-
In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-04-00005-CR
______________________________
ERIC JAMAL SHEPPARD, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 188th Judicial District Court
Gregg County, Texas
Trial Court No. 22,696-A
Before Morriss, Carter and Grant,* JJ.
Memorandum Opinion by Justice Grant
________________
*Ben Z. Grant, Justice, Retired, Sitting by Assignment
O P I N I O N
In September of 1995, Eric Jamal Sheppard pleaded guilty to possession of a controlled substance, a second-degree felony. The trial court placed Sheppard on deferred adjudication community supervision for eight years. Seven years and nine months later, in June of 2003, the State applied to revoke Sheppard's community supervision. In its application, the State alleged Sheppard failed to pay his fees and failed to report to his community supervision officer as ordered. Sheppard pleaded true to these allegations, the trial court then found him guilty of possession of a controlled substance, and sentenced him to six years in the Institutional Division of the Texas Department of Criminal Justice. On appeal, Sheppard now contends that the administrative nature of his violations of the terms of community supervision call for a more lenient sentence and that the six-year sentence is excessive and disproportionate.
Error Not Preserved
Sheppard has not preserved his complaint for our review. To preserve a complaint for appellate review, an appellant must have presented the trial court with a timely request, objection, or motion stating the specific grounds for the ruling desired. Tex. R. App. P. 33.1(a)(1)(A). Here, when the trial court imposed Sheppard's sentence, he failed to object, preserving nothing for our review. See Hookie v. State, No. 06-03-00129-CR, 2004 Tex. App. LEXIS 3488, at *19 (Tex. App.—Texarkana Apr. 20, 2004, no pet.); Rodriguez v. State, 71 S.W.3d 778, 779 (Tex. App.—Texarkana 2002, no pet.); Jackson v. State, 989 S.W.2d 842, 845 (Tex. App.—Texarkana 1999, no pet.). The record reveals that Sheppard moved for a new trial. That motion, however, does not specifically raise any complaint regarding the sentence imposed. A general objection preserves nothing for review and is insufficient to apprise the trial court of the complaint urged. Fierro v. State, 706 S.W.2d 310, 318 (Tex. Crim. App. 1986); Henderson v. State, 617 S.W.2d 697, 698 (Tex. Crim. App. [Panel Op.] 1981). Sheppard failed to present the trial court with the contention that the six-year sentence is punishment disproportionate to the offense committed. Not having done so, he cannot present the issue to this Court. See Fierro, 706 S.W.2d at 318.
Sentence Not Grossly Disproportional
Even if Sheppard would have properly preserved error as to this contention, we would conclude that his sentence was not disproportional or excessive. Traditionally, Texas courts have held that, so long as the punishment assessed is within the limits prescribed by a valid law, the punishment is not cruel or unusual within the constitutional prohibition and the sentence is not excessive. Rodriquez v. State, 509 S.W.2d 625, 627 (Tex. Crim. App. 1974); Buchanan v. State, 68 S.W.3d 136, 141 (Tex. App.—Texarkana 2001, no pet.). However, we have recognized that, although a sentence may be within the range permitted by statute, it may nevertheless run afoul of the Eighth Amendment prohibition against cruel and unusual punishment. Jackson, 989 S.W.2d at 845.
Three considerations guide our analysis under the Eighth Amendment: (1) the gravity of the offense and the harshness of the penalty; (2) the sentences imposed on other criminals in the same jurisdiction; and (3) the sentences imposed for commission of the same crime in other jurisdictions. Solem v. Helm, 463 U.S. 277, 292 (1983). Under this analysis, we initially make a threshold comparison of the gravity of the offense against the severity of the sentence and then determine whether the sentence is grossly disproportionate to the offense. The punishment will be grossly disproportionate to a crime only when an objective comparison of the gravity of the offense against the severity of the sentence reveals the sentence to be extreme. McGruder v. Puckett, 954 F.2d 313, 316 (5th Cir. 1992). Only if we find such a gross disproportionality between the offense and the penalty do we go on to compare the sentence imposed to sentences in this and other jurisdictions. Id.; Buchanan, 68 S.W.3d at 141.
