Maybe the Grass was Greener on the Other Side: Cow-in-the-Road Crash Case remanded for repleading under the Texas Tort Claims Act with more details on circumstances of cow's escape from the pasture

NEITHER-NOR CONCLUSION ON APPEAL:
THE PETITION DID NOT ESTABLISH JURISDICTION NOR AFFIRMATIVELY NEGATE JURISDICTION

BRAZORIA DRAINAGE DISTRICT NO. 4 v. KASSI MATTIES, INDIVIDUALLY AND AS NEXT FRIEND OF MINOR, No. 01-17-00422-CV (Tex.App. - Houston [1st Dist.] July 19, 2018) (Tort Claims case remanded in appeal from denial of plea to the jurisdiction asserted by drainage district to offer the plaintiff an opportunity to amend her pleadings to establish district's immunity waiver)

Collision with Cow Case 

 In The

Court of Appeals

For The

First District of Texas

————————————

NO. 01-17-00422-CV

———————————

BRAZORIA DRAINAGE DISTRICT NO. 4, Appellant

V.

KASSI MATTIES, INDIVIDUALLY AND AS NEXT FRIEND OF XXXXX

XXXXXXX, A MINOR, Appellees

On Appeal from the 149th District Court

Brazoria County, Texas

Trial Court Case No. 91072-CV

BRAZORIA DRAINAGE DISTRICT NO. 4, Appellant,
v.
KASSI MATTIES, INDIVIDUALLY AND AS NEXT FRIEND OF XXXXX XXXXXXX, A MINOR, Appellees.

No. 01-17-00422-CV.

Court of Appeals of Texas, First District, Houston.

Opinion issued July 19, 2018.

On Appeal from the 149th District Court, Brazoria County, Texas, Trial Court Case No. 91072-CV.

Panel consists of Justices Bland, Lloyd, and Caughey.

MEMORANDUM OPINION

JENNIFER CAUGHEY, Justice.

In this interlocutory appeal, appellant Brazoria Drainage District No. 4 ("the Drainage District") challenges the denial of its plea to the jurisdiction. It argues, in part, that appellees failed to allege facts showing a valid waiver of governmental immunity. We agree and reverse the trial court's order. We remand to offer appellees an opportunity to replead.

Background

On behalf of herself and her minor child, appellee Kassi Matties brought this lawsuit arising out of her car's collision with a cow that was standing in the middle of the road. Matties was pregnant at the time, and she asserts that the cow, "roaming at large and unattended, caused the collision and significant permanent injuries to your Plaintiff and the subsequent premature birth of the minor Plaintiff." Matties contends that defendant George Alford owned the cow. The accident occurred on County Road 48 in Brazoria County.

Matties brings negligence claims against both George Alford and the Drainage District. In her claim against Alford, Matties alleges that the "occurrence was proximately caused by the negligence . . . of Defendant, GEORGE ALFORD."

She asserts her claim against the drainage district under Texas's Tort Claims Act. She alleges that the drainage district "created the dangerous condition and failed to adequately restrain the loose cow by failing to secure the gate that enclosed the pasture at issue." Matties further alleges that "the area where this incident occurred would be the responsibility of the Defendant, BRAZORIA DRAINAGE DISTRICT NO. 4, should an injury occur."

Discussion

In its sole issue, the Drainage District argues the lawsuit is barred by governmental immunity, so the trial court erred in denying its plea to the jurisdiction. We agree.

A. Standard of Review

We review a trial court's ruling on a plea to the jurisdiction de novo. State v. Holland, 221 S.W.3d 639, 642 (Tex. 2007). A plea to the jurisdiction based on governmental immunity from suit is a challenge to the trial court's subject matter jurisdiction. See City of Waco v. Kirwan, 298 S.W.3d 618, 621 (Tex. 2009); Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225-26 (Tex. 2004).

"When [as here] a plea to the jurisdiction challenges the pleadings, we determine if the pleader has alleged facts that affirmatively demonstrate the court's jurisdiction to hear the cause." Miranda, 133 S.W.3d at 226; see also Dall. Area Rapid Transit v. Whitley, 104 S.W.3d 540, 542 (Tex. 2003) ("In a suit against a governmental unit, the plaintiff must affirmatively demonstrate the court's jurisdiction by alleging a valid waiver of immunity."); Williams v. City of Baytown, 467 S.W.3d 566, 571 (Tex. App.-Houston [1st Dist.] 2015, no pet.) (same).

If the pleading contains facts that do not affirmatively demonstrate, but also do not affirmatively negate, jurisdiction, we face "an issue of pleading sufficiency and the plaintiff should be given an opportunity to amend the pleadings." Kirwan, 298 S.W.3d at 622 (quoting Miranda, 133 S.W.3d. at 226-27).

B. Applicable Law—Waiver of Immunity Under Tort Claims Act

Governmental immunity defeats a trial court's subject-matter jurisdiction. Rogge v. City of Richmond, 506 S.W.3d 570, 573 (Tex. App.-Houston [1st Dist.] 2016, no pet.). It protects political subdivisions of the State from lawsuits unless the Legislature specifically waives immunity. Id. at 574.

The Tort Claims Act, which provides a limited waiver of immunity, applies to political subdivisions, including drainage districts like Brazoria Drainage District No. 4. See id.; see also TEX. CIV. PRAC. & REM. CODE § 101.001(3)(B); TEX. CIV. PRAC. & REM. CODE § 101.025; see also Dall. Cty. Mental Health & Mental Retardation v. Bossley, 968 S.W.2d 339, 342-43 (Tex. 1998). Relevant here, section 101.021 of the Tort Claims Act provides that a governmental unit (including a drainage district) can be held liable for personal injury and death proximately caused "by a condition or use of tangible personal or real property if the governmental unit would, were it a private person, be liable to the claimant according to Texas law." TEX. CIV. PRAC. & REM. CODE § 101.021(2).

C. Analysis

The parties debate whether this action constitutes a premises defect or negligent activity claim. We need not resolve that question because, under either theory of liability, appellees have not alleged facts that affirmatively demonstrate the court's jurisdiction.

1. Premises Defect

"When `liability is predicated not upon the actions of the governmental unit's employees but by reference to the duty of care owed by the governmental unit to the claimant for premise and special defects as specified in section 101.022 of the . . . Tort Claims Act,'" the claim alleges a premises defect. Rogge, 506 S.W.3d at 575 (quoting DeWitt v. Harris Cty., 904 S.W.2d 650, 653 (Tex. 1995)). For premises defect claims, the Legislature linked the applicable duty to the common law. Sampson v. Univ. of Tex. at Austin, 500 S.W.3d 380, 387 (Tex. 2016). In particular, section 101.022(a) of the Act states:

(a) Except as provided in Subsection (c), if a claim arises from a premise defect, the governmental unit owes to the claimant only the duty that a private person owes to a licensee on private property, unless the claimant pays for the use of the premises.

