Opinion issued June 18, 2026
In The
Court of Appeals
For The
First District of Texas
NO. 01-26-00027-CV
IN RE ALLSTATE VEHICLE AND PROPERTY INSURANCE COMPANY,
Relator
Original Proceeding on Petition for Writ of Mandamus
MEMORANDUM OPINION
Real Parties in Interest Raul Hinojosa and Maria Hinojosa (“the Hinojosas”)
filed suit against Relator Allstate Vehicle and Property Insurance Company after
Allstate denied their insurance claim for property damage. Allstate filed a Motion to
Compel Appraisal and for Abatement Pending Outcome of Appraisal (“Motion”),
which the Hinojosas opposed. The trial court denied Allstate’s Motion, as well as Allstate’s Motion for Reconsideration.1 Allstate seeks a writ of mandamus
challenging the trial court’s denial of its Motion.
We conditionally grant mandamus relief.
Background
Allstate issued an insurance policy to the Hinojosas providing coverage for
his home (“Policy”). The underlying case involves a lawsuit filed by the Hinojosas
for claims arising from Allstate’s handling of their property damage claim.2
The Hinojosas filed an insurance claim on July 11, 2024, alleging damages to
their property resulting from a recent storm. Allstate inspected the Hinojosas’
property and later that month advised the Hinojosas that the “covered damages
observed did not exceed the [P]olicy’s deductible.”
The Hinojosas’ counsel sent Allstate a pre-suit demand on September 13,
stating that they were “willing to participate [in the appraisal process] only as long
as [Allstate] invoke[d] and move[d] forward with same on a reasonably expeditious
timeframe . . . within seventy-five (75) calendar days from [its] receipt of this letter.”
The Hinojosas also alleged that Allstate “ha[d] failed to adequately investigate and
1
The trial court denied Allstate’s Motion without an order on July 29, 2025, and
denied Allstate’s Motion for Reconsideration by signed order on December 10,
2025.
2
The underlying case is styled Raul Hinojosa and Maria Hinojosa v. Allstate Trust
Insurance Company, Cause No. 2024-83833, pending in the 189th District Court of
Harris County, Texas, the Hon. Tamika Craft-Demming presiding.
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pay the [c]laim, thus failing to abide by [its] obligations under the [P]olicy.” The
Hinojoas asked for $22,786.70 in damages and $3,850 in attorney’s fees.
Allstate responded two weeks later, on September 28, acknowledging the
Hinojosas “may be claiming additional damage not originally inspected or reviewed
by [its] adjusters” and offering to re-inspect the property. Allstate re-inspected the
property, but maintained its decision that the covered damage did not exceed the
deductible. In its response, Allstate reserved its rights under the Policy, noting that
it was “not waiv[ing] any of its rights or defenses with regard to any potential claims
under the policy by any action previously taken or by any action taken in the future.”3
The Hinojosas filed suit on November 29. Allstate answered on December 30.
The answer included a Motion for Abatement, noting Allstate “reserve[d] and d[id]
not waive[] its right to invoke the appraisal process,” and requesting “to abate th[e]
litigation pending outcome of appraisal.” Allstate invoked appraisal on January 22,
2025. Allstate reiterated that “[its] invocation of the Appraisal provision [wa]s not a
waiver of any Policy provision, term, exclusion, or condition.” The next day the
Hinojosas’ counsel sent an email stating they “[we]re opposed to appraisal.”
On May 14, Allstate filed its Motion, requesting that the trial court compel
appraisal and abate proceedings pending outcome of the appraisal. Allstate argued it
3
It is not clear why Allstate referred to itself as “Castle Key” in its response.
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“properly invoked the appraisal process” and under the Policy, it was contractually
entitled to an appraisal.
The Hinojosas’ response argued that Allstate’s Motion should be denied
because Allstate waived appraisal by not invoking it until January 22, 2025, “more
than 4 months” after the Hinojosas “gave [Allstate] notice that [they] w[ere] willing
to go through appraisal if invoked by [Allstate] within 75 days” of receipt of the
September 13, 2024 notice. The Hinojosas argued “[s]uch conduct waived appraisal,
but even if not waived, abatement is discretionary and should be, at minimum,
denied.” The Hinojosas also alleged prejudice resulting from “litigation carrying
costs and attorney time” and “suffering associated with living in an unrepaired home
. . . .”
