Michael Mitchell v. USAA General Indemnity Company

In The

Court of Appeals

Ninth District of Texas at Beaumont

________________

NO. 09-23-00042-CV
________________

MICHAEL MITCHELL, Appellant

V.

USAA GENERAL INDEMNITY COMPANY, Appellee

________________________________________________________________________

On Appeal from the 172nd District Court
Jefferson County, Texas
Trial Cause No. E-207,383
________________________________________________________________________

MEMORANDUM OPINION

Michael Mitchell (“Mitchell” or “Plaintiff”) sued USAA General Indemnity

Company (“USAA” or “USAA GIC”), his homeowners insurance company, seeking

additional compensation for damage allegedly resulting from an explosion at a

nearby chemical plant. After Mitchell failed to comply with USAA’s discovery

requests and misrepresented information to the trial court, the trial court struck

Mitchell’s pleadings and dismissed the case with prejudice. Mitchell appeals the

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dismissal, contending that this sanction was not authorized under applicable case

law, as it was unduly severe in light of the conduct it addressed. We affirm the trial

court’s Order of Dismissal with Prejudice.

BACKGROUND

In November 2019, there was an explosion at the TPC chemical facility in

Port Neches that allegedly damaged multiple buildings in the area, including

Mitchell’s home. After discussions between Mitchell’s attorney’s office and USAA

reached an impasse, Mitchell filed suit. We summarize the proceedings below.

The Policy

The parties do not dispute that USAA insured Mitchell’s home on November

27, 2019, the date of the explosion. The policy provided the following maximum

coverage limits: (1) $137,000 for the house; (2) $13,700 for other structures; (3)

$102,750 for Mitchell’s personal property; and (4) $27,400 for loss of use. It carried

a $1,000 deductible for losses other than wind and hail. The policy also contained

several terminology definitions, policy endorsements, conditions, coverage

explanations, and coverage exclusions. The policy provisions pertinent to this case

include:

“Actual cash value” is calculated as the amount it would cost to repair
or replace covered property, at the time of loss or damage, with material
of like kind and quality, subject to a deduction for obsolescence and a
“deduction for depreciation”.

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For property covered under Coverage A - Dwelling Protection or
Coverage B – Other Structures Protection, the deduction will be based
on the age and condition of the materials making up the damaged
property and will apply to materials, labor, sales tax, and overhead and
profit that are included in the cost to repair or replace the damaged
property.

[] Dwelling Protection Coverage[:]

We insure against “sudden and accidental”, direct, physical loss to
tangible property described in PROPERTY WE COVER – Coverages
A [dwelling] and B [other structures] unless excluded in Section I –
LOSSES WE DO NOT COVER.

[] LOSSES WE DO NOT COVER[:]

2.a. Weather Conditions which include but is not limited to heat, cold,
humidity, rain, ice, snow, sleet, wind, hail or drought. However, this
exclusion only applies if weather conditions contribute in any way with
a cause or event excluded in LOSSES WE DO NOT COVER UNDER
DWELLING PROTECTION, OTHER STRUCTURES
PROTECTION AND PERSONAL PROPERTY PROTECTION item
1. above to produce the loss.

[Insured’s] Duties After Loss[:]

a. Promptly notify us or our agent about the loss. This policy will not
provide any coverage for your loss if you fail to notify us about the
loss within one year after the loss actually occurs unless good cause
can be shown by you or the person filing the claim;

e. Cooperate with us in the investigation of a claim;

g. As often as we reasonably require:

(1) Show the damaged property:
(2) Provide us with records and documents we request and permit
us to make copies; and

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(3) Submit to and sign, while not in the presence of any other
“insured” other than a minor, who must have a parent or
guardian present

(a) Statements; and
(b) Examinations under oath;

Suits Against USAA:

10. Suit Against Us. No action can be brought against us unless you
have:
a. Given us notice of the loss;
b. Complied with all other policy provisions; and
c. Started action before the earlier of:
(1) two years from the date we accept or reject the claim,
or
(2) three years from the date of loss that is the subject of
the claim.

[] Appraisal[:] If you and we fail to agree on the amount of loss, either
may demand an appraisal of the loss. In this event, each party will
choose a competent and impartial appraiser within 20 days after
receiving a written request from the other. The two appraisers will
choose an umpire. If they cannot agree upon an umpire within 15 days,
you or we may request that the choice be made by a judge of a court of
record in the state where the “residence premises” is located. The
appraisers will separately set the amount of the loss. If the appraisers
submit a written report of an agreement to us, the amount agreed upon
will be the amount of the loss. If they fail to agree, they will submit
their differences to the umpire. A decision agreed to by any two will set
the amount of the loss.

Each party will:

a. Pay its own appraiser; and
b. Bear the other expense of the appraisal and umpire equally.

