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IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Nos. 12-40692 & 12-40702

LAWYERS TITLE INSURANCE CORPORATION,

Plaintiff–Appellee

DOUBLETREE PARTNERS, L.P.,

Defendant–Appellant

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LAWYERS TITLE INSURANCE CORPORATION,

Plaintiff-Appellee

DOUBLETREE PARTNERS, L.P.,

Defendant

CHRISTOPHER A. KALIS; JAMES EDWIN MARTIN,

Appellants

Appeals from the United States District Court

for the Eastern District of Texas

Before WIENER, DENNIS, and OWEN, Circuit Judges.

United States Court of Appeals

Fifth Circuit

F I L E D

January 14, 2014

Lyle W. Cayce

Clerk

Case: 12-40692 Document: 00512499511 Page: 1 Date Filed: 01/14/2014

Nos. 12-40692 & 12-40702

PRISCILLA R. OWEN, Circuit Judge:

These two consolidated appeals arise from a title insurance coverage

dispute between the insured, Doubletree Partners, L.P. (Doubletree), and its

insurance company, Lawyers Title Insurance Corporation (Lawyers Title).

Doubletree appeals the magistrate judge’s grant of Lawyers Title’s motion for

summary judgment and denial of its cross-motion for summary judgment on

Doubletree’s breach of contract claims and extracontractual claims. Doubletree’s

attorneys, Christopher A. Kalis and James Edwin Martin, appeal the magistrate

judge’s award of attorneys’ fees to Lawyers Title under 28 U.S.C. § 1927. We

affirm in part and reverse in part the magistrate judge’s order on the motions

for summary judgment, and we reverse the magistrate judge’s award of

attorneys’ fees to Lawyers Title.

The facts are for the most part undisputed. Doubletree is a limited

partnership formed by real estate developer Fred Placke. Doubletree purchased

a thirty-six-acre tract in Highland Village, Texas, with the intent to develop it

into a luxury retirement community for seniors. The plan for the development

included approximately eighteen multi-story buildings, each with multiple units,

a community center, and other amenities.

In April 2006, Doubletree closed on its purchase of the property with the

seller, Duncan Duvall, for $3.45 million. Doubletree and Duvall escrowed the

sales contracts for the property with Lawyers Title.1 In connection with the

purchase, Doubletree acquired a title insurance policy from Lawyers Title. In

1 More precisely, Doubletree and Duvall escrowed the sales contract for the property

with Land America–American Title Company (American Title), who acted at all times as the

title insurance agent for Lawyers Title. American Title was authorized to solicit, issue, and

countersign title insurance policies on Lawyers Title’s behalf and in its name. In this opinion,

we will refer to Lawyers Title in all instances, including those in which American Title was

acting on behalf of Lawyers Title.

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Nos. 12-40692 & 12-40702

addition, Lawyers Title offered to provide Doubletree “a more complete title

insurance policy” that would insure “against loss because of discrepancies or

conflicts in boundary lines, encroachments or protrusions, or overlapping of

improvements, excluding from the coverage specific matters disclosed by the

survey,” if Doubletree obtained a survey of the property and paid an additional

premium. Doubletree decided to purchase this more complete policy, and the

parties have referred to the additional coverage Doubletree purchased as “survey

coverage.”

Located on Lake Lewisville, the property at issue is encumbered by a

number of easements and restrictions, including the flowage easement, which

is at the heart of this dispute. Granted in 1955, the flowage easement gives the

United States the right to flood, overflow, and submerge areas of the property

that lie below 537 feet in elevation. The easement also prohibits construction of

any structures below that elevation without the written consent of the United

States.

Lawyers Title issued several title commitments to Doubletree and its

agents before issuing the title insurance policy itself. The final title commitment

lists several encumbrances as exceptions from coverage, including the flowage

easement, and also reflects Doubletree’s purchase of survey coverage. The

exceptions listed in the final title commitment are also referenced in the sales

contract, the vesting deed, and the leaseback agreement Doubletree signed at

the closing of the sale.

Before closing, Doubletree retained a professional surveyor, Mark Paine,

to conduct a pre-closing survey. This original March 2006 survey indicated the

approximate location of the flowage easement held by the United States,

showing that it covered a relatively small portion of the property’s southern

edge. In conducting the survey, Paine relied on flood insurance rate maps.

However, Paine did not measure elevations with respect to the flowage

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easement, and he did not consult a publicly available contour map from the City

of Highland Village.

Based on the original survey, Lawyers Title issued Doubletree’s title

insurance policy and provided the policy to Doubletree on April 18, 2006. Due

to a software printing error, the original policy failed to include many of the

encumbrances listed as exceptions, including the flowage easement. The original

policy also failed to include the agreed-upon survey coverage. Several months

later, in October 2006, Doubletree submitted a lost policy request. In response,

Lawyers Title sent a copy of the policy that was identical to the original policy

in all respects, including in its omission of the flowage easement exception and

the survey coverage.

Meanwhile, Doubletree began its plans to develop the property. It

retained an architectural firm to assist in the design and planning of the

development on the property. Paine’s company, G&A Consultants, assisted the

architectural firm with engineering work. Both companies relied on the original

survey to conduct their work. In an effort to comply with the restrictions on

building within the flowage easement, the development plan reserved the area

shown on the original survey as being covered by the flowage easement for

landscaping and other green space.

As part of the development planning process, Doubletree sought a zoning

change to accommodate the senior retirement community by submitting a zoning

change application to the City of Highland Village. Not long after submitting

the application, however, Doubletree discovered a serious error in the survey

that halted development of the property: The survey substantially

underrepresented the area of the property that was subject to the flowage

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Nos. 12-40692 & 12-40702

easement.2 The significantly larger no-building zone covered by the flowage

easement meant Doubletree would be unable to proceed with its plan to build

several of the residential structures it intended to build on the lakeside portion

of the property. Because of the impact of the error on its development plans,

Doubletree withdrew its zoning application.

Doubletree then filed a complaint against Paine with the Texas Board of

Professional Land Surveying. The Board ultimately determined that Paine did

not violate any professional standards while conducting the survey. However,

the Board noted that the location of the flowage easement to the United States

was “substantially different from” the location of the easement shown on the

documents on which Paine relied in drawing the survey map. The Board

explained that the “best practice” is to identify the documents relied upon by the

surveyor, which Paine did not do, and that the survey “could be considered

confusing” for that reason. Despite this, the Board concluded the procedure

Paine used “appear[ed] to be adequate” and, “[i]n lieu of further actions” by the

Board, offered Paine the opportunity to sign an assurance of voluntary

compliance with the Board’s rules in the future.

In March 2008, Doubletree filed a title insurance claim with Lawyers Title.

Doubletree alleged the existence of the flowage easement on the property caused

$850,025 in damage from the diminution of the property’s value for its intended

purpose. The claim did not rely on the error in the survey but instead relied on

the original policy, which did not contain an exception for the flowage easement

2 In a footnote in its opinion, the district court noted, “Doubletree has not proven that

there was an actual error in the survey in the depiction of the Flowage Easement.” However,

Lawyers Title effectively concedes there was some degree of error in the survey, since it

provides a map showing the difference between the flowage easement as depicted on the

survey and the flowage easement as field-measured. There is thus no genuine dispute as to

whether the location of the flowage easement as shown on the survey was incorrect to some

extent.

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and did not include a provision for survey coverage. In response, Lawyers Title

denied the claim, explaining that, based on the title commitments, the flowage

easement was meant to come within an exclusion to coverage under the policy.

In May 2008, Doubletree resubmitted the claim to Lawyers Title, again

relying on the fact that the title policy contained no exception relating to the

flowage easement, and insisting that the title commitment containing that

exception was no longer in force. Lawyers Title again denied the claim, but this

time it provided a corrected policy with the denial. The corrected policy included

the flowage easement exception as reflected in the final title commitment, as

well as the standard survey exception as amended to reflect the purchase of

survey coverage.

By the time Lawyers Title sent its second letter denying Doubletree’s

claim, Doubletree had been unable to go forward with its development as

planned and was eventually unable to meet its loan obligations on the property.

The property was subjected to foreclosure proceedings and sold at a public

auction to the Trust for Public Land, a conservation organization, in June 2009.

