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Click here for the full text of this decision FACTS:Acadia Insurance Co. provided property insurance to Bemove LLC under a policy with an inception date of April 1, 2005. Bemove alleged that it suffered hail damage to the roofs of two structures covered by the policy on May 31, 2005. Accordingly, on Sept. 12, 2005, Bemove filed a claim with Acadia. In a letter dated Dec. 28, 2005, Acadia denied Bemove’s claim on the ground that the hail damage predated the inception date of the policy. Bemove filed suit on Aug. 26, 2006, alleging breach of contract, breach of the duties of good faith and fair dealing, and violations of the Texas Deceptive Trade Practices Act. On April 4, 2007, Bemove filed a motion to compel depositions and preclude appraisal. On April 6, 2007, Acadia filed a motion to invoke the appraisal clause of the insurance policy and a plea in abatement. The trial court heard the opposing motions regarding the appraisal on April 13, 2007. The trial court denied Acadia’s motions and granted the relief requested by Bemove. Acadia filed a petition for mandamus relief before the 7th Court of Appeals. HOLDING:The court denied the petition for mandamus relief. The record of the April 13, 2007, hearing revealed that Bemove argued that Acadia waived its right to demand an appraisal. In support of this argument, Bemove submitted a number of exhibits. Exhibit 4, a letter from Acadia’s office adjuster to Bemove, concluded by stating that Acadia’s inspection revealed “no apparent damage to the building['s] two roofs from wind/hail within the policy period of this policy. . . .” Exhibit 5, a letter to Bemove from Acadia’s counsel, dated Aug. 17, 2005, discussing the appraisal section of the insurance policy in question, was quite clear that Acadia did not think the claim in question was a covered event and did not believe it was required to submit the claim for an appraisal if there was no coverage. Finally, an attorney for Acadia unequivocally stated in Exhibit 5 that Acadia was not willing to waive its coverage issue. During the argument of the competing motions on April 13, 2005, the trial court discussed the issue of waiver at length with counsel for both sides. It is clear from those discussions, the court stated, that the trial court was attempting to make a factual determination about whether Acadia had waived its right to demand an appraisal by its Aug. 17, 2005 letter. By the granting of Bemove’s motions and the denial of Acadia’s motion, the court stated that it was clear that the trial court resolved this factual dispute against Acadia. Accordingly, the court stated it was not free to substitute its judgment for that of the trial court. The court rejected Acadia’s contention that the trial court’s determination was an erroneous application of law to the facts of the case. The exhibits, the court stated, clearly demonstrated that Acadia was aware of its right to require an appraisal. The trial court had before it evidence that Acadia intentionally and unequivocally relinquished the right so that it could challenge coverage and, thus, waived that right. Therefore, the court found that Acadia failed to establish its right to mandamus relief, because it failed to show that the trial court could reasonably have reached only one decision. OPINION:Hancock, J.; Campbell, Hancock and Pirtle, JJ.

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