In the
Court of Appeals
Sixth Appellate District of Texas at Texarkana
No. 06-25-00098-CV
LOU ANNE NACOL, Appellant
V.
STORMS ROOFING AND CONSTRUCTION, LLC, D/B/A STORMS CONSTRUCTION
AND ASHLEY STORMS, Appellees
On Appeal from the 162nd District Court
Dallas County, Texas
Trial Court No. DC-22-17115
Before Stevens, C.J., van Cleef and Rambin, JJ.
Memorandum Opinion by Justice van Cleef
MEMORANDUM OPINION
Lou Anne Nacol appeals the trial court’s findings against her following a bench trial.1
On appeal,2 Nacol argues that the trial court erred by failing to find that Storms Roofing and
Construction, LLC d/b/a Storms Construction (Storms) violated the Texas Insurance Code. 3 By
cross-appeal, Storms argues that the trial court erred by (1) overruling its motion to reopen the
evidence to introduce evidence of attorney fees, (2) failing to award legal fees, and (3) failing to
award pre-judgment interest.
We find that sufficient evidence supported the trial court’s finding that Storms did not
violate the Texas Insurance Code. We further find that the trial court did not err by overruling
Storms’s motion to reopen the evidence or by failing to award attorney fees to Storms. Lastly,
we find that Storms has failed to preserve the issue regarding pre-judgment and post-judgment
interest. As a result, we affirm the trial court’s judgment.
I. Factual and Procedural Background
On February 18, 2021, winter storm Uri caused burst pipes leading to significant damage
to Nacol’s Dallas County home. Nacol, who was visiting her daughter in California, became
aware that water was flooding her home when she received a call from her realtor. Nacol’s
1
Originally appealed to the Fifth Court of Appeals, this case was transferred to this Court by the Texas Supreme Court pursuant to its docket equalization efforts. See TEX. GOV’T CODE ANN. § 73.001 (Supp.). We follow the precedent of the Fifth Court of Appeals in deciding the issues presented. See TEX. R. APP. P. 41.3. 2
Although Nacol sued Ashley Storms individually, the trial court granted a directed verdict dismissing the claims against Ashley, and that ruling is not appealed.
3
Nacol also argued that she was harmed by the trial court’s failure to enter findings of fact and conclusions of law. However, we abated this matter to the trial court, which entered findings of fact and conclusions of law. As a result, we overrule Nacol’s complaint as moot.
2
Travelers Insurance (Travelers) homeowner’s policy (Policy) covered water damage from burst
pipes. The Policy’s coverage limit for Nacol’s dwelling was $197,000.00, and her recovery for
personal property was limited to $98,461.00.
A. Nacol Hired Storms to Repair Her Damaged Home
Nacol called and hired Storms as a general contractor while she was still in California.
Storms’s owner, Ashley, said that she and Nacol discussed the damage to Nacol’s home and that
Storms’s crew appeared at the home on February 19 “to get water off the property” while Nacol
was still in California. Ashley explained that process began the “remediation/mitigation phase”
of the work, in which the goals were to “try and stop that damage from occurring or from getting
worse” and to remove property in preparation for construction. At trial, Nacol said that Storms’s
crew began working even though she had not yet signed any written agreement for the services.
Nacol said that she had a hard time getting a Travelers’ adjuster to come out and assess
the damage to her home because “Dallas was a mess” after the winter storm, and she was afraid
that Travelers would not cover the repairs if not assessed before the commencement of any
repairs. According to Nacol, Ashley assured her that “insurance ha[d] to cover it.”
B. Nacol’s Agreement with Storms
On March 4, 2021, Nacol signed Storms’s “EMERGENCY WORK AGREEMENT &
AUTHORIZATION” (Agreement), which authorized Storms to “perform certain work and/or
make repairs” to Nacol’s property for the loss sustained on or about February 18. Specifically,
Nacol agreed that Storms would (1) perform “emergency repairs in the form of water extraction,
structure and/or content drying and dehumidification,” (2) assist with moving Nacol’s belongings
3
to a climate-controlled storage unit, and (3) “repair[] or restore[]” the home “to the same
condition in which the real estate existed before the damage, loss, or expense occurred.”
By signing the Agreement, Nacol “acknowledge[d] that since the work to be performed
[wa]s urgent in nature, the exact specifications for the [w]ork” could not be provided, but
“[r]egardless, [Nacol] . . . elect[ed] to authorize the commencement of [w]ork under th[e]
Agreement” and to assign insurance proceeds provided by Travelers for the work to Storms. The
Agreement memorialized Nacol’s expectation that the damages to her home would be covered
“in whole or in part, by the proceeds of an insurance policy,” her agreement “to be obligated for
any and all [w]ork specified and agreed upon by the carrier of said insurance,” and her
“understand[ing] that if full payment [wa]s not received from any applicable insurance or other
third party, [Nacol] unconditionally and irrevocably guarantee[d] to fully and promptly pay
[Storms] the unpaid amount upon demand.” Simply put, Nacol “underst[ood] and agree[d] that
[she] [wa]s solely responsible for payment of the total cost, including [Storms’s] fee[s] for”
repairs authorized by her. In exchange, Storms agreed “that the total cost of the [w]ork w[ould]
be in accordance with the original estimate and any supplemental estimates prepared by [Storms]
and approved by the adjuster for [its] insurance company, plus any change orders approved by
[Nacol] and [Storms].”