In July 2008, Lawyers Title filed suit against Doubletree in the United

States District Court for the Eastern District of Texas, seeking a declaration of

the parties’ rights and obligations and reformation of the original policy.

Lawyers Title also sought attorneys’ fees. Doubletree counterclaimed for breach

of contract, breach of the duty of good faith and fair dealing, violations of the

Texas Insurance Code and the Texas Deceptive Trade Practices Consumer

Protection Act (DTPA), common law and statutory fraud, and negligent

misrepresentation, seeking declaratory relief and damages. The parties

consented to proceed for all purposes before a magistrate judge.

Following discovery, the parties filed cross-motions for summary

judgment. The magistrate judge granted Lawyers Title’s motion for summary

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judgment and denied Doubletree’s cross-motion for summary judgment. The

magistrate judge’s opinion reformed the title insurance policy to reflect the

corrected policy issued by Lawyers Title. The magistrate judge further held that

exclusion 3(a), which appeared in both the corrected policy and original policy

issued by Lawyers Title, barred Doubletree’s claim. According to the court,

under exclusion 3(a), Doubletree “suffered, assumed or agreed to” the flowage

easement as an encumbrance on title by accepting the final title commitment,

the vesting deed, and the leaseback agreement, each of which referenced the

easement. In addition, the magistrate judge held that, even under the corrected

policy, the survey coverage purchased by Doubletree did not cover the survey

error in identifying the easement; the type of title insurance Doubletree

suggested it purchased is not available in Texas; and the exception for the

flowage easement excluded the entire flowage easement from coverage in any

event. For all of these reasons, the magistrate judge held that Doubletree could

not recover on its breach of contract claim based on the title insurance policies.

In the same opinion, the magistrate judge held that Doubletree could not

recover on its extracontractual claims. By separate order, the magistrate judge

awarded Lawyers Title $55,310 in attorneys’ fees against Doubletree’s attorneys,

Kalis and Martin, for their allegedly unreasonable and vexatious pursuit of

Doubletree’s extracontractual claims, pursuant to 28 U.S.C. § 1927. Doubletree

appeals the decision on the summary judgment motions, and Kalis and Martin

appeal the attorneys’ fees award.

We first address the standards of review and choice-of-law rules governing

this dispute. We review the grant or denial of a motion for summary judgment

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de novo, applying the same standard as the district court.3 Summary judgment

is appropriate “if the movant shows that there is no genuine dispute as to any

material fact and the movant is entitled to judgment as a matter of law.”4

“When assessing whether a dispute to any material fact exists, we consider all

of the evidence in the record but refrain from making credibility determinations

or weighing the evidence.”5 We also “consider all evidence in a light most

favorable to the non-moving party and draw all reasonable inferences in favor

of the non-moving party.”6

Under Texas choice-of-law rules, Texas substantive law governs the breach

of contract claims and extracontractual claims here.7 “To determine state law,

federal courts sitting in diversity look to the final decisions of the state’s highest

court.”8 If there is no final decision by the state’s highest court on the issue, “it

is the duty of the federal court to determine, in its best judgment, how the

highest court of the state would resolve the issue if presented with the same

3 Trinity Universal Ins. Co. v. Emp’rs Mut. Cas. Co., 592 F.3d 687, 690 (5th Cir. 2010).

4 FED. R. CIV. P. 56(a).

5 Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398-99 (5th

Cir. 2008).

6 Frakes v. Crete Carrier Corp., 579 F.3d 426, 429-30 (5th Cir. 2009) (internal quotation

marks and citation omitted).

7 See, e.g., Sonat Exploration Co. v. Cudd Pressure Control, Inc., 271 S.W.3d 228, 233

(Tex. 2008); Gutierrez v. Collins, 583 S.W.2d 312, 318-19 (Tex. 1979); see also Klaxon Co. v.

Stentor Electric Mfg. Co., 313 U.S. 487, 496 (1941); Erie R.R. v. Tompkins, 304 U.S. 64, 78-80

(1938); Am. Int’l Specialty Lines Ins. Co. v. Canal Indem. Co., 352 F.3d 254, 260 (5th Cir.

2003).

8 Canal Indem. Co., 352 F.3d at 260.

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case.”9 Ultimately, if state law does not provide a ready answer, a court making

an “Erie guess” will apply state methodology in resolving the issue.10

Finally, in considering an award of attorneys’ fees under 28 U.S.C. § 1927,

we review for an abuse of discretion.11 “A district court abuses its discretion if

it awards sanctions based on an erroneous view of the law or on a clearly

erroneous assessment of the evidence.”12

III

Lawyers Title argues that the district court correctly reformed the policy.

It contends that the parties had a prior agreement regarding both the flowage

easement exception and the amended standard survey exception but that a

computer software error resulted in a mistake in reducing the agreement to

writing. For these reasons, Lawyers Title argues that, under the doctrine of

mutual mistake, the policy was properly reformed.

Although Doubletree argues on appeal that the policy should not be

reformed, it provides virtually no factual analysis of this issue and cites no

relevant authority in support of its position.13 In its briefing, Doubletree simply

contends that reformation of a contract in favor of an insurer after an insured

makes a claim, such that the policy precludes coverage, is unfair and contrary

to public policy. It further argues that the summary judgment evidence did not

9 Id.

10 Id.

11 Cambridge Toxicology Grp., Inc. v. Exnicios, 495 F.3d 169, 180 (5th Cir. 2007).

12 Id. (internal quotation marks and citation omitted).

13 Doubletree only cites Barnett v. Aetna Life Ins. Co., 723 S.W.2d 663 (Tex. 1987),

which holds that ambiguous insurance policies are to be interpreted in favor of the insured,

id. at 666, and Erie R.R. v. Tompkins, 304 U.S. 64 (1938).

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establish that it made a mistake or engaged in any inequitable conduct

warranting reformation.

Because it did not cite any supporting authority for its argument and did

not develop the factual issues involved, Doubletree failed to brief the reformation

issue adequately. As a result, it has waived this issue.14 However, even if we

were to consider the merits, we would conclude that the magistrate judge

properly reformed the policy to reflect the corrected policy.

“The underlying objective of reformation is to correct a mutual mistake

made in preparing a written instrument, so that the instrument truly reflects

the original agreement of the parties.”15 To reform a written contract, the party

seeking reformation must satisfy a two-part test: (1) an original agreement

exists between the parties, and (2) a mutual mistake occurred, made after the

original agreement, in reducing the agreement to writing.16 “A mistake by only

one party to an agreement, not known to or induced by acts of the other party,

is not grounds for finding a mutual mistake.”17 However, a “[u]nilateral mistake

by one party, and knowledge of that mistake by the other party, is equivalent to

mutual mistake.”18

14 N.W. Enters. Inc. v. City of Houston, 352 F.3d 162, 183 n.24 (5th Cir. 2003) (“A

litigant’s failure to provide legal or factual analysis results in waiver.”); see also United States

v. Demmitt, 706 F.3d 665, 670 (5th Cir. 2013) (“As Demmitt has cited no authority in support

of her contentions as to the [issue she raises], we hold this argument waived.”) (citing FED. R.

APP. P. 28(a)(9) (“The appellant’s brief must contain . . . citations to the authorities[.]”)).

15 Givens v. Ward, 272 S.W.3d 63, 67 (Tex. App.—Waco 2008, no pet.) (emphasis

omitted) (quoting Cherokee Water Co. v. Forderhause, 741 S.W.2d 377, 379 (Tex. 1987)).

16 Id.

17 St. Paul Lloyd’s Ins. Co. v. Huang, 808 S.W.2d 524, 527 (Tex. App.—Houston [14th

Dist.] 1991, no writ) (citing Johnson v. Snell, 504 S.W.2d 397, 399 (Tex. 1973)).

18 Davis v. Grammer, 750 S.W.2d 766, 768 (Tex. 1988).

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Here, the summary judgment evidence shows that an original agreement

did exist between Doubletree and Lawyers Title. The final title commitment

reflects agreement on the terms of the title insurance policy. That agreement

included both an exception for the flowage easement and the survey coverage

purchased by Doubletree. Further, the summary judgment evidence shows that

Doubletree paid an additional premium to amend the survey clause to obtain

survey coverage. Based on this evidence, the first part of the contract

reformation test is satisfied.

