Case No. 01-15-00257-CV

IN THE COURT OF APPEALS FOR THE 

FIRST DISTRICT OF TEXAS

VANESSA ANDERSON,

 Plaintiff/Appellant,

v.

AMERICAN RISK INSURANCE COMPANY, INC.,

 Defendant/Appellee.

ON APPEAL FROM CAUSE NO. 2012-68212

295TH DISTRICT, HARRIS COUNTY, TEXAS

BRIEF OF APPELLANT 

Prepared and Submitted by:

Scott G. Hunziker

The Voss Law Firm, P.C.

26619 Interstate 45 South

The Woodlands, Texas 77380

(713) 861-0015 Telephone

(713) 861-0021 Facsimile

Scott@VossLawFirm.com

Attorney for Plaintiff/Appellant

ORAL ARGUMENT REQUESTED

1

ACCEPTED

2012-68212

FIRST COURT OF APPEALS

HOUSTON, TEXAS

11/25/2015 10:34:36 AM

CHRISTOPHER PRINE

CLERK

 FILED IN 1st COURT OF APPEALS HOUSTON, TEXAS 11/25/2015 10:34:36 AM CHRISTOPHER A. PRINE Clerk
CERTIFICATE OF INTERESTED PERSONS

The undersigned counsel of record certifies that the following listed 

individuals and entities have an interest in the outcome of this case. 

APPELLANT:

 

 Vanessa Anderson

APPELLANT’S TRIAL AND APPELLATE ATTORNEY:

Scott G. Hunziker

The Voss Law Firm, P.C.

26619 Interstate 45 South

The Woodlands, Texas 77380

Email: Scott@VossLawFirm.com

 Telephone: (713) 861-0015

 Facsimile: (713) 861-0121

APPELLEE: American Risk Insurance Company, Inc.

APPELLEE’S TRIAL AND APPELLATE ATTORNEY:

George Arnold

Thompson, Coe, Cousins & Irons, L.L.P.

One Riverway Ste. 1600

Houston, Texas 77056

Telephone: (713) 403-8210

Facsimile (713)403-8299

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SUMMARY OF THE CASE AND

REQUEST FOR ORAL ARGUMENT

The outcome of this appeal will genuinely affect the lives of policyholders 

across Texas who own homes and businesses alike. Appellant, Vanessa Anderson, 

suffered incredible structural damage to her residential property (the "Property") 

due to a tree falling upon and literally splitting her home in half. Worse yet, 

although Appellee, her own carrier, systematically collected premiums from Ms. 

Anderson, it nevertheless underpaid policy proceeds and abandoned its own 

insured when tragedy struck and coverage was clear. Adding to the above, 

payment was (and remains) desperately needed by Appellant to repair the Property, 

which still has not been fully restored as a result of Appellee’s conduct. 

From the outset of Appellant’s claim, Appellee not only delayed and denied 

payment to Ms. Anderson on her loss, but then sought to additionally deny justice 

to its insured once more through a hollow motion for summary judgment, aimed at 

all of Appellant’s claims and causes of action. This was filed immediately after the 

completion of the appraisal process, which Appellee conveniently waited to invoke 

until after Appellant was forced to hire a lawyer, incur undue costs, and initiate a 

lawsuit in order to survive. However, as can be seen from the evidence supplied to 

the Trial Court during the summary judgment process, material issues of fact 

existed, and summary judgment was granted in error. The same must now be 

reversed if justice is to prevail. 

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TABLE OF CONTENTS

Certificate of Interested Parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 

Summary of the Case and Request for Oral Argument . . . . . . . . 3

Table of Authorities & Statutes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 

Statement of the Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 

Procedural Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 

Statement of the Issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 

Statement of the Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 

Summary of the Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 

Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 

A. Applicable Standard of Review Demonstrates Summary

 Judgment Must be Reversed . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

B. The Trial Court Erred in Granting Summary Judgment in 

 Favor of the Appellee, as Material Issues of Fact Clearly

 Existed in this Matter as to all Appellant’s Claims and Causes

 of Action . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 

C. The Trial Court Erred in Granting Summary Judgment in 

 Favor of the Appellee, as Texas Law Has Recognized that

 Payment of an Appraisal Award Does Not at all Preclude a

 Policy Holder From Proceeding to Trial on Certain of the

 Claims Within the Subject Litigation . . . . . . . . . . . . . . . . . . . . 16 

Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 

Certificate of Service . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . .... 23 