C. Nacol and Storms Discussed Damages and Repairs with Travelers
Nacol testified that “[t]here was no estimate or quote” at the time she signed the
Agreement. Nacol said that she “was under the impression that [Storms] was going to handle
everything” because Nacol “was very leery about calling [Travelers].” Ashley admitted that she
4
did not provide the scope of the work to Nacol contemporaneously with the Agreement.
According to Ashley, Nacol wanted to upgrade and refresh her home by making improvements
that were not a part of her insurance claim, and Nacol testified that she knew she would owe
Storms for “the repairs that were not part of the flood.”4 Nacol believed the cost of the upgrades
her Policy would not cover was approximately $20,000.00, although she did not ask Storms for a
separate estimate.
Ashley explained that she and Nacol walked through Nacol’s home several times to
discuss the damages and how they would be repaired. Ashley testified that due to the extent of
the loss, Storms hired a third party, Coppermont Consulting, to “complete the scope” of the work
to ensure Storms “had everything accounted for.” Ashley said that she explained to Nacol that
Nacol could provide evidence of the damage to Travelers or could authorize Storms to do so on
her behalf.
While waiting for the scope of the work, on March 12, 2021, Nacol signed a third-party
authorization form permitting Storm “to communicate with [her] insurance and mortgage
companies directly.” By signing the form, Nacol authorized Storms to “request inspections,
claim status information and updates, and to be listed as a contact for the property undergoing
repairs.” When asked what she thought Storms was doing in its communications with Travelers,
Nacol responded, “Letting the insurance company know how much it was going to cost to fix
[her] house.”
4
Ashley testified, “There were items on [Nacol’s] build back that were supposed to be due to the winter storm and then there were items that she wanted upgrades on, and it was a balancing between the two of those.”
5
According to Ashley, Storms and Nacol would review the charges Nacol would incur if
Travelers did not cover the repairs “continuously each week,” “[u]sually on Fridays,” after a
weekly update to Storms’s invoice, and Nacol agreed that she met weekly with Ashley to find
out how much Nacol owed Storms. The record reflects that Nacol wrote weekly checks to
Storms for the work performed. Nacol said that she would leave the weekly meetings with a list
of work that required completion but was not informed of how much it would cost.
In April 2021, Coppermont provided its scope of the work analysis to Storms. Ashley
testified, and an email admitted into evidence confirms, that Storms provided a copy of the scope
of the work to Nacol and Travelers, which contained a detailed list of what was necessary to
return the property to its “pre-loss condition.” In the communication to Travelers, Storms noted
that “costs for foundation repairs, replacement/repairs of soil/sprinkler systems which were
affected,” and “costs of any masonry which must be completed after the foundation work has
taken place” were not included. Storms represented that “[t]hese [were] additional costs which
[were] still to be determined and must be paid for in order to properly indemnify the
homeowner.” The scope of work was a detailed, room-by-room, item-by-item estimate totaling
$152,886.08. Ashley said that Nacol never signed the scope of work, but it was submitted to
Travelers “at [Nacol’s] request.” In doing so, Ashley testified that she was “making claims as to
what ha[d] been damaged based on [her] experience as a contractor.”
D. Travelers Requested Documentation After Denying Some Repairs
Ashley said that Travelers denied many line items contained in the scope of the work and
that, in response to Travelers’ adjuster’s request, Storms sent “supplements on th[e] claim” to
6
support the assessed damages with a notation that Storms was still waiting on “masonry and
irrigation bids.” By that time, Nacol had consulted with her brother, an attorney, about her
claim. In early May 2021, Ashley sent a text message reporting that she had sent the scope of
the work estimate to Nacol, Nacol’s brother, and to the Travelers adjuster so they would “already
have all the documentation [Storms] submitted” in case the adjuster “start[ed] throwing a fit and
[Nacol’s brother] [did] have to step in.” On May 26, Nacol asked Ashley when Nacol’s brother
should get involved since Travelers was “holding the reno up.” Nacol then texted Ashley to
inform her that Nacol had spoken to a subcontractor, who said to proceed with the sheetrock
since Travelers had sent some money to Nacol. Nacol texted Ashley stating, “We will fight it
out for the rest,” and Nacol testified that her text showed that she was taking an active role in
moving the work forward and threatened to fight Travelers for the rest.
On June 16, 2021, after a new adjuster, Matt,5 took over the case from a previous
adjuster, Nacol texted Ashley stating, “[T]hat Matt guy was so deceiving, he gave me the
impression to not worry . . . . I’m going all the way with this. [Travelers is] going to make this
right. My brother is a master at this[,] and he will rip them apart.” Ashley responded by stating
that she would “make sure that [Storms’s] scope [was] marked up and [would] then start
collecting all the information they need[ed].”
In July 2021, Storms submitted several documents to support additional line-item
requests in the scope of work. The scope contained detailed, itemized estimates for each repair
totaling $166,300.36.
5
In the record before us, Matt’s last name was not presented to the trial court.
7
E. Nacol Owed Storms Money but Tells Them to Stop Working
Ashley said that Storms stopped work on the project in August because Nacol had not
paid Storms’s weekly invoice. In September 2021, Nacol texted Ashley stating, “I told you from
the start that I don’t have any money to cover what insurance does not . . . . [S]o I guess we will
have to hold off until insurance comes through. . . . I’m tapped.” In September 2021, Ashley
said that Nacol told Storms to stand down, which it did. Ashley also recommended that Nacol
hire a public adjuster “to get insurance to cover items they normally [do not] like to.” On July
30, Nacol hired Mosaic Claims Management, P.C., as her public insurance adjuster. Mosaic
submitted an itemized estimate of $223,582.54 in repairs to Travelers.