On reply, Allstate argued the Hinojosas’ allocation of 75 days for Allstate to
respond to their pre-suit notice was “arbitrary.” Allstate further argued the fourmonth delay was not “unreasonable.” Allstate noted that in its response to the
Hinojosas’ pre-suit notice, Allstate “reserve[d] all of its rights” and argued that such
language included its right to appraisal. Allstate also argued that no prejudice had
been established.
The trial court denied Allstate’s Motion. Allstate filed a Motion for
Reconsideration explaining that appraisal was “a condition precedent to [the
Hinojosas’] right to bring suit” and that Allstate had not waived its right to appraisal.
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Allstate argued that “[t]he [trial] [c]ourt’s refusal to enforce appraisal deprive[d]
Allstate of its defenses against [the Hinojosas’] breach of contract claims.” In
response, the Hinojosas again argued that Allstate “failed to timely invoke appraisal
within the 75-day window demanded by [their] notice letter,” prompting Allstate’s
repeated reply that the Policy was void of “any deadline for invoking appraisal.” The
trial court denied reconsideration.
Standard of Review
Mandamus is an extraordinary remedy that is available only in limited
circumstances. See Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992) (orig.
proceeding). To secure mandamus relief, a relator must establish that (1) the trial
court committed a clear abuse of discretion or violated a duty imposed by law, and
(2) there is no adequate remedy by appeal. In re Prudential Ins. Co., 148 S.W.3d
124, 135–36 (Tex. 2004) (orig. proceeding). A trial court abuses its discretion when
“it reaches a decision so arbitrary and unreasonable as to amount to a clear and
prejudicial error of law or if it clearly fails to correctly analyze or apply the law.” In
re Cerberus Capital Mgmt. L.P., 164 S.W.3d 379, 382 (Tex. 2005) (orig.
proceeding) (internal quotation marks and citations omitted).
Mandamus will not issue when there is a clear and adequate remedy at law.
Walker, 827 S.W.2d at 840 (quotation marks and citation omitted). We review the
adequacy of an appellate remedy by balancing the benefits of mandamus review
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against its detriments. In re Team Rocket, L.P., 256 S.W.3d 257, 262 (Tex. 2008)
(orig. proceeding). We consider whether mandamus will “preserve important
substantive and procedural rights from impairment or loss, allow the appellate courts
to give needed and helpful direction to the law that would otherwise prove elusive
in appeals from final judgments, and spare [the litigants] and the public the time and
money utterly wasted enduring eventual reversal of improperly conducted
proceedings.” In re Prudential Ins., 148 S.W.3d at 136. An appellate remedy is not
inadequate merely because it may result in more expense or delay than obtaining a
writ. Walker, 827 S.W.2d at 842.
Motion to Compel Appraisal
Appraisal clauses, commonly found in homeowners’ insurance policies,
“provide a means to resolve disputes about the amount of loss for a covered claim.”
In re Universal Underwriters of Tex. Ins. Co., 345 S.W.3d 404, 406–07 (Tex. 2011)
(orig. proceeding). “Appraisals can provide a less expensive, more efficient
alternative to litigation,” and they “should generally go forward without preemptive
intervention by the courts.” Id. (quoting State Farm Lloyds v. Johnson, 290 S.W.3d
886, 895 (Tex. 2009)). Trial courts have no discretion to ignore a valid appraisal
clause. Johnson, 290 S.W.3d at 888 (holding that “appraisals should generally go
forward without preemptive intervention by the courts”); see also In re Slavonic
Mut. Fire Ins. Ass’n, 308 S.W.3d 556, 559 (Tex. App.—Houston [14th Dist.] 2010)
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(orig. proceeding) (“Where an insurance contract mandates appraisal to resolve the
parties’ dispute regarding the value of a loss, and the appraisal provision has not
been waived, a trial court abuses its discretion and misapplies the law by refusing to
enforce the appraisal provision.”). Absent illegality or waiver, appraisal clauses are
generally enforceable. In re Universal Underwriters of Tex., 345 S.W.3d at 407.
A trial court’s abuse of discretion in failing to enforce an appraisal clause
cannot be remedied by appeal. See id. at 412–13; see also In re Liberty Ins. Corp.,
496 S.W.3d 229, 235 (Tex. App.—Houston [1st Dist.] 2016) (orig. proceeding
(holding that trial court abused discretion by refusing to enforce valid appraisal
clause and appellate remedy not adequate to correct error).
Allstate argues the trial court abused its discretion by denying its Motion
because it has a contractual right to appraisal and never waived its right. The
Hinojosas respond that Allstate is not entitled to an appraisal because Allstate
waived its appraisal rights due to the delay in demanding appraisal.