TEX. CIV. PRAC. & REM. CODE § 101.022(a).^[1]

"A licensee asserting a premises-defect claim generally must show, first, that the defendant possessed—that is, owned, occupied, or controlled—the premises where the injury occurred." Cty. of Cameron v. Brown, 80 S.W.3d 549, 554 (Tex. 2002) (citing Wilson v. Tex. Parks & Wildlife Dep't, 8 S.W.3d 634, 635 (Tex. 1999) (per curiam)); see also City of Pearland v. Contreras, No. 01-15-00345-CV, 2016 WL 358612, at *3 (Tex. App.-Houston [1st Dist.] Jan. 28, 2016, no pet.) (mem. op.) ("In a premises liability case, a plaintiff must show that the defendant had a legal duty to warn of a defective condition of the premises or otherwise make them safe. To impose a legal duty on a governmental defendant, the plaintiff must show that the governmental unit owned, occupied or controlled the premises where the accident occurred." (internal citation omitted)).

Thus, a plaintiff must show that a governmental unit "assumed sufficient control over the part of the premises that presented the alleged danger so that the defendant had the responsibility to remedy it." Brown, 80 S.W.3d at 556. Additionally, to prevail on a premises defect claim, a plaintiff must prove that (1) the owner had actual or constructive knowledge of some condition on the premises; (2) the condition posed an unreasonable risk of harm; (3) the owner did not exercise reasonable care to reduce or eliminate the unreasonable risk of harm; and (4) the owner's failure to use reasonable care to reduce or eliminate the unreasonable risk of harm proximately caused the plaintiff's injuries. LMB, Ltd. v. Moreno, 201 S.W.3d 686, 688 (Tex. 2006) (per curiam).

Here, appellees do not assert that the Drainage District owned, occupied, or controlled the premises that presented the alleged danger (i.e. the unsecured gate) such that the drainage district had a legal duty to warn or otherwise make the premises safe. See Brown, 80 S.W.3d at 554. Similarly, they do not assert any facts demonstrating that the drainage district had actual knowledge of the alleged dangerous condition. To the extent that appellees assert a premises defect claim, they have failed to allege facts supporting a waiver of governmental immunity. See Brown, 80 S.W.3d at 554; Contreras, 2016 WL 358612, at *3-4.

2. Condition or Use of Tangible Personal Property

If we instead view appellees' claim as one for negligent activity (use of property), appellees have similarly failed to allege facts demonstrating the court's jurisdiction.

"[N]egligent activity encompasses a malfeasance theory based on affirmative, contemporaneous conduct by the owner that caused the injury . . . ." Rogge, 506 S.W.3d at 575 (alteration in original) (quoting Del Lago Partners, Inc. v. Smith, 307 S.W.3d 762, 776 (Tex. 2010)). "Use" has been defined to mean "to put or bring into action or service; to employ for or apply to a given purpose." Id. at 576 (quoting Sampson, 500 S.W.3d at 388). "[T]o state a `use' of tangible personal property claim under the Tort Claims Act, the injury must be contemporaneous with the use of the tangible personal property—'[u]sing that property must have actually caused the injury.'" Id. (quoting Sampson, 500 S.W.3d at 388).

Importantly, the Tort Claims Act waives immunity for a "use of personal property" only when the governmental unit is itself the user. San Antonio State Hosp. v. Cowan, 128 S.W.3d 244, 245-46 (Tex. 2004). A governmental unit does not "use" personal property merely by allowing someone else to use it. Rusk State Hosp. v. Black, 392 S.W.3d 88, 97 (Tex. 2012); see also Cowan, 128 S.W.3d at 246 ("[T]he Hospital's immunity can be waived only for its own use of Cowan's walker and suspenders, and not by Cowan[`]s use of them.").

Here, the alleged "use" is a failure to secure a gate. But appellees do not plead facts supporting an allegation that the district itself, rather than anyone else, left the gate unsecured.

^[2] See Black, 392 S.W.3d at 97 (section 101.021(2) waives immunity for claims involving the use of tangible personal property "only when the governmental unit itself uses the property"); Cowan, 128 S.W.3d at 245-46; Univ. of Tex. M.D. Anderson Cancer Ctr. v. McKenzie, 529 S.W.3d 177, 185 (Tex. App.-Houston [14th Dist.] 2017, pet. filed) (to properly state claim waiving governmental immunity, plaintiff must allege property was used or misused by government employee) (citing Lacy v. Rusk State Hosp., 31 S.W.3d 625, 629 (Tex. App.-Tyler 2000, no pet.)); see also Miranda, 133 S.W.3d at 238 ("The plaintiff must plead facts that, if true, would establish that the claims come within an express waiver of sovereign immunity. . . ."). Appellees similarly fail to plead facts demonstrating when anyone allegedly failed to secure the gate and whether that failure was contemporaneous with appellees' injury. See Rogge, 506 S.W.3d at 576-77 (to state a "use" of tangible personal property claim under the Tort Claims Act, the injury must be contemporaneous with the use of the tangible personal property).

Because appellees do not plead facts showing that the district "used" the gate in a way that would lead to a waiver of immunity, appellees' pleading is insufficient under Texas law. See Black, 392 S.W.3d at 95; Miranda, 133 S.W.3d at 238; Rogge, 506 S.W.3d at 576-77; McKenzie, 529 S.W.3d at 185; Lacy, 31 S.W.3d at 629.

Because appellees have failed to allege facts that would establish a waiver of immunity, the trial court erred by denying the district's plea to the jurisdiction. We thus reverse. We remand, however, to offer appellees an opportunity to replead.

Although the pleadings do not establish jurisdiction, when construed in appellees' favor, they also do not affirmatively negate jurisdiction. The drainage district has not eliminated the possibility that appellees could, if allowed to replead, affirmatively demonstrate jurisdiction. See Smith v. Galveston Cty., 326 S.W.3d 695, 698 (Tex. App.-Houston [1st Dist.] 2010, no pet.). Accordingly, we remand for the trial court to afford appellees a reasonable opportunity to amend their pleadings. See Kirwan, 298 S.W.3d at 622; Smith, 326 S.W.3d at 698; City of Freeport v. Briarwood Holdings, L.L.C., No. 01-11-01108-CV, 2013 WL 1136576, at *5 (Tex. App.-Houston [1st Dist.] Mar. 19, 2013, no pet.) (mem. op.) (where pleadings did not affirmatively demonstrate or negate jurisdiction, appellate court was required to remand to allow plaintiff reasonable opportunity to amend to allege facts that would support waiver of sovereign immunity).

Conclusion

We reverse the trial court's order and remand for further proceedings consistent with this opinion.

[1] Subsection (c) provides that if a claim "arises from a premise defect on a toll highway, road, or street, the governmental unit owes to the claimant only the duty that a private person owes to a licensee on private property." TEX. CIV. PRAC. & REM. CODE § 101.022(c).