Any fees for expert witnesses or attorneys will be paid by the party who
hires them. Neither the umpire nor the appraisers will have a financial

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interest that is conditioned on the outcome of the specific matter for
which they are called to serve.

This is not a provision providing for or requiring arbitration. The
appraisers and umpire are only authorized to determine the “actual cash
value”, replacement cost, or cost to repair the property that is the subject
of the claim. They are not authorized to determine coverage, exclusions,
conditions, forfeiture provisions, conditions precedent, or any other
contractual issues that may exist between you and us. The appraisal
award cannot be used by either you or us in any proceeding concerning
coverage, exclusions, forfeiture provisions, conditions precedent, or
other contractual issues. However, once contractual liability is admitted
or determined, the appraisal award is binding upon you and us. This
appraisal process and authority granted to the appraisers and the umpire
can only be expanded and modified by written mutual consent signed
by you and us.

Pretrial Events

Eric Dick (“Dick”), Plaintiff’s attorney, sent USAA a letter of representation

dated August 24, 2020. In his letter, Dick directed USAA to communicate through

him, rather than directly with Mitchell, to include his firm as a payee on any payment

issued on the claim and requested a copy of the policy. Dick also indicated that, if

applicable, he intended “to invoke appraisal pursuant to the terms and conditions of

the insurance policy at issue[,]” and stated that he would “outline [his] client’s

disputes as to the amount of loss and designate an appraiser in a separate letter.”

USAA responded on September 3, 2020, acknowledging Dick’s representation and

providing the adjuster’s name and contact information, noting that USAA was

awaiting the inspection. On September 9, 2020, USAA again provided the adjuster’s

name and contact information, requesting that personnel with Dick’s firm contact
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the adjuster to schedule the inspection. By that date, however, Dick’s firm had

retained Quantum Claim Consulting Services (“Quantum”) to evaluate Mitchell’s

property, and Quantum did so on September 5, 2020. Quantum estimated Mitchell’s

repair cost at $29,182.25, but its estimate does not state that the damage and resulting

necessary repairs were caused by the TPC explosion.

On October 13, 2020, Dick sent USAA a demand letter seeking Quantum’s

estimated repair cost of $29,182.25, less any deductible and prior payments, plus

$10,000 in costs and attorney’s fees. In that letter, Dick alleged multiple violations

of the Texas Deceptive Trade Practices Act and the Texas Insurance Code; he also

demanded an appraisal. More specifically, Dick contended that USAA had not

reasonably investigated Mitchell’s claim; had underpaid Mitchell’s claim; had

misrepresented Mitchell’s coverage and damage; had failed to timely confirm

coverage or explain its claims decisions; and had breached the common-law duty of

good faith and fair dealing. Dick also identified his appraiser and provided the

appraiser’s telephone number and e-mail address.

On December 28, 2020, Crawford inspected Mitchell’s property on USAA’s

behalf and arrived at a replacement cost value of $4,367.11. After subtracting the

$1,000 deductible, USAA determined that it owed Mitchell $3,367.11. USAA then

forwarded the estimate to Dick and issued Mitchell a check for that amount on or

about January 20, 2021. On January 29, 2021, USAA contacted Dick’s firm, stating:

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[] We just gave you an estimate after an inspection, and paid on it. This
is your turn in the deliberative process to let us know if you are
disputing anything. Now that you have our estimate, please send me
your contractor’s supplement to it, along with supporting
documentation for any additional items they are claiming, if you have
one, so we can review it.

Also – an appraisal is for price, not scope. Are you stating that you are
in agreement with our estimate, but are only in disagreement about the
pricing? May I see your contractor’s estimate that is in agreement with
ours, but simply has higher prices, so that I may review it and advise if
we will meet those prices or not?

Please advise . . . Thank you!

On February 1, 2021, personnel with Dick’s firm responded:

If you do not want to commence the appraisal process, we can proceed
with litigation. I have sent you our estimate and our invocation of
appraisal on multiple occasions. Attached is the appraisal provision
from Mr. Mitchell’s policy stating Appraisal is to settle a disagreement
on the Amount of Loss, not the price of materials. Attached for you
again our appraisal demand, estimate and your appraisal provision. Will
you be naming an appraiser on this file?

On February 9, 2021, USAA replied:

I am writing to let you know that at this time, we are not moving
forward with the appraisal process. You have submitted an estimate for
an increased scope from what our initial estimate entails, and I’ve
confirmed that the adjuster that did the inspection in fact did already
see that estimate, so it’s been asked/answered. We did not agree with
that estimate’s claimed scope of damages at all. However, since you are
standing by that increased scope, we are moving forward to hire an
engineer to further assess the damages to clear up any questions on what
is associated with the 2019 loss. At this time, we would ask you please
cooperate with the engineer for an inspection, and please wait for that
engineer’s assessment to come back. We will then adjust our estimate
accordingly, and at that time, you can re-evaluate your decision on your
next step in this process. Thank you!
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In an undated e-mail, USAA advised Dick’s firm that the independent

adjuster inspected only the wind damage for which Mitchell had filed a

separate claim. For that reason, and because counsel was not present for the

initial inspection, USAA indicated that it would “request a re-inspection so

[USAA] can properly scope the loss[,]” and would “wait to receive the

UPDATED damage report.”

