Case Information

CASE NO. 03-15-00017-CV

IN THE THIRD COURT OF APPEALS 3rd COURT OF APPEALS AUSTIN, TEXAS

AUSTIN, TEXAS $2 / 9 / 2015$ 4:54:16 PM JEFFREY D. KYLE Clerk

Rose Ena Cantu, Appellant

Southern Insurance Company and Steve Dollery, Appellees

On Appeal from the $21^{st}$ Judicial District Court Bastrop County, Texas Hon. Carson Campbell

Motion to Strike the Notice of Appeal, Dismiss for Lack of Jurisdiction, and Award Costs

To The Honorable Court of APEeAls:

Appellees Southern Insurance Company and Steve Dollery ask the Court to dismiss this appeal for lack of jurisdiction and award Appellees their fees for filing this motion.

Appellees are Southern Insurance Company and Steve Dollery; Appellant is Rose Ena Cantu.
The $21^{st}$ Judicial District Court of Bastrop County, Texas, signed the interlocutory order dismissing Appellant Cantu's claims against Appellees on

*2 December 10, 2014, in Cause No. 29,358; Cantu et al. v. Texas Southern Insurance Company, et al. A copy of that order is attached hereto as Exhibit "A." 3. This Court has authority to dismiss an appeal for lack of jurisdiction. Tex. R. App. P. 42.3(a). The Court should dismiss this appeal because the order being appealed is a non-appealable interlocutory order. See City of Houston v. Kilburn, 849 S.W.2d 810, 811 (Tex. 1993). In its order dismissing Cantu's claims, the trial court did not order severance of those claims from the claims of the remaining plaintiffs. In addition, Appellees Southern and Dollery had a pending counterclaim against Cantu, which was not resolved by the interlocutory December 10, 2014 order. A file-stamped copy of Southern's and Dollery's First Amended Answer and Counterclaim, filed November 17, 2014, is attached hereto as Exhibit "B." 4. Appellees ask that the Court award them their costs for this frivolous appeal. See Tex. R. App. P 45; Johnson v. Johnson, 948 S.W.2d 835, 840 (Tex. App.-San Antonio, writ denied) (court has inherent power to sanction). An appeal is frivolous if brought without observing the minimal procedural requirements for an appeal. See Diana Rivera &; Assocs. v. Cabrillo, 986 S.W.2d 795, 799 (Tex. App.-Corpus Christi 1999, pet. denied) (appellant ignored statute about interlocutory appeals and case law adverse to her position). In addition to filing the premature notice of appeal, Appellant misrepresented in her docketing

*3 statement that the interlocutory order of dismissal was a final judgment that disposed of all parties and issues in the listed trial court cause number. Before filing this motion, counsel for Appellees wrote counsel for Appellant on January 23, 2015, and February 5, 2015, asking that they voluntarily dismiss this appeal. Copies of that correspondence are attached hereto as Exhibit "C." Counsel for Appellant never responded, necessitating this motion. Appellees request that the Court award them $$ 450.00$ as damages or sanctions, which represents 2.2 hours of attorney time at $$ 200.00$ per hour for researching and drafting this motion and the $$ 10.00$ filing fee. 5. The undersigned declares under penalty of perjury that the facts stated in this document are true and correct.

WHEREFORE, PREMISES CONSIDERED, Appellees Southern Insurance Company and Steve Dollery respectfully pray that the Court grant this motion, dismiss Appellant Rose Ena Cantu's appeal, award Appellees their costs for responding to this frivolous appeal, and for such other and further relief to which Appellees may show themselves justly entitled.