[2] Appellees do not say how the district may have used the gate. They allege no facts suggesting that the district did anything in particular to the gate. They also do not say whether the district owned or controlled the gate, or if the district was in any way responsible for the gate. Conclusory allegations are insufficient under Texas law. See, e.g., Wharton Cty. v. Genzer, No. 13-06-078-CV, 2007 WL 4442445, at *3 (Tex. App.-Corpus Christi Dec. 20, 2007, no pet.) (mem. op.) ("`When a plea to the jurisdiction challenges the pleadings, we determine if the pleader has alleged facts that affirmatively demonstrate the court's jurisdiction to hear the cause.' This inquiry becomes meaningless, though, if a pleader must only assert pleadings comprised of vague, conclusory statements to establish jurisdiction" (citation omitted)). See also Bernhard v. City of Aransas Pass, No. 13-13-00354-CV, 2014 WL 3541677, at *5 (Tex. App.-Corpus Christi July 17, 2014, no pet.) (mem. op.); City of El Paso v. Collins, 440 S.W.3d 879, 886-87 (Tex. App.-El Paso 2013, no pet.) (although pleadings alleged "that the [swimming-pool] drain, drain cover, and filtration system are defective, they have not included any factual allegation that [injured child] nearly drowned because she became entangled or trapped in the drain or filtration system or that rescue was delayed because the cloudy water prohibited caretakers from observing what had occurred" (emphasis in original)).

The City of Houston v. Guzman

More of the same: City of Houston insists on going forward with appeals on immunity issue it has already lost on in several prior cases. Here is the first of two more such tort claims cases decided by the First Court of Appeals on the last day of May:

   

The City of Houston v. Guzman 

NO. 01-11-00234-CV (Tex.App.- Houston May 31, 2012)

(denial of city's plea to the jurisdiction affirmed)

   

MEMORANDUM OPINION

 

The City of Houston brings this interlocutory appeal from the trial court’s order denying its plea to the jurisdiction on the negligence claims of appellee, Enrique Guzman.[1]  In its sole issue, the City contends that because Guzman chose to file suit against both the City and its employee, Brent Foltz, regarding the same subject matter, Guzman’s claims against the City were barred by section 101.106(b) of the Texas Tort Claims Act.[2]  We affirm.

Background

Guzman filed suit against both the City and Foltz, alleging personal injuries when the Houston Police Department patrol car driven by Sgt. Foltz ran into his vehicle.  According to Guzman, Foltz, who was driving the wrong way down a one‑way street at 1:30 a.m., ran a red light and struck a citizen’s vehicle.  His patrol car then rebounded from that collision and smashed into Harris County Deputy Sheriff Guzman’s vehicle as it was stopped at a red light.  Guzman asserts that Foltz was in the course and scope of his City employment and, as such, the City is liable under the doctrines of negligent entrustment, negligent hiring, failure to properly train, failure to properly supervise, and respondeat superior.  Foltz, who was never served and never appeared in this case, was later removed as a defendant by Guzman. 

Guzman’s employer, Harris County, filed an original petition in intervention for subrogated interests, seeking to collect for the benefits it had provided Guzman and expenses it had incurred as a self-insured worker’s compensation provider and any related damages to which Guzman was entitled to under the law, plus any property damage losses or loss of revenue sustained by the County.  Guzman subsequently filed his second amended petition, naming only the City as a defendant.

The City’s subsequent plea to the jurisdiction contended that, because Guzman initially filed suit against Foltz for damages arising from the same subject matter as his claims against the City, all his tort claims against the City were barred by section 101.106(b) of the Tort Claims Act.

The trial court denied the City’s plea to the jurisdiction, and this interlocutory appeal followed.

Discussion
   

Standard of Review

A plea to the jurisdiction challenges the trial court’s subject-matter jurisdiction to hear a case.  Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000); Kamel v. Univ. of Tex. Health Sci. Ctr., 333 S.W.3d 676, 681 (Tex. App.—Houston [1st Dist.] 2010, pet. denied).  The existence of subject-matter jurisdiction is a question of law that we review de novo.  State Dep’t of Hwys. & Pub. Transp. v. Gonzalez, 82 S.W.3d 322, 327 (Tex. 2002); Kamel, 333 S.W.3d at 681.  We may not presume the existence of subject-matter jurisdiction; the burden is on the plaintiff to allege facts affirmatively demonstrating it.  Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443–44, 446 (Tex. 1993); Kamel, 333 S.W.3d at 681.

Whether a governmental entity is immune from suit is a question of subject‑matter jurisdiction.  Tex. Dep’t of Transp. v. Jones, 8 S.W.3d 636, 638–39 (Tex. 1999).  Determination of that issue here turns on construction of the Tort Claims Act’s election-of-remedies provision.  See Tex. Civ. Prac. & Rem. Code Ann. § 101.106.  In construing a statute, our primary objective is to determine and give effect to the Legislature’s intent.  Gonzalez, 82 S.W.3d at 327.  “[W]e ‘read the statute as a whole and interpret it to give effect to every part.’”  Id. (quoting Jones v. Fowler, 969 S.W.2d 429, 432 (Tex. 1998)).  With respect to a statutory waiver of immunity, as in the Tort Claims Act, we interpret the waiver narrowly, as the Legislature’s intent to waive immunity must be clear and unambiguous.  Mission Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 655 (Tex. 2008) (citing Tex. Gov’t Code Ann. § 311.034 (West Supp. 2011)).

Analysis

Relying on Garcia, the City argues that the election-of-remedies provision requires Guzman to sue either the City or its employee, and a claimant who sues both loses the opportunity to sue the City under section 101.106(b).  See Garcia, 253 S.W.3d at 655; see also Tex. Civ. Prac. & Rem. Code Ann. § 101.106.  Guzman responds arguing, inter alia, that section (b) is inapplicable to his suit.

During the pendency of this appeal, this Court has recently considered—and rejected—the same arguments advanced by the City in City of Houston v. Esparza.  No. 01–11–00046–CV, 2011 WL 4925990, at *4 (Tex. App.—Houston [1st Dist.] Oct. 7, 2011, pet. filed) (rejecting City’s contention that § 101.106(b) bars suit against governmental unit when suit originally filed against both governmental unit and employee); see also Tex. Dep’t of Aging and Disability Servs. v. Johnson, No. 01-11-00526-CV, 2012 WL 27728, at *2–3 (Tex. App.—Houston [1st Dist.] Jan. 5, 2012, no pet.) (mem. op.) (following Esparza; holding trial court did not err in denying plea to jurisdiction).  As such, this Court’s jurisprudence dictates our holding that the trial court properly denied the City’s plea to the jurisdiction with respect to Guzman’s claims and, because the County’s claims are derivative of Guzman’s claims, properly denied the City’s plea to the jurisdiction with respect to those claims as well.  See generally City of Hous. v. Twin City Fire Ins. Co., 578 S.W.2d 806, 808 (Tex. Civ. App.—Houston [1st Dist.] 1979, writ ref’d n.r.e.) (holding employee’s failure to comply with notice requirement barred his claim against city, as well as insurer’s subrogation suit, which was derivative of employee’s and dependent upon employee’s recovery).

We overrule the City’s sole issue.

Conclusion

We affirm the order of the trial court.

                                                                      Jim Sharp

                                                                      Justice

Panel consists of Justices Keyes, Bland, and Sharp.

--------------------------------------------------------------------------------

[1]         See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(8) (West Supp. 2011) (permitting interlocutory appeals from court order that grants or denies plea to jurisdiction by governmental unit).