Sheppard was convicted of a second-degree felony, punishable up to twenty years. See Tex. Pen. Code Ann. § 12.33(a) (Vernon 2003). The record also reveals that Sheppard has a relatively extensive criminal history due to his involvement with controlled substances. Considering that Sheppard pleaded guilty to a second-degree felony and has a substantial criminal history, we cannot say that a sentence of six years is a grossly disproportionate punishment for a second-degree felony after two failed attempts at community supervision and rehabilitation.
Sheppard contends that the administrative nature of the conditions of the community supervision which he allegedly violated should dictate a lesser sentence. In other words, since he only violated the terms of his community supervision by failing to report and failing to pay fees, he argues that his sentence should not be so severe.
The trial court sentenced Sheppard to six years' confinement for possession of a controlled substance, not for failing to regularly pay his fees or report to his officer. These violations of the terms of his community supervision do nothing to vitiate the severity of the offense to which Sheppard pleaded guilty in 1995. On the trial court's finding that the State's allegations were true, Sheppard was subject to the full range of punishment for the offense for which he was placed on community supervision. A sentence of six years is not a disproportionate sentence for conviction of a second-degree felony. Having determined that Sheppard's sentence is not disproportionate to the offense for which he was convicted, we need not address the remaining two considerations under the Solem analysis. Solem, 493 U.S. at 291.
Conclusion
Sheppard's sentence of six years' imprisonment does not represent an excessive or disproportionate punishment and, thus, does not violate his rights under federal and state constitutions.
We overrule his sole point of error and affirm the trial court's judgment.
Ben Z. Grant
Justice*
*Justice, Retired, Sitting by Assignment
Date Submitted: June 3, 2004
Date Decided: July 30, 2004
Do Not Publish
rkans Int'l, LLC v. Zurich Ins. Co., 299 F.3d 514, 519 (5th Cir. 2002). The threshold of bad faith is reached when a breach of contract is accompanied by an independent tort. Evidence that merely shows a bona fide dispute about the insurer's liability on the contract does not rise to the level of bad faith. Transp. Ins. Co. v. Moriel, 879 S.W.2d 10, 18 (Tex. 1994); Nat'l Union Fire Ins. Co. v. Dominguez, 873 S.W.2d 373, 376-77 (Tex. 1994); Nat'l Union Fire Ins. Co. v. Hudson Energy Co., 780 S.W.2d 417, 426 (Tex. App.--Texarkana 1989), aff'd, 811 S.W.2d 552 (Tex. 1991).
Here, diary entries that show that CMI was initially treating this on a per occurrence basis and providing coverage for two of the three occurrences is the evidence that Laird brings forth that, he says, shows bad faith on CMI's part. Laird contends that the diary entries show an unreasonable delay in payment. That may well be, but Laird fails to bring forth evidence of an injury independent of the unreasonable delay, the element CMI challenged in its no-evidence motion for summary judgment. Common sense says that the damage to the house probably would have worsened over time, but we have no evidence to suggest that such damage occurred here. We note that CMI paid nearly $30,000.00 in the matter before Laird even requested an appraisal. From the dates on the checks issued, it appears the matter took some time. It also appears that, at some time during the negotiations and investigation, CMI began treating the matter entirely differently, as a single loss rather than three separate losses. Nonetheless, Laird points to no evidence relating to an injury independent of the coverage dispute. The trial court properly granted CMI's no-evidence motion for summary judgment.
B. Extent of Coverage Issues
1. Figures Established as a Matter of Law
The summary judgment evidence establishes and the parties agree that certain figures should be limited or excluded from the appraisal award figure of $42,792.19.
a. Excess Mold Remediation Costs
Of the $9,908.00 estimated cost of mold remediation, $4,908.00 is excluded per the mold remediation limitation clause imposing a maximum coverage of $5,000.00 for mold remediation. The mold remediation limitation is clear:
Section I - EXCLUSIONS, the following exclusions are added:
. . . .