As USAA indicated in the above e-mail of February 9, 2021, it retained an

engineer, Paul Besse, P.E. (“Besse”), of Donan Engineering Co., to evaluate

Mitchell’s damage. Besse’s March 22, 2021 report states, in summary, that

• The explosion did not rack the house.

• The cracks in the walls and ceilings and the gaps in the crown
molding are caused by hygrometric and thermal expansion and
contraction of the building materials.

• The displaced north door is due to water intrusion into the
garage’s north wall.

• The house is not damaged by the TPC explosion.

Besse further observed that the Mitchell’s exterior and interior walls were

“plumb, indicating the house [was] not racked[,]” the front and back porch posts and

fences were neither leaning nor displaced, and that the HVAC unit and backyard

sheds were not displaced from their concrete pads or footings. Besse also noted no

dents or displacement in the metal roof over the back porch. Besse did, however,

document that a shed door was displaced and that a house door and its frame were
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displaced, with bent flashing. He did note “cracks less than 1/32 inch wide” in the

kitchen ceiling and the living room’s south wall, as well as gaps in the crown

molding sealant and a gap where the dining room chandelier medallion met the

ceiling.

Besse’s examination of Mitchell’s attic and roof revealed cracks “along the

grains of rafters[]” and “fracture[s] near knots in the wood and at nail penetrations[]”

in sections of the “plywood roof decking’s lower laminates” but did not show

fractures “through multiple laminates[]” of the roof decking. Besse noted no

fractures in the “nearby dimensional lumber” or in “the ridge beams or rafters[,]”

although he did see fractures in the purlins “beneath the west- and east-facing roof

slopes[.]”

In describing the damage that an explosion would be expected to cause, Besse

first explained how an explosion releases “energy in the form of light, heat, and a

shockwave.” The “shockwave consists of highly compressed air that travels outward

from the source[,]” losing strength and speed as it does so. It would typically apply

the greatest pressure to the front wall of the structure “facing the blast[,]” and would

cause initial damage to “weak, nonstructural components that are attached to or are

near the house before any structural damage occurs to the main structure[,]” such as

fences, sheds, and yard items. According to Besse, “[s]tructural damage to a

building’s interior walls, floors, and foundation will not typically occur unless severe

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exterior damage is first created by the pressure wave.” As for drywall defects, Besse

noted that “[j]oint defects in drywall generally occur in straight-line patterns[,]” and

“typically occurs along the edges of boards, in corners, or along the edge of taped

joints. Joint cracking can be caused by structural movement, thermal expansion and

contraction, or drying of joint compounds.” Conversely, cracks resulting from

vibrations (such as an explosion) “typically result in ‘X’-patterned and symmetrical

cracks around openings.” Besse observed no cracks that followed this pattern and

stated that “[t]he characteristics of the cracks and gaps at the subject property are not

consistent with vibration but are indicative of thermal and hygrometric expansion

and contraction.” He further opined that the “[t]he cracks along the grains of the

rafters are checks due to differential drying between the lumber’s piths and shells[]”

and concluded that “[t]he house was not damaged by the TPC plant explosion.”

USAA sent Dick’s firm Besse’s report on March 25, 2021, advising that

“[b]ased on this report, we will not be approving any changes to our current

estimate.” On April 8, 2021, USAA responded to Dick’s firm regarding the repeated

requests to name an appraiser, quoting the policy’s appraisal clause and stating “[t]he

actual causes of loss found are not covered under the policy. We are not asking for

monies back, but we are not issuing further payments to repair items that are not

covered under this policy.” USAA formally denied part of Mitchell’s claim on April

9, 2021 on the basis that Mitchell’s damage was caused by “wear and tear, marring,

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or deterioration” or “settling, cracking, shrinking, bulging or expansion of

pavements, patios, foundations, walls, floors, roofs, or ceilings[]” which were not

covered by the policy. Mitchell filed suit four days later, on April 13, 2021.

The Pleadings

In his Original Petition, Mitchell contends that USAA improperly adjusted,

investigated, and paid Mitchell’s claim, despite policy coverage and USAA’s

“obvious knowledge and evidence of serious damages.” Mitchell further alleges that

USAA “misrepresented” the amount of covered damage; failed to try to settle

Mitchell’s claim fairly; failed to timely confirm or deny coverage; and failed to

explain its denial. According to the Petition, these alleged acts and omissions

breached the contract between Mitchell and USAA; were fraudulent; were deceptive

trade practices and violated various provisions of the Texas Insurance Code as well

as the common law duty of good faith and fair dealing. Mitchell sought actual and

exemplary damages, plus interest and attorney’s fees.

