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IN THE UNITED STATES DISTRICT COURT 

FOR THE WESTERN DISTRICT OF TEXAS 

SAN ANTONIO DIVISION 

JOSE MENDOZA, § 

 Plaintiff, § 

 § 

v. § Civil Action No. _______________ 

 § 

ALLSTATE FIRE AND CASUALTY § 

INSURANCE COMPANY, § 

 Defendant. § JURY REQUESTED 

DEFENDANT, ALLSTATE FIRE AND CASUALTY 

INSURANCE COMPANY’S NOTICE OF REMOVAL 

PLEASE TAKE NOTICE that the real party in interest and the proper Defendant, Allstate 

Indemnity Company (“Allstate”) [NOTE: incorrectly named and sued as Allstate Fire and 

Casualty Insurance Company], files its Notice of Removal, and pursuant to 28 U.S.C. §§ 1332, 

1441, and 1446(a), and would show as follows: 

INTRODUCTION 

1. This is a personal injury case arising out of an incident that occurred on or about 

March 24, 2019. Plaintiff, Jose Mendoza, filed his Original Petition in Cause No. 2020CV02085 

in the County Court at Law No. 3 of Bexar County, Texas, on March 20, 2020, initiating this 

lawsuit. 

2. Removal is based on diversity jurisdiction because, based upon a preponderance of 

the evidence, the amount in controversy is over $75,000.00, exclusive of interest and costs; see, 

Manguno v. Prudential Prop. & Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir. 2002); and there is 

complete diversity between Plaintiff and Defendant as set forth below. 

3. The improper Defendant and not real party in interest, Allstate Fire and Casualty 

Insurance Company, was served with Plaintiff’s Original Petition and Citation on or about April 

Case 5:20-cv-00560 Document 1 Filed 05/06/20 Page 1 of 17
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6, 2020. However, the actual insurer and proper party Defendant is Allstate Indemnity Company. 

Rather than contest the misnomer of the party Defendant and named insurer, Allstate Indemnity 

Company (which is the properly named Defendant and properly named insurer under the subject 

insurance policy at issue herein) voluntarily submitted to the jurisdiction and filed and served its 

Original Answer in state court on April 27, 2020. 

4. Defendant, Allstate Indemnity Company, files this Notice of Removal based on the 

grounds asserted herein, and promptly upon the filing of same, is also filing a Notice to State Court 

of Removal to Federal Court with the state court in which this case was previously pending. 

GROUNDS FOR REMOVAL 

5. This Court has original jurisdiction over this civil action pursuant to 28 U.S.C. 

§ 1332(a) because the proper parties involved are citizens of different states, and the matter in 

controversy exceeds $75,000.00, exclusive of interest and costs. 

A. Complete Diversity Exists Between the Proper Parties. 

6. According to Plaintiff’s Original Petition, Plaintiff is a resident of Texas. See 

Plaintiff’s Original Petition, “Parties,” included with the Index of State Court Papers attached 

hereto as Exhibit A.1

 A person’s state of domicile presumptively continues unless rebutted with 

sufficient evidence of change.2 “Evidence of a person’s place of residence . . . is prima facie proof 

of his domicile."3

 Furthermore, once established, “[a] person’s state of domicile presumptively 

continues unless rebutted with sufficient evidence of change.”4 Thus, for purposes of diversity of 

citizenship, Plaintiff is considered a Texas citizen.

 

1 See Plaintiff’s Original Petition in attached Exhibit A – Index of State Court Papers. 2 Id.

3 Id. (citations omitted) 4 Id.

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7. At the time of filing of the lawsuit in state court and at the time of filing of this 

Notice of Removal, Defendant Allstate Fire and Casualty Insurance Company was and is 

incorporated in the State of Illinois. Further, at the time of filing of the lawsuit in state court and 

at the time of filing of this Notice of Removal, proper Defendant and real party in interest Allstate 

Indemnity Company was and is incorporated in the State of Illinois. Accordingly, Defendant is 

not a citizen of the State of Texas for purposes of federal diversity jurisdiction. 

B. The Amount in Controversy Exceeds $75,000.00 

8. Plaintiff’s Original Petition states that Plaintiff seeks “monetary relief in the amount 

over $100,000 but more than $200,000.”5 Further, Plaintiff seeks “economic damages; mental 

anguish damages; three times the damages found by the trier of fact for Plaintiff’s economic and 

mental anguish; court costs and reasonable and necessary attorney fees.” 6 In addition, Plaintiff 

asks this Court to award “...pre-judgment and post-judgment interest as allowed by law, costs of 

court, and for such other further relief to which the Plaintiff may be justly entitled to at law or in 

equity.”7 In addition, Plaintiff requested that the case be governed by a state court level 3 

discovery control plan rather than a level 1 discovery control plan for expedited actions with 

amounts in controversy over $100,000.00, pursuant to Rules 169 and 190.2 of the Texas Rules of 

Civil Procedure.8

 

9. Based upon the “face of the petition” it is apparent the claims are likely to exceed 

$75,000.00. See, Manguno, id at 723; see also, Chavez v. State Farm Lloyds, No. 17- 40861, (U.S. 

