by

1 Chavez’s requests for attorney’s fees and statutory interest were presented as sepa rate 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 th e jurisdictional question fir st. Case: 17-40861 Document: 00514600520 Page: 4 Date Filed: 08/15/2018No. 17

- 40861

5 showing , to a legal certainty, that recovery will not exceed the jurisdictional threshold. De Aguilar v. Boeing Co. , 47 F.3d 1404, 1409 (5 th Cir. 1995). Chavez contends Sta te Farm did not meet its burden and that her demand letter shows her claims’ maximum value was $40,776.44. T he 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.” T EX

. C IV

. P RAC

. & R EM

. C ODE § 41.008(b) (1)(A)

– (B)

. Considering Chavez’s demand letter asserted $40,7 76.74 in damages, at least $25,459.58 of which is economic, the requisite $75,000 could easily have be en 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 h er 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 claim ed 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 s ummary judgment de novo

. ” Sm ith v. Reg’l Transit Auth. , 827 F.3d 412, 417 (5 th 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.” T EX

. I NS

. Case: 17-40861 Document: 00514600520 Page: 5 Date Filed: 08/15/2018No. 17

- 40861

6 C ODE § 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 h as 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 t he 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, 6 01 (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 al one, 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 sup plemental 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 t he conflicting estimates, they show only that this was a bona fide dispute rega rding the extent of lia bility. 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 t han another’s, was unreasonable . Additionally, Chavez failed to explai n how the supplemental payment of $60.86 made in April of 2016 was unreasonably Case: 17-40861 Document: 00514600520 Page: 6 Date Filed: 08/15/2018No. 17

- 40861

7 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 le tters advised her she could eas ily 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 distr ict c ourt 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

a lready dismissed. We review t he 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 (5 th Cir. 2000); Hes ling v. CSX Transp. , Inc. , 396 F.3d 632, 643

– 4 4 (5 th 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 subst antial rights of the complaining party.” Bocanegra v. Vicmar Servs., Inc. , 320 F.3d 581, 584 (5 th 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). Case: 17-40861 Document: 00514600520 Page: 7 Date Filed: 08/15/2018No. 17

- 40861

8 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 38.001 Texas C ivil Practice & Remedies Code and the Texas Insurance C ode

. Chapter 38 allows for the recovery of “reasonable attorney’s fees from an individual or corporation.” T EX

. C IV

. P RAC

. & R EM

. C ODE § 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 [14 th 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 corpo ration, and S ection 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 t he rate of 18 percent a year as damages, together with reasonable and necessary attorney’s fees.” T EX

. I NS

. C ODE § 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 discret ion in preventing her from introducin g 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 Case: 17-40861 Document: 00514600520 Page: 8 Date Filed: 08/15/2018No. 17

- 40861

9 entitled to attorney’s fees, the court’s rejection of the stipulation was not error, let alone prejudicial to her substantial ri ghts.

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 onl y 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 . T he c ourt sustained on the grounds that i t 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 substant ial 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 t o 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 Case: 17-40861 Document: 00514600520 Page: 9 Date Filed: 08/15/2018No. 17

- 40861

10 referring to attorney’s fees, as discussed supra , and (3 ) it is not supported by sufficient evidence. We are unpersuaded by her first challenge . T hough the Texas Supre me 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, Texa s courts of appeals have applied the defense in the insurance context

. E.g. , Hernandez v. Lautensack , 201 S.W.3d 771, 778 (Tex. App.

— F ort Worth 2006 , pet. denied ); Warrior Constructors, Inc. v. Small Bus. Inv. Co. , 536 S.W.2d 382, 386

– 87 (Tex. App.

— Housto n [14 th 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 (5 th 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, 7 00 (5 th 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. (citat ion 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 S tate Farm “presented any evidence in support of” its excessive

- demand defense. See Polanco v. City of Austin , 78 F.3d 968, 974 (5 th Cir. 1996) (emphasis in original). In Texas, “a creditor who makes an excessive demand upon a debtor is not entitled to at torney’s fees for subsequent litigation required to recover the Case: 17-40861 Document: 00514600520 Page: 10 Date Filed: 08/15/2018No. 17

- 40861

11 debt.” Findlay v. Cave , 611 S.W.2d 57, 58 (Tex. 1981). The defense requires a showing that (1) Chavez wrongf ully 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 pr esented at trial was significantly low er than the demand. It follows, then, a jury could reasonably find Chavez wrongful ly 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 t han her demand. Accordingly, State Farm presented at least some evidence in support of its defense

. AFFIRMED. Case: 17-40861 Document: 00514600520 Page: 11 Date Filed: 08/15/2018