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TABLE OF AUTHORITIES

Cases

Am. Tobacco Co. v. Grinnell, 951 S.W.2d 420, 425 (Tex. 1997) . . . . . 10 

City of Keller v. Wilson, 168 S.W.3d 802, 816 (Tex. 2005) . . . . . . . . . 10, 12

Cmty. Initiatives, Inc. v. Chase Bank, 153 S.W.3d 270, 280

 (Tex. App.–El Paso 2004, no pet.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Joe v. Two Thirty Nine Joint Venture,

145 S.W.3d 150, 157 (Tex. 2004)(emphasis supplied) . . . . . . . . . . . . . 10

Lowe’s Home Ctrs., Inc. v. GSW Mktg., Inc., 293 S.W.3d 283, 287 

(Tex. App.–Houston [14th Dist.] 2009, pet. denied). . . . . . . . . . . . . . . 11 

Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 581-82 (Tex. 2006) . . 12 

Valence Opera-ting Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005) . 11 

Westland Oil Dev. Corp. v. Gulf Oil Corp., 637 S.W.2d 903, 907 

(Tex. 1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

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STATEMENT OF THE JURISDICTION

The present appeal arises from a state court matter, originally pending 

before the 295th District of Harris County, Texas. As such, and because it was 

appealed directly to the Court of Appeals for the First District, this matter is 

properly before this Honorable Court.

PROCEDURAL BACKGROUND

As stated in Appellant’s Original Petition, Ms. Anderson sued at the Trial 

Court level for both contractual and extra-contractual remedies, due to the severe 

and continuing damages suffered by her, and specifically to her property, which 

made basis of said lawsuit. Appellant’s present causes of action included contractual 

and extra-contractual claims for (1) breach of contract; (2) violations of the Texas 

Deceptive Trade Practices Act; (3) violations of the Texas Insurance Code; and (4) 

breach of the duty of good faith and fair dealing. As the Texas law supplied below 

will show, Appellant’s extra-contractual claims against Appellee exist 

independently of its contractual cause of action, and are well-founded based upon 

Appellee’s abhorrent conduct in this matter. 

Specifically, after attempting yet failing to resolve this matter on her own, 

Appellant was forced to retain legal representation. Nevertheless, Appellee 

thereafter not only continued to delay and deny payment to Appellant, which 

endured for more than a year after the date of loss, but then predictably sought to 

invoke appraisal after an unsuccessful mediation. Notably, no other efforts by 

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Appellee to resolve this claim had been attempted since this matter was made, until 

after suit was filed and subsequent to an unsuccessful mediation. Appellee then 

filed the baseless motion for summary judgment, asking the Trial Court to to 

disregard its pattern of bad faith conduct. Accordingly, the resulting Court Order 

granting the same, and the accompanying Judgment reflecting this ruling, was a 

product of error and must be reversed.

 STATEMENT OF THE ISSUES

The following issues are subject of the present appeal, and require reversal 

of the Trial Court’s Order granting summary judgment, as well as the resulting 

Final Judgment, as both were clearly derived in error:

 A. The Trial Court erred in granting summary judgment in favor of the 

Appellee, as material issues of fact clearly existed in this matter as to all 

Appellant’s contractual and extra-contractual claims and causes of action, based 

upon Appellant’s own sworn testimony, which speaks directly to the untoward 

conduct of the Appellee; and 

 B. The Trial Court erred in granting summary judgment in favor of the 

Appellee, as Texas law has recognized that payment of an appraisal award does not 

at all preclude a policy holder from proceeding to trial on certain of its remaining 

claims within the subject litigation.

