Farmers Group, Inc., Farmers Underwriters Association, Fire Underwriters Association, Farmers Insurance Exchange, Fire Insurance Exchange, Gerald Hooks Jr., Lesly K. Nolen, and Joseph C. Blanks, P.C. v. Sandra Geter, on Behalf of Herself and All Others Similarly Situated

NUMBER 13-18-00187-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
FARMERS GROUP, INC., FARMERS
UNDERWRITERS ASSOCIATION, FIRE
UNDERWRITERS ASSOCIATION,
FARMERS INSURANCE EXCHANGE,
FIRE INSURANCE EXCHANGE, GERALD
HOOKS JR., LESLY K. NOLEN, AND
JOSEPH C. BLANKS, P.C., Appellants,
v.
SANDRA GETER, ON BEHALF
OF HERSELF AND ALL OTHERS
SIMILARLY SITUATED, Appellee.
On appeal from the 172nd District Court
of Jefferson County, Texas.
MEMORANDUM OPINION
Before Chief Justice Contreras and Justices Benavides and Perkes
Memorandum Opinion by Chief Justice Contreras
This appeal concerns a class action brought by appellee Sandra Geter, on behalf
of herself and all others similarly situated (Geter or the Geter class), against appellants
Farmers Group, Inc., Farmers Underwriters Association, Fire Underwriters Association,
Farmers Insurance Exchange, and Fire Insurance Exchange (collectively Farmers). The
Geter class claimed that Farmers improperly refused to renew their HO-B homeowners
insurance policies. The trial court granted partial summary judgment in favor of the class
and conducted a trial on attorney’s fees. It later rendered judgment requiring Farmers to
offer retroactively renewed HO-B policies to all class members, and it awarded the class
over $3 million in attorney’s fees and court costs.
On appeal, Farmers argues that the trial court: (1) erred by ordering Farmers to
offer renewed HO-B policies to all class members; (2) lacked subject matter jurisdiction
to order a particular premium rate for those renewed policies; (3) lacked subject matter
jurisdiction to compel Farmers to renew the policies; (4) erred in granting specific
performance; (5) erred in awarding injunctive relief; (6) erred in granting a motion to show
cause filed by the class; and (7) erred in awarding attorney’s fees and costs. Appellants
Gerald Hooks Jr., Lesly K. Nolen, and Joseph C. Blanks, P.C. (Blanks) argue that the trial
court erred by striking their pleas in intervention seeking attorney’s fees.
We affirm in part, reverse in part, and remand for further proceedings.1
I. BACKGROUND
In Texas, homeowner’s insurance policies must be written on forms approved by
1 This appeal was transferred from the Ninth Court of Appeals in Beaumont pursuant to an order
issued by the Texas Supreme Court. See TEX. GOV’T CODE ANN. § 73.001. On April 11, 2018, the Texas
Supreme Court denied Farmers’ motion to re-transfer the case to the Beaumont court.
2
the Texas Department of Insurance (TDI). TEX. INS. CODE ANN. § 2301.006(a). A policy
based on Texas Policy Form HO-B generally provides coverage against all risks to a
dwelling, whereas a policy based on Texas Policy Form HO-A typically covers only named
perils to a dwelling. TEX. DEP’T OF INS., TEXAS HOMEOWNERS POLICIES 1 (2018),
https://www.tdi.texas.gov/reports/documents/texas-homeowners-policies-04122018.pdf.
Both HO-A and HO-B policies cover only named perils to dwelling contents. Id.
Geter alleged that she attempted to renew her Farmers HO-B policy in 2001.
However, on January 4, 2002, Farmers mailed a “Policyholder Notice of Non-Renewal”
to Geter stating in part: “Because of substantial losses which we have incurred for the
homeowners and dwelling lines of insurance in Texas, we regrettably must inform you
that we will no longer offer property insurance coverage in the state of Texas under the
policy form you currently have.” Farmers instead offered an HO-A policy to Geter.2
Geter filed suit later in 2002 alleging that Farmers was required to renew the HO-
B policy pursuant to the terms of that policy, which included in relevant part:
6. Refusal to Renew.
a. We may not refuse to renew this policy because of claims for
losses resulting from natural causes.
b. We may not refuse to renew this policy solely because you
are an elected official.
c. We may refuse to renew this policy if you have filed three or
more claims under the policy in any three year period that do
not result from natural causes.
If you have filed two claims in a period of less than three years,
we may notify you in writing, that if you file a third claim during
the three year period, we may refuse to renew this policy by
2 The HO-A policy offered reduced coverage relative to the HO-B policy because, in addition to
covering only named perils to the dwelling, its benefits were based on the actual cash value of the loss,
rather than replacement cost as under the HO-B policy.
3
providing you proper notice of our refusal to renew as
provided in d. below. If we do not notify you after the second
claim, we may not refuse to renew this policy because of
Iosses.
A claim does not include a claim that is filed but is not paid or
payable under the policy.
d. If we refuse to renew this policy, we must deliver to you, or
mail to you at your mailing address shown on the declarations
page and any mortgagee named in the declarations page,
written notice of our refusal to renew not later than the 30th
day before the date in which this policy expires. Proof of
mailing will be sufficient proof of notice. If we fail to give you
proper notice of our decision not to renew, you may require us
to renew the policy.
(Emphasis added.) Geter alleged that there were 433,618 similar Farmers HO-B policies
in force in Texas, and she sought class certification for all persons who received notice,
as she did, that their policies would not be renewed. Geter sought declaratory relief and
an injunction requiring Farmers to renew the HO-B policy. The trial court certified the
class under Texas Rule of Civil Procedure 42.3
Farmers moved for summary judgment in October 2010, arguing that its non-
renewal of the HO-B policies did not violate Texas insurance law or the terms of the
3 The trial court initially certified the class on August 29, 2003, finding in part that appellants “acted
or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive
relief or corresponding declaratory relief with respect to the class as a whole . . . .” See TEX. R. CIV. P.
42(b)(2). However, the certification order did not provide for notice to class members, nor did it provide that
individuals meeting the class definition may opt out of the class. See TEX. R. CIV. P. 42(c)(2)(A) (stating
that the court “may direct appropriate notice,” including opt-out rights, to a class certified under Rule
42(b)(2)). The Beaumont court of appeals reversed and remanded in light of the Texas Supreme Court’s
then-recent holding that “a more rigorous definition of class cohesion should apply” in cases where there is
no opt-out. Farmers Group, Inc. v. Geter, No. 09-03-396-CV, 2004 WL 2365394, at *4 (Tex. App.—
Beaumont Oct. 21, 2004, no pet.) (mem. op.) (noting that “the trial court here did not examine the notice
and opt-out issues as now required” and “had no opportunity to analyze the cohesiveness that will exist if
the court orders notice and opt-out”) (citing Compaq Computer Corp. v. Lapray, 135 S.W.3d 657, 671 (Tex.
