1

In The

Court of Appeals

Ninth District of Texas at Beaumont

__________________

NO. 09-22-00173-CV

__________________

TEXAS WINDSTORM INSURANCE ASSOCIATION, Appellant

V.

KEVIN KELLY AND TIFFANY KELLY, Appellees

__________________________________________________________________

On Appeal from the 136th District Court

Jefferson County, Texas

Trial Cause No. D-203,415

__________________________________________________________________

OPINION

The Court’s opinion and judgment of September 21, 2023 are withdrawn and 

the following opinion is substituted in its place. Texas Windstorm Insurance 

Association’s (TWIA)Motion for Partial Rehearing is denied.1 This is a permissive 

interlocutory appealfrom a “Summary Judgment Order With Permission to Appeal”

1In its motion for rehearing, TWIA requests that the Court revise or amend its 

Opinion to render a take-nothing summary judgment in TWIA’s favor. However, we 

cannot render judgment because all the parties are not before the Court in this appeal.
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(the Order), granting Plaintiffs’/Appellees’ summary judgment and denying the 

TWIA Defendant’s/Appellant’s summary judgment. The Order included the 

following controlling questions of law: (1) whether section 2210.208 of the Texas 

Insurance Code requires TWIA to provide wind-driven rain coverage in its basic 

residential policy and prohibits the provision of wind-driven rain coverage through 

an endorsement; (2) whether TWIA’s failure to provide such wind-driven rain 

coverage in its basic residential policy constitutes a breach of the common-law duty 

of good faith and fair dealing that is actionable against TWIA notwithstanding the 

prohibition of common-law claims against TWIA in Chapter 2210 of the Texas 

Insurance Code; and (3) whether TWIA’s failure to provide wind-driven rain 

coverage in its basic residential policy constitutes an “unfair or deceptive act or 

practice” in violation of the Texas Deceptive Trade Practices-Consumer Protection 

Act (DTPA) that is actionable against TWIA notwithstanding the prohibition of 

DTPA claims against TWIA in Chapter 2210 of the Texas Insurance Code. SeeTex. 

Civ. Prac. & Rem. Code Ann. § 51.014(d); Tex. Ins. Code Ann. § 2210.028.

On appeal, TWIA argues that the trial court erred in granting Kevin Kelly’s 

and Tiffany Kelly’s (the Kellys) motion for summary judgment, and the trial court 

erred in denying TWIA’s motion for summary judgment. In three appellate issues, 

TWIA argues: (1) the Kellys have no viable claims against TWIA under the Texas 
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Windstorm Insurance Act (the Act) because TWIA complied with the Act “by 

offering coverage for wind-driven rain damage through a commissioner-approved 

endorsement[,]” which the Kellys didn’t purchase; (2) the Kellys’ common law and 

DTPA claims, which resulted from TWIA’s denial of the claim the Kellys submitted 

when their property was damaged by wind-driven rain, were barred by the Act; and 

(3) there was a fact issue precluding the granting of the Kellys’ motion for summary 

judgment.

We hold that even though section 2210.208 of the Texas Insurance Code 

requires Windstorm and Hail Insurance policies issued by TWIA to include coverage 

for wind-driven rain, that coverage may be made available through an endorsement 

that requires the insured to pay an additional premium to the carrier to compensate 

the carrier for insuring against the additional risk of covering the property against 

the casualty of being damaged by wind-driven rain. Furthermore, we hold that since 

the Insurance Code limits a claimant’s recovery to a remedy under their policy, the 

Act necessarily prohibits insureds, like the Kellys, from suing TWIA on claims 

alleging a breach of the duty of good faith and fair dealing and violating the DTPA 
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when the Legislature did not expressly authorize claimants to bring those types of 

claims against TWIA under the Act.2 See Tex. Ins. Code Ann. § 2210.576. 

We reverse the trial court’s interlocutory Order granting summary judgment 

in favor of the Kellys, we reverse the trial court’s interlocutory Order denying 

TWIA’s summary judgment, and we instruct the trial court to grant summary 

judgment for TWIA that the Kellys take nothing. We remand this case back to the 

trial court for the entry of an order denying the Kellys’ motion for summary 

judgment and the entry of an order granting TWIA’s motion for summary judgment,

which grants TWIA a take-nothing judgment against the Kellys on their claims.3

2In supplemental briefing, Appellees urge us to reverse and remand this case 

for assignment to a judge appointed by the judicial panel on multidistrict litigation. 