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STATEMENT OF THE CASE

This appeal involves a very simple matter, which is unencumbered by 

peripheral and unrelated issues. Simply put, a policy holder endured horrible 

conditions leading up to the underlying litigation, as to which she was forced to 

hire counsel to pursue. After her lawsuit began, the insurance company attempted 

to unduly preclude the ability of this Appellant to have her day in court by making 

an untimely invocation of the appraisal process. The same was ultimately allowed 

by the Trial Court, a finding which was erroneous in itself, yet the process ensued 

and ultimately, an award of additional funds was derived. 

 After the above exercises took place, the award funds were paid by the 

Appellee carrier, who then quickly moved for a summary judgment as to not only 

the contractual parts of Appellant’s lawsuit, but also as to all extra-contractual 

causes of action, including but not limited to allegations under the Texas Insurance 

Code, Deceptive Trade Practices Act, as well as violations of the duties of good 

faith and fair dealing, to which it was incumbent upon the Appellee to adhere (both 

during the original claims process and throughout the litigation to follow). 

Summary Judgment was ultimately granted, in the face of the evidence showing 

what horrific circumstances led up to the same, thereby making this appeal 

necessary. Based upon the above-referenced facts, as well as existing opinions to 

the contrary by Texas courts, the Trial Court’s Order granting summary judgment 

in favor of the Appellee must be reversed. 

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SUMMARY OF THE ARGUMENT

 The Trial Court’s Order granting summary judgment on all contractual and 

extra-contractual claims advanced by the Appellant in this matter was derived in 

error due, to the circumstances leading up to the appraisal process. All of the same 

took place after Appellant was forced to hire counsel and proceed into litigation. 

Essentially, Appellant was treated horribly at worst, and unprofessionally at best, 

by its own insurance company, during the months subsequent to a large tree 

literally falling onto her home and cutting her residence in two. All such facts 

show that this matter must proceed to trial as to both contractual and extracontractual portions of this case.

 Moreover, recent opinions from the United States District Court for the 

Northern District of Texas - Dallas Division, agree that even upon payment of an 

appraisal award in full, certain of Appellant’s causes of action survive. In the 

present case, claims were made under these exact tenents of Texas Law, including 

the Deceptive Trade Practices Act and the Texas Insurance Code. As the 

referenced opinion speaks to these exact causes of action, the same should be 

allowed to proceed to trial, and the Trial Court’s Order granting summary judgment 

to these specific parts of the litigation must be reversed in its entirety, and 

remanded to the Trial Court for a full trial on the merits.

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ARGUMENT

 As will be shown below, the rudiments of Texas law in regard to the granting 

of sumamry judgment, taken in light of the facts at issue in the presnt matter, make 

it clear that no summary judgment should ever have been granted in this case. 

Accordingly, both the Order granting the same, as well as the final Judgment based 

thereon, were derived at in error and now must be reversed as to the causes of 

action specified and addressed below. 

A. The Applicable Standard of Review Demonstrates That Summary 

Judgment Must be Reversed.

Under Texas law, regardless of whether a movant seeks summary judgment 

on a traditional basis or on no-evidence grounds, the reviewing court is to apply the 

standard of review appropriate for each type of summary judgment, taking as true 

all evidence favorable to the non-movant and indulging every reasonable inference 

and resolving any doubts in the non-movant’s favor. See Joe v. Two Thirty Nine 

Joint Venture, 145 S.W.3d 150, 157 (Tex. 2004)(emphasis supplied). In a 

traditional motion for summary judgment, the movant has the burden of showing 

that there is no genuine issue of material fact and that it is entitled to judgment as a 

matter of law. Tex. R. Civ. P. 166a(c); Am. Tobacco Co. v. Grinnell, 951 S.W.2d 

420, 425 (Tex. 1997). 

 Specifically, to be entitled to traditional summary judgment, a Defendant 

must conclusively negate at least one essential element of each of the Plaintiff’s 

causes of action or conclusively establish each element of an affirmative defense. 

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Id. Moreover, evidence is conclusive only if reasonable people could not differ in 

their conclusions. City of Keller v. Wilson, 168 S.W.3d 802, 816 (Tex. 2005). 