[2]         See Tex. Civ. Prac. & Rem. Code Ann. § 101.106(b) (West 2011).   
  

Another appeal in City of Houston car wreck litigation

Since it offers a nice compilation of the prior decisions on the same issue -- the city's effort to get immunity both for itself and its employee -- first the concurring opinion by Justice Brown:

City of Houston v. Vellejo 

(Tex.App.- Houston [1st Dist.] May 22, 2012)

CONCURRING OPINION

This Court has already decided the issue presented in this case: whether the Tort Claims Act’s election-of-remedies provision bars a plaintiff’s tort claims against a governmental unit when the plaintiff initially sued both the governmental unit and its employee. See City of Houston v. Esparza, No. 01–11–00046–CV, 2011 WL 4925990, at *5–10(Tex. App.—Houston [1st Dist.] Oct. 7, 2011, pet. filed).[1] I would follow this Court’s controlling precedent and affirm the trial court’s denial of the city’s plea to the jurisdiction.

I therefore concur in the Court’s opinion.

Harvey Brown

Justice

FOOTNOTE:

Since its issuance, this Court has consistently followed Esparza.See, e.g.,City of Houston v. Gwinn, No. 01-11-00524-CV, 2012 WL 1068591, at *1–2 (Tex. App.—Houston [1st Dist.] Mar. 29, 2012, no. pet. h.) (mem. op.) (following Esparza); Metro. Transit Auth. v. Light, No. 01-11-00747-CV, 2012 WL 252187, at *1–2 (Tex. App.—Houston [1st Dist.] Jan. 26, 2012, no pet.) (mem. op.) (same); City of Houston v. Tsaig, No. 01-11-00432-CV, 2012 WL 170606, at *2–3 (Tex. App.—Houston [1st Dist.] Jan. 19, 2012, no pet.) (mem. op.) (same); Tex. Dep’t of Aging & Disability Servs. v. Johnson, No. 01-11-00526-CV, 2012 WL 27728, at *2 (Tex. App.—Houston [1st Dist.] Jan. 5, 2012, no pet.) (mem. op.) (same); City of Houston v. Marquez, No. 01-11-00493-CV, 2011 WL 6147772, at *2–3 (Tex. App.—Houston [1st Dist.] Dec. 8, 2011, no pet.)(mem. op.) (same); City of Houston v. McClain, No. 01-11-00194-CV, 2011 WL 6015697, at *2–3 (Tex. App.—Houston [1st Dist.] Dec. 1, 2011, pet. filed) (mem. op.) (same); City of Houston v. San Miguel, No. 01–10–01071–CV, 2011 WL 5429048, at *2–3 (Tex. App.—Houston [1st Dist.] Nov. 10, 2011, no. pet. h.) (mem. op.) (same). Several other courts of appeals have also followed Esparza. See, e.g., Tex. Tech Univ. Health Scis. Ctr. v. Villagran, No. 07-11-0257-CV, 2012 WL 967366, at *7 (Tex. App.—Amarillo Mar. 22, 2012, no. pet. h.); Tex. Dep’t of Pub. Safety, No. 04-11-00271-CV, 2012 WL 726916, at *4–7 (Tex. App.—San Antonio March 7, 2012, no pet. h.).

SOURCE: HOUSTON COURT OF APPELAS – FIRST DISTRICT - 01-11-00133-CV– 5/22/12

CASE STYLE: The City of Houston v. Blanca A. Vellejo and Anjel Flores

SoL: No tolling of limitations for each day spent on trip outside Texas

NO EXTENSION ON RUNNING OF 2-YEAR LIMITATIONS PERIOD IN CAR WRECK CASE BASED ON DRIVER'S SHORT ABSENCES FROM THE STATE

In an opinion by retired Justice Mirabal, sitting by assignment, the 14th Court holds that under Texas Supreme Court precedent, a defendant's brief trips to places outside of Texas do not toll the statute of limitations for the respective number of days. The defendant remained a resident of Texas amenable to service. The car wreck suit, filed more than two years after the accident, was thus untimely and subject to dismissal on limitations grounds upon motion for summary judgment.

The  limitations clock does not stop for you trip

Zavadil v. Safeco Ins. Co. of Illinois (Tex.App.- Houston [14th Dist.] Feb. 23, 2010)(Mirabal) (tolling of limitations based on defendant's absence from state, no SoL tolling based on brief absences from Texas)

FROM THE OPINION:
In this negligence suit arising from a motor vehicle accident between two individuals, both of whom resided
in Texas at all relevant times, it is undisputed that suit was filed more than two years after the cause of action
arose. The dispositive question in this appeal is whether the limitations period was tolled during each of the
approximately fourteen days during the two-year limitations period that the resident defendant spent outside
Texas. Because we conclude that these travels do not constitute “absence from the state” as this language from the tolling statute[1] has been interpreted by the Texas Supreme Court, we reverse the trial court’s denial of appellant’s summary-judgment motion and its grant of appellee’s cross-motion, and we render judgment dismissing the suit with prejudice.

* * *

The dispositive issue in this appeal is whether Texas Civil Practice and Remedies Code section 16.063 tolls the statute of limitations against a Texas resident for each day that the resident is beyond our state’s borders. Section 16.063 provides that “[t]he absence from this state of a person against whom a cause of action may be maintained suspends the running of the applicable statute of limitations for the period of the person’s absence.” Under recent Texas Supreme Court cases, one who is subject to personal jurisdiction in Texas courts, and amenable to service of process, is not “absent” from the state for the purposes of section 16.063.

A. Kerlin v. Sauceda

In Kerlin, the Texas Supreme Court was asked to construe the tolling statute, section 16.063. See Kerlin v. Sauceda, 263 S.W.3d 920 (Tex. 2008). In Kerlin, (1) the defendant did not reside in Texas, either at the time the cause of action arose or at the time suit was filed; (2) a jury found that Kerlin was not physically present in Texas when the cause of action arose; and (3) citation was pursued through the Secretary of State pursuant to the Texas longarm statute. See id. at 922–24. The Texas Supreme Court stated:

[I]f a nonresident is amenable to service of process under the longarm statute and has contacts with the state sufficient to afford personal jurisdiction . . . then we can discern no reason why a nonresident’s ‘presence’ in this state would not be established for purposes of the tolling statute.

Id. at 927. The court held that “the statute of limitations was not tolled because, under the general longarm statute, Kerlin was present in the state.” Id. at 928.

B. Ashley v. Hawkins

The parties in Ashley were Texas residents when they were involved in an automobile collision, and the driver of one of the vehicles subsequently moved to another state. Ashley v. Hawkins, 293 S.W.3d 175, 177 (Tex. 2009). The Ashley plaintiff served the defendant under the longarm statute; thus, the Texas Supreme Court was squarely presented with the question of “whether section 16.063 of the Texas Civil Practice and Remedies Code tolls the limitations period when a defendant leaves Texas following a motor vehicle collision, but is otherwise amenable to out-of-state service.” See id. It concluded that “a defendant is ‘present’ in Texas, for purposes of the tolling statute, if he or she is amenable to service under the general longarm statute, as long as the defendant has ‘contacts with the state sufficient to afford personal jurisdiction.’” Id. at 179. The court held that section 16.063 did not toll the limitations period. Id.