To support their argument, Appellees rely on Pruski v. Tex. Windstorm Ins. Ass’n, 

667 S.W.3d 460, 464–67 (Tex. App.–Corpus Christi 2023, pet. filed), which held 

that a presiding judge who was not appointed to hear cases by the judicial panel of 

multidistrict litigation (MDL) did not have the power to grant summary judgment, 

and thus the judgment was void, even though the insured did not timely request 

appointment of an MDL judge. Opinions from our sister courts “are not binding on 

this Court.” Rhinoceros Ventures Grp., Inc. v. TransCanada Keystone Pipeline, L.P., 

388 S.W.3d 405, 409 (Tex. App.—Beaumont 2012, pet. denied). Therefore, we 

decline to follow Pruski to the extent that Pruski could be interpreted to require 

appointment of a judge by an MDL panel under the circumstances that resulted in 

this appeal.

3At this time a summary judgment order granting TWIA a take-nothing

judgment on the Kellys’ claims would be interlocutory since the Kellys still have

claims pending that are not resolved against Defendant “McFerrin Insurance 

Agency, Inc.,” which is not a party to this appeal.
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BACKGROUND

Tiffany Kelly and Kevin Kelly live in Port Arthur, Texas. In 2017, the Kellys 

purchased a windstorm and hail insurance policy to cover their residential property 

from TWIA through their insurance agent, McFerrin Insurance Agency, Inc. The 

policy insures the property “against direct loss resulting from the perils of 

Windstorm and Hail only[.]” The policy specifically excluded the following loss to 

the covered property: 

6. Rain. We do not cover loss or damage caused by or resulting from 

rain, whether driven by wind or not, unless direct force of wind or hail 

makes an opening in a roof or wall and rain enters through this opening 

and causes the damage.

The Kellys’ home was damaged by Hurricane Harvey on or about August 29, 

2017. On September 1, the Kellys filed a notice of claim with TWIA. The adjuster 

hired by TWIA completed a loss report that same month, finding both covered and 

non-covered damage. The adjuster made the following findings: (1) the Kellys’ 

property sustained covered damage to the garage door tracks, (2) damage to the roof 

was not caused by wind or hail, and (3) water damage to the interior of the property 

did not result from a wind or hail created opening in the roof or walls, as required 

for coverage under the policy. TWIA issued a Notice of Claim Acceptance in Part 

and Denial in Part, accepting coverage for damage to the tracks on the detached 

garage but denying coverage from rainwater intrusion.
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After TWIA denied that the policy it issued to the Kellys covered damage 

caused by the intrusion of the rain, the Kellys sued TWIA and McFerrin Insurance 

Agency for breach of the common law duty of good faith and fair dealing (i.e., “bad 

faith”), breach of contract, and violations of the DTPA. The Kellys complained that

TWIA denied coverage for their interior water damage caused by wind-driven rain. 

The Kellys asserted that under TexasInsuranceCode section 2210.208, every TWIA 

windstorm policy must contain wind-driven rain coverage. According to the Kellys’ 

Original Petition, since they paid their insurance premiums, wind-driven rain 

damage must have been included under the policy they purchased from TWIA.

TWIA filed a combined no-evidence and traditional motion for summary 

judgment. In response, the Kellys filed a traditional cross-motion for summary 

judgment. Both motions rely on the language in Texas Insurance Code section 

2210.208. That section, which is titled “Windstorm and Hail Insurance: Coverage 

for Certain Indirect Losses,” provides: 

(a) Except as provided by Subsections (e) and (f), a windstorm and hail 

insurance policy issued by the association for a dwelling, as that term 

is defined by the department or a successor to the department, must 

include coverage for:

(1) wind-driven rain damage, regardless of whether an opening is 

made by the wind;

(2) loss of use; and

(3) consequential losses.
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(b) A windstorm and hail insurance policy issued by the association for 

tenant contents of a dwelling or other residential building must include 

coverage for loss of use and consequential losses.

(c) The coverage required under Subsection (a) or (b) must be made:

(1) according to forms approved by the commissioner; and

(2) for a premium paid by the insured based on rates established by 

commissioner rule.

(d) The association shall provide coverage under this section as directed 

by commissioner rule.