1. Allstate has a contractual right to appraisal
Section I Conditions of the Policy has an appraisal clause:
8. Appraisal
If you [the Hinojosas] and we [Allstate] fail to agree on the amount of
loss, either party may make written demand for an appraisal. Upon such
demand, each party shall select a competent and impartial appraiser and
notify the other of the appraiser’s identity within 20 days after the
demand is received. The appraisers will select a competent and
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impartial umpire. If the appraisers are unable to agree upon an umpire
then an umpire will be appointed in the following manner:
a) You [the Hinojosas] or we [Allstate] will request the American
Arbitration Association (AAA) to select an umpire[.]
The same section explains that Allstate could move for appraisal either before
or after a suit was filed:
13. Action Against Us
No one may bring an action against us [Allstate] in any way related to the
existence or amount of coverage, or the amount of loss for which
coverage is sought, under a coverage to which Section I Conditions applies,
unless:
a) there has been full compliance with all policy terms; and
d) If after we [Allstate] receive your [the Hinojosas’] proof of loss . . . you
[the Hinojosas] and we [Allstate] are still not able to agree on the amount of
loss, then either party may make a written demand for an appraisal, as described
in Section I Conditions, Appraisal. If this demand for appraisal is made before
an action is filed against us in a court of competent jurisdiction, then the
appraisal must occur before a suit can be filed against us [Allstate]. If the
demand for appraisal is made after an action has been filed against us in a court
of competent jurisdiction, then the parties agree to ask the court to abate the
further proceeding of that action until the appraisal is completed and a
determination of the amount of loss is made as described in Section I
Conditions, Appraisal.
Allstate thus has a contractual right to appraisal and appraisal.
2. Allstate did not waive its appraisal rights by not invoking appraisal
earlier and prejudice has not been established
The Hinojosas argue that Allstate waived appraisal by not invoking appraisal
until four months after the Hinojosas unilaterally set a seventy-five-day deadline.
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Waiver requires intent, “either the intentional relinquishment of a known right or
intentional conduct inconsistent with claiming that right.” In re Universal
Underwriters of Tex., 345 S.W.3d at 407 (quoting In re Gen. Elec. Capital Corp.,
203 S.W.3d 314, 316 (Tex. 2006)). To waive appraisal, “the acts relied on must be
such as are reasonably calculated to induce the assured to believe that a compliance
by him with the terms and requirements of the policy is not desired, or would be of
no effect if performed. The acts relied on must amount to a denial of liability, or a
refusal to pay the loss.” In re Liberty Ins., 496 S.W.3d at 232 (quoting In re Universal
Underwriters of Tex., 345 S.W.3d at 407). Ordinarily, waiver is a question of fact,
but when the facts are admitted or clearly established, waiver is a question of law.
Id. at 233. The party challenging the right to appraisal bears the burden of
establishing waiver. In re State Farm Lloyds, 514 S.W.3d 789, 792 (Tex. App.—
Houston [14th Dist.] 2017) (orig. proceeding).
Nothing in the Policy here provides a deadline for invoking appraisal. The
Hinojosas argue, but have not demonstrated, that the timing of Allstate’s demand for
appraisal was unreasonable. See In re Am. Zurich Ins. Co., No. 01-25-00580-CV,
2025 WL 3236300, at *7 (Tex. App.—Houston [1st Dist.] Nov. 20, 2025, no pet.)
(rejecting argument that 15-month delay in invoking appraisal constituted waiver).
In their pre-suit notice, besides offering to participate in the appraisal process,
the Hinojosas alleged that Allstate failed to adequately investigate and pay their
9
claim. Allstate responded accordingly to the Hinojosas’ allegation by suggesting reinspection and later re-inspecting the property. The record thus reflects that the
parties continued to communicate about the claim after the Hinojosas’ pre-suit
notice.
The Hinojosas’ reliance on the assertion that “appraisal is intended to take
place before suit is filed[,]” is unavailing as it does not imply the failure to invoke
appraisal before the suit waives appraisal. See Johnson, 290 S.W.3d at 894. Allstate
officially invoked its appraisal rights less than a month after filing its answer and
less than two months after suit was filed. That is not an unreasonable delay or
conduct inconsistent with Allstate’s appraisal rights. See In re Universal
Underwriters of Tex., 345 S.W.3d at 410 (finding no waiver where insurer sought
appraisal one month after suit was filed); see also In re Liberty Ins., 496 S.W.3d at
235 (granting mandamus relief where insurer invoked appraisal after suit filed and
after parties participated in mediation); In re SureChoice Underwriters Reciprocal
Exch., 702 S.W.3d 876, 878 (Tex. App.—Houston [1st Dist.] 2024, no pet.)