6. We do not cover loss consisting of, resulting from, arising out of or in any way caused by mold, fungus, wet rot, dry rot or other microbes. This exclusion applies regardless of whether mold, fungus, wet rot, dry rot or other microbes arise from any other cause of loss, including but not limited to a loss involving water, water damage or discharge, which may otherwise be covered by this policy, except provided in Section I - CONDITIONS - Mold, Fungus, Wet Rot and Dry Rot Remediation as a Direct Result of a Covered Water Loss
Section I - CONDITIONS
. . . .
16. Mold, Fungus, Wet Rot and Dry Rot Remediation as a Direct Result of a Covered Water Loss
In the event of a covered water loss under Section I Property Coverage, Coverage A (Dwelling) or Coverage B (Personal Property). We will pay up to $5,000 for mold, fungus, wet rot or dry rot remediation.
Remediation means the reasonable and necessary treatment, removal, or disposal of mold, fungus, wet rot or dry rot as required to complete repair or replacement of property we cover under Section I Property Coverage, Coverage A (Dwelling) or Coverage B (Personal Property) damaged by a covered water loss, including payment for any loss of fair rental value or reasonable increase in living expense you incur so that your household can maintain its normal standard of living if mold, fungus, wet rot or dry rot make the residence premises wholly or partially untenantable. Remediation also includes any investigation or testing to detect, measure, or evaluate mold, fungus, wet rot or dry rot.
This Condition does not increase the Coverage A (Dwelling) or Coverage B (Personal Property) limit of liability.
Laird, while conceding that the limitation would apply, argues that another clause providing coverage for increased costs of repairing the mold related damage applies to the mold remediation cost here, making the entire amount covered. He builds his argument on the following provision:
Section 1 Exclusions. Exclusion 3. "BUILDING LAWS" exclusion is modified to provide coverage only to the extent described under Perils Insured Against.
a) Coverage Provided.
You may use up to $5,000 (at no additional premium) for the increased costs that you incur due to the enforcement of any ordinance or law, which requires or regulates:
1) the construction, demolition or repair of that part of a covered building or other structure damaged by a Peril Insured Against;
2) the demolition and reconstruction of the undamaged part of a covered building or other structure, when that building or other structure must be totally demolished because of damage by a Peril Insured Against to another part of that covered building or other structure; or
3) the remodeling, removal or replacement of the portion of the undamaged part of a covered building or other structure necessary to complete the remodeling, repair or replacement of that part of the covered building or other structure damaged by a Peril Insured Against.
You may use all or part of this coverage to pay for the increased costs you incur to remove debris resulting from the construction, repair or replacement of property as stated in (a). above.
This is additional insurance and does not reduce Coverage A (Dwelling) the limit of liability.
Laird asserts that this provision entitles him to additional coverage for mold remediation since the Texas Occupations Code regulates the mold remediation industry. CMI disagrees with Laird's reading of the provision. We need not address whether Laird's argument regarding the regulation of the mold remediation industry would provide coverage under this issue, however, since the policy itself later limits the coverage in such a way as to exclude the excess mold remediation costs:
b) Building Ordinance or Law Coverage Limitations
We will not pay for the increased cost of construction:
1) if the building or structure is not rebuilt or repaired;
2) if the rebuilt or repaired building or structure is not intended for the same type occupancy as the current building or structure;
3) until the building or structure is actually repaired at the same premises; or
4) unless the rebuilding or repairs are made as soon as reasonably possible after the loss or damage, not to exceed 365 days after loss unless you have requested in writing that this time limit be extended for an additional 180 days.
c) We do not cover:
1) the loss in value to any covered building or other structure due to the requirements of any ordinance or law; or
2) the costs to comply with any ordinance or law which requires any "insured" or others to test for, monitor, clean up, remove, contain, treat, detoxify or neutralize, or in any way respond to, assess the effects of, pollutants on any covered building or other structure.