(e) The association is not required to offer coverage for indirect losses 

as provided by Subsection (a) or (b) unless that coverage was excluded 

from a companion policy in the voluntary market.

(f) The association is not required to provide coverage for:

(1) loss of use, if the loss is loss of rent or loss of rental value; or

(2) additional living expenses, if the insured property is a secondary 

or a nonprimary residence.

The parties’ dispute centers on whether the “must include coverage for” clause 

is satisfied by TWIA offering their insureds the opportunity to purchase a 

Department of Insurance approved endorsement, which extends the basic coverage 

in TWIA’s windstorm and hail policy to damages caused by wind-driven rain. In its 

motion, TWIA argued the mandatory requirement in section 2210.208 was satisfied 

because the Kellys had the opportunity to purchase a wind-driven rain endorsement 

to their policy, which they declined. On the other hand, the Kellys argued the statute 

requires wind-driven rain coverage to be included with every TWIA windstorm and 

hail policy.

According to TWIA, it discharged its statutory obligations to the Kellys by 

making wind-driven rain coverage available to them through the purchase of a 320 
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Endorsement, an endorsement that had been approved by the Commissioner of 

Insurance. More specifically, the 320 Endorsement contains a provision that states, 

“In consideration of an included additional premium, the policy is extended to 

provide the following coverages:... Wind-Driven Rain Coverage:We cover loss to 

the dwelling and personal property caused by wind-driven rain whether or not an 

opening is made in the dwelling by the direct force of wind or hail.” The Kellys had 

the option to purchase the 320 Endorsement by paying an additional premium, but 

they failed to do so. Since the Kellys weren’t covered for damages to their property 

caused by wind-driven rain, TWIA argued, TWIA acted properly in denying their 

claim. And because the statute limited claimants to whether TWIA’s denial of 

coverage was proper and limited the damage to the losses payable under the policy, 

prejudgment interest and attorney’s fees, the Kellys could not bring non-statutory 

claims alleging TWIA acted in bad faith or claim that TWIA had violated the DTPA.

See Tex. Ins. Code Ann. §§ 2210.572, 2210.576.

After a hearing on the cross-motions for summary judgment, the trial court

signed a “Summary Judgment Order With Permission to Appeal.”The order granted 

the Kellys’ motion for summary judgment and denied TWIA’s motion for summary 

judgment. The trial court found that (1) the TWIA policy issued to the Kellys 

improperly and ineffectively omits coverage for wind-driven rain in violation of 
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section 2210.208, and (2) the Kellys have stated actionable claims against TWIA for 

breach of the duty of good faith and fair dealing and for violations of the DTPA 

based on TWIA’s omission of coverage from such policy. After concluding that its 

order involved a controlling question of law on which there was a substantial ground 

for difference of opinion, the trial court granted TWIA permission to file an 

interlocutory permissive appeal. SeeTex. Civ. Prac. & Rem. Code Ann. § 51.014(d).

In the exercise of our discretion, we accepted the appeal. Id. § 51.014(f); see also 

Tex. R. App. P. 28.3.

Again, in its Order, the trial court identified three controlling questions of law 

on which there are substantial grounds for difference of opinion: 

• (1) whether section 2210.208 of the Texas Insurance Code requires TWIA to 

provide wind-driven rain coverage in its basic residential policy and prohibits 

the provision of wind-driven rain coverage through an endorsement; 

• (2) whether TWIA’s failure to provide such wind-driven rain coverage in its 

basic residential policy constitutes a breach of the common-law duty of good 

faith and fair dealing that is actionable against TWIA notwithstanding the 

prohibition of common-law claims against TWIA in Chapter 2210 of the 

Texas Insurance Code; and 
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• (3) whether TWIA’s failure to provide wind-driven rain coverage in its basic 

residential policy constitutes an “unfair or deceptive act or practice” in 

violation of the DTPA that is actionable against TWIA notwithstanding the 

prohibition of DTPA claims against TWIA in Chapter 2210 of the Texas 

Insurance Code. 

STANDARD OF REVIEW

“On cross-motions for summary judgment, each party bears the burden of 

establishing that it is entitled to judgment as a matter of law.” Miles v. Tex. Cent. 