The summary judgment evidence also reflects that Lawyers Title made a

unilateral mistake in reducing the agreement to a final writing, and that

Doubletree had knowledge of the mistake. As Lawyers Title explained, a

software error resulted in the printing of the policy without including either the

flowage easement exception or the survey coverage. Doubletree clearly had

knowledge of this mistake since it paid a premium for survey coverage and

received the final title commitment reflecting the coverage, but later received a

policy from Lawyers Title that differed materially from the agreed-upon terms

in the final title commitment. Indeed, the two title insurance claims Doubletree

submitted to Lawyers Title were based on the original, flawed policy, and those

claims noted that the policy it received lacked the flowage easement exception.

Therefore, there is no question that Doubletree knew of the unilateral mistake

by Lawyers Title in reducing the agreement to writing. Because a unilateral

mistake by one party and knowledge of that mistake by the other party is

equivalent to mutual mistake, the second part of the contract reformation test

is also satisfied.

We hold that the magistrate judge correctly reformed the policy. The

remainder of our analysis is based on the policy as thus reformed.

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As to whether the reformed policy covered survey errors in identifying the

location of the flowage easement, for the reasons set forth below, we hold that

it did. We therefore reverse the magistrate judge’s summary judgment

dismissing Doubletree’s breach of contract claim.

Three provisions of the reformed policy are relevant to determining

whether the survey error is covered, and therefore whether Lawyers Title

breached the contract by failing to indemnify Doubletree for the error: (1) the

survey coverage clause, (2) the flowage easement exception, and (3) the policy’s

exclusion 3(a). The parties disagree over the meaning and applicability of these

provisions.

We begin with Texas’s breach of contract and title insurance law. In

Texas, “[t]he elements of a claim for breach of contract are: (1) a valid contract

between the plaintiff and the defendant, (2) performance or tender of

performance by the plaintiff, (3) breach by the defendant, and (4) damage to the

plaintiff as a result of the breach.”19

Under Texas law, insurance policies are construed according to ordinary

contract principles.20 “The interpretation of an insurance policy is a question of

law” for the court to determine.21 “In construing a written contract, the primary

concern of the court is to ascertain the true intentions of the parties as expressed

19 E.g., Ostrovitz & Gwinn, LLC v. First Specialty Ins. Co., 393 S.W.3d 379, 387 (Tex.

App.—Dallas 2012, no pet.).

20 Forbau v. Aetna Life Ins. Co., 876 S.W.2d 132, 133 (Tex. 1994).

21 N.Y. Life Ins. Co. v. Travelers Ins. Co., 92 F.3d 336, 338 (5th Cir. 1996) (citing Coker

v. Coker, 650 S.W.2d 391, 393-94 (Tex. 1983)).

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in the instrument.”22 All of the provisions of the policy must be considered with

reference to the whole instrument, so that no single provision alone is given

controlling effect.23

Whether a contract is ambiguous is also a question of law.24 “An

ambiguity exists only if the contract language is susceptible to two or more

reasonable interpretations.”25 A contract is not ambiguous simply because the

parties present conflicting interpretations.26 If policy language can be given a

definite or certain legal meaning, it is not ambiguous, and we will construe it as

a matter of law without admitting evidence for the purpose of creating an

ambiguity.27 However, when the language of an insurance policy “is susceptible

of more than one construction, [it] should be construed strictly against the

insurer and liberally in favor of the insured.”28 Furthermore, when the language

in question “involves an exception or limitation on [the insurer’s] liability under

the policy, an even more stringent construction is required.”29 Accordingly, when

an insurance contract is subject to “more than one reasonable interpretation, we

22 Coker, 650 S.W.2d at 393.

23 Id.

24 Am. Mfrs. Mut. Ins. Co. v. Schaefer, 124 S.W.3d 154, 157 (Tex. 2003) (citing

Kelley–Coppedge, Inc. v. Highlands Ins. Co., 980 S.W.2d 462, 464 (Tex. 1998)).

25 Id. (citing Kelley–Coppedge, Inc., 980 S.W.2d at 465).

26 Id.

27 Id. (citing Kelley–Coppedge, Inc., 980 S.W.2d at 464).

28 Barnett v. Aetna Life Ins. Co., 723 S.W.2d 663, 666 (Tex. 1987). The Barnett rule is

sometimes referred to as the “contra-insurer rule.” E.g., Jefferson Block 24 Oil & Gas, L.L.C.

v. Aspen Ins. UK Ltd., 652 F.3d 584, 598 (5th Cir. 2011).

29 Barnett, 723 S.W.2d at 666.

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must resolve the uncertainty by adopting the construction that most favors the

insured.”30

When the disputed provision is an exclusion, the insurer has the burden

of establishing that the exclusion applies.31 If an exclusion is ambiguous, “we

must adopt the construction of an exclusionary clause urged by the insured as

long as that construction is not itself unreasonable, even if the construction

urged by the insurer appears to be more reasonable or a more accurate reflection

of the parties[’] intent.”32

As the Texas Supreme Court indicated in Shaver v. National Title &

Abstract Co.,33 easements are a type of defect covered by title insurance policies

in Texas, unless a valid exception or exclusion applies.34 Shaver held that a title

insurance policy guaranteeing “good and indefeasible title” to the property

purchased covered a gas pipeline easement across the property.35 Texas courts

of appeals have likewise recognized that title insurance policies cover

easements.36

30 Nat’l Union Fire Ins. Co. of Pittsburgh, Pa. v. Hudson Energy Co., 811 S.W.2d 552,

555 (Tex. 1991) (citations omitted).

31 Guar. Nat’l Ins. Co. v. Vic Mfg. Co., 143 F.3d 192, 193 (5th Cir. 1998).

32 Barnett, 723 S.W.2d at 666 (internal quotation marks and citations omitted).

33 361 S.W.2d 867 (Tex. 1962), overruled on other grounds by S. Title Guar. Co. v.

Prendergast, 494 S.W.2d 154, 158 (Tex. 1973).

34 Shaver, 361 S.W.2d at 868-70.

35 Id.

36 E.g., San Jacinto Title Guar. Co. v. Lemmon, 417 S.W.2d 429, 430-32 (Tex.

App.—Eastland 1967, writ ref’d n.r.e.) (holding that a water line easement running across the

property was covered by the title insurance policy, and observing that “[o]rdinarily a provision

for insurance against loss generally, except for certain designated risks, includes loss from

every cause not expressly excepted”).

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As to survey coverage, the magistrate judge erred in concluding that it is

not permitted under Texas law. Texas law requires title insurers to use policy

provisions approved by the Texas Department of Insurance.37 The standard title

insurance form contains the standard survey exclusion identical to the one set

forth in the original policy.38 However, the Texas Department of Insurance

explicitly allows title insurance companies to provide survey coverage by

amending the standard survey exclusion.39 In that event, the Texas Department

of Insurance requires the standard survey clause to be modified to exclude only

“shortages in area.”40

37 See TEX. INS. CODE ANN. § 2703.051 (West 2014) (“A title insurance policy . . . to

insure an owner of real property must include certain provisions, the form and content of

which shall be prescribed by the commissioner, in accordance with this subchapter.”).

38 See TEX. DEP’T OF INS., BASIC MANUAL OF TITLE INSURANCE, Section II, Form T-1,

Schedule B, Item 2 (2013), available at http://www.tdi.texas.gov/title/titlem2b.html#FormT-1

(excluding coverage for “[a]ny discrepancies, conflicts, or shortages in area or boundary lines,

or any encroachments or protrusions, or any overlapping of improvements”).