Mitchell attached required disclosures to his Petition. These disclosures

generally repeat the allegations in Mitchell’s DTPA demand and petition. They do

not, however, list TPC as a “person who may be responsible as a third party[,]”

stating only “[n]one at this time.”

Mitchell also attached his expert witness designation to his petition. In

addition to designating himself as an expert on attorney’s fees, and designating an

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adjuster as a bad faith expert, Mitchell designated Richard Gadrow (“Gadrow”), Don

Foreman (“Foreman”), and Shiran Perera, P.E. (“Perera”), and provided their contact

information. According to Mitchell’s designation, these individuals are a general

contractor/estimator, an appraiser, and an engineer, respectively. Mitchell described

Gadrow’s and Foreman’s testimony thus:

The above-named witnesses may be called to testify as property experts
with regard to the nature, existence of damage, loss cause (ie: hail,
storm, etc), and value of Plaintiff’s property and similar property. He
may also offer testimony concerning the estimates and reports prepared
by individuals utilized by Plaintiff in connection with their claim.

Said expert will base opinions on his respective training, education,
experience, and review of the reports, estimates, and data, and other
documents previously produced or to be produced in this case and each
respective inspection of said property. His estimates will be
supplemented and are incorporated by reference.

He is an estimator[/appraiser] who is expected to testify regarding his
investigation and handling of Plaintiff’s claim, including the cause,
origin, scope of damage and costs of repair. He will testify that he
properly identified and estimated the scope and amount of damage
made the basis of Plaintiff’s claim subject to this lawsuit.

His opinions are within his claim report, deposition, estimate and claim
correspondence - if any. His mental impressions and opinions are based
on his training, experience, inspection and personal knowledge of his
investigation and handling of the claim.

He [may/]is expected to opine the following: (1) the insured location
sustained covered wind and/or hail damage during the effective policy
period and the proper scope of repairs to address the aforementioned
damages is reflected in the estimate previously produced or to be
produced[]; (2) evidence of covered damages warranting replacement
of the estimated damages was obvious and reasonably clear during his
site inspection and an insurance carrier adjusting this claim reasonably
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and in good faith either knew or should have known to identify and
accept coverage for the aforementioned reasonably clear damages; (3)
to the extend [sic] Defendant failed to acknowledge and accept
coverage for the aforementioned reasonably clear damage, Defendant
adjusted this claim in bad faith; (4) Defendant did not fully indemnify
the insured for his/her loss and he/she has not been paid to restore the
insured’s property back to pre-loss condition; and (5) the insured was
underpaid for this claim and Defendant knew or should have known
that its claim decision constituted an unfair denial because evidence of
covered damages warranting further coverage at all times was
reasonably clear during its claim investigation.

Plaintiff will supplement documents for a complete statement of this
experts findings and opinions, the investigation he performed herein,
and the facts and data considered by him in forming those findings and
opinions

His report and resume will be supplemented if not attached.

Additional information he used in making any opinions, if any, will be
supplemented if not attached.

Mitchell’s designation of Perera is similar, and states that Perera would testify

that “an event (ie: hail or high winds) occurred at the insured location during the

policy period and said event caused damaged [sic] to the insured property.”

USAA’s answer contains not only a general denial, but several specific

denials, policy defenses, and special exceptions. USAA expressly alleged that

Mitchell “failed to demonstrate that he suffered any damages caused by a covered

loss” and that Mitchell did not “provide timely notice to USAA” by not reporting

the alleged loss to USAA until August 24, 2020, thereby prejudicing USAA. USAA

further averred that its liability was not “reasonably clear,” and that Mitchell’s

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“generic recitations” did not comply with relevant notice provisions of the DTPA

and the Texas Insurance Code. USAA specially excepted on a similar basis: lack of

adequate detail.

The Appraisal Process

In June 2021, Mitchell moved to compel an appraisal and to abate the case

during the appraisal process. USAA responded that since the parties did not disagree

on “the amount of loss,” the policy did not authorize an appraisal. At the July 28,

2021 hearing, Mitchell argued that an appraisal was necessary to address the amount

of the loss, and USAA argued that an appraisal would not resolve the parties’ dispute

because they disputed the cause of the loss and coverage for that cause rather than

its repair cost. The trial court granted Mitchell’s motion.

According to the January 25, 2022 Unsworn Declaration of Robert Hovanec

(“Hovanec”), USAA named him as its appraiser and Mitchell named Don Foreman

as his appraiser. Hovanec and Foreman then “agreed on Bryan Scanlan to serve as

the umpire for this appraisal.” Although they “worked to schedule an inspection of

the property,” they were unable to do so because, as Hovanec understood the

situation, neither Mitchell nor Dick had not responded to Foreman’s contact

attempts.