Once the Defendant establishes its right to summary judgment as a matter of law, 

the burden shifts to the Plaintiff to present evidence raising a genuine issue of 

material fact. Westland Oil Dev. Corp. v. Gulf Oil Corp., 637 S.W.2d 903, 907 

(Tex. 1982). Finally, rulings on summary judgments are reviewed de novo on 

appeal. Valence Opera-ting Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005) 

(emphasis added).

 In a no-evidence summary judgment, the movant must show that there is 

absolutely no evidence of one or more essential elements of the claims for which 

the non-movant bears the burden of proof at trial. Tex. R. Civ. P. 166a(i); Lowe’s 

Home Ctrs., Inc. v. GSW Mktg., Inc., 293 S.W.3d 283, 287 (Tex. App.–Houston 

[14th Dist.] 2009, pet. denied). A no-evidence summary judgment may be granted 

when (a) there is a complete absence of evidence of a vital fact, (b) the court is 

barred by rules of law or of evidence from giving weight to the only evidence 

offered to prove a vital fact, (c) the evidence offered to prove a vital fact is no more 

than a mere scintilla, or (d) the evidence conclusively establishes the opposite of 

the vital fact. Lowe’s, 298 S.W.3d at 287-88 (citing Merrell Dow Pharms., Inc. v. 

Havner, 953 S.W.2d 706, 711 (Tex. 1997)). 

 “Evidence does not exceed a scintilla if it is ‘so weak as to do no more than 

create a mere surmise or suspicion’” that the challenged fact exists. Akin, Gump, 

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Strauss, Hauer & Feld, L.L.P. v. Nat’l Dev. & Research Corp., 299 S.W.3d 106, 

115 (Tex. 2009) (quoting Kroger Tex. L.P. v. Subaru, 216 S.W.3d 788, 793 (Tex. 

2006). Once again, within this particular context, rulings on summary judgments 

are reviewed de novo on appeal. Valence Operating Co. v. Dorsett, 164 S.W.3d 

656, 661 (Tex. 2005) (emphasis added).

 Continuing, a non-moving party is “not required to marshal its proof; its 

response need only point out evidence that raises a fact issue on the challenged 

elements.” Tex. R. Civ. P. 166a (Notes & Comments 1997). The non-movant must 

only point to some, but not all, evidence supporting challenged elements. Cmty. 

Initiatives, Inc. v. Chase Bank, 153 S.W.3d 270, 280 (Tex. App.–El Paso 2004, no 

pet.). In addition, a no-evidence summary judgment motion is essentially a motion 

for a pretrial directed verdict. Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 581-82 

(Tex. 2006). The reviewing court is required to apply the same legal sufficiency 

standard of review that is applied when reviewing a directed verdict. City of Keller 

v. Wilson, 168 S.W.3d 802, 823 (Tex. 2005). 

 Further, the reviewing court is required to review a no-evidence summary 

judgment for evidence that would enable reasonable and fair-minded jurors to 

differ in their conclusions. Hamilton v. Wilson, 249 S.W.3d at 425, 426 (Tex. 

2008) (citing City of Keller, 168 S.W.3d at 822). Ultimately, the court views the 

summary judgment evidence in the light most favorable to the party against whom 

summary judgment is sought, crediting evidence favorable to that party if 

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reasonable jurors could, and disregarding contrary evidence unless reasonable 

jurors could not. See Mack Trucks, 206 S.W.3d at 582; City of Keller, 168 S.W.3d 

at 822. 

B. The Trial Court Erred in Granting Summary Judgment in Favor 

of the Appellee, as Material Issues of Fact Clearly Existed in this 

Matter as to all Appellant’s Claims and Causes of Action.

The affidavit testimony of Vanessa Anderson shows exactly why summary 

judgment must be reversed. On June 12, 2012 at approximately 5:30 p.m., 

Appellant called the American Risk Insurance Company claims department after 

receiving a call from her father informing her that a tree fell through her house. 

When the stormed happened, Appellant’s brother, Sean Anderson, was present in 

Appellant’s son’s room, just before an enormous tree literally crashed through that 

exact room. Sean was able to make it to the hallway safely and saw water gushing 

out of the hallway bathroom because it too, had been crushed. 