39 See TEX. DEP’T OF INS., BASIC MANUAL OF TITLE INSURANCE, Section IV, P-2,

Amendment of Exception to Areas and Boundaries (2014), available at

http://www.tdi.texas.gov/title/titlem4a.html#P-2 (“[W]hen the Insured desires to have amended

the exception as to area and boundaries, (i.e. Item 2 of Schedule B) to delete all save ‘shortages

in area’, a title insurance company may accept an existing real property survey and not require

a new survey when providing area and boundary coverage . . . .”); see also id. at P-8, Issuance

o f P o l i c i e s P r i o r t o C o m p l e t i o n o f I m p r o v e m e n t s , a v a i l a b l e a t

http://www.tdi.texas.gov/title/titlem4b.html (“[I]f a satisfactory survey made after the

completion of improvements is furnished to the Company, survey coverage may be provided

as set out in Rules R-16 and P-2, using the promulgated Endorsement form and containing the

applicable promulgated language.”); CHARLES J. JACOBUS & BILLIE J. ELLIS, JR., TEXAS TITLE

INSURANCE § 6:27 (2d ed. 2012) (“The title company may provide affirmative insurance against

encroachments and other survey matter if, and only if, the company amends its area and

boundary exception pursuant to Procedural Rule P-2 . . . .”).

40 See TEX. DEP’T OF INS., BASIC MANUAL OF TITLE INSURANCE, Section IV, P-2,

Amendment of Exception to Areas and Boundaries (2014), available at

http://www.tdi.texas.gov/title/titlem4a.html#P-2.

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As to whether the survey coverage clause in the corrected policy provides

coverage for the survey error in locating the flowage easement, we hold that both

parties’ interpretations of the clause are reasonable. As a result, we must adopt

Doubletree’s interpretation.

The survey coverage in the corrected policy that Doubletree purchased

states in Schedule B:

This policy does not insure against loss or damage . . . that arise by

reason of . . . the following matters: . . .

2. Shortages in area.

Before Doubletree paid the survey coverage premium, the title commitments

contained the standard survey exception, excluding from coverage “[a]ny

discrepancies, conflicts, or shortages in area or boundary lines, or any

encroachments or protrusions, or any overlapping of improvements.” But in

exchange for paying an additional premium and obtaining a survey, this

standard survey exception was amended to exclude only shortages in area.

Lawyers Title argues that survey coverage does not cover all alleged

defects in the survey, but only errors in identifying the boundaries of the

property and any encroachments affecting those boundaries. More specifically,

Lawyers Title argues that the larger scope of the flowage easement is not

covered because it is not a “boundary line” or “encroachment” within the

meaning of the language deleted from the standard survey exception. It also

argues that the exception for the flowage easement precludes coverage of the

flowage easement, regardless of the actual size or location of the easement.

Doubletree argues that the survey coverage it purchased covers all errors

in the survey, including the error in describing the location of the flowage

easement. Doubletree further contends that even if coverage is ambiguous, we

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must interpret the policy in favor of coverage, pursuant to the Barnett contra-

insurer rule.

Both parties have proffered reasonable interpretations of the survey

exception clause. Lawyers Title understandably believes that changing the

survey coverage clause from reading “[a]ny discrepancies, conflicts, or shortages

in area or boundary lines, or any encroachments or protrusions, or any

overlapping of improvements” to reading only “[s]hortages in area” did not affect

the coverage of the flowage easement at all. This is true because the flowage

easement lies wholly within the boundaries of the property and does not affect

those boundaries. Therefore, the flowage easement could not constitute a

discrepancy or conflict in boundary lines, or a protrusion, or an overlapping of

improvements, since these terms—discrepancy or conflict in boundary line,

protrusion, or an overlapping of improvements—all concern the outer edges of

the property. The only term removed from the survey coverage clause that may

encompass an easement wholly within the property is “encroachments.” But a

few Texas cases have suggested that the term “encroachments” in the standard

survey exception refers only to impediments at the boundary lines of the

property.41 In light of these cases, it is reasonable for Lawyers Title to believe

41 See Rockhold v. Fidelity Nat’l Title Ins. Co., No. 04-98-00504-CV, 1999 WL 239053,

at *1-3 (Tex. App.—San Antonio Apr. 21, 1999, no pet.) (not designated for publication)

(holding that the standard survey exception encompassed an easement—a neighbor’s

driveway—that crossed the boundaries of the insured property because the particular

easement constituted an “encroachment” or a “boundary discrepancy” by “disrupt[ing] the

boundary lines between the two properties,” but warning that not “every easement constitutes

a boundary discrepancy, encroachment or protrusion,” thereby suggesting that

“encroachments” only refers to easements affecting the boundaries of the property); Cook

Consultants, Inc. v. Larsen, 677 S.W.2d 718, 720 (Tex. App.—Dallas 1984, writ granted), aff’d

in relevant part, 690 S.W.2d 567 (Tex. 1985) (suggesting that “encroachments” has a similar

meaning to the terms discrepancy, protrusion, and boundary); Hous. Title Guar. Co. v.

Fontenot, 339 S.W.2d 347, 349-50 (Tex. Civ. App.—Houston 1960, writ ref’d n.r.e.) (suggesting

that “encroachments” and “protrusions” have similar meanings and both refer to physical

encumbrances at the boundaries of the property).

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that the standard survey exception never affected the flowage easement since

the flowage easement itself did not affect the boundaries of the property.

Lawyers Title’s reading is supported by the fact that nothing in the title

insurance policy affirmatively insured the accuracy of all aspects of the survey,

such as the location of the flowage easement.42 In other cases, insurers have

gone so far as to explicitly insure the location of easements shown on a survey,43

but such language is absent here. One reasonable interpretation of the corrected

policy, then, is that the amendments to the standard survey exception did not

affirmatively insure the location of the easement as shown on the survey.

On the other hand, however, Doubletree reasonably reads “encroachments”

in the standard survey exception to include the flowage easement. If

“encroachments” includes the flowage easement, then removing “encroachments”

from the standard survey exception would mean the flowage easement was no

longer excepted from coverage, unless otherwise provided in the policy. In fact,

Black’s Law Dictionary defines “encroachment” broadly as “[a]n infringement of

another’s rights.”44 In light of this broad definition, it is reasonable for

Doubletree to believe that the flowage easement—as an encroachment—was now

excepted only to the extent it was shown on the survey.

42 See BARLOW BURKE, LAW OF TITLE INSURANCE § 9.03 (2014) (recognizing that “[a]n

exception is not the opposite of coverage and so eliminating [the standard survey exception]

does not automatically provide coverage” for all aspects of the survey and noting that “[i]f an

insured wants to obtain coverage for matters involving a survey, a separate endorsement is

advisable”).

43 Shea Homes, LLC v. Old Republic Nat’l Title Ins. Co., No. 3:05cv005, 2007 U.S. Dist.

LEXIS 81965, at *8-9 (W.D.N.C. Nov. 5, 2007) (interpreting a policy providing that “[t]he

Company insures . . . that the easement is located as shown on the survey referenced above”).

44 BLACK’S LAW DICTIONARY 607 (9th ed. 2009).

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As the policy is ambiguous and is subject to at least two interpretations,

we may consider “extraneous evidence to determine the true meaning of the

instrument.”45 One piece of extraneous evidence relied on by Doubletree is

Lawyers Title’s letter offering to provide Doubletree more complete title

insurance coverage by amending the standard survey exception. In that letter,

Lawyers Title stated,

In the interest of providing you with a more complete title insurance

policy, if a qualifying survey has been required by your lender, we

will collect the appropriate premium from you . . . and amend your

title insurance policy to insure you against loss because of

discrepancies or conflicts in boundary lines, encroachments or

protrusions, or overlapping of improvements, excluding from the

coverage specific matters disclosed by the survey.

This language certainly suggests that additional and meaningful survey

coverage could be obtained by paying the premium, and that such coverage

would exclude the listed encumbrances only to the extent shown on the survey.

Reading this letter together with the title insurance policy, Doubletree

reasonably believed it was purchasing survey coverage for any defects in title not

correctly shown on the survey.

Because the approximate location of the flowage easement was in fact

depicted on the survey, Doubletree had even more reason to believe that

coverage of the flowage easement would be excluded only to the extent disclosed

on the survey. As the New Jersey Supreme Court has explained,

The purpose of the survey exception is to exclude coverage when the

insured fails to provide the insurer with a survey. From a search of

relevant public records, a title company cannot ascertain the risks

that an accurate survey would disclose. It is for this reason that the

title company puts that risk on the insured, who can control it either

45 Italian Cowboy Partners, Ltd. v. Prudential Ins. Co. of Am., 341 S.W.3d 323, 333-34

(Tex. 2011) (internal quotation marks and citation omitted).

