Motions for Rehearing Denied, Reversed and Remanded, and Substitute 

Majority and Dissenting Opinions filed October 4, 2018.

In The

Fourteenth Court of Appeals

NO. 14-16-00474-CV

TEXAS WINDSTORM INSURANCE ASSOCIATION, Appellant

V.

DICKINSON INDEPENDENT SCHOOL DISTRICT, Appellee

On Appeal from the 405th District Court

Galveston County, Texas

Trial Court Cause No. 12-CV-2012

SUBSTITUTE DISSENTING OPINION 1

In two summary-judgment orders, the trial court determined as a matter of 

law that the defendant insurance association could not challenge (1) the appraisal-

 

1 Today the court denies the parties’ motions for rehearing and issues a Substitute Majority 

Opinion. The Dissenting Opinion issued in this case on May 31, 2018, is withdrawn. Appellee 

Dickinson Independent School District’s Motion for Rehearing should be granted to the extent it 

raises the issues addressed in this Substitute Dissenting Opinion. 
2 

award finding as to the amount of loss caused by wind damage, and (2) the 

appraisal-award finding of the amount of loss or property damage. On appeal, the 

association has challenged the first finding by arguing that the appraisal panel 

determines the amount of loss but not the amount of loss caused by wind damage. 

But, the association has not challenged the second finding. Though the association 

has shown reversible error in the trial court’s final judgment without challenging 

the second finding, this court should not conclude that the trial court erred as to the 

unchallenged second finding. 

The District’s Claim under the Policy

Hurricane Ike made landfall in Galveston County on September 13, 2008. 

Nearly four years later, appellee/plaintiff Dickinson Independent School District 

(the “District”) sued the Texas Windstorm Insurance Association (“TWIA”)

asserting a breach-of-contract claim under Policy Number 56390701, a commercial 

windstorm and hail insurance policy TWIA issued to the District (the “Policy”). 

Under the Policy, TWIA “insure[s] for direct physical loss to the covered property 

caused by windstorm or hail unless the loss is excluded in the Exclusions.” The 

District seeks to recover under the Policy based on alleged damage to its covered 

property caused by Hurricane Ike.

TWIA’s Invocation of Appraisal under the Policy

The Policy allows either the District or TWIA to make written demand for 

an appraisal if the parties cannot agree on the actual cash value, the amount of loss, 

or the cost of repair or replacement:

10. Appraisal. If you and we fail to agree on the actual cash value, 

amount of loss, or cost of repair or replacement, either can make 

a written demand for appraisal. Each will then select a competent 

and independent appraiser and notify the other of the appraiser’s 

identity within 20 days of receipt of the written demand. The two 
3 

appraisers will choose a competent and independent umpire. If 

they cannot agree upon an umpire within 15 days, you or we may 

request that the choice be made by a judge of a district court of a 

judicial district where the loss occurred. The two appraisers will 

then determine the amount of loss, stating separately the actual 

cash value and loss to each item.

If the appraisers fail to agree, they will submit their differences to 

the umpire. An itemized decision agreed to by any two of these 

three and filed with us will determine the amount of the loss.

Each party will pay its own appraiser and bear the other expenses 

of the appraisal and umpire equally.

Four months after the District filed suit, TWIA made written demand for appraisal 

“regarding the actual cash value, amount of loss, or cost of repair or replacement.” 

The Appraisal Award

After an appraisal process that lasted two years and four months, the 

District’s appraiser and the umpire issued an Amended Appraisal Award (the 

“Award”) stating that they had “carefully examined the damages pursuant to the 

loss described herein above, and/or any evidence thereof,” and that they had 

“determined the following amounts of this loss to the commercial property 

described in the attached page ‘Appraisal Award Summary.’” They stated in the 

Award that the loss totals determined and awarded by the appraisal panel were 

$11,203,527.47 in aggregate replacement cost value, $387,560.04 in aggregate 

depreciation, and $10,815,967.43 in aggregate actual cash value. They included in 

the Award a list of property items with a stated amount for the replacement cost 

value, depreciation, and actual cash value for each item. The Award does not 

expressly address the repair cost for any property item. 