 After several attempts, Sean was unable to reach Appellant because there 

was no cellular service. Appellant’s brother was finally able to reach Appellant’s 

father, Michael Anderson. Appellant’s father then called to let Appellant know her 

house was damaged. Appellant called her insurance company to report the claim, 

but reached an answering service. A representative informed Appellant that 

someone would be in contact with her. See Tab “1” para. 2. On June 12, 2012 at 

approximately 7:00 p.m. Appellant arrived at her house and it was still raining. 

Her neighbor, Cathy Vantreese, already had a tree company removing the tree that 

13
had punctured her garage and already had a tarp in place to cover the holes to 

prevent further damage. See Tab “1” at para. 2.

 June 12, 2012, at approximately 7:30 p.m., Appellant called the claims 

department again to tell them that she had no running water or electricity, and 

asked what she was suppose to do. Appellant, who is a single mom and did not 

have the funds to relocate, expressed her frustration with the situation and the fact 

that she was faced with an emergency, and still was not able to talk to anyone at 

American Risk. Despite the damage suffered to Appellant’s home, her house did 

not get tarped that evening, but instead it remained open, risking both further 

structural damage as well as the possibility of having her property stolen. See Tab 

“1” at para. 4.

 On June 13, 2012, and after not receiving a return call from American Risk, 

Appellant called their office once they opened and she spoke to Chad Pleasant. 

Mr. Pleasant was not even aware that Appellant had event called the answering 

service the night before with an emergency. Mr. Pleasant didn’t ask Appellant if 

she was okay, and never informed her of what steps were required to protect the 

home. Mr. Pleasant told Appellant that someone would be out to the home in a few 

days. See Tab “1” at para. 5.

 Appellant also inquired about money to secure a temporary place to live 

since her home was so badly damage. She told Mr. Pleasant that she was a single 

mother who didn’t have the money to cover the unexpected expenses. Appellant 

14
was told she would have to submit any receipts and that she would be held 

responsible for any further damage to her property. Mr. Pleasant told Appellant he 

would call her back right away, but he did not promptly return her call, as 

promised. Accordingly, despite all her referenced efforts, Appellant still had no 

answers from the insurance company, still had a tree though the roof of her home 

and nowhere to live. See Tab “1” at para. 5.

 Appellant submitted receipts to her insurance carrier as requested. However, 

the reimbursements were severely delayed and caused a financial strain on her and 

her family. Had she been told this from the beginning, and after having been 

displaced from her home for four (4) months, she could have rented an apartment 

that was affordable. Accordingly, Appellant was finally forced to sign a short term 

lease at The Marquis at The Woodlands from August 11, 2012 until October 10, 

2012. During this time, Appellant accrued late fees because American Risk was 

slow to reimburse her, although she was very prompt in submitting her receipts.

See Tab “1” at para. 6 and 7.

 Appellant also submitted e-mails containing the date and time of alternative 

living expenses, pictures of the damage to the house and personal belongings, and 

a video of damage done to her home, which showed that her neighbor had workers 

tarping the garage. She also videoed that no was was working at her property on 

that day. Appellant was not able to reach a live person at American Risk on the day 

15
of the damage, and was merely told by the answering service that she would 

receive a return call. See Tab “1” at para. 8.

 Ultimately, Appellant received very little to no response from American 

Risk. There are still unpaid debts owed to relatives for loans, to the apartment 

complex, and to the utility companies. Clearly, Ms. Anderson has outstanding debt 

from Appellee’s conduct, and now, her credit is in jeopardy. See Tab “1” at para. 9.

 Based upon the abundance of proper and timely evidence submitted above, it 

is clear that material issues of fact exist regarding Appellant’s claims. Appellee 

was therefore not entitled to summary judgment relief granted by the Trial Court. 

Accordingly, and based upon the arguments and authority set forth below, the Trial 

Court’s granting of Appellee’s Summary Judgment must be reversed in its entirety.

C. The Trial Court Erred in Granting Summary Judgment in Favor 

of the Appellee, as Texas Law has Recognized That Payment of an 

Appraisal Award Does Not Preclude a Policy Holder From 

Proceeding to Trial on Certain of the Claims Within the Subject 

Litigation.