2004)). On remand, the trial court certified the class again—this time requiring notice and providing opt-
out rights—and the court of appeals affirmed. Farmers Group, Inc. v. Geter, No. 09-05-00386-CV, 2006
WL 4674359, at *5 (Tex. App.—Beaumont July 26, 2007, pet. denied) (mem. op.) (“The trial court, in our
view, has meticulously complied with our previous opinion and the requirements of Lapray.”).
4
policies (Farmers’ first summary judgment motion). The Geter class responded and filed
its own motion for partial summary judgment on all issues except attorney’s fees (Geter’s
first summary judgment motion). Geter’s motion requested a declaration that: (1) all
class members are “entitled to specific performance of their right to renew the HO-B
policies”; (2) the term of the renewed policy “shall be one year beginning the date the
nonrenewal of their last HO-B policy became effective”; (3) the premium to be charged
for the renewed policy “shall be determined by [TDI]”; and (4) Farmers must advise class
members on how to accept renewal in a form and manner to be approved by the court.
By order dated November 23, 2010, the trial court denied Farmers’ first summary
judgment motion and granted Geter’s first summary judgment motion. The order stated
that each class member is “entitled to renewal” of the HO-B policy and that the term of
the renewed policies “shall be one year beginning the date the nonrenewal of their last
HO-B policy became effective.” The order additionally commanded Farmers to “submit a
plan for determining the premium to be charged” for the renewed policies, and it permitted
the class to object to Farmers’ plan and to offer an alternative plan.
Subsequently, Farmers filed a “Motion for Partial Summary Judgment as to Rating
Issues and Remedies” (Farmers’ second summary judgment motion) in which it argued
in part: (1) the trial court lacks jurisdiction to order a particular premium rate for the
renewed HO-B policies; (2) Farmers cannot lawfully issue a policy for a term that has
expired; and (3) Geter has not demonstrated the elements required to obtain injunctive
relief or specific performance. Geter also filed a second motion for partial summary
judgment on the issue of setting the premium for the renewed policies. She argued that
the trial court had jurisdiction to set the premium rate as “supplemental relief” under the
5
Uniform Declaratory Judgments Act (UDJA). Geter further noted that, though Farmers
charged a premium of $2,181 for the HO-B policy in effect from 2001 to 2002, it demanded
a $5,410 premium for the HO-A replacement policy effective the following year, even
though the latter policy provided less coverage. She asked the trial court to rule that the
premium for the retroactively renewed HO-B policies—which Farmers was required to
offer under the November 23, 2010 order—would be the same as the premium Farmers
charged for the HO-A replacement policies.4 The Geter class also filed a “Motion to Show
Cause” requesting the same relief.
On June 21, 2011, the trial court signed an order granting Geter’s second summary
judgment motion, granting Geter’s motion to show cause, and denying Farmers’ second
summary judgment motion. The order set forth the premium rate for the HO-B renewal
policies precisely as requested by Geter in her motions.
A trial on attorney’s fees only was held over several days in November 2016. The
jury found that $812,332.50 was a reasonable fee for necessary services provided by
class counsel in the trial court, and it assessed additional conditional amounts for
representation on appeal. Pursuant to a motion filed by the class, the trial court stated in
findings attached to its final judgment, dated December 14, 2017, that the amounts
determined by the jury were a “base lodestar, as that term is used in the Texas Supreme
Court,” and it found that the class was entitled to a “multiplier [of] 3.75 times the base
lodestar . . . especially because of the risk and nature of contingent fee work, the length
4 Specifically, Geter asked the trial court to declare that: (1) members of the class who had already
paid the premium for the HO-A replacement policy “will not have to pay any additional premium for their
[HO-B] Renewal Policy,” and (2) members of the class who had not paid the premium for the HO-A
replacement policy “will have to pay the premium charged by Farmers for their HO-A Replacement Policy
in order to receive their [HO-B] Renewal Policy.”
6
of time commitment required, the result obtained and the substantial and protracted costs
incurred.” See TEX. R. CIV. P. 42(i)(1) (“In awarding attorney fees [in a class action], the
court must first determine a lodestar figure by multiplying the number of hours reasonably
worked times a reasonable hourly rate. The attorney fees award must be in the range of
25% to 400% of the lodestar figure.”). Accordingly, the trial court awarded the class
$3,046,246.88 in trial attorney’s fees, along with conditional appellate fees, and
$486,789.97 in costs. Farmers then perfected this appeal.
In a separate proceeding initiated in 2002, the State of Texas, TDI, and the
Commissioner of Insurance (collectively the State) filed suit in the 261st District Court of
Travis County alleging that Farmers violated the Deceptive Trade Practices Act (DTPA).
The Travis County suit alleged, among other things, that Farmers charged higher
premiums for HO-A policies than it did for HO-B policies; however, the suit did not seek
a declaration that the HO-B policies were wrongfully non-renewed. Eventually, Farmers
and the State proposed a settlement agreement under which the members of a settlement
class, including Hooks and Nolen, would release their claims against Farmers. Hooks
and Nolen, represented by Blanks, intervened in the Travis County proceeding in order
to prevent the release of any claims for declaratory relief regarding non-renewal of the
HO-B policies—i.e., the claims raised in the Geter class action. See Lubin v. Farmers
Gp., Inc., No. 03-03-00374-CV, 2009 WL 3682602, at *9 (Tex. App.—Austin Nov. 6, 2009,
no pet.) (mem. op. on remand). Farmers eventually entered into a settlement agreement
with the State which contained a release that—in accordance with Blanks’s demand—
“carved out” the declaratory relief requested in the Geter class action.5 According to
5 Specifically, the definition of “Released Claims” in the Travis County settlement agreement
7
Farmers, the settlement agreement called for it to compensate affected policyholders “in
a package valued at over $100 million.” The Travis County district court approved the
settlement agreement and rendered final judgment in February 2016.
In June 2016, Hooks and Nolen intervened in this class action seeking to recoup
their attorney’s fees. Their plea in intervention argued that the carve-out they obtained in
the Travis County judgment “benefits all Geter class members” because it prevented the
release of the declaratory relief sought in the class action. Farmers moved to strike the
intervention, and the trial court granted the motion.6 Blanks then filed its own plea in
intervention making the same assertions as Hooks and Nolen; again, the trial court struck
the intervention pursuant to Farmers’ motion. Hooks, Nolen, and Blanks appealed the
rulings.