Texas courts hold that appraisal awards made under the provisions of an 

insurance contract are binding and enforceable, and courts indulge every 
4 

reasonable presumption to sustain an appraisal award.2 If a party seeks to avoid 

enforcement of an appraisal award, the party must carry the burden of proving a 

ground for setting aside the appraisal award.3 A party seeking to set aside an 

appraisal award may amend the party’s pleadings to assert that the trial court 

should set aside the award, move the trial court to set aside the award, or respond 

in opposition to a summary-judgment motion by asserting a ground for setting 

aside the award and raising a fact issue as to the ground.4

 

The Live Pleadings Regarding the Award

The District demanded that TWIA pay the aggregate actual cash value stated 

in the Award. TWIA refused. In the District’s live pleading, the District sought to 

recover in part based on TWIA’s refusal to “pay the appraisal award.” In its 

answer, TWIA sought to avoid enforcement of the Award by asserting various 

grounds for setting aside the Award. TWIA also asserted various other defenses to 

the District’s breach-of-contract claim. 

The Causation Motion

In its motion for summary judgment on the causation issue (the “Causation 

Motion”) the District sought an interlocutory summary judgment that, as a matter 

of law, TWIA is precluded from challenging the determination in the Award that 

the amount of loss is $10,815,967.43 and that this loss was caused by wind 

damage. In the Causation Motion, the District asserted the following grounds:

 

2 See Zhu v. First Comm’n Ins. Co., 543 S.W.3d 428, 433 (Tex. App.—Houston [14th Dist.] 

2018, pet. filed); Franco v. Slavonic Mut. Fire Ins. Ass’n, 154 S.W.3d 777, 786 (Tex. App.—

Houston [14th] 2004, no pet.). 

3 See Zhu, 543 S.W.3d at 433; Lundstrom v. USAA, 192 S.W.3d 78, 87 (Tex. App.—Houston 

[14th Dist.] 2006, pet. denied). 

4 See Zhu, 543 S.W.3d at 433. 
5 

(1) Appraisal clauses in Texas property-insurance policies provide a 

method to resolve disputes regarding a covered claim, and, if invoked, 

these clauses bind the parties to have the extent or amount of loss 

determined by appraisal.

(2) The Award determined that the “‘amount of loss’ — what was 

caused by windstorm and the cost to repair or replace such loss” — 

was $10,815,967.43. 

(3) The Award is binding and enforceable.

(4) Because the binding and enforceable Award determined the 

amount of loss, TWIA is precluded from challenging the amount of 

loss.

(5) Because the binding and enforceable Award determined the 

causation issue, TWIA is precluded from challenging the cause of the 

amount of loss.

(6) A strong public policy favors enforcement of appraisal clauses. 

The Award is final and binding and every reasonable presumption 

should be indulged to sustain an appraisal award. The party seeking 

to avoid enforcement of an appraisal award has the burden of proving 

that the court should not enforce the award.

(7) TWIA can avoid enforcement of the Award only if TWIA can 

demonstrate that the Award was made without authority, did not 

comply with the Policy’s terms, or resulted from fraud, accident, or 

mistake. TWIA cannot demonstrate any of these bases for avoiding 

enforcement of the Award.

The Damages Motion

In its motion for summary judgment on the amount of the loss (the 

“Damages Motion”) the District sought an interlocutory summary judgment that, 

as a matter of law, TWIA is precluded from challenging the determination in the 

Award that the amount of loss or the amount of property damage is $10,815,967.43 

and that this loss was caused by wind damage. In the Damages Motion, the 

District asserted the following grounds: 

(1) Appraisal clauses in Texas property-insurance policies provide a 

method to resolve disputes regarding a covered claim, and, if invoked, 
6 

these clauses bind the parties to have the extent or amount of loss 

determined by appraisal.