R.R. & Infrastructure, Inc., 647 S.W.3d 613, 619 (Tex. 2022) (quoting City of 

Garland v. Dall. Morning News, 22 S.W.3d 351, 356 (Tex. 2000)). When the trial 

court grants one motion and denies the other, as is the case here, we “‘determine all 

questions presented’” and “‘render the judgment that the trial court should have 

rendered.’” Id. (quoting City of Garland, 22 S.W.3d at 356).

We construe statutory language de novo. Crosstex Energy Servs., L.P. v. Pro

Plus, Inc., 430 S.W.3d 384, 389 (Tex. 2014). Our goal isto determine and give effect

to theLegislature’sintent.Tex. Mut. Ins. Co. v. Ruttiger, 381 S.W.3d 430, 452 (Tex.

2012). We look to and rely on the plain meaning of a statute’swords as expressing

legislative intent unless a differentmeaning issupplied, is apparentfromthe context,

or the plain meaning of the words leads to absurd or nonsensical results.Crosstex
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Energy Servs., L.P., 430 S.W.3d at 389-90.We read words and phrasesin a statute

“in context and construed according to the rules of grammar and common

usage.”Tex. Gov’t Code Ann.§ 311.011. We construe the language of a statute so

that each part hasmeaning and no part isleft out.Columbia Med.Ctr. of LasColinas,

Inc. v. Hogue, 271 S.W.3d 238, 256 (Tex. 2008)(“TheCourt must not interpret the

statute in a manner that renders any part of the statute meaningless or

superfluous.”). We presume “theLegislature chooses a statute’slanguagewith care,

including each word chosen for a purpose, while purposefully omitting words not

chosen.”TGS-NOPEC Geophysical Co. v. Combs, 340 S.W.3d 432, 439 (Tex.

2011). A court must take a statute asit findsit, and it must refrain from rewriting the

Legislature’s chosen text. Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433,

443 (Tex. 2009);PedernalEnergy, LLCv. Bruington Eng’g, LTD., 536 S.W.3d 487,

491-92 (Tex. 2017).

ANALYSIS

In the trial court, the Kellys argued that the plain language of section

2210.208(a) obligated TWIA to issue windstorm and hail insurance policies that 

included coverage for damage caused by wind-driven rain. Specifically, they relied

on the phrase “must include coverage” in the statute to support their argument that 

the Legislature mandated TWIA’s policies include coverage for wind-driven rain.
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TWIA, on the other hand, argued that the Kellys’ interpretation of the statute 

erroneously focused only on subsection (a). TWIA points to subsection (c) of the 

statute, which it argued allowed TWIA to comply with the statute by offering to 

cover wind-driven rain through an endorsement on a form approved by the Texas 

Commissioner of Insurance, which is what the summary judgment evidence TWIA 

attached to its motion shows it did.

In TWIA’s first issue, it argues that it complied with the Act by offering to 

cover losses caused by wind-driven rain through an endorsement to the basic 

windstorm and hail policy that it issued to the Kellys, an endorsement the Kellys did 

not obtain. To determine whether TWIA could comply with the Act by offering 

coverage through an endorsement rather than under the terms of its basic policy, we 

start with the plain language of the Act. Although the Act does not define 

“windstorm and hail insurance,” it does define “Texas windstorm and hail 

insurance” as

deductible insurance against: (A) direct loss to insurable property 

incurred as a result of windstorm or hail, as those terms are defined and 

limited in policies and forms approved by the department; and (B) 

indirect losses resulting from the direct loss. 

Id. § 2210.003(13). “When used in a statute, the term “must” creates or recognizes 

a condition precedent.”Helena Chem. Co., 47 S.W.3d at 493; Tex. Gov’t Code Ann. 

§ 311.016(3). “While Texas courts have not interpreted ‘must’ as often as ‘shall,’
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both terms are generally recognized as mandatory, creating a duty or obligation.” Id.

(citing Tex. Gov’t Code Ann. § 311.016(2), (3)) (other citations omitted). “The word 

‘must’ is given a mandatory meaning when followed by a noncompliance penalty.”

Id. (citation omitted). “However, we have held language that appears to impose a 

mandatory duty to be only directory when this interpretation is most consistent with 

the Legislature’s intent.” Id. (citations omitted).

“To determine whether the Legislature intended a provision to be mandatory 

or directory, we consider the plain meaning of the words used, as well as the entire 

act, its nature and object, and the consequences that would follow from each 

construction.” Id. at 494. “When a statute is silent about the consequences of 

noncompliance, we look to the statute’s purpose to determine the proper 

consequences.” Id.