On October 4, 2021, Ashley emailed Nacol’s daughter, Sarah Bobbe, and stated that
Travelers “refused to budge anymore and still had not covered [Nacol’s] additional living
expenses,” which is why Storms recommended that Nacol hire a public adjuster. Ashley stated
in her email that public adjusters could “push in ways [Storms] [could not] and even though
[Storms] brought [the costs] up significantly [Nacol] still was not getting what she needed to be
fully indemnified which is what insurance is required to do in [Nacol’s] situation.” Bobbe
testified that she became involved when she learned that Nacol’s house had been demolished in
preparation for repair even though a Travelers’ adjuster had not seen the home.
Nacol, who had written weekly checks to Storms, had paid $72,724.59 up to that point.
Ashley admitted that Storms did not complete the construction. Storms sent a final invoice for
their work in December 2021, that included $26,859.56 as the balance owed for materials, fifteen
percent or $16,925.62 for overhead, and fifteen percent or $16,925.62 for profit, but Ashley
8
admitted there was nothing in writing indicating that Nacol had agreed to pay for profit or for
fifteen percent of the overhead, although she had discussed it with Nacol.
Nacol testified that she authorized putting the project on hold and did not ask Storms to
come back to finish the work. Instead, she hired a new company, Dash Construction, to
complete the work and paid them $42,000.00 for their work.6
In January 2022, Ashley emailed Bobbe stating, “Please understand we did not want it to
come to this. We worked tirelessly to have [Nacol] indemnified by [Travelers]. However, our
agreement is with [Nacol] and she is ultimately responsible for the bill due.”7 Nacol terminated
Storms’s services on January 31, 2022, and did not pay Storms’s final invoice.
F. Nacol Sued Storms
On December 12, 2022, Nacol sued Storms, alleging that it had abandoned the job after it
became clear that there was no more insurance money. According to Nacol, Storms
“misrepresented that it could and would manage her [l]oss claim with [Travelers] and ensure that
it paid for . . . remediation and repairs.” Nacol brought claims for common law fraud, negligent
misrepresentation, and violation of Section 4102.051 of the Texas Insurance Code8 because
Storms allegedly acted as a public-insurance adjuster without a license, which, according to
Nacol, allowed her to void any contract she had with them.9
6
Nacol testified that the payment to Dash did not include any improvements to her home.
7
In April 2022, Travelers provided Nacol with a statement showing that it would approve $79,460.90 in dwelling loss, $4,506.28 for personal property loss, and $16,853.77 in mitigation.
8
See TEX. INS. CODE. ANN. § 4102.051 (Supp.).
9
Nacol also sought declaratory judgment that Storms’s contract was unlawful because Storms acted as an insurance adjuster.
9
G. Storms Sued Nacol for Money Owed
In response to Nacol’s lawsuit, Storms filed a verified denial, raised several affirmative
defenses, and brought counterclaims for breach of contract, unjust enrichment, quantum meruit,
promissory estoppel, money had and received, and common law fraud. Storms, which sought
attorney fees, argued that it performed pursuant to the Agreement but that Nacol failed to pay as
promised. Storms’s final invoice shows that it was seeking a balance of $73,963.43.
The matter was set for a bench trial. At trial, the trial court heard the evidence referenced
above through testimony from Nacol and Ashley, along with additional evidence to support each
party’s claims.
H. A Bench Trial Resulted in Rulings Favoring Storms
According to Nacol, Storms had already completed the remediation phase without
providing any quote for the work. Nacol said that Storms told her that Travelers should pay for
the water-damaged items and was “led to believe that [Storms] had it under control, that [she did
not] have to worry about it.” Nacol said that Ashley helped her shop for materials, that she
believed Ashley was her “advocate,” and that Storms acted as her agent to settle her insurance
claim. She thought Storms’s goal was “to squeak every bit of money out of [Travelers].”
According to Nacol, Storms never told her how much she would owe if Travelers did not
approve the scope of the work or if it denied a line item, but she admitted that she never asked
Storms to prepare a comprehensive estimate of the work to be performed because they discussed
those matters during their weekly walk-throughs. Nacol said that, even as of September 2021,
she still did not know how much she was going to have to pay Storms if Travelers did not cover
10
everything. Instead, Nacol testified that she had paid Storms throughout based on their weekly
invoices for work performed.
Nacol said she looked to Storms for insurance advice and that they provided advice that
she relied on. When asked what kind of advice, Nacol provided the following example:
Like the kitchen cabinets, I was concerned that the upper cabinets were not going
to be covered because that [was not] on the scope of work from the insurance
company. And [do not] worry about it. We [can not] take down just part of your
cabinets. We have to take all the cabinets down, so that will be covered with the
insurance.
As another example, Nacol said that she was encouraged to demolish the fireplace instead of just
painting it based on Storms’s representation that insurance would cover a fireplace repair.
Nacol also said that Storms advised her to ask Travelers for $400.00 per day for living
expenses and helped her with her personal property claim by advising her to list every item in
her house and “go on the [i]nternet and find out how much it would cost to replace [those]
item[s].” Nacol said that Ashley gave her advice about her personal property coverage when
Ashley said Nacol would be “golden” if she had $98,000.00 in coverage instead of $30,000.00.
Nacol represented that Storms’s advice on coverage was false but admitted she did not
know “what Travelers would or [would not] have done” to pay for the full invoice submitted by
Storms because she never sued Travelers. When asked what false statements Storms gave, Nacol
said it was that they would finish the work. In hindsight, Nacol said Storms did not provide bad
advice by suggesting that she get a public adjuster and possibly file a lawsuit and admitted that it
was possible that Storms’s representation that she was not paid enough money was entirely
correct. When asked if she would have altered her plans for repair if she knew the insurance
11
coverage “was going to turn out the way it did,” Nacol said, “No, probably not. I might have,
but I would have known what it was going to cost me.” Nacol testified that she did not believe
Ashley wanted to harm her.