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by obtaining a survey or arranging for the elimination of the survey

exception. Thus, the very purpose of a survey exception is to exclude

from coverage errors that would be revealed not by a search of

public records, but by an accurate survey.46

Either removal of the survey exception or amendments to that exception could

therefore shift certain survey-related risks from the insured to the insurer.47 As

Doubletree obtained a survey, paid for an amended policy altering the standard

survey exception, and received a survey disclosing the location of the flowage

easement, it was reasonable for Doubletree to believe that the flowage easement

was excluded only to the extent shown on the survey.

Additionally, neither the letter offering the more complete coverage nor

the corrected policy itself clarifies that the “more complete title insurance policy”

would not cover errors in identifying encumbrances shown on the survey that did

not affect the boundaries of the property. In fact, one New Jersey court has

considered and rejected Lawyers Title’s position that survey coverage only

insures the boundaries of the property and not encumbrances within the

property.48 Thus, one reasonable reading of the survey coverage here would be

46 Walker Rogge, Inc. v. Chelsea Title & Guar. Co., 562 A.2d 208, 217 (N.J. 1989)

(emphasis added, internal citation omitted).

47 See BARLOW BURKE, LAW OF TITLE INSURANCE § 9.03 (2014) (discussing removal of

the standard survey exception and separate endorsements available to provide more coverage

for matters involving a survey, but warning that “[a]n exception is not the opposite of coverage

and so eliminating it does not automatically provide coverage”).

48 See Enright v. Lubow, 493 A.2d 1288, 1294-95 (N.J. Super. Ct. App. Div. 1985)

(rejecting the insurer’s argument that “the title insurance policy only insures the boundary of

the survey but does not insure locations within the survey itself” and holding that the policy

covered survey errors in identifying encumbrances within the property, stating, “the

reasonable expectation of the insureds [was] that the purpose of requiring a survey is not only

to locate the outbound lines of the survey but also to insure its accuracy in the location of those

conditions which are shown within the boundaries of the survey”).

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that it covers not just encumbrances on the boundaries of the property, but also

encumbrances lying wholly within the property.

This reading of the policy is also consistent with two Texas cases, as well

as another New Jersey case. Each of these three cases holds that title defects

are covered when the defect is not revealed due to a survey error and when

language in the policy suggests there would be coverage for such errors. For

example, in Dallas Title & Guaranty Co. v. Valdes,49 a survey correctly reflected

the boundary lines of a property but failed to reveal that nine-tenths of the lot

had been conveyed to the State for use as a highway.50 The policy at issue

contained a survey exception for “[a]ny [discrepancies], conflicts, or shortages in

area or boundary lines, or any encroachments, or any overlapping of

improvements which a correct survey would show.”51 The Valdes court held that

the defect in title, which was not shown on the survey, was covered because the

parties intended to insure the lot as it appeared in the public records.52 In

reaching this result, the court also relied on the contra-insurer rule that “[t]he

terms of the policy are to be construed liberally in favor of the insured.”53

Another Texas case, Lawyers Title Insurance Corp. v. McKee,54 reached the

same result, holding that the title defect—a discrepancy in the boundary of the

property—was covered because the policy contained an exception for

encumbrances that a correct survey would show and the defect was not revealed

49 445 S.W.2d 26 (Tex. Civ. App.—Austin 1969, writ ref’d n.r.e.).

50 Valdes, 445 S.W.2d at 27, 29-30.

51 Id. at 27 (emphasis added).

52 Id. at 30.

53 Id.

54 354 S.W.2d 401 (Tex. Civ. App.—Fort Worth 1962, no writ).

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on a survey of the property.55 A third case, MacBean v. St. Paul Title Insurance

Corp.,56 from New Jersey, involved a policy with an exception for encumbrances

that a correct survey would show, but an addendum to the policy eliminated the

exception, identified a specific survey, and stated that the survey “shows clear.”57

The court held that a defect in the survey, viz., failing to reveal that an abutting

road actually lay on private property rather than public property, was covered

by the policy’s addendum since the addendum was ambiguous and therefore had

to be interpreted in favor of the insured.58

In sum, each of these cases holds that survey errors are covered when the

insured obtains a survey and believes, based on language in the policy, that

there would be coverage for errors not shown on the survey. Likewise here,

Doubletree obtained a survey and believed it would be covered for survey errors

not shown on the survey, given its purchase of additional survey coverage and

the amendment to the standard survey exception. These cases further support

the reasonableness of Doubletree’s reading of the reformed policy as covering the

survey’s erroneous identification of the flowage easement.

Because the survey coverage clause in the corrected policy is susceptible

of more than one reasonable interpretation, Texas law mandates that we adopt

Doubletree’s interpretation since Doubletree is the insured and its interpretation

is reasonable.59 Under Doubletree’s reasonable interpretation, the survey

55 McKee, 354 S.W.2d at 404-05.

56 405 A.2d 405 (N.J. Super. Ct. App. Div. 1979).

57 MacBean, 405 A.2d at 407.

58 Id. at 409.

59 See Nat’l Union Fire Ins. Co. of Pittsburgh, Pa. v. Hudson Energy Co., 811 S.W.2d

552, 555 (Tex. 1991).

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coverage clause covered survey errors in identifying the location of the flowage

easement. Thus, the magistrate judge erred in holding as a matter of law that

the survey coverage clause does not provide such coverage.

Lawyers Title argues that the flowage easement exception precludes

coverage for the survey error in this case. We again hold that both parties’

interpretations of the clause are reasonable and conclude that, as a result, we

must adopt Doubletree’s interpretation.

The reformed policy contains an exception referencing the flowage

easement, and reads as follows:

This policy does not insure against loss or damage . . . that arise by

reason of . . . the following matters: . . .

6. The following matters and all terms of the documents

creating or offering evidence of the matters[:] . . .

f. Flowage easement awarded to The United States of

America in Condemnation Proceedings in U.S. District

Court for the Eastern District of Texas, . . . a certified

copy of which has been filed on January 10, 1956,

recorded in Volume 418, page 372, Real Property

Records, Denton County, Texas, and shown on survey

dated March 22, 2006 by Mark Paine, RPLS #5078.

The title commitments before survey coverage was purchased by Doubletree

included the same provision, except that the words “and shown on survey dated

March 22, 2006 by Mark Paine, RPLS #5078” were not included. This language

was added to the final amended policy after survey coverage was purchased.

Lawyers Title offers two alternative interpretations of the flowage

easement exception. At oral argument, Lawyers Title’s counsel said that the

addition of the “and shown on survey” language to the exception is simply a

notation to indicate that the surveyor identified the easement as affecting the

property. Such addition does not affect the substance of the exception, Lawyers

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Title’s counsel contended. In its briefing, Lawyers Title alternatively argues

that the district court was correct in concluding that the “and shown on survey”

language actually expands the scope of the flowage easement exception,

precluding coverage for the flowage easement as it exists in the real property

records and as it is described in any other documents, like the survey.

Doubletree argues that the addition of the “and shown on survey”

language to the flowage easement exception limits the exception to cover the

easement only to the extent the easement is shown in the real property records

and on the survey. Thus, any error in identifying the location of the easement

in the survey would not be excepted from coverage.

We hold that Doubletree’s interpretation and one of Lawyers Title’s

interpretations are reasonable. On the one hand, Lawyers Title’s view that the

“and shown on survey” language does not substantively alter the exception, but

simply indicates that the survey was identified as affecting the property, is

understandable. This additional language was also added to seven other

exceptions involving easements of record, while a different phrase—“as shown

on survey”—was added to one of the other exceptions regarding “[f]ences off

property lines [and a] deck over property line.” Given this difference, it is

plausible that the “as shown on survey” phrase indicates that the fences and

deck exception only covered the fence and deck to the extent shown on the

survey, while the “and shown on survey” language simply indicates that the

flowage easement actually affects the property. It is therefore reasonable to read

the amended survey exception as continuing to except from coverage the entire

flowage easement, despite its appearance on the survey.