(2) The Award determined that the “‘amount of loss’ caused by 

windstorm, consistent with the terms of the [P]olicy” was 

$10,815,967.43. 

(3) The Award is binding and enforceable.

(4) Because the binding and enforceable Award determined the 

amount of loss, TWIA is precluded from challenging the amount of 

loss.

(5) A strong public policy favors enforcement of appraisal clauses. 

The Award is final and binding and every reasonable presumption 

should be indulged to sustain an appraisal award. The party seeking 

to avoid enforcement of an appraisal award has the burden of proving 

that the court should not enforce the award.

(6) TWIA can avoid enforcement of the Award only if TWIA can

demonstrate that the Award was made without authority, did not 

comply with the Policy’s terms, or resulted from fraud, accident, or 

mistake. TWIA cannot demonstrate any of these bases for avoiding 

enforcement of the Award.

TWIA’s Two Summary-Judgment Responses

TWIA filed responses opposing the Causation Motion and the Damages 

Motion.5

 In each response, TWIA relied on a substantial amount of summaryjudgment evidence, and TWIA asserted various grounds in opposition to the 

District’s motions. In each response, TWIA sought to avoid enforcement of the 

Award by alleging grounds for setting aside the Award and asserting that the 

summary-judgment evidence raised a fact issue as to each of these grounds. 

The District’s No-Evidence Motion and TWIA’s Response

The District filed a no-evidence motion for summary judgment in which it 

asserted that the Award is valid and enforceable and the burden is on TWIA to 

 

5 In its response to the Damages Motion, TWIA adopted by reference its response to the 

Causation Motion. 
7 

show that the Award should be set aside. The District argued that the trial court 

may disregard the Award only if TWIA proves one of the following: (1) lack of 

authority; (2) fraud, accident, or mistake; or (3) lack of substantial compliance with 

the terms of the contract (collectively, the “Three Grounds”). The District asserted 

that there is no evidence of each of the Three Grounds. 

In its response to the no-evidence motion, TWIA asserted that the trial court 

should deny the motion because (1) an adequate time for discovery had not passed; 

(2) almost none of the discovery TWIA needed to respond to the motion had been 

provided or taken place, and (3) the summary-judgment evidence submitted by 

TWIA raised a fact issue as to each of the Three Grounds.

The Trial Court’s Three Summary-Judgment Orders

The trial court signed an order granting the Causation Motion and an order 

granting the Damages Motion, giving the District the relief sought in each motion.6

 

Thus, in its order granting the Causation Motion, the trial court ruled as a matter of 

law that TWIA was precluded from challenging the determinations in the Award 

that the amount of loss is $10,815,967.43 and that this loss was caused by wind 

damage.7

 Likewise, in its order granting the Damages Motion, the trial court 

determined as a matter of law that TWIA was precluded from challenging the 

finding in the Award that the amount of loss or the amount of property damage is 

$10,815,967.43 and that this loss was caused by wind damage.8

 

 

6 See WesternGeco, L.L.C. v. Input/Output, Inc., 246 S.W.3d 776, 778 (Tex. App.—Houston 

[14th Dist.] 2008, no pet.). 

7 See id. 

8 See id. The District asserts that the Award contains a determination or finding that the amount 

of loss or property damage is $10,815,967.43. By granting the Causation Motion and the 

Damages Motion, the trial court determined that the Award contains this finding. In this opinion, 

reference is made to this finding; however, to adjudicate this appeal, the court need not and 

should not address whether the Award contains this finding. 
8 

On the same date (August 7, 2015), the trial court also denied the District’s 

no-evidence motion for summary judgment, without specifying the reasons for its 

denial. On appeal, TWIA asserts in a conclusory manner that the only logical 

interpretation of the trial court’s denial of the no-evidence motion on the same day 

that the court granted the Causation Motion and the Damages Motion is that the 

trial court intended for TWIA to proceed to trial on its affirmative defenses to 

enforcement of the Award. According to TWIA, if the trial court did not intend 

TWIA to try these defenses to the jury, the trial court would have granted the noevidence motion.9