Ct. of App., 5th Cir., Aug. 15, 2018), (copy attached). Finally, Plaintiff has not filed a binding 

 

5 See Plaintiff’s Original Petition, ¶ II in attached Exhibit A – Index of State Court Papers. 6 See Plaintiff’s Original Petition, ¶ VII(18) in attached Exhibit A – Index of State Court Papers. 7 See Plaintiff’s Original Petition, ¶ XV in attached Exhibit A – Index of State Court Papers. 8 Id.; see also TEX. R. CIV. PROC. 169; 190.2. Per § 25.1102(a)(2) of the Texas Government Code, the jurisdictional 

limits of Bexar County District Courts is $75,000.00.

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stipulation to accept only less than the jurisdictional amount, cited a law limiting his recovery, nor 

otherwise proved to a legal certainty that his recovery would be less than $75,000.00. See, e.g., 

id.; De Aguilar, 47 F.3d at 1412. 

10. Further, this Circuit has observed that Texas plaintiffs desiring to prevent removal 

“must file a binding stipulation or affidavit with their complaints.” St. Paul Reinsurance Co., 134 

F.3d at 1254 n. 18 (quoting De Aguilar v Boing Co., 47 F. 3d 1404, 1412.

VENUE 

11. Venue for removal is proper in this district and division under 28 U.S.C. § 1441(a) 

because this district and division embrace the place in which the removed action was pending, in 

the County Court at Law No. 3 of Bexar County, Texas, and a substantial part of the events giving 

rise to Plaintiff’s claims allegedly occurred in that district. 

`PROCEDURAL REQUIREMENTS 

12. Pursuant to 28 U.S.C. § 1446(a), attached as Exhibit A hereto is an Index of State 

Court Papers and copies of all process, pleadings, orders, and civil cover sheet on file in the state 

court lawsuit. Additionally, attached as Exhibit B is a List of Parties and Counsel relating to this 

action, and attached as Exhibit C hereto is an Index of Matters Being Filed in this action. Each of 

the exhibits is incorporated herein and made a part hereof for all pertinent purposes. 

13. Pursuant to 28 U.S.C. §1446(d), promptly after Defendant files this Notice, written 

notice of the filing will be given to Plaintiff, the adverse party. 

14. Pursuant to 28 U.S.C. §1446(d), a true and correct copy of Defendant’s Notice of 

Removal will be filed with the County Clerk of Bexar County, Texas, promptly after Defendant 

files this Notice. 

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15. This Notice of Removal is being timely filed within thirty (30) days after receipt by 

the Defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim 

for relief upon which such action or proceeding is based. Thus, this Notice of Removal is timely 

filed pursuant to 28 U.S.C. §1446(b). There exists an actual and justiciable controversy between 

Plaintiff and Defendant with regard to the legal issues herein and this controversy is within the 

jurisdiction of this Court. 

CONCLUSION 

WHEREFORE, PREMISES CONSIDERED, Defendant Allstate respectfully requests that 

the above-captioned action now pending in the County Court at Law No. 3 of Bexar County, Texas 

be removed to the United States District Court for the Western District of Texas, San Antonio 

Division. 

Respectfully Submitted, 

ORTIZ & BATIS, P.C.

By: /s/ Edward J. Batis, Jr. 

 Edward J. Batis, Jr. 

 State Bar No. 01915470 

 10100 Reunion Place, Suite 600 

San Antonio, Texas 78216 

 Telephone: 210-344-3900 

 Facsimile: 210-366-4301 

 **ejbsupport@ob-lawpc.com

 ATTORNEYS IN CHARGE, 

 DEFENDANT ALLSTATE INDEMNITY COMPANY

 **SERVICE TO THIS EMAIL ADDRESS ONLY

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CERTIFICATE OF SERVICE 

On May 6, 2020, the foregoing document was served in compliance with the Federal Rules 

of Civil Procedure by mail, hand delivery, telecopier transmission, or CM/ECF electronic notice 

to the following: 

 Mr. R. Scott Mellen 

DAVIS LAW FIRM

10500 Heritage Blvd., Suite 102 

San Antonio, Texas 78216 

Facsimile: 210-568-8440 

scottm@davislaw.com 

 _/s/ Edward J. Batis, Jr. __________ 

 Edward J. Batis, Jr. 

Case 5:20-cv-00560 Document 1 Filed 05/06/20 Page 6 of 17
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 

costs 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 5TH CIR. 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 5TH 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

August 15, 2018

Lyle W. Cayce

Clerk

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2 

FACTUAL AND PROCEDURAL BACKGROUND 

 Erica Chavez purchased an 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. 

She concluded that her original estimate was accurate. 

 On May 27, 2015, Chavez’s counsel sent State Farm a demand letter 

seeking $40,776.74 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 Texas based on diversity jurisdiction. Chavez moved 

for remand, contending the amount in controversy was not met because her 

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$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 petition but not 

included in her demand letter, the amount in controversy was exceeded. 