So, despite whether the building laws provision would apply in such a way as to allow coverage for excess mold remediation in this situation, it appears fairly certain that subsections (b)(4) and (c) would operate to exclude such additional coverage. Reading the policy as a whole and giving effect to the mold remediation limitation, we conclude that the excess cost of building does not apply to the situation here and that the mold remediation coverage is, in fact, limited to $5,000.00. The excess mold remediation of $4,908.00 should be excluded.
b. Fungicide Application Allowance in the Build Back Estimate
In his build back estimate, Rasberry included an allowance of $2,000.00 specifically for application of fungicide to "flooring under this dwelling." Laird concedes that this amount, too, should be excluded as a mold remediation measure in excess of the $5,000.00 limitation.
c. Foundation Leveling Allowance in the Build Back Estimate
The evidence establishes, too, that the $3,000.00 allowance included in Rasberry's build back estimate for leveling of Laird's foundation should not be covered. The policy includes the following provision relevant to foundation repair:
SECTION I - EXCLUSIONS, the following exclusions are added:
. . . .
7. We do not cover loss under Coverage A (dwelling) consisting of, resulting from, arising out of or in any way caused by settling, cracking, building, shrinkage, or expansion of foundation, wall, floors, ceilings, roof structure, walks, drives, curbs, fences, retaining walls or swimming pools, regardless of whether such loss ensues from any loss, including a loss involving water or water damage which is covered under this policy.
According to CMI, this exclusion is commonly referred to as the "settlement exclusion." The build back estimate clearly designates the $3,000.00 figure to "level foundation" and adds the parenthetical "(area of leak)." At oral argument, Laird conceded the $3,000.00 allowance falls within the settlement exclusion. Altogether, the summary judgment establishes, and Laird concedes, that $9,908.00 should be excluded from the $42,792.19 ACV total. At this point, we are left, then, with a figure of $32,765.51 with which we must evaluate the remaining figures in light of the summary judgment evidence.
2. Figures on Which Fact Issues Remain
a. Personal Property Manipulation Costs
The insurance policy refers to the moving and storage costs of personal property as manipulation costs. Laird maintains that CMI should be responsible for the entire amount designated in the appraisal award for personal property manipulation, $7,239.76. CMI responds that it was not obligated to pay anything toward that figure because that figure, too, is subject to the $5,000.00 mold limitation. We have looked to the evidence to determine the nature of the property manipulation costs in order to determine whether those costs were subject to the mold remediation limitation, whether the summary judgment evidence shows that the property manipulation costs were "consisting of, resulting from, arising out of or in any way caused by mold, fungus, wet rot, dry rot or other microbes."
North American Restoration based its estimate for mold remediation on the findings of ERI Consultant Engineers and it also provided the personal property manipulation estimate of $7,239.76, which was adopted by Rasberry in his appraisal award. Keith E. "Eddie" Harmon, a licensed mold assessment consultant, provided an affidavit and report. From his February 2004 report:
Extensive visible growth of fungi and water damaged wood was found throughout the crawl space on the subfloor and joists. [Later in his recommendation:] Repair and remediation of crawl space joists may require the subfloor to be removed. Should such action be necessary to facilitate proper repairs then all contents in the home should be moved to a climate controlled storage facility. Cleaning of contents is not deemed necessary.
Harmon's affidavit of November 2006 states:
In addition, as part of the mold remediation, all contents and furniture in the home are to be moved to an onsite storage area or if such space is not available at the home, to have the furniture and contents stored at a climate controlled storage facility. This is necessary so as to prevent the contents and furniture from being contaminated while mold remediation work is being done, as well as the fact that as the required mold repairs will include replacement of the subflooring to the home. . . .
The following evidence comes from umpire Rasberry's deposition:
Q. . . . . I guess what I'm getting at is, you didn't find any mold-related activities needed to be conducted on the Lairds' personal property, correct?
A. Yes.
Q. In other words, because the subfloor and trades were going to be in and out of the house, in order to secure their possessions during the construction project, you wanted to take - someone to take physical possession of the property, take it offsite for safekeeping and then bring it back after the construction activities?