Clearly, Appellant has made a colorable claim for extra-contractual damages 

in this matter, under both the Deceptive Trade Practices Act, and pursuant to both 

Chapters 541 and 542 of the Texas Insurance Code, based upon the evidence 

submitted herewith. Under the strict provisions of the DTPA, as it relates to 

violations under the Texas Insurance Code, the law provides that “[i]n an action for 

violation of chapter 541, the Appellant can recover additional damages. See Sec. 

541.152(b), Tex. Ins. Code. Specifically, “[t]he total damages may amount to up to 

16
three times the amount of actual damages. See id. Moreover, “[i]n an action for 

violation of chapter 542, the Appellant can recover statutory damages of 18% per 

year on the amount of the claim. See Sec. 542.060(b), Tex. Ins. Code. 

 Moving forward, the same arguments, couched in long-standing case law, 

applies to the extra-contractual and penalty-based remedies also sought by 

Appellant. Under the strict provisions of the DTPA, as it relates to violations under 

the Texas Insurance Code, the law provides that “[i]n an action for violation of 

chapter 541, the Appellant can recover additional damages. See Sec. 541.152(b), 

Tex. Ins. Code. Specifically, “[t]he total damages may amount to up to three times 

the amount of actual damages. See id. Moreover, “[i]n an action for violation of 

chapter 542, the Appellant can recover statutory damages of 18% per year on the 

amount of the claim. See Sec. 542.060(b), Tex. Ins. Code. 

 Moving forward, Appellant contends that Appellee breached their duty of 

good faith and fair dealing by failing to take many of the actions required by the 

Texas Insurance Code. As discussed above, in this case, Appellant has at least 

raised a fact issue as to Appellee’s breach of the Policy, numerous statutory 

violations, and bad faith. This is, at a minimum, certain evidence of bad faith and 

unreasonable investigation practices by Appellee, which defeats summary 

judgment. As Appellant has presented proper evidence of Appellee’s breach of the 

duty of good faith and fair dealing, Appellee was never entitled to summary 

judgment, and the same must be reversed accordingly.

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 Adding to the above, Under Texas law, Section 542.054 of the Texas 

Insurance Code states “this Subchapter shall be liberally construed to promote the 

prompt payment of insurance claims.” See Tex. Ins. Code Ann. § 542.054 (Vernon 

Supp. 2010). Specifically, Chapter 542 requires insurers to promptly investigate 

claims, promptly request additional information, promptly make payments, and 

promptly provide explanations for non payment within the time periods prescribed 

by the rules. See id.; See also Tex. Ins. Code §§ 542.055, 542.056, 542.057.

 Based on both the letter and the spirit of the above, it is absolutely patently 

unreasonable for an insurer to argue that it is in compliance with a prompt payment 

provision of the Insurance Code if it has failed to make any payments after 

conducting an investigation and evaluation. Appellee was therefore not in 

compliance with the liberal construction of Subchapter 542, especially if read in 

conjunction with the “fair and equitable” requirements of Chapter 541, which is 

also to be liberally construed. In fact, Appellee failed to make any payments to 

Appellant until the completion of the appraisal process. Therefore, the evidence 

presented in this matter clearly raises genuine issues of material fact as to whether 

Appellee violated these provisions. Accordingly, this Court must reverse the Trial 

Court’s granting of Appellee’s Summary Judgment in its entirety.

 Regarding Appellant’s claims for attorneys fees, “in an action for deceptive 

insurance practices, the [Appellant] . . . can recover attorneys fees.” See Sec. 

541.152(a)(1), Tex. Ins. Code. Finally, in an action for violation of Section 542 of 

18
the Texas Insurance Code, the Appellant can also recover reasonable attorneys fees. 

See Sec. 542.060(b), Tex. Ins. Code. As evidence exists in the present matter to 

allow for all such causes of action to proceed past summary judgment, the Trial 

Court’s granting of Appellees’ motion must be reversed in this regard.

Objectively, all such claims allow for an Appellant to recover attorneys fees 

and penalty damages. “In an action for breach of contract, the parties may be 

entitled to reasonable attorney fees . . . .” See Sec. 18.001, Tex. Civ. Prac. & Rem. 