After listing her complaints, Nacol testified that Storms’s work “needed to be performed”
and was properly performed. Nacol said that the quality of Storms’s work “was very good” and
that she was not complaining about it. She was aware that her counsel emailed an adjuster for
Travelers stating that Nacol was “satisfied with the validity of Storms’[s] invoice for labor and
material provided by trades and vendors for the home.” Nacol clarified that she could not
challenge whether the prices charged by Storms were proper reflections of the value of work
performed. In fact, Nacol had only owned the home for a few months before the winter storm
damage, had paid $326,000.00 for it, but sold it in September 2022 for $498,000.00. As a result,
Nacol agreed that the work Storms completed helped her sell her home for profit.
Ashley testified that she never offered to handle the insurance claim for Nacol and did
not act as her representative. According to Ashley, Storms “took care to explain to Nacol . . .
that [they] were just the contractor on the project and could not negotiate th[e] claim for her with
Travelers.” Ashley said that, on March 4, she explained that Storms could “have conversations
about the [P]olicy” and there would be times when they would have to submit information to
Travelers, but explained that was “where [their] boundaries . . . lie[d] with that” so as not to
violate the Texas Insurance Code. Ashley also said that she provided her “personal opinion
regarding the sufficiency of the funds available to indemnify Nacol for her personal property
12
claim.” She testified that she commented on the completeness of Nacol’s indemnification
because she considered Nacol a friend.
Nacol testified that she had several meetings with Ashley to go “over the insurance
[P]olicy of exactly how much [they could] get from [Travelers]” and stated that Ashley said she
would “handle everything with [Travelers].” Even so, Nacol did not remember what she
discussed with Ashley during their first meeting because she was in “such a shock.” Yet, Nacol
said that Storms was “involved in every call with the insurance [P]olicy and coached [her] on
what to say and how to . . . get as much out of [Travelers] as [she] could.” Nacol repeated that
Ashley would tell her “[do not] worry, they have to cover that.” As a result, Nacol believed that
Ashley represented her for settlement of the insurance claim and testified that Ashley never told
her that she could not discuss the Policy with Nacol. Yet, Nacol was impeached by her
deposition, during which Nacol said that Ashley merely represented “that [Storms] was going to
be [her] contractor, and that [they] need[ed] to get insurance involved as soon as possible to get
[the] house put back together.” Nacol agreed that Ashley negotiated the settlement for line
items, which Ashley explained was different from settling the full claim. Ashley admitted that
her communications sometimes used the word “claim” when she was referring to specific line
items in the scope of the work.
Ashley explained that there is no way to comprehend the full scope of repairs when doing
emergency mitigation work, which is why there was no dollar figure listed in the Agreement.
Ashley testified that all of the work Storms included in the scope of the work was necessary to be
performed to restore Nacol’s home to its pre-damage condition. Ashley noted that, as the full
13
extent of the damages became realized, Storms and Travelers both modified the scope of the
work, that she went over the scope of the work with Nacol multiple times, and that Travelers
alone had modified its scope of the work four times based on documentation Storms provided.
As an example of Storms’s work, Ashley testified that she spoke to Travelers about the scope of
the work while Nacol was on the phone and that it resulted in an additional approval from
Travelers of $5,298.45. Ashley testified that Travelers went from approving $70,373.00 in lineitem work to approving “a total of $115,182.21 on” the final scope.
Nacol testified that $146,688.02 was an accurate reflection of the value of the work
performed by Storms on the property but that Nacol only paid $72,724.59 to Storms. As a result,
Ashley testified that $73,963.43 remained outstanding. Nacol agreed that Travelers paid her a
total of $153,892.74 for her claim, which included $39,400.00 for alternative-living expenses,
$4,700.00 for the home contents, and $4,529.02 for personal property, leaving her with
approximately $113,000.00 for the reconstruction of her home. Of that, she had added
approximately $20,000.00 in upgrades that were completed by Storms. 10 Ashley explained that
Storms went over the supervisor hours allotted for the project and did not charge Nacol the full
amount, although it was now seeking attorney fees.
The trial court also heard from expert witness Jack Hanks, a licensed-public adjuster,
appraiser, and umpire.11 Hanks testified that he was a restoration contractor from 1992 to 2017,
became licensed as a public adjuster in forty states, was Storm Venture Group’s Public Adjuster 10
Nacol paid Dash $47,273.09 on its retail contract to complete remaining repairs.
11
Hanks explained that “[a]s an umpire, you are named by both opposing appraisers as a third part of that group. So[,] [you are] basically appointed and [you are] hired technically by the insurance company and the insured because they both pay you equally.”
14
of the Year in 2021 and 2022, and is currently the chief executive officer for VPA Claims.
Hanks testified about Nacol’s claims under Section 4102.051(a), which states that “[a] person
may not act as a public insurance adjuster in this [S]tate or hold himself or herself out to be a
public insurance adjuster in this [S]tate unless the person holds a license issued by the
commissioner.” TEX. INS. CODE ANN. § 4102.051(a). The term “[p]ublic insurance adjuster,” as
it is relevant here, means “a person who, for direct, indirect, or any other compensation . . . acts
on behalf of an insured in negotiating for or effecting the settlement of a claim or claims for loss
or damage under any policy of insurance covering real or personal property.” TEX. INS. CODE
ANN. § 4102.001(3)(A)(i).