On the other hand, Doubletree’s interpretation, under which the title

insurance policy covers the survey error in identifying the location of the flowage

easement, is reasonable as well. Under Doubletree’s reading, the addition of the

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phrase “and shown on survey” to the flowage easement exception modifies that

exception in a substantive way. This accords with the rule of contract

construction requiring courts to give effect to every term of a contract so that

none will be rendered meaningless.60 It is also consistent with the commonsense

notion that changes made to a policy after more coverage is purchased are

reasonably interpreted to amount to a substantive increase in coverage. It is

reasonable to read the amended language to mean that the flowage easement

referenced in the real property records was accurately shown in the survey and

was excepted only to that extent.

Finally, Lawyers Title’s second interpretation of the “and shown on

survey” language as expanding the exception and thereby reducing coverage

under the policy is unreasonable. If the parties intended to expand the

exception, the word “or” would have been used to except from coverage the

easement as described in the real property records or as shown in the survey.

We therefore hold that this interpretation is not supported by the plain language

of the policy. Even if this interpretation could somehow be held reasonable, it

is certainly no more reasonable than the two other interpretations discussed

above. At most, it is another reasonable interpretation by Lawyers Title.

Just as the survey coverage clause was susceptible of multiple reasonable

interpretations, so too is the flowage easement exception. Therefore, we again

must adopt Doubletree’s interpretation since Doubletree is the insured and its

interpretation is reasonable.61 According to Doubletree’s reasonable

interpretation, the flowage easement exception covers errors in identifying the

60 See Alpert v. Riley, 274 S.W.3d 277, 288 (Tex. App.—Houston [1st Dist.] 2008, pet.

denied) (citing Kelley–Coppedge, Inc. v. Highlands Ins. Co., 980 S.W.2d 462, 464 (Tex. 1998)).

61 See Nat’l Union, 811 S.W.2d at 555.

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location of the flowage easement, so it was error to interpret the policy as

excluding such coverage as a matter of law.

The third and final provision of the corrected policy we must consider is

exclusion 3(a), which the magistrate judge held precluded coverage of the

undisclosed magnitude of the flowage easement. We conclude that the exclusion

does not bar Doubletree’s claims.

The reformed policy contains a standard list of coverage exclusions. That

portion of the policy provides:

The following matters are expressly excluded from the coverage of

this policy and the Company will not pay loss or damage, costs,

attorneys’ fees or expenses which arise by reason of: . . .

3. Defects, liens, encumbrances, adverse claims or other matters:

(a) created, suffered, assumed or agreed to by the insured

claimant[.]

Lawyers Title argues that the district court was correct in concluding that

Doubletree “suffered, assumed, or agreed” to the flowage easement as a defect

in title under exclusion 3(a). Lawyers Title contends that Doubletree did so by

virtue of three documents. First, in the sales contract, Doubletree agreed to

purchase the property with the easement listed as a title defect.62 Second,

Doubletree accepted a deed stating that title was being conveyed “subject to” the

flowage easement. Third, in the final title commitment, the flowage easement

62 The sales contract does not explicitly reference the flowage easement; instead, it

only says that a title insurance policy will be furnished by seller to buyer and describes that

policy. It provides that the title insurance policy is “subject to . . . the following exceptions as

may be approved by Buyer” and then lists several encumbrances, including “restrictive

covenants affecting the Property.” The sales contract also refers to the title commitment.

Thus, the sales contract only refers to the flowage easement indirectly, in the sense that it

describes the title policy and the title commitment, which both include the flowage easement

as an exception using the “and shown on survey” language.

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was specifically identified as an exception. In addition, the district court held

that Doubletree suffered, assumed, and agreed to the flowage easement under

the terms of Doubletree and Duvall’s leaseback agreement, which lists the

flowage easement as a restrictive covenant and permitted encumbrance.

Doubletree argues that it could not have suffered, assumed, or agreed to

the flowage easement as a title defect because it did not know the actual location

and size of the recorded easement. Doubletree also maintains that the language

of the deed—that it took the property “subject to” to the easement—does not

establish that it suffered, assumed, or agreed to the flowage easement as a defect

in title. Finally, Doubletree notes that the deed and other closing documents

referred to the flowage easement as it was shown in the real property records

and on the survey. Thus, even if it did assume the flowage easement as a defect

in title, it only assumed it to the extent it was shown in the real property records

and the survey.

In interpreting exclusion 3(a), which is a standard exclusion in policies

across the country, courts agree that “‘suffered’ is synonymous with the word

‘permit’ and implies the power to prohibit or prevent the lien which has not been

exercised although the insured has full knowledge of what is to be done with the

intention that it be done.”63 The term “assume” in exclusion 3(a) “requires

knowledge of the specific title defect assumed.”64 Courts have held that the

insured party “does not assume an assessment against property ‘merely because

63 Ariz. Title Ins. & Trust Co. v. Smith, 519 P.2d 860, 863 (Ariz. Ct. App. 1974) (citing

Hansen v. W. Title Ins. Co., 33 Cal. Rptr. 668, 671 (Cal. Dist. Ct. App. 1963) and First Nat’l

Bank & Trust Co. v. N.Y. Title Ins. Co., 12 N.Y.S.2d 703, 709 (N.Y. Special Term 1939)); see

also Am. Sav. & Loan Ass’n v. Lawyers Title Ins. Corp., 793 F.2d 780, 784 (6th Cir. 1986).

64 Am. Sav. & Loan Ass’n, 793 F.2d at 784.

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he agreed to take the property ‘subject to’ any assessments.’”65 The last of the

three terms at issue here—“agreed to”—“carries connotations of ‘contracted,’

requiring full knowledge by the insured of the extent and amount of the claim

against the insured’s title.”66 All of the terms require some degree of intent to

acquire the property with defects in its title.67 As the Eighth Circuit has

summarized, under exclusion 3(a),

the insurer can escape liability only if it is established that the

defect, lien or encumbrance resulted from some intentional

misconduct or inequitable dealings by the insured or the insured

either expressly or impliedly assumed or agreed to the defects or

encumbrances in the course of purchasing the property involved.

The courts have not permitted the insurer to avoid liability if the

insured was innocent of any conduct causing the loss or was simply

negligent in bringing about the loss.68

Based on these standards, Doubletree did not suffer, assume, or agree to

the undisclosed magnitude of the flowage easement for three main reasons.

First, all four documents at issue include the “and shown on survey” language

that the corrected policy contains. Because the survey failed to disclose the full

extent of the easement, Doubletree did not suffer, assume, or agree to the full

extent of the easement as a defect in title.

Second, Doubletree did not suffer, assume, or agree to the undisclosed

magnitude of the flowage easement because it did not have the requisite intent

to do so. As noted, all three of these terms require some degree of intent by the

65 Id. (quoting Smith, 519 P.2d at 863).

66 Id.

67 Id.

68 Brown v. St. Paul Title Ins. Co., 634 F.2d 1103, 1107-08 n.8 (8th Cir. 1980) (collecting

cases).

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insured to acquire the property with the defect in its title.69 Here, if Doubletree

intended to acquire the property with the flowage easement as a title defect, it

only intended to do so to the extent that the easement was shown on the survey.

This is evident from Doubletree’s development plans, which accounted for the

flowage easement, but only to the extent shown on the survey. There is simply

no summary judgment evidence to prove Doubletree had any intent to acquire the

property with the full scope of the flowage easement as a title defect. Because

Lawyers Title has failed to show that Doubletree intended to acquire the property

with the full magnitude of the flowage easement, it has failed to show that

Doubletree suffered, assumed, or agreed to the easement.