Code. Moreover, “under the DTPA, each prevailing Appellant must be awarded 

reasonable and necessary attorney fees and costs . . . .” See Sec. 17.50(c), Tex. 

Bus. & Com. Code. 

In addition to the above, this issue was also squarely addressed in the matter 

of Kenneth Graber vs. State Farm Lloyds, Case No. 3:13-cv-2671-B, pending 

before the Honorable Jane J. Boyle, in the United States District Court for the 

Northern District of Texas - Dallas Division. In Graber, State Farm argued that 

because it timely paid an appraisal award in full, that all contractual and extracontractual damages were eliminated as a matter of course. However, the Court 

disagreed, concluding “that State Farm’s fully and timely payment of the appraisal 

award” does not preclude certain of Appellant’s remaining claims. The Court 

further concluded that State Farm’s payment of the appraisal award also fails to 

preclude Appellant from continuing to trial on certain of its extra-contractual 

claims, including “Appellant’s claims under §541.061 of the Insurance Code, 

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§§17.50(a)(1) and (3) of the DPTA and the TPPCA. See Graber Memorandum 

Opinion and Order at pp. 18 and 19; see also Graber Order denying State Farm’s 

Motion for Reconsideration. All such authority demonstrates that Appellant, who 

suffered miserably at the hands of Appellee, is due her day in Court.

CONCLUSION

Appellant in this matter has brought forth an abundance of proper and timely 

summary judgment evidence to show that material issues of fact exist regarding all 

her causes of action under theories of contract, as well as bad faith and deceptive 

trade practices. Essentially, there are a litany of considerations to be made by a 

finder of fact as to each and every claim lodged by the Appellant in this matter 

against Appellee. 

 In light of all the above, and due to such abounding issues, it is simply an 

unjust and unfair outcome for Appellant to be deprived of a trial regarding the 

damages she suffered due to the actions (or inaction) of the Appellee. All such 

extra-contractual causes of action should therefore be allowed to proceed, and be 

presented to a jury of Appellant’s peers, so that all such issues can be resolved 

justly and appropriately. Because of the same, based upon the well-founded Texas 

case law cited above, and as material issues of fact exist regarding all such claims, 

summary judgment in this matter must be reversed completely.

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WHEREFORE, Appellant prays that this Honorable Court reverse the Trial 

Court’s Final Judgment, and that this matter remanded to the Trial Court level for a 

full proceeding on the merits, and for all such further relief to which Appellant may 

be justly entitled. 

 Respectfully submitted,

/s/ Scott G. Hunziker 

Scott G. Hunziker

Attorney-in-Charge

Texas Bar No. 24032446

Federal I.D. No. 38752

OF COUNSEL:

The Voss Law Firm, P.C.

26619 Interstate 45

The Woodlands, Texas 77380

Telephone: (713) 861-0015

Facsimile: (713) 861-0021

scott@vosslawfirm.com

ATTORNEYS FOR APPELLATE

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CERTIFICATE OF COMPLIANCE WITH FED.R.APP.P. 32(a)

 This brief complies with the type-volume limitation of Fed.R.App.P. 2(a) (7)

(B)(iii) because this brief contains 4,775 words, excluding the parts of the brief 

exempted by Fed.R.App.P. 32(a)(7) (B)(iii).

This brief complies with the preface requirements of Fed.R.App.P. 32(a) (5) 

and the type style requirements of Fed.R.App.P. 32(a)(6) because this brief has 

been prepared in a proportionally spaced typeface using Microsoft Word 2003 in 

14-point Times New Roman font.

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CERTIFICATE OF SERVICE

 This is to certify that a true and correct copy of the foregoing instrument has 

been served upon the following counsel of record in accordance with the Texas 

Rules of Civil Procedure on this 25th day of November, 2015.

George Arnold

Thompson, Coe, Cousins & Irons, L.L.P.

One Riverway Ste. 1600

Houston, Texas 77056

Via Facsimile (713)403-8299

/s/ Scott G. Hunziker

 ____________________________________

 Scott G. Hunziker

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