II. DISCUSSION
A. Standard of Review
We review summary judgments de novo. Neely v. Wilson, 418 S.W.3d 52, 59
(Tex. 2013). A movant for traditional summary judgment has the burden to establish that
no genuine issue of a material fact exists and that it is entitled to judgment as a matter of
law. TEX. R. CIV. P. 166a(c); Amedisys, Inc. v. Kingwood Home Health Care, LLC, 437
included the following paragraph:
Notwithstanding the foregoing, the claim for declaratory relief only without any claim for
damages, which has been certified as a class action, and as set forth in the Order of
November 23, 2010, in the pending Geter v. Farmers Group, Inc., et al., No. E-0167872 in
the 172nd District Court of Jefferson County, Texas, is not released by this definition. All
other class claims are released.
6 Hooks and Nolen filed a petition for writ of mandamus seeking to vacate the order striking their
intervention in the class action, which the Beaumont court of appeals denied. In re Hooks, No. 09-16-
00402-CV, 2016 WL 6809254, at *1 (Tex. App.—Beaumont Nov. 15, 2016, orig. proceeding) (mem. op.)
(concluding that Hooks and Nolen “have not demonstrated an abuse of discretion by the trial court for which
no adequate remedy by appeal exists”).
8
S.W.3d 507, 511 (Tex. 2014). A fact issue exists if there is more than a scintilla of
probative evidence to support each element of the plaintiff’s claim. Neely, 418 S.W.3d at
59. We review the summary judgment evidence in the light most favorable to the non-
movant, indulging every reasonable inference and resolving any doubts against the
motion. Buck v. Palmer, 381 S.W.3d 525, 527 (Tex. 2012) (per curiam); City of Keller v.
Wilson, 168 S.W.3d 802, 824 (Tex. 2005).
When both parties move for summary judgment and the trial court grants one
motion and denies the other, we review all the summary judgment evidence, determine
all issues presented, and render the judgment the trial court should have rendered.
Merriman v. XTO Energy, Inc., 407 S.W.3d 244, 248 (Tex. 2013).
B. Declaratory Relief
By its first issue7 on appeal, Farmers contends that the trial court erred by
rendering summary judgment declaring that it was required to offer retroactive renewed
HO-B policies to all class members. In particular, Farmers argues that it was not required
to renew under the plain language of the policy or under the insurance code. By its third
issue, Farmers argues that the trial court lacked subject matter jurisdiction to compel
renewal of the HO-B policies.
1. Applicable Law
In general, the goal of contract interpretation is to ascertain the parties’ true intent
as expressed by the plain language they used. Great Am. Ins. Co. v. Primo, 512 S.W.3d
890, 892–93 (Tex. 2017); see Gilbert Tex. Const., L.P. v. Underwriters at Lloyd’s London,
7 In its appellate brief, Farmers presents one “primary issue” with seven “sub-issues.” The “primary
issue” argues generally that the trial court erred by entering the November 23, 2010 and June 21, 2011
summary judgment orders. We consider Farmers’ “sub-issues” to be the issues presented for review in
this case. See TEX. R. APP. P. 38.1(f).
9
327 S.W.3d 118, 126 (Tex. 2010) (explaining that “we look at the language of the policy
because we presume parties intend what the words of their contract say”). But the
contract at issue here is a standard policy form prescribed by TDI, and so “the intent of
the parties is not what counts because they did not write the contract.” Greene v. Farmers
Ins. Exch., 446 S.W.3d 761, 766 (Tex. 2014) (citing Fiess v. State Farm Lloyds, 202
S.W.3d 744, 746 (Tex. 2006)). “Rather, the policy language is interpreted according to
the ordinary, everyday meaning of its words to the general public.” Id. (citing Fiess, 202
S.W.3d at 746). We construe policy language so that no provision is rendered
meaningless, and we may not insert language or provisions the parties did not use.
Primo, 512 S.W.3d at 892–93 (citing Nat’l Union Fire Ins. Co. v. Crocker, 246 S.W.3d
603, 606 (Tex. 2008)). We assign terms their ordinary and generally accepted meaning
unless the contract directs otherwise. Id. at 893. If the language lends itself to a clear
and definite legal meaning, the contract is not ambiguous and it will be construed as a
matter of law. Id. (citing Am. Mfrs. Mut. Ins. Co. v. Schaefer, 124 S.W.3d 154, 157 (Tex.
2003)).
2. Summary Judgment Motions and Evidence
Geter’s first summary judgment motion argued that, under the unambiguous terms
of the policy, Farmers’ non-renewal of the HO-B policy was improper. She attached the
following documents to her motion: (1) her original petition; (2) her non-renewed HO-B
policy; (3) the non-renewal notice sent by Farmers; (4) the substitute HO-A policy Farmers
offered to her; (5) a State Board of Insurance order dated November 23, 1993, requiring
the inclusion of an endorsement in all homeowners insurance policies regarding the
10
insurer’s refusal to renew8; (6) the trial court’s order certifying the class; (7) a November
14, 2001 letter from a Farmers executive to the Commissioner of Insurance; (8) an excerpt
from a transcript of a trial court hearing on class certification; (9) a 2002 “Application for
Emergency Cease and Desist Order” filed by TDI, alleging that Farmers “unfairly
overcharg[ed] policyholders for HO-A coverage”; (10) an “Emergency Cease and Desist
Order” issued in 2002 by Commissioner of Insurance pursuant to TDI’s application; and
(11) an affidavit by Geter’s counsel attesting to the authenticity of the exhibits.
As noted above, the HO-B policy at issue here contained a section entitled
“Refusal to Renew” which was comprised of four paragraphs. Paragraph (a) explained
that Farmers “may not refuse to renew this policy because of claims for losses resulting
from natural causes.” Paragraph (b) stated that Farmers “may not refuse to renew this
policy solely because [the insured is] an elected official.” Paragraph (c) set forth that
Farmers “may refuse to renew” the policy if the insured filed “three or more claims under
the policy in any three year period that do not result from natural causes.” Paragraph (d)
provided notice requirements in the event that Farmers decided not to renew the policy,
and stated: “If we fail to give [the insured] proper notice of our decision not to renew, [the
insured] may require us to renew the policy.”9
8 The endorsement (designated “HO-350”) required by the 1993 order was identical to paragraph
(c) of the “Refusal to Renew” section in Geter’s HO-B policy. The 1993 order stated that insurers may
discontinue the use of the endorsement when the amended language has been incorporated into the
homeowners coverage forms promulgated by TDI.
9In her motion, Geter pointed out that a “Consumer Bill of Rights for Homeowners and Renters
Insurance,” promulgated by TDI, was attached to the non-renewed HO-B policy. Regarding the refusal to
renew, the “Consumer Bill of Rights” largely mirrored the terms of the policy, stating in part as follows:
8. If the insurance company does not mail you notice of non-renewal at least 30 days before
the policy expires, you have the right to require that your policy be renewed.