Since the parties were unable to complete the appraisal, USAA moved to

vacate the trial court’s Order compelling it, arguing that “Plaintiff refused to allow

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access to his property despite scheduling several attempts.” USAA also contended

that by “actively refus[ing] to allow the appraisal[,]” Mitchell waived any right to an

appraisal and sought an offset for its costs against any future payment.

At the June 24, 2022 hearing on this motion, Plaintiff’s counsel opposed

USAA’s request, arguing that since Mitchell had “passed away suddenly[,]” he had

not committed the intentional conduct necessary to support USAA’s motion. The

trial court therefore reset the hearing for July 8, 2022 to enable the parties to consider

their options. On July 7, 2022, Plaintiff’s counsel retracted his previously filed

Suggestion of Death, stating that Mitchell was “actually very much alive and has

new contact information.” Plaintiff also represented that Plaintiff’s appraiser was

then “in direct communication with Plaintiff[,]” and that the two appraisers were

available to inspect the house in early August. The trial court granted USAA’s

motion, vacating its earlier order compelling the appraisal and assessing costs

against Plaintiff. Mitchell requested the trial court to reconsider its order,

representing that his computer problems prevented him from logging in to the Zoom

hearing and that he was unable to timely reach court personnel by telephone.

The Discovery

On July 1, 2021, USAA served discovery requests on Mitchell, but the trial

court’s abatement order temporarily delayed Mitchell’s response deadline. On

September 12, 2022 and again on September 29, 2022, USAA reminded Dick of the

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outstanding discovery and requested Mitchell’s responses “within 7 days after the

date” of the September 29, 2022 e-mail. On October 17, 2022, USAA moved to

compel Mitchell’s discovery responses, stating that Mitchell had “completely failed

to respond to any of USAA GIC’s discovery requests which [were] overdue by over

three months.” The trial court set the hearing on USAA’s Motion to Compel for

November 3, 2022. On that date, Plaintiff’s counsel responded, denying that he or

his client had “abused the discovery process[,]” and stating that he was “working

diligently to provide Defendant Insurer with responses to Defendant Insurer’s

discovery requests.” He indicated that he had “encountered extraordinary difficulty

in communicating” with his client because Mitchell was deceased and requested the

trial court to deny USAA’s motion. The trial court then reset the hearing to

November 17, 2022.

On November 14, 2022, USAA renewed its Motion to Compel and requested

monetary sanctions against Mitchell. This motion states that Mitchell “has

completely failed to provide complete and proper responses to USAA GIC’s

discovery requests in addition to failing to provide timely responses.” USAA

particularly noted that (1) Mitchell did not verify his interrogatory answers, (2) that

some of Mitchell’s discovery responses were contradictory, (3) and that Plaintiff’s

counsel again asserted that Plaintiff was deceased after retracting the prior

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Suggestion of Death. USAA’s motion makes the following specific objections,

among others, to Mitchell’s discovery responses:

[] Response to Interrogatory 1 [seeking witnesses’ names, among other
information] is incomplete as it does not list who, if anyone, witnessed
the Loss at issue in this lawsuit.[]

[] Response to Interrogatory 4 [seeking the identity of each person
providing responsive information] is improper as there is no
verification attached to the responses.[] In fact, there is a vital question
on Plaintiff’s availability to give responses as noted in the Background
section of this Motion [referring to Plaintiff’s possible demise].[]

[] Response to Interrogatory 8 [asking what maintenance and repairs
were done in the past three years] is non-responsive as Plaintiff
describes efforts to mitigate without providing a description of any
repairs, renovation, or improvements done to the Property.[]

[] Response to Interrogatory 10 [asking how much additional payment
Plaintiff seeks under each type of policy coverage] is non-responsive as
Plaintiff describes the amount of alleged damages and attorney’s fees
without reference to any applicable coverage under the Policy. The
response is also confusing and improper as it notates a diary entry: “I
did not see a Post demand letter after they sent a payment check for
$3,367.11, so I just subtracted that from our Original Demand.”[] Is this
note part of Plaintiff’s answer?

[] Responses 12 through 16 [asking how USAA violated the Texas
Insurance Code, the DTPA, and breached both its contractual and
common law duties] are incomplete and improper as they are just copy-
and-paste allegations from Plaintiff’s Original Petition and merely
recite the laundry-list of alleged violations.[] These answers further call
into question whether Plaintiff actually answered or participated in
answering the discovery responses.