Hanks read from a Texas Department of Insurance factsheet which explained that, under
the Texas Insurance Code, a contractor may “discuss the amount of damage to the home, the
appropriate replacement and reasonable cost with the insurance company” “to the extent they are
relative to the estimate to repair the damage to the consumer’s home,” but they may not
“advocate on behalf of consumer and discuss insurance policy . . . coverages and exclusions.”
Hanks said that he had reviewed all documents, photographs, voice recordings, and
recorded telephone calls related to Nacol’s claims and saw nothing unusual about the third-party
authorization or Storms’s actions. Hanks testified that Storms was allowed, and that it is
common for contractors, to discuss the scope of the work to be performed to repair a property,
their bills and invoices, materials, line items, supplements, and best practices with an insurance
company. Further, Hanks testified that he was present in court for all of the previously
mentioned testimony.
15
According to Hanks, “in a perfect world, the insured is indemnified for exactly what the
damages are minus their deductible. [That is] the way [it is] supposed to work.” He explained
that a contract like the one Storms had with Nacol, as opposed to a retail contract, was “very
much open ended.” Hanks said that is because the damage can not be fully assessed until after
mitigation, and the cost of the mitigation phase in Nacol’s case would depend on how long it
would take for the items in her home to dry out based on moisture-meter readings and the
humidity outside. Only after that phase was completed would the full scope of damage be
uncovered. Hanks said that, for this reason, repairing a storm-damaged home was often a work
in progress and it is not uncommon to have multiple updates to the scope of the work. He
explained that both Storms and Travelers were “trying to get the scope accurate so they [could]
put [Nacol’s] home accurately back together.”
As for creating the scope of the work, Hanks used a program called Xactimate because it
is the industry standard and also used by Travelers. Hanks explained that insurance companies
do not need to “work off of invoices” because they “always pay[] the actual cash value of the
Xactimate, as [they are] legally obligated to do.” For this reason, Hanks said it is commonplace
for contractors to work without a contract with the insured, that they “literally work[] off the
insurance scope.” He further explained, “So there was never a de facto contract, [we are] going
to do X amount of work for X amount of dollars.” Hanks said that ten percent for profit and ten
percent for overhead was the most common cost charged by contractors, although there could be
separate arrangements for an hourly rate and markup on materials. For hourly rates, Hanks said,
16
“Xactimate[’s] number for a supervisor is around $70[.00]” per hour and sometimes there is no
documentation other than an Xactimate.
Hanks testified that Storms’s emails to the Travelers’ adjusters discussed the scope of the
work and submission of line items, which is what contractors are allowed to do, instead of
discussing the policy or coverage. Hanks admitted that unlicensed-public adjusters are not
allowed to ask for indemnification, which has a specific meaning, and noted that Storms used the
term in an April 2021 email. Yet, in Hanks’s opinion, the email, which stated, “These are
additional costs which are still to be determined and must be paid for in order to properly
indemnify the homeowner,” did not mean “indemnify” as used by public adjusters. Hanks said
that Storms used the “word wrong” and meant that they were “presenting their scope of damages
to the carrier” and “ask[ed the scope to be paid properly.” Hanks said that Storms again used the
incorrect wording when saying it worked tirelessly to have Travelers indemnify Nacol, which he
believed meant that Storms “worked tirelessly to get the scope as accurate as they could by the
[insurance] carrier.”
Hanks said that, based on the work performed, Storms’s $23,978.64 charge for supervisor
hours was reasonable. Hanks, who had heard Nacol deny that she had ever discussed Storms’s
overhead and profit until “the end when everything had kind of gone crazy,” testified that the
scope of the work Storms created in April 2021, included ten percent profit and ten percent
overhead.12 Even so, Hanks said nothing shows that either Storms communicated it would
charge fifteen percent for overhead and profit or that Nacol agreed to such a charge.
12
Nacol said, “[She] knew there would be charges for [overhead and profit] but [she] never had a number.”
17
After hearing the evidence, the trial court took the matter under advisement. The trial
court entered its final judgment on June 6, 2025, which ordered that Nacol take nothing by her
claims against Storms, but that Storms recover “principal damages in the amount of $60,709.69.”
The judgment also decreed “that all other relief not [t]herein granted [wa]s expressly denied.” In
its findings of fact and conclusions of law, the trial court found, among other things, that “there
[was] no credible testimony or evidence proving to a preponderance of the evidence that Storms
Construction engaged in conduct that violated Texas Insurance Code [Chapter] 4102.”
II. Sufficient Evidence Supports the Rejection of Nacol’s Texas Insurance Code Claim
In her first point of error on appeal, Nacol challenges the trial court’s decision finding no
violation of Chapter 4102 of the Texas Insurance Code.13 Nacol’s argument asserts that she
established, as a matter of law, that Storms acted as a public-insurance adjuster without a license.
Based on the record before us, which includes the trial court’s findings of fact and conclusions of
law, we conclude that legally-sufficient evidence supported the trial court’s rejection of Nacol’s
Texas Insurance Code claim and that, as a result, the trial court was free to make its fact finding,
based on Hanks’s testimony, that Storms was not acting as a public-insurance adjuster.
A. Standard of Review
The trial court provided findings of fact and conclusions of law in support of its
judgment. The Supreme Court of Texas has clearly articulated the correct standard of appellate
review:
Findings of fact in a case tried to the court have the same force and dignity as a
jury’s verdict upon questions. L.R. French v. Diamond Hill Jarvis Civic League,
13
Nacol raises no complaint with respect to the trial court’s take-nothing judgment on the remainder of her claims.