The holdings in Kerlin and Ashley apply with even greater force in this case, where the defendant has never ceased to be a Texas resident since the cause of action accrued. Zavadil’s brief intermittent excursions outside of the territorial boundaries of Texas did not affect the ability of state courts to exercise personal jurisdiction over her, for it is axiomatic that “residence in a state is a valid basis for the exercise of in personam jurisdiction.” J.M.R. v. A.M., 683 S.W.2d 552, 557 (Tex. App.—Fort Worth 1985, writ ref’d n.r.e.) (citing Bulova Watch Co. v. Steele, 194 F.2d 567, 571 (5th Cir.), aff’d, 344 U.S. 280, 73 S. Ct. 252, 97 L. Ed. 319 (1952)). Moreover, it is undisputed that she was at all times amenable to service. See also Tex. R. Civ. P. 106, 108 (pursuant to these rules, it is not necessary that a Texas resident be personally served within the state). Thus, under the reasoning of Kerlin and Ashley, Zavadil has not been “absent” from Texas for the purposes of section 16.063, and therefore section 16.063 did not toll the limitations period.

V. Conclusion

In accordance with Kerlin and Ashley, we conclude that Zavadil has not been “absent” from the state for the purposes of Texas Civil Practice and Remedies Code section 16.063. We therefore sustain Zavadil’s first, second, and third issues, hold that Safeco’s suit is time-barred, reverse the trial court’s denial of Zavadil’s motion for summary judgment and its grant of Safeco’s motion for partial summary judgment, and render judgment dismissing Safeco’s suit with prejudice. In light of our disposition of these issues, we do not reach Zavadil’s two remaining issues.

/s/ Margaret Garner Mirabal

REVERSED AND RENDERED: Opinion by Senior Justice Mirabal
Before Chief Justice Hedges, Justices Anderson and Mirabal 14-09-00568-CV Jessica Zavadil v. Safeco Insurance Company of Illinois [pdf version]
Appeal from County Civil Court at Law No 1 of Harris County
Trial Court Judge: R. Jack Cagle

Directed Verdict Affirmed in Car Collision Suit

Two cars collided cruising through the parking lot, but to establish a driver's negligence and legal liability for damages, more is needed than merely evidence (or agreement) that an accident did indeed occur. Court of Appeals panel holds that trial court properly granted directed verdict where there was no showing of negligence on the part of the defendant.

Analysis by Justice Guzman, who wrote the opinion:

To prevail on a negligence claim, a plaintiff must prove the existence of a legal duty, a breach of that duty, and damages proximately caused by the breach. D. Houston, Inc. v. Love, 92 S.W.3d 450, 454 (Tex. 2002). Here, Murchison presented less than a scintilla of evidence that Pham breached a duty to Murchison. To the contrary, the evidence is uncontroverted that a car was parked in a way that impaired Pham's view, and the collision occurred suddenly while Pham was “inching" forward to see beyond this obstruction. There is no evidence that either driver could have seen the other in time to avoid an accident, even given the low speed at which Walsh admits Pham was traveling.

On this record, any inference that Pham breached a duty to Murchison would be based solely on the fact that a collision occurred. The occurrence of a motor vehicle accident is not itself, however, evidence of negligence. Smith v. Cent. Freight Lines, Inc., 774 S.W.2d 411, 412 (Tex. App.- Houston [14th Dist.] 1989, writ denied). We therefore overrule Murchison's sole issue on appeal.

V. Conclusion

Because Murchison failed to present legally sufficient evidence of negligence, we affirm the trial court's judgment.

Murchison v. Pham (Tex.App.- Houston [14th Dist.] Aug. 11, 2009) (Guzman) (no negligence demonstrated in car collision suit, directed verdict affirmed)
AFFIRMED: Opinion by Justice Eva Guzman
Before Justices Anderson, Guzman and Boyce
14-08-00080-CV Gary Murchison v. Minh Quoc Pham
Appeal from 80th District Court of Harris County
Trial Court Judge: Hon. Lynn Bradshaw-Hull

Car Insurance: USAA v. Cook (Tex.App.- Houston, Aug. 16, 2007)

USAA County Mutual Insurance Company vs. Hayden P. Cook, No. (Tex.App.- Houston [1st Dist.] Aug. 16, 2007)(Opinion by Justice Jennings)(insurance case law, auto insurance claim denial, attorney's fees)(Before Justices Taft, Jennings and Alcala)
Appeal from 113th District Court of Harris County
Trial court judge: Hon. Patricia Hancock

OPINION BY JUSTICE TERRY JENNINGS

Appellant, USAA County Mutual Insurance Company ("USAA"), challenges the trial court's judgment entered, after a jury trial, in favor of appellee, Hayden P. Cook, in Cook's suit for breach of contract, breach of the duty of good faith and fair dealing, violation of articles 21.21 and 21.55 of the Texas Insurance Code, (1) and attorney's fees. USAA brings nine issues for our review. It contends that the trial court erred in denying its motion for directed verdict and, alternatively, its motion for judgment notwithstanding the verdict, "based on Mr. Cook's judicial admissions and the terms of the insurance policy" as "the accident was caused by a collision, a coverage not purchased by Mr. Cook"; the evidence is legally and factually insufficient to support the jury's finding that "the accident was the result of vandalism"; the trial court erred in admitting evidence of vandalism; and, because "no coverage was owed and no breach of contract established, all of Mr. Cook's extra-contractual claims and claims for attorney's fees fail as a matter of law." USAA also contends that the evidence is legally and factually insufficient to support the jury's finding that USAA breached its extra-contractual duties to Cook "under the Texas Insurance Code or the common law for breach of the duty of good faith and fair dealing"; the jury's findings that "USAA's failure to comply with the insurance policy and its duty of good faith and fair dealing, respectively, were not excused, are wholly unsupported by the great weight of the evidence"; and the evidence is factually insufficient to support the jury's award of attorney's fees.

We affirm.

Factual and Procedural Background

At trial, Cook testified that after purchasing his 1998 Volkswagon Jetta in June 2004, he called USAA and purchased an insurance policy. The original version of the declarations page of the policy stated that the six-month policy was issued on June 8, 2004. An amended declarations page, dated June 25, 2004, demonstrates that in the interim, Cook dropped several coverages, but reflects that Cook retained coverage under "Part A--Liability" for "Bodily Injury" and "Property Damage" and under "Part D--Damage to Your Auto" for "Other than Coll[ision] Loss." Cook paid $70.55 for a six-month term for "other than collision loss" coverage, with a $200 deductible.