*4 Respectfully submitted, HANNA &; PLAUT, L.L.P. 211 East Seventh Street, Suite 600 Austin, Texas 78701 Telephone: (512) 472-7700 Facsimile: (512) 472-0205

By: /s/ Eric S. Peabody Catherine L. Hanna State Bar No. 08918280 channa@hannaplaut.com Eric S. Peabody State Bar No. 00789539 epeabody@hannaplaut.com Laura D. Tubbs State Bar No. 24052792 ltubbs@hannaplaut.com COUNSEL FOR APPELLEES SOUTHERN INSURANCE COMPANY AND STEVE DOLLERY

CERTIFICATE OF CONFERENCE

On January 23, 2015, and February 5, 2015, counsel for Appellees Southern Insurance Company and Steve Dollery attempted to confer with counsel for Appellant Rosa Ena Cantu regarding the substance of this motion. Counsel for Appellant did not respond. /s/ Eric S. Peabody Eric S. Peabody

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing Motion to Strike the Notice of Appeal, Dismiss for Lack of Jurisdiction, and Award Costs has been forwarded by e-service and/or facsimile on the $9^{th}$ day of February, 2015 to:

Via Facsimile: (713) 467-8883 Robert L. Collins M. Chad Gerke

Audrey Guthrie P.O. Box 7726

Houston, Texas 77270-7726 Via Facsimile: (713) 467-8883 Christopher D. Lewis 1721 West T.C. Jester Blvd. Houston, Texas 77008 Counsel for Appellant /s/ Eric S. Peabody Eric S. Peabody

*6 Exhibit A

CAUSE NO. 29,358

ORDER

ON THIS DAY came on for consideration Defendant Southern Insurance Company's and Steve Dollery's Plea in Abatement, Motion to Dismiss and Motion to Sever, and this Court, having considered the motion and plea, the response, the reply, the evidence on file, and the arguments of counsel, findst hat the motion and plea should be GRANTED.

Accordingly, it is ORDERED, ADJUDGED and DECREED that Cantu's claims against Southern Insurance Company and Steve Dollery are dismissed without prejudice.

SIGNED this

*8 Exhibit B

CAUSE NO. 29,358

| ROSE ENA CANTU, ROBERTA | § | IN THE DISTRICT COURT | | :--: | :--: | :--: | | GODWARD, GAIL SCHIAVONE- | § | | | FRANKE, WILMA MAYES, ADELE | § | | | AND DON THORNE, and ALEXIS | § | | | AND WILLIAM CHRISAN, | § | | | Plaintiffs | § | | | | § | | | | § | 21st JUDICIAL DISTRICT | | vs. | § | | | | § | | | TEXAS SOUTHERN INSURANCE | § | | | COMPANY, ALLSTATE TEXAS | § | | | LLOYD'S INC., STEVE DOLLERY, | § | | | TY HARLAN FLETCHER, and | § | | | JOSH RANDALL, | § | | | Defendants | § | BASTROP COUNTY, TEXAS |

DEFENDANTS SOUTHERN INSURANCE COMPANY'S AND STEVE DOLLERY'S FIRST AMENDED ANSWER AND COUNTERCLAIM

TO THE HONORABLE JUDGE OF SAID COURT:

COME NOW Defendants Southern Insurance Company ^[1] and Steve Dollery and file this First Amended Answer and Counterclaim to Plaintiffs' Original Petition, and would respectfully show the Court the following:

I.
GENERAL DENIAL

Pursuant to TEX. R. Civ. P. 92, Defendants deny each and every, all and singular, the allegations set forth in Plaintiffs' Original Petition and demand strict proof thereof at the final trial of this case.