9. You have the right to a written explanation of an insurance company’s decision to cancel
or not to renew your policy. You must request the explanation.
11
In her summary judgment motion, Geter asserted:
[A] consumer reading the non[-]renewal provisions would understand that
her policy couldn’t be non[-]renewed just because she was paid for a
hurricane claim; that she was protected up to a set threshold for non-
weather claims (and entitled to notice if Farmers intended to non[-]renew);
and, that only filed and paid non-weather claims could be considered to
justify non[-]renewal based on paid claims.
She further argued that it is undisputed that “Farmers chose to rely on paid claims to
justify its blanket non[-]renewal of the HO-B policies owned by the class.” In support of
that position, she cited the January 4, 2002 notice of non-renewal, which stated:
“Because of substantial losses which we have incurred for the homeowners and dwelling
lines of insurance in Texas, we regrettably must inform you that we will no longer offer
property insurance coverage in the state of Texas under the policy form you currently
have.” Geter also pointed to a 2001 letter from John P. Hageman, Farmers’ “Texas
Executive Officer,” to then-Commissioner of Insurance Jose Montemayor. In the letter,
Hageman stated:
We are not withdrawing from the homeowners insurance market in the State
of Texas. On the contrary, we have been in the homeowners insurance
business in Texas for over 50 years, and we remain committed to this
business. Our decision to offer our insured the HO[-]A policy upon renewal,
and not the HO[-]B, is motivated primarily by the dramatic increases that we
have experienced for water, mold and foundation claims, and the resultant
underwriting losses.
....
12 Your insurance company cannot cancel or refuse to renew your policy because you have
filed claims for damage from natural causes, including weather-related damage. However,
your insurance company can cancel your policy for weather-related claims during the first
90 days of the initial policy period.
13. Your insurance company cannot refuse to renew your policy because you have filed claims
for damage that is not from natural causes unless:
• you have filed two or more of these claims in less than three years; and
• the insurance company has notified you that they may refuse to renew your policy
if you file a third claim within the three-year period.
12
As you are aware from the information we have provided to you, we have
lost about $600 million in this line of business in just the last two years. We
strongly believe that it is a demonstration of our commitment to our
policyholders that we are attempting to resolve this problem by offering the
HO[-]A policy, combined with an offer of replacement cost coverage for
dwelling/or contents [sic]. lt is our expectation that the vast majority of
HO[-]B customers will accept our offer of the HO[-]A policy.
(Emphasis added.)
3. Analysis
Generally, when there is no clause in a policy expressly granting a privilege or
imposing a duty of renewal, neither the insurer nor the insured have any right to compel
renewal. STEVEN PLITT, ET AL., COUCH ON INS. § 29:5 (3d ed. 2019). “Under such a policy,
the insurer may decline to renew the policy at the end of any premium payment period for
any reason whatever or for no reason at all.” Id.; see Madden v. Ind. Lumbermens Mut.
Ins. Co., 451 S.W.2d 764, 765 (Tex. App.—Dallas 1970, writ ref’d n.r.e.) (holding, where
policy did not set forth a duty or right of renewal, that “appellee had the right to decline to
renew appellant’s automobile insurance for any reason whatever, or for no reason at all”);
see also Am. Nat’l Ins. Co. v. Ball, 218 S.W. 71, 71–73 (Tex. App.—San Antonio 1920,
no writ) (holding, where “typical accident and health policy” was “for a definite term,” that
the “insurer reserved the right to decline to renew”); cf. Am. Nat’l Ins. Co. v. Wilson State
Bank, 480 S.W.2d 296, 298 (Tex. App.—Amarillo 1972, no writ) (considering policy
explicitly providing, unlike here, that “[insurer] shall not have the right to refuse to renew
any Benefit of this policy during the Renewal Period of such Benefit unless, at the same
time, it declares its intention to non-renew all policies of the same class which were issued
on this form in the same state and county”).
Here, however, the “Refusal to Renew” section purports to restrict Farmers’
general right to decline to renew the policy. Paragraph 6(d) states that the insured “may
13
require” Farmers to renew if Farmers does not give “proper notice” of non-renewal.
Though Farmers timely notified Geter of its intent to non-renew the HO-B policy, Geter
argues that the notice was “[im]proper” because the non-renewal was “because of claims
for losses resulting from natural causes,” which is prohibited by paragraph 6(a). Thus, to
be entitled to summary judgment on whether she was entitled to renewal, Geter had to
establish as a matter of law that Farmers’ decision to non-renew was made “because of
claims for losses resulting from natural causes.” See TEX. R. CIV. P. 166a(c).
We conclude that Geter met her burden. According to the notice of non-renewal,
Farmers made the decision not to renew “[b]ecause of substantial losses which we have
incurred for the homeowners and dwelling lines of insurance in Texas . . . .” Hageman’s
letter further explains that the “substantial losses” which Farmers suffered were
“underwriting losses” that resulted from the “dramatic increases that we have experienced
for water, mold and foundation claims . . . .” The notice and the letter, taken together,
establish that (1) the decision to non-renew was made “because of claims,” and (2) those
claims were “for losses resulting from natural causes”—i.e., “water, mold and foundation
claims.” Farmers did not produce any evidence controverting the notice or the letter or
otherwise generating a fact issue with regard to its reasons for non-renewal. See id.
As in its first summary judgment motion, Farmers argues on appeal that there was
nothing in the policy that prohibited it from “non-renewing all HO-B policies on a statewide
basis.” Farmers contends that the trial court’s judgment “effectively inserted the following
language” in the “Refusal to Renew” section: “Absent the circumstances set forth in
Sections a., b., or c., this policy will be renewed at the conclusion of its term.” We disagree
that the trial court added language to the policy that was not already implicit in its terms.
14
As noted, an insurer generally has the right to refuse to renew for any reason or for no
reason at all. See Madden, 451 S.W.2d at 765. But parties may contract otherwise. And
by providing that Farmers “may not refuse to renew” under certain circumstances, the
policy clearly restricts the types of situations under which Farmers could choose to non-
renew. In those circumstances, regardless of whether the non-renewal is on an individual
or statewide basis, the policy necessarily implies that Farmers must renew.
Farmers additionally appears to suggest that the “claims for losses resulting from
natural causes” in paragraph 6(a) refers only to claims made by the insured whose policy
was non-renewed. Under this interpretation, Farmers would be free to non-renew as long
as the “claims for losses” giving rise to the non-renewal were filed by policyholders other
than the insured seeking renewal. But the plain language of the policy does not support
this interpretation. Paragraph 6(a) refers broadly to “claims” and it does not state,
explicitly or implicitly, that the “claims” must be made by the insured in order for the
paragraph to be invoked. We observe that the drafters of Form HO-B could have easily
achieved Farmers’ proposed outcome by adding the words “you filed” after “claims” in
paragraph 6(a). The drafters used similar limiting language in paragraph 6(c). The fact
that they did not do so in paragraph 6(a) strongly indicates an intent to prohibit non-
renewal on the basis of “claims for losses resulting from natural causes” filed by any
policyholder, not just the insured whose policy is at issue.