A. Yes, I looked at the hardwood floors, talked to Mrs. Laird about it. I felt like that the floors had been sanded too many times. This house was built in the '50s and we couldn't sand the floors again. The hardwood floors would have to come out. To do that, we needed to remove the furniture. And so that's the reasons why I allowed it in - in this award.
Q. Okay. And I guess just what I want to make sure was that I have asked you is, it was due to construction activities, not mold, that they needed to be removed?
A. Yes.
Laird's evidence that the personal property did not have to be cleaned due to contamination does not necessarily controvert the evidence that the personal property had to be removed from the house due, at least in part, to the mold remediation that had to be completed on the house. In other words, evidence that there are other reasons or concerns associated with the decision to remove and store the personal property does not necessarily controvert the evidence that the removal and storage is based, in part, on procedures and concerns related to mold remediation.
Under the doctrine of concurrent causation, when covered and noncovered perils combine to create a loss, the insured is entitled to recover only that portion of the damage caused solely by the covered peril. Travelers Indem. Co. v. McKillip, 469 S.W.2d 160, 162 (Tex. 1971); Wallis v. United Servs. Auto. Ass'n, 2 S.W.3d 300, 302-03 (Tex. App.--San Antonio 1999, pet. denied). The Texas Supreme Court has continued to uphold this requirement. See Mem'l Hosp., Inc. v. Murdock, 946 S.W.2d 836, 840 (Tex. 1997) (reaffirming holding in McKillip). Under the concurrent causation doctrine, it is entirely possible that some of the damage could be due solely to a covered peril, and therefore covered, and some of the damage could be due in part to an excluded peril, and therefore excluded.
Here, the summary judgment evidence does not establish as a matter of law that the personal property manipulation costs were due to mold remediation such that it would be subject to the $5,000.00 mold remediation limitation. In fact, neither party's evidence clearly establishes the nature of the property manipulation costs, leaving a fact issue concerning what amount, if any, would be covered under the policy.
b. Fact Issue Concerning Certain Build Back Repairs Designated as Mold Related
There is some evidence showing that the items designated solely as mold-related repairs, totaling an additional $1,227.95 of the build back estimate, would be subject to the $5,000.00 mold remediation limitation. For instance, North American Restoration's estimate for mold remediation includes figures for removal of drywall throughout several rooms of the house. It follows then that the build back costs associated with replacing and repairing that drywall would stem from mold remediation and be subject to the mold limitation since that amount would be to "build back" what was taken out specifically as a means of mold remediation. Harmon's report also concluded that the mold remediation project would include repair of cracked sheetrock walls and ceilings throughout the home.
However, Rasberry's report describes multiple causes for certain build back repairs and specifically states that the wall repair and painting are required as a result of floor removal:
I enclose my dwelling repair estimate for the build back after mold removal. My figures also include the repairs to the flooring and walls of the dwelling. The wall repair and painting is a result of floor removal and not foundation settlement. This dwelling had foundation settlement problems long before the recent plumbing leaks. Prior cracks have been repaired and painted over after the foundation repairs were made many years ago.
The rotted floor joists and sills under this dwelling is not caused by the recent leaks involving the hot water line the washing machine drain line leak. It has taken many years for the wood timbers to rot. The rotted condition of the flooring in the crawl space of this dwelling is a result of surface water intrusion, HVAC condensate drain line water, and poor ventilation. The recent plumbing leaks may have been a contributing factor. Without an engineering study of the foundation of this dwelling, it is very difficult to separate the damage caused by each influence factor. For this reason, I have made an allowance of $2,000.00 for brushing and treating the flooring under this dwelling with a fungicide and I have allowed $3,000.00 for the leveling of the foundation in the area of the plumbing leak only.
Rasberry's report calls into question the cause of certain build back repairs that Harmon had designated as mold-related repairs and demonstrates the state of the evidence before us presents an issue as to whether there are potentially multiple causes of certain damages to the Laird home. CMI argues that the $2,733.84 item of expense for repairs to the walls is excluded by the "settling, cracking" exclusion even if such repairs are also a result of a covered loss. But the evidence is conflicting as to whether this expense resulted from settlement or cracking of the walls. Rasberry's report specifically stated the "wall repair and painting is a result of floor removal and not foundation settlement." This evidence creates a fact issue on the applicability of the settlement exclusion provision to this item of repair.