II.
PLEA IN ABATEMENT

This suit was transferred from Dallas District Court (Dallas Cause No. DC-1307869). Before Plaintiffs filed this suit in Dallas, Southern had filed a declaratory action

*10

against Plaintiff Rose Ena Cantu in the $335^{th}$ District Court of Bastrop County regarding her wildfire claim. See Cause No. 29,079; Southern Insurance Company v. Rose Ena Cantu. Because that suit was filed first, the $335^{th}$ District Court acquired dominant jurisdiction over Cantu's claims against both Southern and Dollery. See Wyatt v. Shaw, 760 S.W.2d 247, 247-48 (Tex. 1988) ("When an inherent interrelation of the subject matter exists in two pending lawsuits, a plea in abatement in the second action must be granted. It is not required that the exact issues and all the parties be included in the first action before the second is filed, provided that the claim in the first suit may be amended to bring in all necessary and proper parties and issues."). Cantu never filed any counterclaims against Southern and did not join Dollery in the declaratory action. The Court should therefore grant the plea in abatement and dismiss Plaintiff Cantu's claims against Southern and Dollery. See Curtis v. Gibbs, 511 S.W.2d 263, 267 (Tex. 1974) ("Any subsequent suit involving the same parties and the same controversy must be dismissed if a party to that suit calls the second court's attention to the pendency of the prior suit by a plea in abatement."). ^[2]

III.
COUNTERCLAIM

Groundless Insurance Code Claims. Defendants Southern and Dollery allege that Plaintiff Cantu's causes of action under the Texas Insurance Code are groundless and brought in bad faith or brought for the purpose of harassment, so that Defendants are entitled to their attorneys' fees and court costs. See Tex. Ins. Code § 541.153. Before

*11 Plaintiff Cantu filed her suit in Dallas, she had filed suit again Southern and Dollery in this Court. See Cause No. 28,370; Rose Ena Cantu v. Southern Insurance Company and Steve A. Dollery, In the $21^{st}$ Judicial District Court, Bastrop County, Texas. Cantu never served Dollery in that case, even though it had been pending for approximately 18 months by the time Cantu nonsuited. Before the nonsuit, Cantu and Southern had engaged in appraisal, Southern had paid the appraisal award, and Southern had moved for summary judgment. Cantu nonsuited when her response to the motion for summary judgment was due. Because the appraisal negated Cantu's breach of contract and extracontractual claims - including her Insurance Code claims - asserting these causes of action after the appraisal in a new suit and against a Defendant Cantu failed to serve in her original suit demonstrates that they were brought to manipulate venue and to harass.

With regard to Dollery, Plaintiff Cantu does not distinguish his conduct from Southern's alleged failure to properly investigate or pay the amount to which she asserted she was entitled, which forms the only basis for her Insurance Code claims. See Petition 㟋 8a, 16-17. These allegations do not support any independent cause of action against Defendant Dollery, are groundless, and were bought in bad faith. Plaintiff Cantu also alleges that Defendants "misrepresented" coverage to her even though her claims involve only a dispute regarding the amount of loss. Plaintiff Cantu's extra-contractual Insurance Code claims are baseless.

In connection with this counterclaim, Defendants seek monetary relief of $$ 100, 000$ or less and non-monetary relief declaring that Plaintiff Cantu's causes of action under the Insurance Code are groundless.

*12

WHEREFORE, PREMISES CONSIDERED, Defendants respectfully pray that upon final hearing hereof, Plaintiff Cantu take nothing by her suit, that Defendants be discharged with their costs; and that Defendants have such other and further relief to which they may be justly entitled.

Respectfully submitted, HANNA &; PLAUT, L.L.P. 211 East Seventh Street, Suite 600 Austin, Texas 78701 Telephone: (512) 472-7700 Facsimile: (512) 472-0205 By: $◻$ Catherine L. Hanna State Bar No. 08918280 Eric S. Peabody State Bar No. 00789539 Laura D. Tubbs State Bar No. 24052792

ATTORNEYS FOR DEFENDANTS SOUTHERN INSURANCE COMPANY AND STEVE DOLLERY

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing document has been forwarded by e-service and/or facsimile on this the $17^{th}$ day of November 2014 to:

Via Facsimile: 713.467 .8883 Robert L. Collins P.O. Box 7726

Houston, Texas 77270-7726 Attorney for Plaintiffs Via Facsimile: 713.467 .8883 Christopher D. Lewis 1721 West T.C. Jester Blvd. Houston, Texas 77008 Attorney for Plaintiffs