Farmers contends that the trial court’s construction of the policy generates an
absurd and illogical result. See Lane v. Travelers Indem. Co., 391 S.W.2d 399, 402 (Tex.
1965) (refusing to construe insurance policy in manner which would lead to absurd
results). It argues that “it is undisputed that an insurer may refuse to renew a policy on
15
underwriting grounds; that is, if the structure does not meet the insurer’s underwriting
guidelines, i.e., the home is in significant disrepair, has a leaky roof, or problems with
plumbing, heating or cooling systems.” Farmers asserts that, under the trial court’s ruling,
it would be “required to issue policies to homeowners even if their property is in disrepair
because disrepair is not listed in Section 6.” Again, we disagree. Farmers retains its right
to refuse to renew for any reason, or for no reason at all, as long as it provides “proper
notice,” and as long as the reason is not one of the ones prohibited under the policy.
Unfortunately for Farmers, the evidence establishes that the reason for its non-renewal
in this case was one of the reasons specifically prohibited under the policy. Accordingly,
the trial court did not err in ruling that Geter was entitled to renewal under the terms of the
policy. We overrule Farmers’ first issue.
C. Subject Matter Jurisdiction
1. Rate-Setting
By part of its second issue, Farmers argues that the trial court lacked subject
matter jurisdiction to order a particular premium rate for the renewed HO-B policies.
Specifically, Farmers contends that the trial court’s order violates constitutional separation
of powers because exclusive jurisdiction to set rates lies with TDI.10 Subject matter
jurisdiction presents a question of law which we review de novo. City of Houston v. Rhule,
417 S.W.3d 440, 442 (Tex. 2013).
Under the separation of powers doctrine, governmental authority vested in one
department of government cannot be exercised by another department unless expressly
10 Similarly, Farmers contends by its third issue that the court lacked subject matter jurisdiction to
compel renewal of the HO-B policies because TDI has exclusive jurisdiction to regulate policy forms.
16
permitted by the constitution. Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440,
444 (Tex. 1993); see TEX. CONST. art. II, § 1. The subject matter jurisdiction of a district
court is limited by this doctrine. Tex. Ass’n of Bus., 852 S.W.2d at 444; see TEX. CONST.
art. V, § 8 (“District Court jurisdiction consists of exclusive, appellate, and original
jurisdiction of all actions, proceedings, and remedies, except in cases where exclusive,
appellate, or original jurisdiction may be conferred by this Constitution or other law on
some other court, tribunal, or administrative body.”).
Farmers argues that “rate-making” is an authority exclusively vested in the
legislature, and that while the legislature may delegate that authority to administrative
agencies, it may not delegate that authority to the judiciary. See Daniel v. Tyrrell & Garth
Inv. Co., 93 S.W.2d 372, 375 (Tex. 1936) (noting that, because insurance is “a business
affected by a public interest,” “the Legislature has the power to provide reasonable rules
and regulations governing its policy forms and rates,” and this power “does not appertain
to the judicial department of our government”). It notes that, since 2003, insurers have
been prohibited from offering homeowners insurance policies without obtaining rate
approval from TDI.11 Farmers posits that the trial court’s judgment setting a premium rate
11 The Austin court of appeals has explained:
From 1991 through 2003, Texas insurance companies operated under a system of flexible
rate setting, which allowed insurers to charge up to 30 percent more or less than a state-
promulgated benchmark rate. During that time period, in an effort to avoid regulation,
insurance companies began shifting more and more of their business toward unregulated
branches called Lloyd’s companies. Originally unregulated because they generally
covered specialty risks at lower-than-standard rates, Lloyd’s companies grew from about
20 percent of the market in 1991 to about 95 percent of the market in 2003. Thus, by 2003,
only five percent of the Texas homeowners insurance market was regulated. In this mostly
unregulated market, Texas consumers were paying the highest premiums in the country,
often for policies providing reduced coverage.
To address these issues, the Texas Legislature passed Senate Bill 14, which amended the
insurance code to establish a new system for regulating residential property insurance
rates. Under the new system, insurers were required to file their rates with TDI, and TDI
would then review and either approve or disapprove those rates.
17
for the renewed HO-B policies “usurp[s] the jurisdiction of the TDI, which had no
opportunity to review and approve the rate determined by the trial court as required by
present law.”
Farmers additionally observes that, in her first motion for summary judgment,
Geter did not ask the trial court to set the premium rate; rather, she requested a
declaration that “[t]he premium to be charged for the Renewal Policy shall be determined
by [TDI].” And Farmers points to the Beaumont court of appeals’ 2007 opinion affirming
class certification in this case, which in part rejected Farmers’ assertion that certification
was improper because “it usurps the role of the TDI.” Farmers Group, Inc. v. Geter, No.
09-05-00386-CV, 2006 WL 4674359, at *3 (Tex. App.—Beaumont July 26, 2007, pet.
denied) (mem. op.). There, the court stated: “Even if the TDI may be involved in setting
the rate for the HO-B policy if the class is successful in requiring Farmers to renew the
policy, this is a post-litigation administrative matter not affecting the initial class
certification.” Id.
We agree with Farmers that the trial court lacked subject matter jurisdiction to set
premium rates for retroactive renewed policies. The purpose of the statute authorizing
TDI to set rates is in part to “promote the public welfare by regulating insurance rates to
prohibit excessive, inadequate, or unfairly discriminatory rates.” TEX. INS. CODE ANN.
§ 2251.001. Under current law, insurers are required to file proposed rates, along with
supporting information, to TDI, and the Commissioner of Insurance may disapprove of
the rate and prohibit its use if it is deemed excessive or otherwise improper. See id.
§§ 2251.101, .104(b)(2). On the other hand, as of the beginning date of the renewed HO-
Geeslin v. State Farm Lloyds, 255 S.W.3d 786, 792 (Tex. App.—Austin 2008, no pet.) (citations omitted).
18
B policies as ordered by the trial court,12 there was no statute or rule in effect requiring
insurers to submit proposed rates to TDI for approval. Instead, prior to 2003, insurers
were permitted to charge up to thirty percent more or less than a benchmark rate
promulgated by TDI. Geeslin v. State Farm Lloyds, 255 S.W.3d 786, 792 (Tex. App.—
Austin 2008, no pet.).13 The parties dispute which version of the law should apply in this
unique situation, where the trial court has issued an order in 2018 compelling Farmers to
offer policies effective for a time period that ended more than fifteen years prior. But
under either version of the law, the TDI is the only entity authorized by law to determine
what premium an insurer may permissibly charge.14 The trial court therefore infringed on
TDI’s exclusive jurisdiction by setting premium rates for the retrospective HO-B policies.