The Kellys interpret section 2210.208(a)’s “must include clause” in a vacuum

without considering how the other subsections within the same section of the statute 

affect the statute’s intended meaning. See Tex. Ins. Code Ann. § 2210.208. For 

example, when read in context, the Kellys’ interpretation of the “must include 

clause” would render other provisions in the statute meaningless. See id. For 

example, subsection (e) of the statute provides that TWIA “is not required to offer

coverage for indirect losses as provided by Subsection (a) or (b) unless that coverage 
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was excluded from a companion policy in the voluntary market.” Id. § 2210.208(e). 

Thus, the statute clearly provides circumstances under which indirect losses caused 

by wind-driven rain would not be covered under TWIA’s former windstorm and hail 

policies. 

Likewise, subsection (c) states that the coverage “required by Subsection (a) 

or (b) must be made:(1) according to forms approved by the commissioner; and (2) 

for a premium paid by the insured based on rates established by commissioner rule.”

Tex. Ins. Code Ann. § 2210.208(c). When reading subsections (a) and (c) of the 

statute together, they mean that an insured must pay a premium based on rates 

established by commissioner rule to obtain an endorsement to a policy that covers 

damage to the insured’s property caused by wind-driven rain. See id. § 2210.208(a), 

(c). Importantly, the Legislature didn’t specify that the coverage for wind-driven rain 

couldn’t be offered to an insured through an endorsement applicable to the policy’s 

basic terms. Finally, we note the Act imposes no non-compliance penalty on TWIA 

but instead allows it to comply with the statute by offering its insureds the 

opportunity to obtain an endorsement that covers damage caused by wind-driven 

rain by paying an additional premium approved by the commissioner when 

purchasing a windstorm and hail policy. This suggests the Legislature’s intent was 

to create a market that required TWIA to offer insureds the opportunity to purchase 
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coverage for wind-driven rain, not that each policy’s basic form language was 

required to include that coverage (which would have required all insureds to pay a 

premium commensurate with the risk) had such coverage been intended as 

mandatory. Id. § 2210.208(c); see Helena Chem. Co., 47 S.W.3d at 494.

Our reading of the statute supports the policy that led to the enactment of the 

windstorm statute. The Texas Legislature passed the Act to provide “an adequate 

market for windstorm and hail insurance in the seacoast territory of this state.” Tex. 

Ins. Code Ann. § 2210.001. When the Legislature created TWIA, it intended that 

TWIA “serve as a residual insurer of last resort for windstorm and hail insurance in 

the seacoast territory.” Id. In carrying out its mission, the Legislature provided that 

TWIA “function in such a manner as to not be a direct competitor in the private 

market[,] and provide windstorm and hail insurance coverage to those who are 

unable to obtain that coverage in the private market.” Id.

“Under well-established rules of statutory interpretation, we may not interpret 

one portion of a statute so as to render another portion of the statute meaningless.”

Harris Cty. Appraisal Dist. v. Tex. Gas Transmission Corp., 105 S.W.3d 88, 98 

(Tex. App.—Houston [1st Dist.] 2003, pet. denied). Interpreting Section 2210.208 

as the Kellys propose – that every single policy sold by TWIA include wind-driven 

rain coverage, regardless of whether an opening is made by the wind – would ignore 
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both subsection (c) and subsection (e) of the statute, which gives the commissioner 

the ability to offer such coverage to insureds in certain circumstances and to 

determine how to issue such coverage. See Tex. Ins. Code Ann. § 2210.208(c), (e). 

Accordingly, we hold that TWIA complied with the requirements of section 

2210.208 by offering the Kellys the opportunity to obtain coverage for damage 

caused by wind-driven rain through the purchase of an endorsement that, if 

purchased, would have provided coverage for losses caused by wind-driven rain. We 

sustain TWIA’s first issue. 

In its second issue, TWIA argues that the Kellys do not have valid claims 

against it for allegedly breaching its duty of good faith or for violating the DTPA 

because their claims are limited by section 2210.576 of the Act to certain claims, a 

claim over whether TWIA’s denial “was proper[,]” a claim to recover the amount of 

damages recoverable under the policy for the loss less the amount, if any, already 

paid, and a claim for prejudgment interest and attorney’s fees. Tex. Ins. Code Ann. 