Again, for us to affirm the trial court's summary judgment, we must conclude that the summary judgment evidence establishes as a matter of law that, under no application of the evidence would CMI owe Laird more than $30,745.19. We cannot so conclude, for the state of the evidence is such that there are fact issues concerning the causation of certain damages and, when the evidence is viewed in a certain lens, there are interpretations of the evidence that would suggest that CMI could owe more money on the loss.
For instance, viewing the evidence such that Rasberry's report controverts certain figures that Harmon marked on the build back estimate as related solely to mold, it could be said that CMI owes Laird $1,369.00. (3)
Even taking as true and uncontroverted that all the figures Harmon designated solely as mold-related costs should be excluded, the evidence could be said to indicate that CMI owes Laird as little as $141.05. (4)
The trial court, by rendering summary judgment, concluded that the evidence established as a matter of law that CMI owed Laird no more than the $30,745.19 CMI has already paid to Laird. As discussed, our review of the evidence yields some doubt as to that conclusion. It may, in fact, be that CMI owes Laird no more, but the summary judgment evidence leaves enough fact issues unresolved that we cannot say that it establishes that fact as a matter of law. We reverse the trial court's summary judgment and remand the cause to the trial court for further proceedings.
Jack Carter
Justice
Date Submitted: March 19, 2008
Date Decided: July 17, 2008
OPINION ON REHEARING
We have now received a second motion for rehearing from the appellee, in which it asks this Court to clarify its disposition and judgment. Recognizing the potential for confusion, and without altering the opinion in any other respect, we amend the final, dispositive sentence of the opinion to read as follows.
We affirm that portion of the summary judgment relating to extracontractual damages, but otherwise reverse and remand the cause to the trial court for further proceedings consistent with this opinion.
A new judgment will be issued to correspond with this language.
Jack Carter
Justice
Date Decided: August 7, 2008
1. The record shows the following checks were issued, although it appears that Laird never deposited those checks:
Check Number Amount Date
329547 $2990.90 12/29/03
329548 $4181.17 12/29/03
375292 $6845.85 04/27/04
375250 $7337.67 04/27/04
375252 $3370.00 04/27/04
375293 $5000.00 04/27/04
120679 $1019.60 01/24/05
2. It does not appear that the trial court's failure to do so makes the judgment not final for purposes of appeal. See In re Burlington Coat Factory, 167 S.W.3d 827, 830 (Tex. 2005).
3. We arrive at this figure by viewing the evidence as follows:
Exclusions established by summary judgment evidence:
Excess mold remediation $4,908.00
Foundation leveling allowance from build back estimate $3,000.00
Brushing/fungicide treatment of (under) flooring from build back $2,000.00
Total allowable exclusions $9,908.00
ACV $42,792.19
Allowable exclusions established by summary judgment evidence -9,908.00
Deductible -770.00
Amount owed $32,114.19
From that,
Amount owed in this approach $32,114.19
Amount already paid -30,745.19
Amount owed under this scenario $1,369.00
4. Treating the additional $1,227.95 of the build back estimate designated as related only to mold remediation and repair, the evidence could be said to establish the following figures:
ACV $42,792.19
Excess mold remediation (conceded and established) -4,908.00
Foundation allowance (from build back estimate) -3,000.00
Fungicide Application -2,000.00
Build back cost related only to mold -1,227.95
Deductible -770.00
Amount owed according to this approach 30,886.24
Subtracting amount CMI has paid -30,745.19
Amount owed under this approach to the evidence . . . . . . . . . . . . . . . . . . . . . $ 141.05
Document Info
Docket Number： 06-04-00005-CR
Filed Date： 7/30/2004
Precedential Status： Precedential
Modified Date： 9/7/2015