See TEX. CONST. art. V, § 8; Daniel, 93 S.W.2d at 375; see also Geter, 2006 WL 4674359,
at *3.
2. Renewal
We have already held that the trial court did not err in determining that Geter was
entitled to renewal of the HO-B policies, given the terms of those policies and Farmers’
stated reason for the non-renewal. Farmers further argues by its second issue that, under
12As noted, the trial court ordered that the term of the renewed HO-B policies “shall be one year
beginning [on] the date the nonrenewal of [each class member’s] last HO-B policy became effective.” The
notice of non-renewal sent to Geter in 2002 stated that the expiration date of her policy was February 25,
2002. Therefore, at least as to Geter, the renewed policy ordered by the trial court would be effective from
February 25, 2002, to February 25, 2003.
13
The parties do not direct us to any evidence in the record showing what the applicable benchmark
rate was as of 2002, nor do they explain whether the rate set by the trial court in this case was within the
permissible range.
14 Farmers notes that two of the appellants, Farmers Insurance Exchange and Fire Insurance
Exchange, are “inter-insurance exchanges” and would therefore have been exempt from rate regulation
entirely in 2002. See TEX. INS. CODE ANN. § 942.003(a) (current version of statute). But the Geter class
includes all HO-B policyholders who received a notice of non-renewal “from one or more Defendants.”
Thus, the fact that two of the appellants would not have been subject to rate regulation in 2002 does not
affect our analysis.
19
the separation of powers doctrine, the trial court nevertheless lacked subject matter
jurisdiction to “order a particular policy form” for the retroactively-renewed policies. It
contends that TDI has the exclusive jurisdiction to authorize the use of policy forms, and
it argues that TDI prohibited the use of the particular form at issue here—the 2001 version
of the HO-B Policy Form—after December 31, 2002.
In response, Geter contends that the class merely sought to enforce the terms of
Farmers’ own policy, and to the extent those terms required renewal, they required
renewal of the same policy which had been in effect prior to the renewal. Geter further
notes that there was no prohibition against using the 2001 version of the HO-B Policy
Form as of 2002, which is when the policy period for the renewal policies was ordered to
begin. We agree on the latter point. The trial court did not infringe upon TDI’s exclusive
jurisdiction to approve policy forms because it ordered renewal of a form which,
undisputedly, was approved for use by the TDI as of the time it was ordered to be
effective.
Farmers’ second issue is sustained in part and overruled in part.
D. Specific Performance
By its fourth issue, Farmers contends that the award of specific performance was
improper for several reasons, including: (1) a policy cannot be issued or a premium fixed
for a term that has already expired; (2) the essential terms of the renewed policies were
uncertain; (3) the class members did not plead or prove that they were ready, willing, and
able to perform; and (4) there was no mutuality of obligation.
Specific performance is an equitable remedy that may be awarded upon a showing
of breach of contract. Yazdani-Beioky v. Sharifan, 550 S.W.3d 808, 829 (Tex. App.—
20
Houston [14th Dist.] 2018, pet. denied); Stafford v. S. Vanity Magazine, Inc., 231 S.W.3d
530, 535 (Tex. App.—Dallas 2007, pet. denied). A party seeking specific performance
must plead and prove: (1) compliance with the contract including tender of performance
unless excused by the defendant’s breach or repudiation; and (2) the readiness,
willingness, and ability to perform at relevant times. DiGiuseppe v. Lawler, 269 S.W.3d
588, 593–94, 601 (Tex. 2008); Yazdani-Beioky, 550 S.W.3d at 829. Specific performance
is not a separate cause of action; rather, it is an equitable remedy that is used as a
substitute for monetary damages when such damages would not be adequate.
Ifiesimama v. Haile, 522 S.W.3d 675, 685 (Tex. App.—Houston [1st Dist.] 2017, pet.
denied); Stafford, 231 S.W.3d at 535. The existence of an adequate remedy at law
forecloses the availability of equitable relief in the form of specific performance.
Sharyland Water Supply Corp. v. City of Alton, 354 S.W.3d 407, 423 (Tex. 2011).
Specific performance may be ordered “only if the essential terms of the contract
are expressed with reasonable certainty.” Johnson v. Snell, 504 S.W.2d 397, 398 (Tex.
1973); TLC Hosp., LLC v. Pillar Income Asset Mgmt., Inc., 570 S.W.3d 749, 768 (Tex.
App.—Tyler 2018, pet. denied); Paciwest, Inc. v. Warner Alan Props., LLC, 266 S.W.3d
559, 571 (Tex. App.—Fort Worth 2008, pet. denied). Farmers contends that specific
performance of the non-renewal provisions in the HO-B policy was improper because
those provisions did not specify the premium to be paid for any contemplated renewal
policy. We agree. The price of the premium to be paid is an “essential term” of an
insurance contract. See In re Tex. Ass’n of Sch. Bds., Inc., 169 S.W.3d 653, 658 (Tex.
2005) (orig. proceeding) (“The payment of the premium by the insured and the
assumption of a specified risk by the insurer are the essential elements of the contract of
21
insurance.”); Republic Nat’l Life Ins. Co. v. Hall, 232 S.W.2d 697, 699 (Tex. 1950) (“An
essential element to be agreed upon in a life insurance contract is the amount of the
premium.”). Here, the parties never agreed on a premium rate for a renewed HO-B policy
effective in 2002 and 2003, for the simple reason that Farmers never intended to offer
such a policy. The 2001 HO-B Policy Form did not specify that any particular rate would
apply in the event of renewal, and Geter has never argued that her entitlement to renewal
of the HO-B policy meant that she was also entitled to pay the same premium for the
renewed policy as she paid in 2001. Instead, Geter proposed that the premium rate
applicable to the renewed HO-B policy effective in 2002 and 2003 would be the same rate
actually charged by Farmers for the HO-A policy effective for those same years. The trial
court adopted that proposal, but it was improper to order specific performance of a
contract whose price terms were not set forth with reasonable certainty therein. See
Johnson, 504 S.W.2d at 398; TLC Hosp., LLC, 570 S.W.3d at 768; Paciwest, Inc., 266
S.W.3d at 571.
Moreover, as Farmers notes, courts have held that “a policy issued after the loss
is sustained is invalid.” Trinity Universal Ins. Co. v. Rogers, 215 S.W.2d 349, 353 (Tex.
App.—Dallas 1948, no writ); see U.S. Cas. Co. v. Rodriguez, 288 S.W. 487, 488 (Tex.