 

Though the trial court signed a separate order on each of the three motions, 

the court signed the orders on the same day, and this court should construe these 

orders together.10 In doing so, this court should consider the orders as a whole 

toward the end of harmonizing and giving effect to all the trial court has written.11

For the trial court to have granted the relief in the Causation Motion and the 

Damages Motion, the trial court would have to have concluded as a matter of law 

that (1) TWIA was precluded from challenging the finding in the Award that the 

amount of loss is $10,815,967.43 and that this loss was caused by wind damage; 

(2) TWIA was precluded from challenging the finding in the Award that the 

amount of loss or the amount of property damage is $10,815,967.43 and that this 

loss was caused by wind damage; and (3) the summary-judgment evidence did not 

raise a genuine fact issue as to any of the Three Grounds that TWIA had asserted

 

9

 TWIA does not present any analysis or citations to legal authorities on this issue. 

10 See Henderson v. Shanks, 449 S.W.3d 834, 838 (Tex. App.—Houston [14th Dist.] 2014, pet. 

denied). 

11 See Constance v. Constance, 544 S.W.2d 659, 660 (Tex. 1976). 
9 

in its response.12 For the trial court to have denied the District’s no-evidence 

motion, the trial court could have concluded that (1) an adequate time for 

discovery had not passed; (2) almost none of the discovery TWIA needed to 

respond to the motion had been provided or taken place, or (3) the summaryjudgment evidence submitted by TWIA raised a fact issue as to each of the Three 

Grounds. TWIA did not assert either of the first two grounds in opposition to 

either the Causation Motion or the Damages Motion, which were traditional 

summary-judgment motions. Denying the no-evidence motion on either of the first 

two grounds would not conflict with the trial court’s granting of the other two 

motions. Denying the no-evidence motion on the third ground would conflict with

the granting of the Causation Motion and the Damages Motion. 

TWIA asserts that the trial court’s denial of the no-evidence motion means 

that the trial court must have found a fact issue as to the Three Grounds and that 

the trial court did not conclude there was no fact issue on the Three Grounds when 

the court granted the other two motions. But, to grant the other two motions, the 

trial court had to enforce the Award as a matter of law, and the trial court could not 

do so if it found a fact issue as to any of the Three Grounds.13 Thus, if we were to 

construe the orders as including an implicit finding of a fact issue as to the Three 

Grounds, to be tried to the jury, that construction would vitiate the trial court’s 

granting of the Causation Motion and the Damages Motion, and we would fail to 

harmonize and give effect to all the trial court wrote in the orders.14 

 

12 See Zhu, 543 S.W.3d at 433 (explaining that trial court cannot enforce appraisal award by 

summary judgment if the non-movant raises a valid ground for setting aside the award in its 

response and the summary-judgment evidence raises a fact issue as to that ground); 

WesternGeco, L.L.C., 246 S.W.3d at 778. 

13 See Zhu, 543 S.W.3d at 433. 

14 See Constance, 544 S.W.2d at 660. 
10 

Instead, this court should construe the orders as granting the relief requested 

in the Causation Motion and the Damages Motion and as denying the District’s noevidence motion only on the first two grounds TWIA asserted in opposition.15 In 

doing so, the court would construe these trial court orders as a whole toward the 

end of harmonizing and giving effect to all of the trial court’s writings — the trial 

court’s orders granting the Causation Motion and the Damages Motion and its

order denying the no-evidence motion.16

The Jury Trial and the Final Judgment

After a five-day trial, the trial court asked the jury to decide a single issue: 

“Did Texas Windstorm Insurance Association fail to comply with the agreement 

entitled Texas Windstorm Insurance Association Policy Windstorm and Hail?” 