18
724 S.W.2d 921, 922 (Tex. App.—Fort Worth 1987, writ ref’d n.r.e.); Reyes–
Retana v. PTX Food Corp., 709 S.W.2d 695 (Tex. App.—San Antonio 1986, writ
ref’d n.r.e.). The trial court’s findings of fact are reviewable for legal (and
factual) sufficiency of the evidence by the same standards as applied in reviewing
the legal (and factual) sufficiency of the evidence supporting a jury’s finding.
Creative Mfg., Inc. v. Unik, Inc., 726 S.W.2d 207, 210 (Tex. App.—Fort Worth
1987, writ ref’d n.r.e.); Okon v. Levy, 612 S.W.2d 938, 941 (Tex. Civ. App.—
Dallas 1981, writ ref’d n.r.e.).
Anderson v. City of Seven Points, 806 S.W.2d 791, 794 (Tex. 1991); see Bone-Martin v. Moss,
No. 05-22-00439-CV, 2025 WL 495558, at *9 (Tex. App.—Dallas Feb. 13, 2025, no pet.)
(mem. op.); Hegar v. Am. Multi-Cinema, Inc., 605 S.W.3d 35, 40 (Tex. 2020) (citing Anderson,
806 S.W.2d at 794) (“We review the trial court’s conclusions of law de novo . . . and its findings
of fact for sufficiency of the evidence.” (citation omitted)); see Okon, 612 S.W.2d at 941 (citing
Hall v. Villarreal Dev. Corp., 522 S.W.2d 195 (Tex. 1975) (per curiam)) (“[W]e apply the same
standard as is applied by a court reviewing the legal or factual sufficiency of the evidence
supporting a jury’s answer to a special issue.”). Accordingly, “[w]hen an appellant attacks the
legal sufficiency of an adverse finding for which it did not have the burden of proof, it must
demonstrate that there is no evidence to support the adverse finding.” Bone-Martin, 2025 WL
495558, at *9. “[A] challenge fails if there is more than a scintilla of evidence to support the
finding.” Id. “Evidence does not exceed a scintilla if it is so weak as to do no more than create a
mere surmise or suspicion that the fact exists.” Id.
“Fact findings and legal conclusions, however, reflect distinct types of court decisions,
are subject to different requirements, and are reviewed under different standards.” Ad Villarai,
LLC v. Chan Il Pak, 519 S.W.3d 132, 135 n.1 (Tex. 2017) (per curiam). “We review
conclusions of law de novo, affording them no deference.” KWA Constr., L.P. v. ADC W. Ridge,
19
L.P., No. 05-24-00253-CV, 2026 WL 265251, at *5 (Tex. App.—Dallas Jan. 30, 2026, pet. filed)
(mem. op.).
“In reviewing a ‘matter of law’ challenge, [a] reviewing court employs a two-part test.”
Northsky, LLC v. Rummans, No. 05-24-00561-CV, 2025 WL 1757925, at *2 (Tex. App.—Dallas
June 25, 2025, pet. denied) (mem. op.) (quoting Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241
(Tex. 2001) (per curiam)). “The reviewing court must first examine the record for evidence that
supports the finding, while ignoring all evidence to the contrary.” Id. “If there is no evidence to
support the finding, the reviewing court will then examine the entire record to determine if the
contrary proposition is established as a matter of law.” Id. “The point of error should be
sustained only if the contrary proposition is conclusively established.” Id.
B. Analysis
“Texas’s regulation of the business of and licensing of public insurance adjusters is based
on the policy of protecting the public.” Lon Smith & Assocs., Inc. v. Key, 527 S.W.3d 604, 618
(Tex. App.—Fort Worth 2017, pet. denied). While a contractor can “discuss the amount of
damage to the consumer’s home, the appropriate replacement, and reasonable cost of
replacement with the insurance company,” it may not advocate on behalf of a consumer or
discuss insurance policy coverages and exclusions. Id. at 620 (citing TEX. DEP’T INS. COMM’R
BULLETIN B-0017-12 (2012)); see Tex. Dep’t of Ins. v. Stonewater Roofing, Ltd., 696 S.W.3d
646, 661–62 (Tex. 2024).
“The statute does not prohibit a contractor . . . from talking to its customers or an insurer
about repairs that are subject to a pending insurance claim and providing information” related to
20
the “repairs[,] . . . requests for information about property damage, the scope of necessary repair
work, estimated costs, and repair methods.” Stonewater Roofing, Ltd., 696 S.W.3d at 661.
For this reason, a contractor runs afoul of Chapter 4102 when its contract with the
consumer allows the contractor to pursue an insured’s “best interests for all repairs, at a price
agreeable to the insurance company,” and specifies that “[t]he final price agreed to between the
insurance company and [the contractor]” is the final price for the construction contract. Lon
Smith & Assocs., Inc., 527 S.W.3d at 611; see Wolfe’s Carpet, Tile & Remodeling, LLC v.
Bourelle, 693 S.W.3d 424, 429–30 (Tex. App.—Houston [14th Dist.] 2023, no pet.); Hill v.
Spracklen, No. 05-17-00829-CV, 2018 WL 3387452, at *1 (Tex. App.—Dallas July 12, 2018,
pet. denied) (mem. op.). A contract that authorizes a contractor to negotiate a quick and fair
settlement on the insured’s behalf also violates Chapter 4102. Bourelle, 693 S.W.3d at 432.