Cook further testified that, while looking for a job in Washington, D.C., he and some friends took a break and he drove them to Atlanta, Georgia, to attend a baseball game. On October 8, 2004, on their way back to Washington, D.C., they stopped for lunch at a restaurant in Fayetteville, North Carolina, and Cook parallel parked his car approximately two feet from the rear of a very large sports utility vehicle ("SUV"). Cook and his friends then went into the restaurant and, about forty-five minutes later, they returned to find that Cook's car had been damaged. The hood was "bent up," there was damage to the grill, and the car had been pushed back fifteen feet, no longer in the parking spot where Cook had originally parked it. When he initially parallel parked his car, Cook put the transmission in park. The large SUV in the space immediately in front of his car faced the same direction, and another car was parked right in front of the SUV. Cook explained that the parking lot layout was extremely confined. On one side of the parked cars, there was a three-inch curb with grass, trees, and bushes. When Cook returned to his car, he found that the transmission to his car remained in park, but the car had still been moved back fifteen feet, roughly a full car length. The impact to the hood of the car showed that it was a "direct head-on collision" and not from the side. Only the front grill and hood of the car were damaged. The SUV previously parked in front of Cook's car was no longer there, but there was still a car in the space in front of where the SUV had been parked. A black mark on the top portion of the bumper of Cook's car indicated that the mark was made from a vehicle with a taller bumper, such as the SUV.

After Cook and his friends took note of the damage, they asked around for witnesses, but no one
saw what caused the damage. The group of friends noticed video surveillance cameras near the restaurant, but learned that the cameras were only decoys. They called the local police department and, at the scene, told an officer what happened and that there were no witnesses to the incident.

After returning to Washington, D.C., Cook read his insurance policy. Part D of the policy states,

A. We will pay for direct and accidental loss to your covered auto, including its equipment less any applicable deduction shown in the Declarations. However, we will pay for loss caused by collision only if the Declarations indicate that Collision Coverage is provided.
B. "Collision" means the upset, or collision with another object of your covered auto. However, loss caused by the following are not considered "collision":
1. Missiles or falling objects;
2. Fire;
3. Theft or larceny;
4. Explosion or earthquake;
5. Windstorm;
6. Hail, water or flood;
7. Malicious mischief or vandalism;
8. Riot or civil commotion;
9. Contact with bird or animal; or
10. Breakage of glass.

If breakage of glass is caused by a collision or if loss is caused by contact with a bird or animal, you may elect to have it considered a loss caused by collision.

The policy does not define the term "vandalism."

Based on his reading of the policy, Cook thought that the damage to his car was caused by "vandalism," and, on October 21, 2004, Cook called USAA to make a claim under the policy. Cook took his car to be inspected by Larry O'Hara, whom USAA had requested, and he estimated that it would cost $2,126.56 to repair the damage. USAA subsequently denied Cook's claim for damages on the ground that the damage to his automobile was not covered by the policy.

Tracy Huggins, a claims adjuster for USAA, testified that USAA denied the claim because "it was a collision loss and unfortunately, there was no collision coverage on the policy for this loss."

Huggins explained that she tried to get all of the information available. In her view, Cook only told her the facts that he wanted her to know. For example, Cook did not tell her whether there were any passengers present in his car. Huggins noted that although most people call in their claim within one or two days of an incident, Cook waited approximately two weeks to report his claim.

Huggins further testified that Cook reported the loss as "vandalism" and that "vandalism is covered under comprehensive coverage." In her conversation with Cook, his "main point was that because the car was moved back 15 feet, it was obviously struck in a willful, intentional way." When Huggins asked Cook what caused the damage to the car, he told her, "I don't know." Huggins put Cook "on notice that [because] he didn't carry collision coverage on the policy, it didn't look like we were going to be able to issue payment for his damage." Cook "understood there was no collision [coverage] but he persisted on having it covered under comprehensive."

At the conclusion of the trial, the jury found that USAA failed to comply with the insurance policy, found that the failure to comply with the policy was not excused, and awarded actual damages to Cook in the amount of $1,926.56. The jury also found that USAA failed to comply with its duty of good faith and fair dealing, found that the failure to comply with the duty of good faith and fair dealing was not excused, and awarded damages of $1,926.56. The jury further found that USAA engaged in unfair and deceptive acts or practices and awarded damages of $1,926.56, but found that USAA did not engage in such conduct knowingly. Finally, the jury awarded reasonable and necessary attorney's fees to Cook in the amount of $23,310 for preparation and trial, $15,000 for an appeal to the Texas Courts of Appeals, and $15,000 for an appeal to the Texas Supreme Court. The trial court entered judgment awarding Cook $1,926.56 plus pre-judgment and post-judgment interest, and the attorney's fees.

Legal and Factual Sufficiency

In its first issue, USAA argues that the trial court erred in denying its motion for directed verdict and, alternatively, its motion for judgment notwithstanding the verdict, "based on Mr. Cook's judicial admissions and the terms of the insurance policy because the accident was caused by a collision, a coverage not purchased by Mr. Cook." In its third and fourth issues, USAA argues that the evidence is legally and factually insufficient to support the jury's finding that the damage to Cook's car was caused by vandalism and that USAA breached its policy because at most, "Cook offered evidence that his car was damaged and pushed back fifteen feet." In its eighth issue, USAA argues that the jury's finding that USAA was not excused from complying with the policy "based on Mr. Cook's conduct" is against the great weight and preponderance of the evidence.

Standard of Review

We will sustain a legal sufficiency or "no-evidence" challenge if the record shows one of the following: (1) a complete absence of evidence of a vital fact, (2) rules of law or evidence bar the court from giving weight to the only evidence offered to prove a vital fact, (3) the evidence offered to prove a vital fact is no more than a scintilla, or (4) the evidence conclusively establishes the opposite of the vital fact. City of Keller v. Wilson, 168 S.W.3d 802, 810 (Tex. 2005). In conducting a legal sufficiency review of the evidence, a court must consider evidence in the light most favorable to the verdict and indulge every reasonable inference that would support it. Id. at 822. If the evidence allows only one inference, neither jurors nor the reviewing court may disregard it. Id. However, if the evidence at trial would enable reasonable and fair-minded people to differ in their conclusions, then jurors must be allowed to do so. Id. A reviewing court cannot substitute its judgment for that of the trier-of-fact, so long as the evidence falls within this zone of reasonable disagreement. Id.

Our review of the factual sufficiency of the evidence requires us to consider, weigh, and examine all of the evidence that supports or contradicts the jury's determination. Plas-Tex, Inc. v. U.S. Steel Corp., 772 S.W.2d 442, 445 (Tex. 1989). We may set aside the verdict only if the evidence that supports the jury's finding is so contrary to the overwhelming weight of the evidence as to be clearly wrong or unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986).

Terms of the Policy

In its first issue, USAA contends that this case should have been "resolved on the policy coverages Mr. Cook, himself chose to purchase," asserting that in his answers to requests for admission, and at trial, Cook admitted that the damage was the result of a "collision" and that the policy issued by USAA did not provide collision coverage.

As noted above, the amended declarations page of the policy provides that Cook purchased coverage under "Part A--Liability" for "Bodily Injury" and "Property Damage." Cook also purchased coverage under "Part D--Damage to Your Auto" for "Other than Coll[ision] Loss," which contained a $200 deductible. Although the policy provides that USAA "will pay for direct and accidental loss to your covered auto, including its equipment less any applicable deduction shown in the Declarations," the policy does not further describe or define what constitutes an "other than collision loss."