Third, in addition to intent, the term “suffered, assumed, and agreed to”

requires knowledge of the extent of the title defect. More concretely, the term

“agreed to” requires “full knowledge by the insured of the extent and amount of

the claim against the insured’s title.”70 An insured only “assumes” the defect if

it has “knowledge of the specific title defect assumed.”71 Although Doubletree

was aware that a flowage easement affected the property, it did not know the

extent of the flowage easement. Doubletree had some knowledge of the flowage

easement as a defect in title, but certainly not full knowledge of the extent of that

defect. An insured does not suffer, assume, or agree to an encumbrance under

this exclusion when it lacks knowledge of the true scope of the encumbrance. In

fact, Doubletree’s lack of knowledge of the extent of the easement distinguishes

this case from a Texas court of appeals case in which the insured had full

knowledge of the encumbrance—a promissory note secured by a lien on the

69 Am. Sav. & Loan Ass’n, 793 F.2d at 784.

70 Id.

71 Id.

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property—since he himself executed the note, and thereby “created, suffered,

assumed, or agreed to” the encumbrance under exclusion 3(a).72 Even if exclusion

3(a) were ambiguous as to whether “suffered, assumed, or agreed to” requires

knowledge of just the existence of the easement or knowledge of the existence and

extent of the easement, we must adopt Doubletree’s reasonable interpretation of

the exclusion.

Most importantly, exclusion 3(a) would completely nullify the survey

coverage if interpreted as Lawyers Title suggests. The magistrate judge was

incorrect in concluding that the exclusion barred Doubletree’s claim here.

Lawyers Title has raised several other issues with regard to Doubletree’s

breach of contract claim. Because the magistrate judge interpreted the reformed

policy as not covering Doubletree’s claims, the magistrate judge did not reach

these other issues raised by Lawyers Title. These issues could preclude

rendering summary judgment for Doubletree on its breach of contract claim

despite our interpretation of the reformed policy as covering Doubletree’s claims.

For instance, Lawyers Title argues that coverage under the policy

terminated when the property was sold at foreclosure. Although Doubletree filed

claims with Lawyers Title before foreclosure, it did not assert claims based on the

corrected policy’s survey coverage until after foreclosure. Therefore, Lawyers

Title asserts, it cannot be liable for breach of contract based on the survey

coverage. Lawyers Title also contends that it properly denied Doubletree’s

72 Duncan v. First Am. Title Ins. Co., No. C14-93-00171-CV, 1994 WL 2010, at *1, *4-5

(Tex. App.—Houston [14th Dist.] 1994, no writ) (not designated for publication) (holding that,

because a warranty deed expressly stated that it was made “subject to” liens on the property

and the insured himself executed the promissory note secured by a lien on the property, the

insured and an entity for which he was the president and authorized agent “created, suffered,

assumed, or agreed to” the note as an encumbrance on title).

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original claims under the policy, since those claims were based on the original

policy and Doubletree never submitted claims based on the corrected policy and

the survey coverage that it included. According to Lawyers Title, Doubletree’s

failure to ever present a claim based on the corrected policy until this litigation

was a failure to provide adequate notice of claim and proof of loss under the

policy. Finally, Lawyers Title argues that Doubletree has failed to offer any

evidence of a compensable loss under the policy that resulted solely from the

flowage easement, and not the flood plain, which also affects the property.

The magistrate judge did not decide these issues. We therefore reject the

magistrate judge’s interpretation of the reformed policy and remand for

consideration of these issues.

Doubletree also appeals the magistrate judge’s grant of summary judgment

in favor of Lawyers Title on Doubletree’s common law bad faith claims, its

statutory bad faith claims under the Texas Insurance Code, and its claims under

the Texas DTPA.73 We affirm the grant of summary judgment as to these

extracontractual claims.

Doubletree first contends that the magistrate judge erred in granting

summary judgment to Lawyers Title on Doubletree’s claim of common law breach

of the duty of good faith and fair dealing. In the insurance context, the common

law duty of good faith and fair dealing “arises from the special relationship”

between the insurer and the insured.74 “[A] breach of the duty of good faith and

fair dealing will give rise to a cause of action in tort that is separate from any

73 TEX. BUS. & COM. CODE ANN. §§ 17.41-63 (West 2014).

74 Union Bankers Ins. Co. v. Shelton, 889 S.W.2d 278, 283 (Tex. 1994).

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cause of action for breach of the underlying insurance contract.”75 However, “the

threshold of bad faith is reached only when the breach of contract is accompanied

by an independent tort.”76 “A cause of action is stated when the insured alleges

that the insurer had no reasonable basis for the denial or delay in payment of a

claim and that the insurer knew or should have known of that fact.”77

Accordingly, the evidence pointing to bad faith “must relate to the tort issue of

no reasonable basis for denial or delay in payment of a claim, not just to the

contract issue of coverage.”78

The magistrate judge noted that “in order to recover for breach of the duty

of good faith and fair dealing, Doubletree [first had to] establish that Lawyers

Title breached the contract.” Because the magistrate judge held that the policy

did not cover Doubletree’s claim, he concluded that Doubletree had not

established such a breach and held that “Lawyers Title clearly had a reasonable

basis for [its] denial.”

Although we disagree with the magistrate judge’s conclusion that Lawyers

Title did not breach the contract as a matter of law, we nevertheless affirm the

grant of summary judgment as to the breach of good faith and fair dealing claim

because Doubletree did not offer evidence that creates a genuine dispute of fact

as to whether there was a “reasonable basis for the denial of coverage.” As we

have already noted, both Lawyers Title and Doubletree have offered reasonable

75 Viles v. Sec. Nat’l Ins. Co., 788 S.W.2d 566, 567 (Tex. 1990).

76 Union Bankers, 889 S.W.2d at 283.

77 Id.

78 Lyons v. Millers Cas. Ins. Co. of Tex., 866 S.W.2d 597, 600 (Tex. 1993).

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Nos. 12-40692 & 12-40702

interpretations of the reformed policy. Although we adopt Doubletree’s

interpretation under the well-known contra-insurer rule, Lawyers Title’s

interpretation of the reformed policy, under which Doubletree’s claim is not

covered, is also reasonable. Lawyers Title thus had a reasonable basis for its

denial of coverage.

Additionally, Doubletree’s initial claims were based on the policy as

originally issued—that is, the claims relied on the fact that the exception for the

flowage easement was not in the original policy. Doubletree never submitted a

claim under the corrected policy nor did it assert at the claims stage that the

incorrect survey provided a basis for coverage. In fact, Doubletree did not assert

its survey theory of coverage until after the commencement of this litigation.

Given our conclusion that reformation of the policy was appropriate in these

circumstances, Lawyers Title’s reliance on the flowage easement exception as a

basis for denying coverage of Doubletree’s initial claim was neither incorrect nor

in bad faith. Doubletree thus did not offer sufficient evidence that Lawyers Title

“had no reasonable basis for the denial or delay in payment of a claim” or that

Lawyers Title “knew or should have known of that fact.”79

Doubletree also contends that Lawyers Title violated its statutory duty of

good faith under Texas Insurance Code § 541.060(a)(2) because it “made no effort

to settle the Title Loss Claim.” Section 541.060 provides, in relevant part, that

(a) It is an unfair method of competition or an unfair or deceptive act

or practice in the business of insurance to engage in the following

unfair settlement practices with respect to a claim by an insured or

beneficiary: . . .

79 Union Bankers, 889 S.W.2d at 283.

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(2) failing to attempt in good faith to effectuate a prompt, fair,

and equitable settlement of:

(A) a claim with respect to which the insurer’s liability has

become reasonably clear[.]80

Doubletree asserts similar claims under the DTPA, alleging, inter alia, that

Lawyers Title’s denial of coverage was unconscionable and that Lawyers Title

failed to settle in good faith, failed to provide an adequate explanation for the

denial, failed to conduct a reasonable investigation, rewrote the policy after

Doubletree made a claim, and made certain “disingenuous” arguments during the

course of this litigation.

We have previously noted that “Texas courts have clearly ruled that . . .

extra-contractual tort claims [under the DTPA and the Insurance Code] require

the same predicate for recovery as bad faith causes of action in Texas.”81

Accordingly, “an insurer will not be faced with a tort suit for challenging a claim

of coverage if there was any reasonable basis for denial of that coverage.”82 As we

have already discussed, Lawyers Title had a reasonable basis for denying

Doubletree’s claim. Doubletree’s claims under the DTPA and the Texas

Insurance Code thus fail for the same reasons as its common law bad faith claim.