Even so, where a contract (1) does not “authorize or require [the contractor] to act in the
insured’s best interest,” (2) does not authorize the contractor “to reach a final contract price with
the insurance company” as opposed to “obtain[ing] ‘an estimate’ after investigating and
evaluating the sustained damage,” (3) “acknowledge[s] that other parties may be involved,” such
as public adjusters, agents, or consultants, or (4) has a disclaimer acknowledging that the
contractor “is not a public adjuster and cannot act to negotiate or settle an insurance dispute or
claim.” Id. at 431 (quoting Stellar Restoration Servs., LLC v. Courtney, 533 F. Supp. 3d 394,
420–21 (E.D. Tex. 2021)). In other words, where an agreement merely authorizes the contractor
“to investigate the complex, evaluate the damage, and join others during any inspection to,
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presumably, preserve its interest in the scope of work and final price,” it “does not violate Texas
public policy.” Stellar Restoration Servs., 533 F. Supp. 3d. at 421.
Here, the Agreement did not authorize Storms to pursue Nacol’s best interests for all
repairs, reach a settlement with Travelers, or state that the final price for Storms’s work would be
the price agreed to by Travelers. Rather, the Agreement authorized Storms “to perform certain
work and/or make repairs to [Nacol’s] property.” The contract price was not contingent on
receipt of insurance proceeds and was instead based on “the original estimate and any
supplemental estimates prepared by [Storms] and approved by the adjuster for our insurance
company.” The Agreement required Nacol to acknowledge that she “alone ha[d] the authority to
authorize [Storms] to make said repairs,” “[wa]s solely responsible for payment of the total
cost,” and “that if full payment [wa]s not received from any applicable insurance or other third
party, [Nacol] unconditionally and irrevocably guarantee[d] to fully and promptly pay [Storms]
the unpaid amount on demand.” Further, the Agreement notified Nacol that “failure of [Nacol]
to make proper payment when due” would entitle Storms “to suspend all work at its sole
discretion until payment [wa]s made, in full.” Also, Storms’s third-party authorization merely
allowed it to communicate with Travelers “to request inspections, claim status information and
updates, and to be listed as a contact for the property undergoing repairs,” and did not allow it to
adjust any claims. In fact, the third-party authorization acknowledged that Nacol was still
“responsible for any reports, supplements, paperwork, etc. being properly filed with the
appropriate parties.”
22
We find that neither the Agreement nor the third-party authorization form shows, as a
matter of law, that Storms acted or held itself out to be a public-insurance adjuster. As a result,
Nacol did not establish that Storms violated Chapter 4102 as a matter of law.
Rather, Nacol created a factual issue for the trial court to resolve through her testimony
about Storms’s representations and opinions regarding her insurance coverage, evidence of
additional settlement funds obtained because of Storms’s work, and emails regarding Storms’s
use of the word “indemnification.” However, as the fact-finder, the trial court was free to reject
Nacol’s characterizations of Storms’s work. Here, the trial court found “there [was] no credible
testimony or evidence proving to a preponderance of the evidence that Storms Construction
offered to negotiate an outcome on Nacol’s claim with [Travelers].” This shows that the trial
court (1) believed Ashley’s testimony that she explained to Nacol that Storms was not
negotiating the settlement of an insurance claim and (2) noted that Nacol had her own public
adjuster. Critically, the trial court was free to believe Hanks’s expert opinion that Storms merely
discussed the scope of the work and submission of line items with Travelers, which was allowed
by Chapter 4102.
Because Nacol failed to conclusively establish a Chapter 4102 violation, we find that
sufficient evidence supported the trial court’s rejection of her claim. As a result, we overrule
Nacol’s first point of error.
IV. Storms’s Cross-Appeal
In their first and second cross-issues, Storms argues that the trial court erred by refusing
to reopen the evidence to present the issue of attorney fees and by failing to award attorney fees.
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“Texas law has not allowed recovery of attorney’s fees unless authorized by statute or
contract.” Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299, 310 (Tex. 2006). “This rule is
so venerable and ubiquitous in American courts it is known as ‘the American Rule.’” Id. at 310–
11. “Absent a contract or statute, trial courts do not have inherent authority to require a losing
party to pay the prevailing party’s fees.” Id. at 311. Storms’s petition specifically sought
attorney fees under Section 38.001(b) of the Texas Civil Practice and Remedies Code, which
allows for attorney fees if the claim is for rendered services or performed labor. See TEX. CIV.
PRAC. & REM. CODE ANN. § 38.001(b)(1)–(2) (Supp.).
Since both Nacol and Storms were seeking attorney fees, the parties entered into a Rule
1114 agreement stating that they would submit evidence of attorney fees after the trial court ruled
on the merits of their claims. Yet, the text of the Rule 11 agreement expressly stated that it was
“subject to the [trial] Court’s approval.” While Storms filed a notice of the Rule 11 agreement
after the trial court had entered its final judgment, nothing shows that the trial court had
approved the Rule 11 agreement or that it would allow the parties to later reopen the evidence.
At trial, there was no mention of the Rule 11 agreement, and Storms admits that it did not offer
evidence of attorney fees. Because there was no evidence of attorney fees, the trial court denied
Storms’s requested relief.
On July 7, 2025,15 Storms filed a timely motion to reopen the evidence and enforce the
Rule 11 agreement so it could present evidence of attorney fees. To this motion, Storms attached
14
See TEX. R. CIV. P. 11.
15
July 6, 2025, was a Sunday.
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the affidavit of its counsel, stating it was seeking a total of $195,966.13 in unsegregated fees for
both its breach of contract and claims for rendered services or performed labor, along with
billing records. The trial court overruled the motion to reopen the evidence.