In its briefing, USAA asserts that Cook could "treat the loss as either a collision or non-collision loss" only "if the loss resulted from damages caused by a bird or animal" and that the policy "did not permit an insured to treat vandalism as either vandalism or collision." USAA argues that "the policy, as a matter of law, quite simply said that vandalism was not a covered collision loss" and, if interpreted otherwise, "coverage would equally be owed for collisions involving missiles, falling objects, explosion, flood, or riot." USAA further argues that such an "interpretation of the insurance policy is patently absurd." In other words, the ten listed items, including vandalism, "were exclusions to collision coverage not grants of coverage." However, at oral argument, USAA abandoned this argument and conceded that a loss caused by vandalism would in fact be covered under Cook's policy. USAA also agreed that one could use a car to intentionally collide with another car to cause damage, resulting in an act of vandalism.

Cook did testify that he believed that the damage to his car was the result of a large SUV "colliding" with the front-end of his car. However, our examination of the insurance policy in question does not reveal that the terms "collision" and "vandalism" are mutually exclusive. It is undisputed that Cook did not purchase "collision" coverage, which the policy defines as "the upset, or collision with another object of your covered auto." However, the policy specifically provides that loss caused by "malicious mischief or vandalism" is not considered a "collision."
In its charge, the trial court instructed the jury that "vandalism" means "the willful or malicious destruction of public or private property" and that "malice" means "the intent, with or without cause, or reason, to commit an unlawful act that will result in injury to another or others." "Vandalism" is commonly defined as an "action involving deliberate destruction of or damage to
public or private property." The New Oxford American Dictionary 1868 (1st ed. 2001).

"Collision" is defined as "an instance of one moving object or person striking violently against another." Id. at 336. In most instances, acts of vandalism involve causing an object, be it a baseball bat or a car, to collide with another object to deliberately cause damage. Thus, the real issue here is whether the damage to Cook's car was caused by a deliberate as opposed to a negligent act.

As discussed more fully below, Cook presented evidence that the damage caused to his car was the result of a willful or malicious act, not a negligent act. Accordingly, we hold that Cook's "judicial admissions and the terms of the insurance policy" do not establish, as a matter of law, that the damage to Cook's car resulted from a non-covered "collision" and not from "vandalism."

We overrule USAA's first issue.

Result of "Vandalism"

In its third and fourth issues, in support of its argument that the evidence is legally and factually insufficient to support the jury's finding that the damage to Cook's car was the result of vandalism, USAA asserts that Cook "could not confirm that the SUV he originally saw caused the collision, or that the car originally parked in front of the SUV was the same" and that the "police reported it as a hit and run." It also asserts that Cook's "evidence consisted o[f] his lone surmise, and a remarkably unreasonable surmise, that a person in a large, and presumably expensive, SUV, would intentionally ram his vehicle into [Cook's] Jetta for fun or sport." USAA also argues that because the "competing inferences" of a negligent hit-and-run and an act of intentional vandalism are "equal inferences," the jury's finding that USAA failed to comply with the insurance policy cannot survive a sufficiency challenge.

USAA directs our attention to Rich v. United Mutual Fire Insurance Company as persuasive authority. See 102 N.E.2d 431 (Mass. 1951). In Rich, evidence was presented that the insured parked his automobile in front of his house with the automobile headed downgrade, its left front wheel turned up against the curb, and the emergency break activated. Id. at 432.

Approximately two and one-half hours later, the insured heard a door slam and was told by a young boy that the automobile was at the bottom of the hill smashed against a tree. Id. The automobile was found in a damaged condition down the hill with the brake activated, against a tree, approximately three-hundred feet from where it had been parked. Id. The insured's policy provided that the insurer agreed to pay for loss of or damage to the automobile "except loss caused by collision of the automobile with another object." Id. The policy also provided that "loss caused by . . . theft . . . [or] vandalism . . . shall not be deemed loss caused by collision." Id.

After stating that the terms "theft" and "vandalism" were to be given the meaning attributed to them in common use, the court opined that vandalism, as used in the policy in question, referred to "such wanton and malicious acts as are intended to damage or destroy the property insured." Id. The court held that the evidence would not warrant a finding by the jury that the insured's automobile collided with the tree by reason of either theft or vandalism. Id. The court reasoned that "[i]t could be found that the automobile had been caused to move from its position by reason of human intervention," but "there was no greater probability that the force which caused the automobile to move was applied intentionally by a thief of [sic] vandal than, for example, by some negligent act of the operator of another automobile or the act of a child in play." Id. Thus, the cause of the damage to the automobile would be a "matter of speculation, conjecture, and surmise." Id.

Here, although there were no eyewitnesses to the incident in question, Cook presented evidence that upon entering the restaurant, he left the transmission in park; a large SUV was parallel parked approximately two feet in front of Cook's car, with the SUV's rear bumper facing Cook's front bumper; another car was parallel parked immediately in front of the SUV; and the parking lot was very confined. After returning to his car approximately forty-five minutes later, Cook observed that his car was moved fifteen feet from where he initially parked the car; the transmission was still in park; the front grill and hood of Cook's car were damaged, a black mark was above Cook's front bumper, a piece of plastic debris from Cook's car was on the ground; and the damage to Cook's car appeared to have resulted from a "head-on" impact. Also, Larry O'Hara, the USAA appraiser, told Cook that he did not feel that the damage to Cook's car was "accidental."

In the instant case, in contrast to Rich, the jury could have reasonably concluded that, based on the dimensions of the parking lot, the driver of the SUV parallel parked immediately in front of Cook's car willfully or maliciously caused the damage to Cook's car by ramming the SUV into the car. Given the fact that Cook's car, with the parking brake activated, was physically moved approximately fifteen feet, no other conclusion appears reasonable. This evidence does not reveal "a single vehicular collision" that was the result of negligence, as USAA contends, but rather a deliberate act akin to road rage. As such, the occurrence of mere negligence or accident cannot be equally inferred. Accordingly, we hold that the evidence is legally and factually sufficient to support the jury's implied finding that the damage to Cook's car was the result of vandalism and its express finding that USAA failed to comply with the insurance policy.
We overrule USAA's third and fourth issues.

Excuse from Performance

In its eighth issue, USAA asserts that, under the policy, Cook owed a duty to cooperate with USAA by promptly notifying USAA of how the incident occurred and the names and addresses of any witnesses. USAA contends that Cook breached this duty to cooperate by (1) concealing or otherwise making false representations "to USAA in reporting his claim by never once mentioning the accident was the result of a collision" and (2) not identifying "any of the men with him as potential witnesses until his deposition was taken in this litigation, long after his [claim] was denied."

When a party attacks the factual sufficiency of an adverse finding on an issue on which it has the burden of proof, it must demonstrate on appeal that the adverse finding is against the great weight and preponderance of the evidence. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001).

It is a fundamental principle of contract law that when one party to a contract commits a material breach of that contract, the other party is discharged or excused from further performance. Mustang Pipeline Co., Inc. v. Driver Pipeline Co., Inc., 134 S.W.3d 195, 196 (Tex. 2004). However, an insured's actions will not operate to discharge the insurer's obligations under the policy unless the insurer is actually prejudiced or deprived of a valid defense by the actions of the insured. See McGuire v. Commercial Union Ins. Co. of New York, 431 S.W.2d 347, 353 (Tex. 1968).