State Farm then moved for partial summary judgment on Chavez’s noncontractual claims and her request for punitive damages, contending the case 

was 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 plaintiffs “put[ting] on proof.” The 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 defense. 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 Chavez $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 constituted a constructive sanction. The 

court denied the motion, and Chavez timely appealed. 

DISCUSSION 

On appeal, 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 abused its discretion in excluding testimony; 

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and (5) the jury’s excessive-demand finding was not supported by the 

evidence.1 We will review those issues in order.

1. Subject-Matter Jurisdiction 

State Farm removed the suit based on diversity jurisdiction. Both 

parties agree complete diversity exists. The 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 (5th Cir. 2002). “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 existed 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 (5th Cir. 1998). Some state like Texas, though, prohibit plaintiffs 

from pleading a specific amount of damages. See TEX. R. CIV. 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 723. “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 finding of the requisite amount.” Id. (citation 

omitted). If State Farm makes that showing, Chavez may avoid removal by 

 

1 Chavez’s requests for attorney’s fees and statutory interest were presented as 

separate 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 the jurisdictional question first.

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showing, to a legal certainty, that recovery will not exceed the jurisdictional 

threshold. De Aguilar v. Boeing Co., 47 F.3d 1404, 1409 (5th Cir. 1995). 

Chavez contends State Farm did not meet its burden and that her 

demand letter shows her claims’ maximum value was $40,776.44. The 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.” TEX. CIV. PRAC. & REM. CODE § 41.008(b)(1)(A)–(B). 

Considering Chavez’s demand letter asserted $40,776.74 in damages, at least 

$25,459.58 of which is economic, the requisite $75,000 could easily have been 

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 her 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 claimed 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 summary judgment de novo.” Smith v. Reg’l 

Transit Auth., 827 F.3d 412, 417 (5th 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.” TEX. INS.

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CODE § 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 has become reasonably clear.” Id.

§ 541.060(a)(2)(A). A suit for violation of this provision parallels a commonlaw 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 

the 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, 601 (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 alone, 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 supplemental 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 the conflicting estimates, they show only that this was a bona fide 

dispute regarding the extent of liability. Chavez provided no summaryjudgment evidence casting doubt on the reliability of State Farm’s estimate or 

suggesting State Farm’s decision to rely on its own estimate, rather than 

another’s, was unreasonable. Additionally, Chavez failed to explain how the 

supplemental payment of $60.86 made in April of 2016 was unreasonably 

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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 letters advised her she could easily 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 district court 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 

already dismissed. We review the 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 (5th Cir. 2000); Hesling v. CSX Transp., Inc., 

396 F.3d 632, 643–44 (5th 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 substantial rights of the complaining 

party.” Bocanegra v. Vicmar Servs., Inc., 320 F.3d 581, 584 (5th 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). 

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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 

38.001Texas Civil Practice & Remedies Code and the Texas Insurance Code. 

Chapter 38 allows for the recovery of “reasonable attorney’s fees from an 

individual or corporation.” TEX. CIV. PRAC. & REM. CODE § 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 [14th 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 corporation, and 

Section 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 the rate of 18 percent a year as damages, together with reasonable 

and necessary attorney’s fees.” TEX. INS. CODE § 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 discretion in preventing her from introducing 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 agreedupon cap to fees that would have applied had Chavez proved she was entitled 

to them. Because the district court correctly determined Chavez was not 

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entitled to attorney’s fees, the court’s rejection of the stipulation was not error, 

let alone prejudicial to her substantial rights. 

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 only 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. The court sustained on the grounds that it 

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 substantial 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 to 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 

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referring to attorney’s fees, as discussed supra, and (3) it is not supported by 

sufficient evidence. 

We are unpersuaded by her first challenge. Though the Texas Supreme 

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, Texas courts of appeals have 

applied the defense in the insurance context. E.g., Hernandez v. Lautensack, 

201 S.W.3d 771, 778 (Tex. App.—Fort Worth 2006, pet. denied); Warrior 

Constructors, Inc. v. Small Bus. Inv. Co., 536 S.W.2d 382, 386–87 (Tex. App.—

Houston [14th 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 (5th 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, 700 (5th 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. (citation 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 State Farm “presented any evidence in support of” its excessive-demand 

defense. See Polanco v. City of Austin, 78 F.3d 968, 974 (5th Cir. 1996) 

(emphasis in original). 

In Texas, “a creditor who makes an excessive demand upon a debtor is 

not entitled to attorney’s fees for subsequent litigation required to recover the 

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debt.” Findlay v. Cave, 611 S.W.2d 57, 58 (Tex. 1981). The defense requires a 

showing that (1) Chavez wrongfully 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 presented at trial was 

significantly lower than the demand. It follows, then, a jury could reasonably 

find Chavez wrongfully 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 than 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

Case 5:20-cv-00560 Document 1 Filed 05/06/20 Page 17 of 17