In a consolidated appeal, Doubletree’s attorneys, Kalis and Martin,

challenge the magistrate judge’s award of attorneys’ fees to Lawyers Title under

80 TEX. INS. CODE ANN. § 541.060 (West 2014).

81 Higginbotham v. State Farm Mut. Auto. Ins. Co., 103 F.3d 456, 460 (5th Cir. 1997)

(citing Emmert v. Progressive Cnty. Mut. Ins. Co., 882 S.W.2d 32, 36 (Tex. App.—Tyler 1994,

writ denied) and State Farm Lloyds, Inc. v. Polasek, 847 S.W.2d 279, 282 n.2 (Tex. App.—San

Antonio 1992, writ denied)).

82 Id. (citing Emmert, 882 S.W.2d at 36).

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28 U.S.C. § 1927. The magistrate judge granted in part Lawyers Title’s motion

for attorneys’ fees and ordered Kalis and Martin to pay $55,310.00 to Lawyers

Title. The magistrate judge imposed the sanctions based on the lawyers’ pursuit

of Doubletree’s extracontractual claims. We hold that the magistrate judge

abused his discretion in awarding fees to Lawyers Title.

Lawyers Title argues the award of fees was appropriate because Kalis and

Martin persistently pursued meritless extracontractual claims, which were

unsupported by the facts or law. Pursuit of these claims, Lawyers Title argues,

multiplied the proceedings and distracted it and the court from the breach of

contract issue. Lawyers Title further contends that Doubletree’s counsels’

conduct in pursuit of its claims—including inadequate citations of authority in

briefing and persistent assertions of baseless arguments—also supports an award

of attorneys’ fees.

Kalis and Martin argue that, for several reasons, the fee award was

inappropriate here. First, Kalis and Martin note that, when they first entered

their appearance in this lawsuit filed by Lawyers Title in the Eastern District of

Texas, Doubletree had already filed a separate state court action alleging the

extracontractual claims against Lawyers Title. At that time, Doubletree was

represented by different counsel in its state court lawsuit. After entering their

appearance, Kalis and Martin believed the state court extracontractual claims

might be compulsory counterclaims in the federal court lawsuit and would be

waived if not asserted under Federal Rule of Civil Procedure 13(a). Kalis and

Martin offered to enter into a non-waiver agreement with Lawyers Title to toll

the extracontractual claims and thereby avoid having to litigate them until the

policy coverage question was decided. Lawyers Title rejected the offer. At that

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point, fearing they would commit legal malpractice if the extracontractual claims

were not pursued in federal litigation, Kalis and Martin filed the extracontractual

claims in federal court. Based on this series of events, Kalis and Martin argue

that their conduct was not unreasonable or vexatious, but rather a good-faith

effort to avoid waiving Doubletree’s extracontractual claims.

Kalis and Martin also argue that, even if the court concludes that the

extracontractual claims lack merit, Lawyers Title has not shown that their

conduct in pursuing the claims rose to the level of bad faith, improper motive, or

reckless disregard, as required for a fee award under § 1927. Further, Kalis and

Martin contend, their references to Lawyers Title’s “time traveling policy” and

their allegations that Lawyers Title went back in time to rewrite its insurance

policy do not warrant a fee award.

As mentioned, we review an award of sanctions under § 1927 for abuse of

discretion.83 Section 1927 provides:

Any attorney or other person admitted to conduct cases in any court

of the United States or any Territory thereof who so multiplies the

proceedings in any case unreasonably and vexatiously may be

required by the court to satisfy personally the excess costs, expenses,

and attorneys’ fees reasonably incurred because of such conduct.84

An award of attorneys’ fees under § 1927 requires “evidence of bad faith,

improper motive, or reckless disregard of the duty owed to the court.”85 In

83 See Cambridge Toxicology Grp., Inc. v. Exnicios, 495 F.3d 169, 180 (5th Cir. 2007) (“A

district court abuses its discretion if it awards sanctions based on an erroneous view of the law

or on a clearly erroneous assessment of the evidence.”) (internal quotation marks and citation

omitted).

84 28 U.S.C. § 1927.

85 Cambridge Toxicology, 495 F.3d at 180 (quoting Procter & Gamble Co. v. Amway

Corp., 280 F.3d 519, 525 (5th Cir. 2002)).

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awarding fees under this provision, “[t]he district court must make detailed

factual findings.”86 Specifically, the court is required to “(1) identify sanctionable

conduct and distinguish it from the reasons for deciding the case on the merits,

(2) link the sanctionable conduct to the size of the sanctions, and (3) differentiate

between sanctions awarded under different statutes.”87 Further, punishment

under § 1927 is “sparingly applied.”88 This court has held that sanctions under

§ 1927 are “punitive in nature and require clear and convincing evidence” that

sanctions are justified.89 “An unsuccessful claim is not necessarily actionable.”90

Section 1927 sanctions should be employed “only in instances evidencing a

serious and standard disregard for the orderly process of justice,” lest “the

legitimate zeal of an attorney in representing [a] client [be] dampened.”91

Here, the magistrate judge abused his discretion in awarding fees to

Lawyers Title. First, there is no clear and convincing evidence that Kalis and

Martin’s conduct in filing and litigating the extracontractual claims was a result

of bad faith, improper motive, or reckless disregard of the duty owed the court.

The evidence instead shows that Kalis and Martin acted in good faith in pursuing

the extracontractual claims because they sincerely believed that those claims

86 Id.

87 Id. at 180-81 (quoting Procter & Gamble Co., 280 F.3d at 526).

88 Meadowbriar Home for Children, Inc. v. Gunn, 81 F.3d 521, 535 (5th Cir. 1996)

(internal quotation marks and citation omitted).

89 Bryant v. Military Dep’t of Miss., 597 F.3d 678, 694 (5th Cir. 2010) (internal quotation

marks and citation omitted).

90 See Hogue v. Royse City, Tex., 939 F.2d 1249, 1256 (5th Cir. 1991).

91 FDIC v. Conner, 20 F.3d 1376, 1384 (5th Cir. 1994) (internal quotation marks and

citations omitted).

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would be waived if not asserted in federal court. Indeed, they even tried to put

the extracontractual claims “on hold” pending resolution of the breach of contract

issue, but Lawyers Title’s attorneys rejected this offer. Lawyers Title has not

contradicted this evidence of good faith by showing at least a reckless disregard

of the duty owed the court by Kalis and Martin. At most, it has shown that

Doubletree’s extracontractual claims lack merit, which is not a sufficient basis

for awarding sanctions.

Second, the reasons given by the magistrate judge for awarding sanctions

do not support his award. The magistrate judge noted that the extracontractual

claims had no basis in fact, emphasizing that Doubletree “could not identify a

single misrepresentation made by” Lawyers Title. For one thing, whether the

claims pursued had a “basis in fact” is not the applicable standard in reviewing

a sanctions award: The standard is whether the claims were pursued in bad faith,

for improper motive, or in reckless disregard of the duty owed the court. As

discussed, that standard has not been satisfied. In addition, although Doubletree

originally brought fraud and negligent misrepresentation claims, the majority of

Doubletree’s claims were not that Lawyers Title made express

misrepresentations, but that Lawyers Title had no reasonable basis for denying

coverage, failed to settle in good faith, failed to provide an adequate explanation

of denial, and other similar claims. Therefore, even if Doubletree never identified

a misrepresentation by Lawyers Title, it still might recover on many of its

extracontractual claims.

The magistrate judge also based his award on the fact that Kalis and

Martin alleged that Lawyers Title had the ability to “time travel,” repeatedly

accused Lawyers Title of going back in time to rewrite its insurance policy, and

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questioned witnesses regarding their ability to “time travel.” Although this was

inappropriate rhetoric, alone it does not rise to the level of bad faith, improper

motive, or reckless disregard for the duty owed the court.

In conclusion, the magistrate judge abused his discretion in awarding fees,

and we thus reverse the fee award to Lawyers Title.

* * *

For the foregoing reasons, the magistrate judge’s order granting Lawyers

Title’s motion for summary judgment and denying Doubletree’s motion for

summary judgment is AFFIRMED IN PART, REVERSED IN PART, AND

REMANDED for further proceedings consistent with this opinion, and the

magistrate judge’s order awarding attorneys’ fees to Lawyers Title is

REVERSED.

Case: 12-40692 Document: 00512499511 Page: 39 Date Filed: 01/14/2014

40692 12 CV0

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