App.—San Antonio 1926, writ ref’d) (“[A] life policy, issued after the death of a party, or a
fire insurance policy issued after the loss, is invalid. An agent has no authority to issue a
policy to cover a known loss.”); see also Breslin v. Tex. Farmers Ins. Co., No. 05-99-
00036-CV, 2000 WL 960120, at *3 (Tex. App.—Dallas July 12, 2000, no pet.) (“[I]t is
contrary to public policy for an insurance company to knowingly assume a loss occurring
prior to insuring that loss.”). That is especially true in this case, where Farmers has been
22
ordered to offer a renewal HO-B policy for 2002 and 2003, but the class members are
under no mutual obligation to accept the offer. See Tex. Specialty Underwriters, Inc. v.
Tanner, 997 S.W.2d 645, 648 (Tex. App.—Dallas 1999, pet. denied) (observing that “an
insured cannot be forced to renew a policy that he does not want”); see also TLC Hosp.,
LLC, 570 S.W.3d at 771 (“[I]f the option is properly accepted the optionor is bound thereby
and the optionee may obtain specific performance.”); Smith v. Hues, 540 S.W.2d 485,
490 (Tex. App.—Houston [14th Dist.] 1976, writ ref’d n.r.e.) (noting that “mutuality of
remedy at the inception of the contract is not an essential element in a suit for specific
performance” where the party seeking specific performance has itself already performed).
Under the trial court’s order in this case, the Geter class members would be able to decide
whether or not to pay for the retroactive renewal HO-B policy with full knowledge of
whether or not they had sustained covered losses during the renewal policy period. We
agree with Farmers’ argument that
[f]orcing Farmers to retroactively pay out claims for potentially thousands of
insureds who already know that they have suffered a covered loss without
counterbalancing those payments with premiums from insureds who did not
suffer a covered loss would be financially catastrophic to Farmers or any
insurer. It also provides an unjust windfall to the class members by allowing
them to choose to buy an HO-B policy only if the damages they could
recover exceed the cost of the policy.
For the foregoing reasons, we conclude that the trial court erred by awarding
specific performance of the HO-B policy’s non-renewal provisions as a remedy for
Farmers’ breach of contract. Instead, the trial court should have granted Farmers’ second
summary judgment motion to the extent it argued that specific performance is unavailable
as a remedy in this case. We sustain Farmers’ fourth issue.
E. Attorney’s Fees and Costs
By its seventh issue, Farmers contends that the trial court erred in granting
23
attorney’s fees and costs to the Geter class. It contends that the award of fees should be
reversed because the Geter class is not entitled to declaratory judgment for the reasons
set forth in its other issues.
In a suit seeking declaratory relief under the UDJA, the trial court “may award costs
and reasonable and necessary attorney’s fees as are equitable and just.” TEX. CIV. PRAC.
& REM. CODE ANN. § 37.009. The statute does not require that a party prevail on the
merits in order to be awarded fees. See id.; Barshop v. Medina Cty. Underground Water
Conservation Dist., 925 S.W.2d 618, 637 (Tex. 1996) (rejecting argument that party had
to “substantially prevail” in order to recover attorney’s fees under UDJA). Though we
have found that specific performance was not an appropriate remedy under the particular
facts of this case, we have also concluded that the trial court did not err in determining
that Geter was entitled to renewal of the HO-B policy under the policy’s terms. Therefore,
the class was entitled to declaratory relief in that regard. Farmers does not raise any
other argument challenging the fee award. Accordingly, its seventh issue is overruled.
F. Pleas In Intervention
In their appeal, Hooks, Nolen, and Blanks (the intervenors) argue that the trial court
erred in striking their pleas in intervention seeking attorney’s fees.
1. Standard of Review and Applicable Law
We review a ruling on a motion to strike an intervention for abuse of discretion.
Mendez v. Brewer, 626 S.W.2d 498, 499 (Tex. 1982); Jenkins v. Entergy Corp., 187
S.W.3d 785, 795 (Tex. App.—Corpus Christi–Edinburg 2006, pet. denied). A trial court
abuses its discretion if it acts without reference to guiding rules and principles. Downer
v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241 (Tex. 1985).
24
Texas Rule of Civil Procedure 60 provides that “[a]ny party may intervene by filing
a pleading, subject to being stricken out by the court for sufficient cause on the motion of
any party.” TEX. R. CIV. P. 60. Although the trial court has broad discretion in determining
whether an intervention should be struck, it is an abuse of discretion to strike a plea in
intervention if: (1) the intervenor could have brought the same action, or any part thereof,
in his own name, or if the action had been brought against him, he would be able to defeat
recovery, or some part thereof; (2) the intervention will not complicate the case by an
excessive multiplication of the issues; and (3) the intervention is “almost essential to
effectively protect the intervenor’s interest.” Guar. Fed. Sav. Bank v. Horseshoe
Operating Co., 793 S.W.2d 652, 657 (Tex. 1990).
2. Analysis
Hooks and Nolen were Farmers HO-B policyholders and members of the Geter
class; Blanks is a law firm that represented Hooks and Nolen in their efforts to intervene
both in the Travis County litigation and the instant class action. In its motion to strike the
class action interventions, Farmers argued: (1) the intervenors did not have a present
justiciable interest in the case; (2) the interventions were untimely because the merits of
the case had already been decided by the trial court’s partial summary judgment orders;
(3) the award of fees is barred by res judicata because the Travis County court already
declined their request for fees; and (4) there is no legal basis to award fees because
Blanks was not designated as class counsel under Rule 42. The trial court did not specify
which grounds it relied upon to strike the intervention.
In response, Hooks and Nolen observe that, had they not intervened in the Travis
County suit and obtained the carve-out in the settlement agreement’s release provision,
25
“there would be no Geter Class Action to intervene in” because the claims made in the
class action would have otherwise been released. They contend that they necessarily
had a justiciable interest in the Geter class action because they were members of the
class designated in that case, and that res judicata cannot apply because the fees they
are seeking pertain only to the causes of action raised in the class action—i.e., the ones
carved out of the release. Finally, the intervenors note that the notice provided to the
Geter class members stated that any class member “may enter an appearance through
counsel if the member so desires,” and they argue that, although the trial court had
already rendered partial summary judgment in favor of the class by the time they
intervened in the suit, intervention is generally permissible at any time until a final
judgment is rendered. See First Alief Bank v. White, 682 S.W.2d 251, 252 (Tex. 1984)
(“[A] plea in intervention comes too late if filed after judgment and may not be considered
unless and until the judgment has been set aside.”); Malone v. Hampton, 182 S.W.3d
465, 468 (Tex. App.—Dallas 2006, no pet.) (“A non-party successfully intervenes if he
files a plea in intervention prior to entry of judgment and the court does not strike the plea
on motion of a party.”).
