Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg
Petition for Writ of Mandamus.
Chief Justice Valdez and Justices Contreras and Hinojosa
Philadelphia Indemnity Insurance Co. (Philadelphia), has
filed a petition for writ of mandamus contending that the
Honorable Fred Garza, presiding judge of the Hidalgo County
Court at Law No. 4, abused his discretion, leaving relator
without an adequate appellate remedy, by rendering an order
on May 12, 2017 granting a motion to set aside an insurance
appraisal award. The real parties in interest, Iglesia del
Pueblo, Inc. and Radio Imagen 1580 AM (collectively Iglesia),
filed a response to the petition pursuant to our request. We
will deny mandamus relief.
dispute concerns the appraisal of property damage under an
insurance policy. After its property was allegedly damaged by
wind and hail, Iglesia made a claim on its commercial
property policy issued by Philadelphia. Philadelphia retained
an independent adjusting firm, which determined that the
damage amount was $9, 470.82, far below the policy's
deductible of $26, 189.30. Therefore, Philadelphia informed
Iglesia that it would not issue any payment for the claimed
two years later, Iglesia's counsel sent Philadelphia a
letter demanding another appraisal, citing the following
appraisal clause contained in the policy:
If we and you disagree on the amount of loss, either may make
written demand for an appraisal of the loss. In this event,
each party will select a competent and impartial appraiser
and notify the other of the appraiser selected within 20 days
of such demand. The two appraisers will select an umpire. If
they cannot agree within 15 days upon such umpire, either may
request that selection be made by a judge of a court having
jurisdiction. Each appraiser will state the amount of loss.
If they fail to agree, they will submit their differences to
the umpire. A decision agreed to by any two will be binding
as to the amount of loss.
letter, Iglesia's counsel identified Sergio De La Canal
as its selected appraiser. Philadelphia replied with a letter
agreeing to submit to the appraisal process and identifying
Darrell Edwards as its selected appraiser. Iglesia objected
to the selection of Edwards on grounds that he was found in
2012 to be engaging in the unauthorized practice of law, and
also was a defendant in an unrelated case involving
Iglesia's counsel. According to Iglesia, because the two
selected appraisers were unable to agree upon an umpire
within fifteen days, it asked the Honorable Israel Ramon,
presiding judge of the 430th District Court, to select an
umpire pursuant to the above policy term. Judge Ramon
selected Andy Almaguer in a "Declaration for Umpire
Appointment" dated May 13, 2014. However, on May 19,
2014, De La Canal and Edwards executed a "Declaration of
Appraisers" document selecting Tom Powell as umpire.
filed the instant suit in the Hidalgo County Court at Law No.
4 on November 5, 2014, alleging that Philadelphia and Edwards
have "refused to proceed with the appraisal
process" until the appointment of Almaguer is vacated.
By its suit, Iglesia sought a declaration that Almaguer-not
Powell-is the properly selected umpire under the policy.
26, 2015, Edwards and Powell signed a "Declaration of
Appraisers Appraisal Award" finding the total amount of
loss to be $29, 596 in actual replacement value, or $27,
047.20 in actual cash value. On August 24, 2015, Philadelphia
issued a check to Iglesia for $3, 406.70, representing the
difference between the actual replacement value as determined
by Edwards and Powell and the deductible amount.
Feburary of 2017, Iglesia filed a motion to set aside the
appraisal award, arguing that: (1) Powell was improperly
designated as umpire; (2) Edwards was not competent or
impartial; (3) the award improperly decided issues of
coverage and liability; and (4) the award was not an
"honest assessment" of the necessary repairs to its
property. After considering the motion and Philadelphia's
response, the trial court granted the motion to set aside the
award without specifying grounds. This original proceeding
is an extraordinary remedy. In re H.E.B. Grocery
Co., 492 S.W.3d 300, 302 (Tex. 2016) (orig. proceeding)
(per curiam). Mandamus relief is proper to correct a clear
abuse of discretion when there is no adequate remedy by
appeal. In re Christus Santa Rosa Health Sys., 492
S.W.3d 276, 279 (Tex. 2016) (orig. proceeding). The relator
bears the burden of proving both of these requirements.
In re H.E.B. Grocery Co., 492 S.W.3d at 302;
Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992)
(orig. proceeding). An abuse of discretion occurs when a
trial court's ruling is arbitrary and unreasonable or is
made without regard for guiding legal principles or
supporting evidence. In re Nationwide Ins. Co. of
Am., 494 S.W.3d 708, 712 (Tex. 2016) (orig. proceeding);
Ford Motor Co. v. Garcia, 363 S.W.3d 573, 578 (Tex.
2012). A trial court does not abuse its discretion if it
reaches the ...