§ 2210.576. In response, the Kellys argue that Chapter 2210 of the TWIA Act sets 

out the general remedy and the damages they may recover but does not limit them

to the statutory claims listed in the Act.

We review statutory interpretation de novo and use the same principles of 

statutory interpretation we used in deciding issue one. City of Rockwall v. Hughes, 
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246 S.W.3d 621, 625 (Tex. 2008). In 2011, the Texas Legislature passed House Bill 

No. 3 (“H.B. 3”), which made significant changes to Chapter 2210, including the 

addition of restrictions on policyholders’ remedies and specific procedural 

requirements. See Act of June 28, 2011, 82nd Leg., 1st C.S., ch. 2, § 41, 2011 Tex. 

Gen. Laws 5180, 5192–98 (current version at Tex. Ins. Code Ann. § 2210.572(a)); 

Tex. Windstorm Ins. Ass’n v. Jones, 512 S.W.3d 545, 549 (Tex. App.—Houston [1st 

Dist.] 2016, no pet.). Section 2210.572(a) now provides the exclusive remedies for 

a claim against TWIA under the Act. See Tex. Ins. Code Ann. § 2210.572(a). Section 

2210.14(a) provides that “[a] person may not bring a private action against[TWIA], 

including a claim against an agent or representative of [TWIA], under Chapter 541 

[(unfair settlement practices)] or Chapter 542 [(prompt payment of claims)].” See id. 

§ 2210.014(a). Section 2210.572(c) provides that “[TWIA], and an agent or 

representative of [TWIA], may not be held liable for damage under Chapter 17 of 

the Business & Commerce Code (the DTPA), or, except as otherwise provided 

specifically by this chapter, under any provision of any law providing for additional 

damages, punitive damages, or a penalty. See id. § 2210.572(c). Subject to Section

2210.576, TWIA “may not be held liable for any amount other than covered losses 

payable under the terms of the association policy.” Id. § 2210.572(b). 
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When the Legislature creates a statutory cause of action and remedy for its 

enforcement dealing with an administrative agency, such as TWIA, rather than by 

common law, the statutory provisions are mandatory and exclusive. See Tex. 

Catastrophe Prop. Ins. Ass’n v. Council of Co-Owners of Saida II Towers Condo 

Ass’n, 706 S.W.2d 644, 645-46 (Tex. 1986), abrogated on other grounds by Dubai 

Petroleum Co. v. Kazi, 12 S.W.3d 71, 76 (Tex. 2000); Housing & Cmty. Servs., Inc. 

v. Tex. Windstorm Ins. Ass’n, 515 S.W.3d 906, 909 (Tex. App.—Corpus Christi, 

2017, no pet.). Since section 2210.576 of the Act limits claimants to a claim over 

whether TWIA’s denial was proper and limits claimants to claims that seek damages 

to covered losses under the policy (less the amount already paid), prejudgment 

interest, court costs, and reasonable and necessary attorney’s fees, we agree with 

TWIA that the Kellys did not have causes of action for TWIA’s alleged breach of 

its duty of good faith or for TWIA’s alleged violations of the DTPA. We therefore 

sustain TWIA’s second issue.

In its third issue, TWIA argues that there was a fact issue precluding the 

granting of the Kellys’ summary judgment, because Section 2210.208(a) does not 

apply “unless the coverage was excluded from a companion policy in the voluntary 

market.” See id. § 2210.208(e). However, having sustained issues one and two, the 
19

third issue raised would not result in greater relief, so it is not necessary that we 

address it. Tex. R. App. P. 47.1.

CONCLUSION

Having decided the controlling questions of law in TWIA’s favor, we reverse 

the trial court’s interlocutory Order granting summary judgment in favor of the 

Kellys, we reverse the trial court’s interlocutory Order denying TWIA’s summary 

judgment, and we instruct the trial court to grant summary judgment for TWIA that 

the Kellys take nothing. We remand this case back to the trial court for the entry of 

an order denying the Kellys’motion for summary judgment and the entry of an order 

granting TWIA’s motion for summary judgment, which grants TWIA a take-nothing 

judgment against the Kellys on their claims.

REVERSED AND REMANDED.

 W. SCOTT GOLEMON

 Chief Justice

Submitted on November 4, 2022

Opinion Delivered October 19, 2023

Before Golemon, C.J., Horton and Wright, JJ.