(rejecting argument that relator waived right to appraisal by not invoking appraisal
until after suit was filed and four months after demand). We also note that Allstate
reserved its rights on two separate occasions before invoking appraisal: in its
response to the Hinojosas’ pre-suit notice, and in its answer.
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Even if Allstate had unreasonably delayed, “mere delay is not enough to find
waiver; a party must show that it has been prejudiced.” In re Universal Underwriters
of Tex., 345 S.W.3d at 411. The Hinojosas allege that they were prejudiced because
they “incurred litigation expenses, endured prolonged unrepaired storm damage, and
were forced into judicial proceedings that appraisal is intended to avoid.”
The Hinojosas compare their case to In re Allstate Vehicle & Property
Insurance Co., 549 S.W.3d 881 (Tex. App.—Fort Worth 2018, no pet.), which found
prejudice. We find that case distinguishable. There, the insurer moved to compel a
seventh inspection of the property for the express purpose of litigation, expressed
intent to go to trial, and the insured already incurred trial expenses and attorney’s
fees in preparing for trial. Id. at 893. Further, by the time the insurer invoked
appraisal, the roof damage was more than two and a half years old and storms since
then had exacerbated the roof damage, making it impossible for an appraiser to
determine which damage was caused by which storm. Id.
That is clearly not the case here. There is no indication of subsequent storms
or any events that contributed to the Hinojosas’ roof damage. Additionally, the
record does not reflect any similar signs of intent by Allstate to go to trial. In fact,
Allstate invoked appraisal less than a month after filing its answer, quite early in
litigation stages of the case. See In re QBE Specialty Ins. Co., No. 01-19-00164-CV,
2020 WL 6140180, at *7-8 (Tex. App.—Houston [1st Dist.] Oct. 20, 2020, no pet.)
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(distinguishing from In re Allstate Vehicle & Prop. Ins. Co., finding no prejudice,
and noting that “although the parties have exchanged written discovery, the record
lacks any indication the parties have engaged in expert discovery, depositions or any
other pre-trial activities that reflect they are actively getting ready for trial”).
This case is akin to In re Universal Underwriters of Texas, which held that
“it [wa]s difficult to see how prejudice could ever be shown when the policy . . .
gives both sides the same opportunity to demand appraisal[,]” reasoning that when
plaintiffs sense that an impasse has been reached, they can avoid prejudice by
demanding appraisal themselves. 345 S.W.3d at 412, quoted in In re Am. Zurich Ins.
Co., No. 2025 WL 3236300, at *8. Here too, the Policy provided that “either party
may make a written demand for an appraisal,” affording the Hinojosas the right to
invoke appraisal and undermining their prejudice claim. Allstate has thus
demonstrated that the trial court abused its discretion in denying the Motion.
Further, mandamus relief is appropriate on the issue of appraisal because
Allstate lacks an adequate appellate remedy. Refusal to enforce an appraisal clause
is an abuse of discretion that cannot be remedied by appeal. Id. (“[M]andamus relief
is appropriate to enforce an appraisal clause because denying the appraisal would
vitiate the insurer’s right to defend its breach of contract claim.”) (citation omitted);
see In re Liberty Ins., 496 S.W.3d at 235 (“We conclude that the trial court abused
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its discretion by denying [the insurer’s] motion to compel appraisal and that [the
insurer] has no adequate appellate remedy to correct this error.”).
Abatement
In denying Allstate’s Motion, the trial court denied Allstate’s request for
abatement pending appraisal. Given the trial court’s denial of Allstate’s request to
compel appraisal, there was no need to consider the necessity of abatement during
appraisal. Given our conditional grant of mandamus relief to compel appraisal,
Allstate may re-urge in the trial court its request for abatement pending the appraisal
process.
Conclusion
We withdraw the stay issued on January 16, 2026, and conditionally grant
mandamus relief as to Allstate’s request to compel appraisal. We direct the trial court
to (1) vacate its July 29, 2025 ruling denying Allstate’s Motion; and (2) order the
parties to engage in the appraisal process. The writ will issue only if the trial court
fails to do so.
Clint Morgan
Justice
Panel consists of Justices Guerra, Gunn, and Morgan.
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