[] Response 18 [asking about recovery from TPC, the government, or
any other insurer] is contradictory and improper as Plaintiff responds
that he is in litigation with TPC but also responds—in Plaintiff’s

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Responses to Request for Production No. 21—that he does not have any
copies of communications between him and TPC.[]

[] Plaintiff’s responses to Request for Production are improper as all of
Plaintiff’s responses indicate that he “will supplement.” The discovery
period has ended on November 14, 2022, and Plaintiff has had nearly a
year-and-a-half to investigate Plaintiff’s claim and produce relevant
discovery. By this time, Plaintiff should know whether he has or lacks
relevant discovery requested by USAA GIC. He cannot hide from his
discovery obligations by simply stating that language.[]

USAA’s sanctions request observes that Dick asserted that Mitchell was dead

on the same date that Dick signed unverified discovery responses “that claimed

Plaintiff Michael Mitchell answered the requests or provided information to answer

the requests.” In USAA’s words, “Mr. Dick signed these two pleadings on the very

same day.” Therefore, “[e]ither the response to USAA GIC’s Motion was groundless

when Mr. Dick affirmatively stated that Plaintiff Michael Mitchell was deceased, or

the answers to interrogatories were groundless when Mr. Dick affirmatively stated

that Plaintiff Michael Mitchell answered the requests.”

The record contains no deposition, affidavit, or unsworn declaration of

Mitchell, himself.

The Order of Dismissal

The trial court dismissed the case with prejudice on November 29, 2022. The

court’s order included these Findings of Fact and Conclusions of Law:

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FINDINGS OF FACT

1. The Court has made the following findings in support of its
imposition of sanctions in this case and finds that these facts are
good cause for the sanctions imposed by this Court:

2. On April 13, 2021, Plaintiff, Michael Mitchell (“Plaintiff” or
“Mitchell”), filed his Original Petition as a Level 1 – Expedited
Action under TEX. R. CIV. P. 190.2.

3. After filing suit, Plaintiff filed a Motion to Compel Appraisal and
Abatement.

4. USAA GIC opposed that Motion, and on July 30, 2021, this Court
granted Plaintiff’s Motion.

5. The appraisal, however, never occurred as Plaintiff refused to
allow access to his property despite several attempts by Plaintiff’s
chosen appraiser to schedule an inspection. Plaintiff’s appointed
appraiser reported that he contacted both Plaintiff and his legal
counsel, but there was no response to any communications from
either.

6. On May 25, 2022—nine months after this Court entered an order
compelling appraisal upon Plaintiff’s motion—USAA GIC moved
to vacate the order compelling appraisal because Plaintiff
continued to refuse access to his property.

7. In response, counsel for Plaintiff filed a response and a Suggestion
of Death. Counsel for Plaintiff reported that “while investigating
whether the facts stated in Defendant’s Motion are true, has
discovered that the reason Plaintiff is unreachable is because
Plaintiff is deceased.”

8. At the oral hearing on USAA GIC’s motion to vacate the appraisal
order, this Court re-set the hearing and gave Plaintiff’s counsel the
opportunity to confirm Plaintiff’s passing.

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9. The day before the re-set oral hearing, counsel for Plaintiff filed a
retraction of Plaintiff’s previous Suggestion of Death, stating that
“Plaintiff’s counsel was finally able to physically locate Plaintiff,
who is actually very much alive and has new contact information.
As such, Plaintiff’s counsel respectfully retracts its previous
suggestion of death.”

10. When counsel for Plaintiff failed to appear at the re-set hearing,
this Court granted USAA GIC’s motion to vacate the appraisal
order on July 28, 2022, and as a result, the abatement of discovery
was lifted.

11. Prior to the abatement, on July 1, 2021, USAA GIC served
Plaintiff with Interrogatories and Requests for Production.

12. As a result of the order vacating the order of abatement, on July 9,
2022, Plaintiff’s objections and responses to USAA GIC’s
discovery requests were due.

13. It is clear Plaintiff understood that the abatement of written
discovery had been lifted as he served Interrogatories, Requests
for Production, and Requests for Admission on USAA GIC on July
19, 2022.

14. Plaintiff completely failed to serve his answers and responses as
required by TEX. R. CIV. P. 197.2(a).

15. USAA GIC conferred with Plaintiff about his late discovery
responses on numerous occasions, but Plaintiff never responded to
USAA GIC or provided any responses. After these multiple
attempts, USAA GIC filed its original motion to compel discovery
responses on October 17, 2022, setting a hearing on the motion for
November 3, 2022.

16. On the morning of the oral hearing on USAA GIC’s motion to
compel, counsel for Plaintiff filed a response at 10:04 a.m. stating
the following:

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Plaintiff’s Counsel experienced the utmost difficulty in
communicating with Plaintiff in acquiring answers,
documents and other responsive material. Specifically,
Plaintiff has not responded to Plaintiff’s Counsel’s diligent
and persistent attempts to reach Plaintiff and confer over
discovery. Plaintiff’s Counsel has been unsuccessful in this
endeavor because Plaintiff has been unreachable. Plaintiff’s
Counsel informs while attempting to facilitate Plaintiff’s
compliance with discovery requirements the reason Plaintiff
is unreachable is because Plaintiff is deceased. Plaintiff’s
Counsel is actively trying to locate heirs of Plaintiff’s estate
who may have an interest in the suit.