On appeal, Farmers contends that the untimeliness of the interventions provided
“sufficient cause” for the trial court to grant the motion to strike. See TEX. R. CIV. P. 60.
In determining whether untimeliness constitutes sufficient cause to strike an intervention,
courts consider: (1) the length of time during which the would-be intervenor should have
known of its interest in the case before attempting to intervene; (2) the extent of prejudice
that the existing parties may suffer as a result of the would-be intervenor’s failure to apply
for intervention as soon as it actually knew or should have known of its interest in the
26
case; (3) the extent of prejudice the would-be intervenor would suffer if intervention is
denied; and (4) the existence of unusual circumstances militating either for or against a
determination that the application is timely. Ross v. Marshall, 426 F.3d 745, 754 (5th Cir.
2005); see In re Lumbermens Mut. Cas. Co., 184 S.W.3d 718, 726 (Tex. 2006) (orig.
proceeding) (stating that the factors articulated in Ross are also useful in determining the
“timeliness of a virtually-represented party’s effort to invoke appellate rights”). These
factors “give structure” to the timeliness analysis, but the “analysis remains contextual”
and “should not be used as a tool of retribution to punish the tardy would-be intervenor,
but rather should serve as a guard against prejudicing the original parties.” Ross, 426
F.3d at 754 (internal quotations omitted).
Here, the intervenors were aware of their interest in the Geter class action since
at least 2003, when they filed their Travis County plea in intervention which specifically
mentioned the Geter litigation. Farmers argues that the thirteen-year gap between that
time and June of 2016—when Hooks and Nolen first sought to intervene in the underlying
case—supports the trial court’s ruling. It notes that Hooks and Nolen’s plea sought, in
addition to attorney’s fees, a “modif[ication]” of the previously-granted declaratory relief,15
and it suggests that allowing the intervention therefore may have delayed the final
disposition of the case. However, beyond the theoretical possibility of delay in obtaining
a final judgment—in a case that had already been pending for fourteen years as of the
15 Specifically, even though the trial court had already granted summary judgment on the premium
issue in 2011, the 2016 plea in intervention filed by Hooks and Nolen stated:
Intervenors further petition the Court to modify the scope of declaratory relief granted in its
Partial Summary Judgment by declaring that the class members had and have an absolute
right to renew their HO-B policies that Farmers refused to renew, leaving for later
supplemental relief, if an actual dispute arises, the issue of premiums fairly to have been
charged or still owing for such renewals or successive renewals.
27
time of the intervention—Farmers does not articulate how or to what extent it would have
been substantively prejudiced had Hooks and Nolen been permitted to intervene in 2016.
See id.
The final judgment in the Travis County case—which incorporated the settlement
agreement, which in turn contained the release with the carve-out provision allowing the
Geter class action to proceed—was not rendered until February 2016. Hooks and Nolen
filed their intervention in the class action about four months later. We conclude that, under
the “unusual circumstances” presented in this case, the intervention filed by Hooks and
Nolen was timely. See id. The trial court abused its discretion if it granted the motion to
strike on the basis of untimeliness.
Farmers’ other arguments in favor of striking the intervention also lack merit. It is
undisputed that Hooks and Nolen are properly considered members of the Geter class
under the class definition provided in the certification order; therefore, Hooks and Nolen
had a justiciable interest in the litigation. See In re Union Carbide Corp., 273 S.W.3d 152,
155 (Tex. 2008) (orig. proceeding) (noting that a justiciable interest “must be such that if
the original action had never been commenced, and he had first brought it as the sole
plaintiff, he would have been entitled to recover in his own name to the extent at least of
a part of the relief sought”). Res judicata does not bar intervenors’ request for attorney’s
fees in this case because, to the extent the Travis County district court passed judgment
on intervenors’ entitlement to such fees, that ruling was limited only to the work done that
was reasonable and necessary to the prosecution of that case. See Travelers Ins. Co. v.
Joachim, 315 S.W.3d 860, 862 (Tex. 2010) (“The party relying on the affirmative defense
of res judicata must prove (1) a prior final determination on the merits by a court of
28
competent jurisdiction; (2) identity of parties or those in privity with them; and (3) a second
action based on the same claims as were or could have been raised in the first action.”).
The issue of whether Hooks and Nolen incurred attorney’s fees which were reasonable
and necessary to prosecution of the Geter class action was not determined in the Travis
County case, nor could it have been raised by the intervenors there. See id. Finally,
though Hooks and Nolen do not dispute that the class has been adequately represented
by class counsel appointed under Rule 42, the rule does not explicitly state that the trial
court’s authority to award fees in a class action is limited to those attributable to work
performed by appointed class counsel. See TEX. R. CIV. P. 42(g), (h), (i). Instead, as
noted, the recovery of attorney’s fees is permitted by statute in declaratory judgment
actions. See TEX. CIV. PRAC. & REM. CODE ANN. § 37.009. It is undisputed that, but for
the intervention of Hooks and Nolen in the Travis County proceeding, the claims raised
by the Geter class would have been released and the class members left with no relief.
A trier of fact should be afforded the opportunity to determine whether the fees incurred
by the intervenors in that regard were reasonable and necessary to the prosecution of the
class action.
For the foregoing reasons, we conclude that the trial court erred in striking the plea
in intervention of Hooks and Nolen to the extent they seek recovery of attorney’s fees
under the UDJA. We sustain their issue on appeal.16
16 As to Blanks’s intervention, the intervenors additionally argue that Farmers’ motion to strike was
improperly granted because the motion was not served on class counsel or on Blanks, in violation of Texas
Rules of Civil Procedure 21 and 21a. We need not address this argument in light of our conclusion that the
trial court improperly struck the intervention of Hooks and Nolen, which sought the same relief as Blanks’s
intervention—i.e., fees incurred for Blanks’s legal work on their behalf. See TEX. R. APP. P. 47.1.
29
III. CONCLUSION
Because specific performance was an inappropriate remedy in this case, we
reverse the trial court’s judgment compelling Farmers to offer or issue retroactive renewed
HO-B policies to the Geter class members. We further reverse the trial court’s order
granting Farmers’ motion to strike the intervention filed by Hooks and Nolen to the extent
they seek recovery of attorney’s fees under the UDJA.
We remand the cause to the trial court for further proceedings consistent with this
opinion, including but not limited to determination of: (1) what remedy, if any, is
appropriate and lawful under the circumstances to address Farmers’ improper non-
renewal of the HO-B policies at issue; and (2) whether Hooks and Nolen are entitled to
recover attorney’s fees under the UDJA, and if so, what amount of fees is reasonable and
necessary. The remainder of the trial court’s judgment is affirmed.
DORI CONTRERAS
Chief Justice
Delivered and filed the
10th day of October, 2019.
30