“We review the trial court’s ruling on a . . . motion to reopen the evidence for an abuse of
discretion.” Nixon v. GMAC Mortg. Corp., No. 05-08-00256-CV, 2009 WL 2973660, at *3
(Tex. App.—Dallas Sept. 18, 2009, no pet.) (mem. op.) (citing Naguib v. Naguib, 137 S.W.3d
367, 372 (Tex. App.—Dallas 2004, pet. denied)). “A trial court abuses its discretion when it acts
in an arbitrary and unreasonable manner or when it acts without reference to any guiding rules or
principles.” Id. (citing Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex.
1985)). “Although that discretion should be exercised liberally so both parties are permitted to
fully develop their cases, unless a trial court has clearly abused its discretion, an appellate court
should not disturb its refusal to open a case for the purpose of admitting additional evidence.”
In re C.T.H., No. 05-22-01202-CV, 2025 WL 3285467, at *9 (Tex. App.—Dallas Nov. 25, 2025,
pet. denied) (citing Naguib, 137 S.W.3d at 372).
The Dallas Court of Appeals has stated that a trial court may consider the following when
determining whether to reopen the evidence: “(1) the movant’s due diligence in obtaining the
evidence, (2) the decisiveness of the proffered evidence, (3) any undue delay the reception of the
evidence could cause, and (4) any injustice the granting of the motion could cause.” Id. (citing
Naguib, 137 S.W.3d at 373). “If not all of these factors are satisfied, a trial court’s denial of a
motion to reopen evidence should not be disturbed.” Id. (citing Naguib, 137 S.W.3d at 373).
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Storms did not obtain the trial court’s approval of the Rule 11 agreement before trial, and
nothing in the record shows that the trial court would allow evidence of attorney fees at a later
date. The trial court’s subsequent findings of fact and conclusions of law do not mention the
Rule 11 agreement. Applying the precedent of the Dallas Court of Appeals, we cannot find that
the trial court abused its discretion by denying Storms’s motion because the trial court “had
discretion to determine that [Storms] [was] not diligent in asking the court to reopen the case,”
since they waited until thirty-one days after the judgment was signed to do so, and “[t]he trial
court also had discretion to determine that reopening the case would cause undue delay.” Id.
Also, we find that the trial court could have determined that the proffered evidence was not
decisive since Storms’s motion also said it was seeking fees for breach of contract and Storms
failed to segregate fees not available as a result of the denial of its breach of contract claim.
Based on the precedent of the Dallas Court of Appeals, we cannot say that the trial court
abused its discretion by failing to reopen the evidence. As a result, we overrule Storms’s first
cross-issue. Since it is undisputed that Storms failed to present evidence of attorney fees at trial,
we likewise overrule Storms’s second cross-issue.
As for the issue of interest, Storms sought “all pre- and post-judgment interest at the
highest rate allowed by law,” but the trial court denied that relief in its judgment. “In order to
preserve for review a complaint concerning prejudgment interest, an appellant must in some way
inform the trial court of its dissatisfaction with the judgment.” Keene Corp. v. Creel, No. 05-91-00576-CV, 1992 WL 141076, at *1 (Tex. App.—Dallas June 23, 1992, writ denied) (not
designated for publication). This rule also applies to post-judgment interest. Hagan v.
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Pennington, No. 05-18-00010-CV, 2019 WL 2521719, at *18 (Tex. App.—Dallas June 19, 2019,
no pet.) (mem. op.); Marauder Corp. v. Beall, 301 S.W.3d 817, 824 (Tex. App.—Dallas 2009,
no pet.). Even so, Storms raised the issue of pre-judgment and post-judgment interest for the
first time on appeal. Accordingly, we overrule Storms’s complaint about lack of pre-judgment
and post-judgment interest due to lack of preservation. See TEX. R. APP. P. 33.1; Hagan, 2019
WL 2521719, at *18; Marauder Corp., 301 S.W.3d at 824; Keene Corp., 1992 WL 1992 WL
141076, at *1; see also Paciwest, Inc. v. Warner Alan Props., LLC, No. 02-10-00378-CV, 2012
WL 3499603, at *10 (Tex. App.—Fort Worth Aug. 16, 2012, pet. denied) (mem. op.) (finding
that appellant waived complaint regarding trial court’s failure to award pre-judgment interest
because it was not raised below); Pratt v. Trinity Projects, Inc., 26 S.W.3d 767, 769 (Tex.
App.—Beaumont 2000, pet. denied) (same).16
VI. Conclusion
We affirm the trial court’s judgment.
Charles van Cleef
Justice
Date Submitted: August 4, 2026
Date Decided: August 20, 2026
16
We note that the trial court’s findings of fact and conclusions of law stated, “Storms Construction is entitled to collect from Nacol its pre- and post-judgment interest, both at the rate of [eighteen percent] per annum.” Even so, those findings did not alter the trial court’s judgment and could not alter the judgment since the trial court’s plenary power had already expired, and we do not consider it a substantive alteration to the judgment. HSBC Bank USA, N.A. v. Watson, 377 S.W.3d 766, 772 (Tex. App.—Dallas 2012, pets. dism’d) (citing TEX. R. CIV. P. 329b(e), (g)); Munir Bata, L.L.C. v. Vestal, No. 05-10-00346-CV, 2010 WL 2367509, at *1 n.1 (Tex. App.—Dallas June 15, 2010, pet. denied) (mem. op.); In re Gillespie, 124 S.W.3d 699, 703 (Tex. App.—Houston [14th Dist.] 2003, orig. proceeding) (en banc)).
27