17. In support of this response, counsel for Plaintiff cited the
previously retracted Suggestion of Plaintiff’s Death.

18. Within hours of Plaintiff’s counsel re-asserting Plaintiff’s
Suggestion of Death, Plaintiff’s counsel served discovery
responses, including answers to Interrogatories, purportedly
answered by Plaintiff.

19. These responses were served on USAA GIC fifteen (15) minutes
prior to the oral hearing on USAA GIC’s motion to compel.

20. In light of the responses being provided to USAA GIC, albeit
belated, the Court gave Plaintiff an opportunity to comply with his
discovery obligations by resetting the hearing by one week, giving
USAA GIC time to review the responses and raise any remaining
concerns.

21. Prior to the re-set hearing on USAA GIC’s motion to compel,
USAA GIC filed a renewed Motion to Compel, outlining
inadequacies throughout Plaintiff’s purported discovery
responses.

22. Specifically, Plaintiff’s responses were deficient, incomplete, and
effectively provided no answers to the requests. In addition, the
Interrogatory answers were not verified by Plaintiff.

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CONCLUSIONS OF LAW

23. After multiple opportunities and hearings to comply with the
Texas Rules of Civil Procedure, Plaintiff has completely failed to
fulfill discovery obligations and has abused the discovery process.

24. Under TEX. R. CIV. P. 215.1(c), Plaintiff has abused the discovery
process by serving or incomplete answers to discovery requests
and has effectively failed to answer discovery requests.

25. Under TEX. R. CIV. P. 215.1(b)(3), Plaintiff has abused the
discovery process by failing to participate in the discovery process
at all in this case.

26. In addition, counsel for Plaintiff violated TEX. R. CIV. P. 13 by
signing and filing pleadings that were groundless, brought in bad
faith, or brought for the purpose of harassment. See TEX. R. CIV.
P. 13. Specifically, counsel for Plaintiff incorrectly filed a
Suggestion of Plaintiff’s Death, then retracted it, then re-asserted
it.

27. Under these circumstances, this Court has discretion to strike the
Plaintiff’s pleadings and dismiss the case under TEX. R. CIV. P.
215.2(b)(5).

28. Under these circumstances, this Court has the inherent authority to
dismiss the case in its entirety which it finds to be just under the
facts and circumstances. See TransAmerican Natural Gas Corp. v.
Powell, 811 S.W.2d 913, 917 (Tex. 1991).

29. This Court has determined that based on multiple violations of the
Texas Rules of Civil Procedure and violations of this Court’s
orders, there are no lesser sanctions that would fully promote
compliance. This Court considered the availability of lesser
sanctions, but given Plaintiff’s repeated failure to comply with this
Court’s orders and his discovery obligations, lesser sanctions
would be ineffective to promote full compliance.

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The court then struck Mitchell’s pleadings and dismissed his case with

prejudice.

Mitchell timely moved for a new trial and reconsideration of the trial court’s

dismissal order. In his motion, Mitchell repeated many of his previous allegations

against USAA, specifically, that the TPC explosion damaged his house within the

policy period, that he satisfied all conditions precedent, and that USAA breached its

contract, the DTPA, and the Texas Insurance Code, as well as committing fraud and

conspiracy. Mitchell also represented that the discovery issues were due to

communication difficulties and that he and USAA participated in the appraisal, but

USAA “rejected the appraisal award claiming Plaintiff had no pecuniary interest in

the insured property nor suffered a pecuniary loss[.]” USAA avers that the

information about a rejected appraisal is incorrect, and no such appraisal or rejection

appears in the appellate record.

When Mitchell filed his First Amended Motion for New Trial and Motion to

Reconsider, he removed his previous contention about an appraisal and USAA’s

rejection of it, but otherwise repeated the content of his prior motion. Neither

Mitchell’s original nor his amended motion argues that the trial court erroneously

failed to consider or impose less-severe sanctions before striking his pleadings and

dismissing the case. Mitchell’s response to USAA’s January 19, 2023 Motion for

Sanctions, however, does bring these arguments to the trial court’s attention, but this

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response was not filed within thirty days after the trial court signed the dismissal on

November 29, 2022.

At the February 2, 2023 hearing on Mitchell’s Motion for New Trial and

Motion to Reconsider, Mitchell stated, through counsel, that the basis of his motion

was that “no other sanctions had been tried[,]” and that “death penalty sanctions . . .

were [not] appropriate here.” Mitchell made no other specific arguments explaining

why he believed death penalty sanctions were inappropriate. The trial court denied

Mitchell’s Motion for New Trial and Motion to Reconsider.

ANALYSIS

On appeal, Mitchell argues that the trial court erred by imposing “death

penalty sanctions” and advances six individual arguments to support his position. In

response, USAA contends that Mitchell failed to preserve error, since he did not

present his complaints on appeal to the trial court until he filed his Response to

Defendant’s Motion for Sanctions sixty-four days after the trial court signed the

Order of Dismissal with Prejudice.1

To preserve error for appellate review, a party must timely complain to the

trial court “with sufficient specificity to make the trial court aware of the complaint,

unless the specific grounds were apparent from the context[.]” Tex. R. App. P.