The jury answered, “Yes.” Based on the jury’s verdict, the District moved for 

rendition of judgment; TWIA opposed the motion on various grounds. The trial 

court signed a final judgment ordering that the District recover from TWIA actual 

damages of $8,193,168.85, plus prejudgment interest and attorney’s fees. In 

rendering the final judgment the trial court relied upon the Award as setting the 

amount of damages resulting from TWIA’s alleged breach of contract, and the trial 

court deducted from the amount in the Award “prior payments, deductibles, and 

sales tax.”17 

TWIA’s Appellate Complaints

In its first appellate issue, TWIA asserts that the trial court erred in granting 

summary judgment that the Award set the amount of the District’s damages caused 

 

15 See Constance, 544 S.W.2d at 660; Henderson, 449 S.W.3d at 838. 

16 See Constance, 544 S.W.2d at 660; Henderson, 449 S.W.3d at 838. 

17 The Award included amounts of sales tax that TWIA alleged were erroneously included in the 

Award.
11 

by the covered peril of wind. TWIA argues that the Award itself did not set the 

amount of damages caused by wind and that TWIA’s summary-judgment evidence 

did not contain expert testimony or any other evidence conclusively proving this 

amount. TWIA asserts three other appellate issues. 

Texas Rule of Appellate Procedure 38.1(i) requires an appellant’s brief to 

contain a clear and concise argument for the contentions made, with appropriate 

citations to authorities and to the record.18 Courts must construe briefs “reasonably 

yet liberally.”19 Still, courts require the appellant to put forth some specific 

argument and analysis showing that the record and law support the appellant’s 

contentions.20 TWIA has not briefed any challenge to the part of the summaryjudgment orders in which the trial court determined as a matter of law that TWIA 

was precluded from challenging the determination in the Award that (1) the 

amount of loss is $10,815,967.43 and (2) the amount of property damage is 

$10,815,967.43. TWIA does not mention anything about these trial-court rulings, 

nor does TWIA present argument in support of the proposition that the trial court 

erred in granting this relief.21 By failing to brief any argument as to how the trial 

court erred in granting this relief, TWIA has waived its ability to obtain a reversal 

of these parts of the summary-judgment orders.22 Therefore, the proper course 

 

18 Tex. R. App. P. 38.1(i). 

19 Republic Underwriters Ins. Co. v. Mex-Tex, Inc., 150 S.W.3d 423, 427 (Tex. 2004). 

20 See Deutsch v. Hoover, Bax & Slovacek, L.L.P., 97 S.W.3d 179, 198–99 (Tex. App.—

Houston [14th Dist.] 2002, no pet.). 

21 TWIA offers a conclusory statement that the only logical interpretation of the trial court’s 

denial of the no-evidence motion on the same day the court granted the Causation Motion and 

the Damages Motion is that the trial court intended for TWIA to go to trial on TWIA’s 

affirmative defenses to enforcement of the Award. This assertion lacks merit for the reasons 

discussed above. But, in any event, this assertion does not constitute a discussion of the abovereferenced trial-court rulings or argument that the trial court erred in granting this relief. 

22 See Ryan Construction Servs., LLC v. Robert Half International, Inc., 541 S.W.3d 294, 301 

(Tex. App.—Houston [14th Dist.] 2017, no pet.). 
12 

would be for this court to reverse only the part of the summary-judgment orders 

addressing causation rather than reversing these two orders in their entirety.23

Doing so would not prevent TWIA from seeking reconsideration of these parts of 

the trial court’s orders on remand. Although TWIA has not briefed any challenge 

to these parts of the summary-judgment orders, TWIA’s arguments under its first 

issue regarding the causation issue suffice to show reversible error in the trial 

court’s final judgment. Thus, in reversing the trial court’s final judgment and 

remanding for further proceedings, this court should not conclude that the trial 

court erred in granting the parts of the Causation Motion and the parts of the 

Damages Motion that TWIA has not challenged on appeal. Because the majority 

does so, I respectfully dissent. 

 

 /s/ Kem Thompson Frost

 Chief Justice

Panel consists of Chief Justice Frost and Justices Boyce and Jewell. (Jewell, J., 

majority).

 

23 See id.