Dan Dilts Construction, Inc., and Dan Dilts v. Mark Weeks

Citation: Not availableDocket: 02-17-00373-CV

Court: Court of Appeals of Texas; November 1, 2018; Texas; State Appellate Court

Original Court Document: View Document

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In the Court of Appeals Second Appellate District of Texas, Dan Dilts Construction, Inc. and Dan Dilts (Appellants) appealed a final judgment from the 89th District Court of Wichita County, which had granted summary judgment in favor of Mark Weeks (Appellee). The court awarded Weeks $65,015.97 in damages, asserting that Dilts owed him this amount under their contract for services related to insurance claims following hail damage to Dilts' properties.

Weeks, a public insurance adjuster, claimed that under the contract, which stipulated a fee of 10% of the recovery amount, Dilts owed him $61,112.70, derived from a gross recovery of $611,127.04. Dilts did not dispute the existence of the debt but argued that a proper interpretation of the contract and relevant statutes would reduce the damages owed. The appellate court determined that while Weeks demonstrated that Dilts breached the contract, he failed to prove the exact amount of damages legally due. The court affirmed part of the trial court's judgment but reversed and remanded the case regarding the amount of damages.

Additionally, Dilts counterclaimed that Weeks engaged in unconscionable conduct and misrepresentation, violating the Texas Administrative Code and the Deceptive Trade Practices-Consumer Protection Act (DTPA). Dilts contended that he should only owe Weeks a commission based on a lesser amount, reflecting his understanding of the insurance payouts and prior assessments.

Weeks successfully filed a no-evidence motion for summary judgment regarding Dilts’s counterclaims, which the trial court granted alongside Weeks's traditional motion for summary judgment. Dilts appealed, asserting three issues: the trial court erred in granting Weeks's traditional motion and in entering final judgment without adequately addressing his counterclaims. The appellate review of a traditional summary judgment involves determining if the movant established the absence of any genuine material fact and entitlement to judgment as a matter of law. To affirm the summary judgment, the record must confirm that the movant conclusively proved all essential elements of the cause of action.

Dilts challenges the summary judgment on Weeks's claims concerning liability and damages, arguing that Weeks failed to demonstrate entitlement to summary judgment on the breach of contract claim. While Dilts acknowledges the existence of a contract, he raises concerns about its interpretation, enforceability, voidability, and the validity of his affirmative defenses, which he claims were not disproved by the summary judgment evidence. However, it is established that a plaintiff is not obligated to negate a defendant's affirmative defenses in a summary judgment motion. If a defendant relies on such defenses, they must provide sufficient evidence to raise a factual issue. Dilts's arguments are considered inadequately briefed, lacking detailed explanation of his claims regarding the contract's enforceability or how his affirmative defenses impact his liability, and failing to cite relevant authority. Consequently, these contentions do not present viable grounds for reviewing the trial court's finding on liability.

A party may waive an issue due to inadequate briefing, as demonstrated in Sanders v. Future Com, Ltd., where the appellant failed to cite relevant authority, leading to the waiver of the first issue. The court established that Dilts is liable for breach of contract, confirming the necessary elements: existence of a valid contract, plaintiff's performance, defendant's breach, and resulting damages. Weeks proved that a contract existed and that he performed by adjusting Dilts's insurance claim. Dilts admitted he received an additional $180,163.71 from the insurance company and acknowledged owing Weeks a fee of $18,016.37. However, there was no evidence that Dilts offered any payment to Weeks, nor did he provide authority to excuse this obligation. Consequently, the trial court's summary judgment finding Dilts liable for breach was upheld.

Dilts contested the trial court's damage calculation, arguing he owed Weeks only ten percent of the $180,163.71 received, not ten percent of the total replacement cost of $611,644.58. The dispute is whether Weeks is entitled to ten percent of the gross replacement cost or the insurance proceeds. Weeks claimed his commission was justified per the contract terms and argued Dilts waived his damages amount argument by not raising it earlier. However, Dilts had asserted in his filings that Weeks sought an incorrect damage amount. The burden of proof for damages lies with the plaintiff, as established in relevant case law.

Weeks sought damages based on a contractual agreement entitling him to a commission of 10% on amounts collected from an insurance carrier, with specific limitations outlined in the contract and Texas insurance code. The contract stipulates that Weeks is entitled to a fee based on the amount "collected, adjusted, or otherwise received" from the insurance carrier, and the insurance code limits the commission a public insurance adjuster can receive to 10% of the total settlement. However, Weeks failed to provide evidence of the actual amount paid by the insurer for which he would be entitled to commission. Instead, he based his claim on the gross recovery replacement cost value. Consequently, the trial court's award of $61,112.70 was deemed improper. The appeal revealed that while Dilts claimed the insurer paid $180,163.71, he did not provide supporting evidence for this amount, leading to the conclusion that the trial court's judgment was reversed and remanded for further proceedings to establish the correct damage amount. Additionally, the court found that the trial court properly disposed of Dilts's counterclaims, as Weeks filed a no-evidence motion for summary judgment on those claims, which the court granted. Thus, the final judgment regarding Dilts's counterclaims was affirmed.