1
The trial court signed the Order of Dismissal on November 29, 2022, and
Mitchell filed his Response to Defendant’s Motion for Sanctions on February 1,
2023.
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33.1(a)(1)(A). The Rules of Civil Procedure also apply here, dictating that

“[g]rounds of objections couched in general terms . . . shall not be considered by the

court[]” and “[e]ach point relied upon in a motion for new trial . . . shall briefly refer

to that part of the ruling of the court . . . in such a way that the objection can be

clearly identified and understood by the court.” Tex. R. Civ. P. 321, 322; see

Redmond v. Kovar, No. 09-17-00099-CV, 2018 Tex. App. LEXIS 925, at **5–6

(Tex. App.—Beaumont Feb. 1, 2018, no pet.) (mem. op.) (discussing error

preservation requirements).

Although Mitchell timely filed his Motion for New Trial and Motion to

Reconsider on December 29, 2022, the thirtieth day after the trial court signed its

dismissal, this motion does not meet the specificity requirement of Rule 33.1, in that

it states only that “the Court should not have granted judgment and death penalty

sanctions here because material fact issues clearly remain for which such judgment

is inappropriate.” See Tex. R. App. P. 33.1(a)(1)(A). Mitchell’s motion not only

phrases his complaint in general terms, it fails to present his specific complaints

about the dismissal “in such a way that the objection can be clearly identified and

understood by the court.” Tex. R. Civ. P. 321, 322.

Nowhere in his motion does Mitchell mention the individual arguments he

makes on appeal, namely, (1) a distinction between his and Dick’s misconduct, (2)

the presumption that his case lacks merit, based on the misconduct, (3) the use of

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lesser sanctions, (4) the applicability of the Texas Civil Practice and Remedies Code,

(5) the trial court’s inherent authority, or (6) the trial court’s consideration of his

appraisal misconduct. Mitchell’s motion does not even state that the trial court

abused its discretion in dismissing his case. It was not until February 1, 2023, in his

response to USAA’s sanctions request, that Mitchell broached these arguments.

Moritz v. Preiss therefore controls our disposition of this issue. 121 S.W.3d 715, 720

(Tex. 2003).

The Moritz court considered a procedurally similar case. In describing the

effect of the appellant’s amended motion for new trial, which raised a new argument

more than thirty days after the judgment was signed, the Moritz court stated:

If the trial court ignores the tardy motion, it is ineffectual for any
purpose. The court, however, may look to the motion for guidance in
the exercise of its inherent power and acting before its plenary power
has expired, may grant a new trial; but if the court denies a new trial,
the belated motion is a nullity and supplies no basis for consideration
upon appeal of grounds which were required to be set forth in a timely
motion.

Id. (quoting Kalteyer v. Sneed, 837 S.W.2d 848, 851 (Tex. App.—Austin 1992, no

writ) (other citation omitted).

Under the rationale of Moritz, the trial court could have disregarded Mitchell’s

untimely arguments raised in his response to USAA’s sanctions motion or granted

Mitchell a new trial. See id. at 720. Regardless of the trial court’s choice to grant or

deny a new trial, any argument first raised more than thirty days after the judgment

26
was signed is not preserved for appellate review. See id.; see also Lake Livingston

Props., Inc. v. Stephens Hills Prop. Owner’s Ass’n, No. 09-15-00304-CV, 2016 Tex.

App. LEXIS 13000, at *7 (Tex. App.—Beaumont Dec. 8, 2016, no pet.) (mem. op.)

(“‘[A]n untimely amended motion for new trial does not preserve issues for appellate

review, even if the trial court considers and denies the untimely motion within its

plenary power period.’”) (quoting Moritz, 121 S.W.3d at 721).

Since Mitchell’s complaints in his Motion for New Trial and Motion to

Reconsider were not “apparent from the context,” and since his complaints on appeal

were first raised in his untimely response to USAA’s sanctions motion, we hold that

he failed to preserve his complaints for our review. See Tex. R. App. P.

33.1(a)(1)(A); Tex. R. Civ. P. 321, 322; Moritz, 121 S.W.3d at 719–21. Accordingly,

we need not address the merits of his complaints. See Tex. R. App. P. 47.1.

CONCLUSION

Having determined that Mitchell failed to preserve any error for our review,

we conclude Mitchell has failed to show the trial court erred in striking his pleadings

and dismissing his case against USAA with prejudice. We affirm the trial court’s

Order of Dismissal with Prejudice.

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AFFIRMED.

JAY WRIGHT
Justice

Submitted on September 26, 2024
Opinion Delivered February 27, 2025

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

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