Here, in a conclusory sentence, USAA alleges that it "was prejudiced by Mr. Cook's breach." However, there is no evidence in the record and USAA provides no guidance to this Court as to how it detrimentally relied on any alleged misrepresentations made by Cook. In fact, this Court has held that there is legally and factually sufficient evidence to support the jury's implied finding of "vandalism." Accordingly, we hold that the jury's finding that USAA was not excused based on Cook's conduct is not against the great weight and preponderance of the evidence.
We overrule USAA's eighth issue.

Erroneous Admission of Evidence

In its second issue, USAA argues that, "based on Mr. Cook's judicial admissions," the trial court erred in admitting evidence of vandalism. In response, Cook asserts that "evidence of vandalism came in at trial without objection."

Requests for admissions are governed by rule 198 of the Texas Rules of Civil Procedure. See Tex. R. Civ. P. 198. In a pending action, a "matter admitted under this rule is conclusively established as to the party making the admission unless the court permits the party to withdraw or amend the admission." Tex. R. Civ. P. 198.3. An admission once admitted, deemed or otherwise, is a judicial admission, and a party may not then introduce testimony to controvert it. Marshall v. Vise, 767 S.W.2d 699, 700 (Tex. 1989). However, a party relying upon an opponent's pleadings as judicial admissions of fact must protect the record by objecting to the introduction of controverting evidence and to the submission of any issue bearing on the facts admitted. Id.; Houston First Am. Sav. v. Musick, 650 S.W.2d 764, 769 (Tex. 1983). A party waives the right to rely upon an opponent's admissions unless objection is made to the introduction of evidence contrary to those admissions. Marshall, 767 S.W.2d at 700.
Here, USAA did not object to Cook's repeated testimony that the damage to his car was the result of an act of "vandalism." Thus, USAA has waived its right to rely upon any admissions which were controverted by testimony admitted at trial without objection. See id.; Musick, 650 S.W.2d at 768-69.

We overrule USAA's second issue.

Attorney's Fees

In its ninth issue, USAA argues that the jury's award of trial and appellate attorney's fees in the amount of $23,310 and $30,000, (2) respectively, is excessive because there is factually insufficient evidence that such fees were reasonable or necessary.

Factors that a factfinder should consider when determining the reasonableness of a fee include: (1) the time and labor required, the novelty and difficulty of the questions involved, and the skill required to perform the legal service properly; (2) the likelihood that the acceptance of the particular employment will preclude other employment by the lawyer; (3) the fee customarily charged in the locality for similar legal services; (4) the amount involved and the results obtained; (5) the time limitations imposed by the client or by the circumstances; (6) the nature and length of the professional relationship with the client; (7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and (8) whether the fee is fixed or contingent on results obtained or uncertainty of collection before the legal services have been rendered. Arthur Andersen & Co. v. Perry Equip. Corp., 945 S.W.2d 812, 818 (Tex. 1997) (citing Tex. Disciplinary R. Prof'l Conduct 1.04). Attorney's fees must bear some reasonable relationship to the amount in controversy. Cordova v. Sw. Bell Yellow Pages, Inc., 148 S.W.3d 441, 448 (Tex. App.--El Paso 2004, no pet.). But, the amount of damages awarded is only one factor in determining the reasonableness of a fee award. Id.

At trial, in regard to attorney's fees, Tom Cook ("the senior Cook"), Hayden Cook's attorney and father, testified that he moved to Houston in 1974 after graduating from law school at the University of Texas and is licensed to practice law in all state and federal courts in Texas. At the time of trial, he was retired, but formerly was a partner at the law firm of Bracewell & Giuliani, where he practiced civil litigation for twenty-nine years. The senior Cook's time log reflected that he spent 127.4 hours working on the case prior to trial. He estimated, based on a three-day trial and the time associated with post-trial motions and hearings through the entry of final judgment, twenty-eight hours for trial, but instructed the jury that he now felt the trial would only take two days to complete, and therefore the jury should subtract eight hours from the original twenty-eight hour estimate. The senior Cook testified that for a case of this size, a reasonable rate was $150 per hour, as opposed to the $400 per hour rate he charged at his former law firm. In addition, he estimated the reasonable and necessary attorney's fees for him to handle an appeal to the Texas Courts of Appeals at $15,000, and another $15,000 should the case be appealed to the Texas Supreme Court. He also spent one hour, not reflected in his time log, comparing Cook's policy to the language quoted by Tracy Huggins in her letter denying coverage. The senior Cook further testified that "[m]ost of the time was spent responding to motions that [USAA] filed with this Judge and [he] had to answer all those various motions for summary judgment that were all denied."

Here, Cook's attorney testified that he calculated his fees based upon a rate of $150 per hour. Additionally, much of his time was spent preparing and responding to requests for admissions and interrogatories, two depositions, USAA's motions for summary judgment, directed verdict, judgment notwithstanding the verdict, and new trial. Although USAA argues that the aggregate amount of attorney's fees sought is excessive, it presented no evidence that a rate of $150 per hour for a Houston trial attorney is unreasonable. Mindful that the case involved approximately a $2,000 claim under the policy and the amount awarded for attorney's fees greatly exceeds the amount of actual damages, we cannot say, given the amount of time invested in the case by Cook's attorney, that the attorney's fees awarded are excessive or unreasonable. Accordingly, we hold that the evidence is factually sufficient to support the jury's award of trial and appellate attorney's fees.

We overrule USAA's ninth issue.

Extra-Contractual Claims

In its fifth, sixth, and seventh issues, USAA argues that because no coverage was owed to Cook, all of his "extra-contractual claims and claims for attorney's fees fail as a matter of law" and that the evidence is legally and factually insufficient to support the jury's finding "that USAA breached extra-contractual duties to Mr. Cook under the Texas Insurance Code or the common law for the breach of the duty of good faith and fair dealing." However, the jury did not award Cook any damages above and beyond his actual damages of $1,926.56 for USAA's denial of his insurance claim. Having held that the evidence is legally and factually sufficient to support the jury's finding that USAA failed to comply with the insurance policy, factually sufficient to support the jury's finding that USAA's failure to comply was not excused, and factually sufficient to support its award of attorney's fees, we need not reach USAA's fifth, sixth, and seventh issues.

Conclusion

We affirm the judgment of the trial court.

Terry Jennings
Justice

Panel consists of Justices Taft, Jennings, and Alcala.

1. See Tex. Ins. Code Ann. arts. 21.21, 21.55, repealed by Act of May 22, 2003, 78th Leg., R.S., ch. 1274, § 26(a)(1), 2003 Tex. Gen. Laws 3611, 4138 (current version at Tex. Ins. Code Ann. §§ 541.001 et seq., 542.001 et seq. (Vernon Supp. 2006)).

2. The jury awarded $15,000 contingent on an appeal to the Texas Courts of Appeals, and another $15,000 contingent on an appeal to the Texas Supreme Court.