Via Facsimile: 214.295.2664 Marc C. Lenahan P. Wes Black M. Nathan Barbera

Kathleen M. Kearney Lenahan Law, P.L.L.C. 2655 Villa Creek, Suite 204 Dallas, Texas 75234 Attorneys for Plaintiffs

*13 Via Facsimile: 512.708 .8777 Darrell S. Cockcroft Thompson, Coe, Cousins &; Irons, LLP 701 Brazos, Suite 1500 Austin, Texas 78701 Attorneys for Allstate Texas Lloyds's, Inc. and Ty Harlan Fletcher

*14 Exhibit C

*15

HANNAZPLAUT LLP

ATTURNEYS AT LAW

Southwest Tower 211 East Seventh Street, Suite 600 Austin, Texas 78701 Telephone (512) 472-7700 Facsimile (512) 472-0205 www.hannaplaut.com

January 23, 2015

Via Facsimile: 713.467 .8883

Robert L. Collins M. Chad Gerke

Audrey E. Guthrie P.O. Box 7726

Houston, Texas 77270-7726 Re: Cause No. 29,358; Rose Ena Cantu, Roberta Godward, Gail SchiavoneFranke, Wilma Mayes, Adele and Don Thorne, and Alexis and William Chrisan v. Texas Southern Insurance Company, Allstate Texas Lloyd's Inc., Steve Dollery, Ty Harian Fletcher, and Josh Randall; In the $21^{st}$ Judicial District Court of Bastrop County, Texas.

Third Court of Appeals Docket Number 03-15-0017-CV; Rose Ena Cantu v. Southern Insurance Company and Steve Dollery.

Counsel:

We have received your Notice of Appeal and appellate docketing statement in the above-referenced matter. Your appeal is premature because there is no final judgment. Southern and Mr. Dollery have a pending counterclaim against Ms. Cantu for the groundless Insurance Code claims she brought against them in bad faith. In addition, although Judge Campbell considered Southern's motion to sever, he did not order the claims and causes of action between Ms. Cantu and Defendants Southern and Dollery including Defendants' counterclaim - severed into a separate cause. Judge Campbell dismissed Ms. Cantu's claims, but this interlocutory order and Defendants' counterclaim remain part of Cause No. 29,378.

*16 Robert L. Collins M. Chad Gerke

Audrey E. Guthrie January 23, 2015 Page 2 of 2

Please let us know if you will voluntarily dismiss this premature appeal. We will seek our fees if a motion in the court of appeals becomes necessary.

Very truly yours,

cc: Christopher D. Lewis (via facsimile: (713) 467-8883) Laura D. Tubbs [Firm]

*17

FACSIMILE COVER SHEET

HANNA &; PLAUT, L.L.P.
Attorneys at Law
211 East Seventh Street, Suite 600
Austin, Texas 78701
Telephone (512) 472-7700
Facsimile (512) 472-0205

If there is a problem with transmission or if all pages are not received, please call (512) 472-7700 for re-transmission.

| TO: | Robert L. Collins | FAX NO.: | $713.467 .8883$ | | :-- | :-- | :-- | :-- | | | M. Chad Gerke | | | | | Audrey E. Guthrie | | | | | Christopher D. Lewis | | $713.467 .8883$ | | FROM: | Melanie Wade | DATE: | January 23, 2015 | | | For Eric S. Peabody | | |

RE: Cause No. 29,358; Rose Ena Cantu, Roberta Godward, Gail Schiavone-Franke, Wilma Mayes, Adele and Don Thorne, and Alexis and William Chrisan v. Texas Southern Insurance Company, Allstate Texas Lloyd's Inc., Steve Dollery, Ty Harlan Fletcher, and Josh Randall; In the $21^{st}$ Judicial District Court of Bastrop County, Texas.

Third Court of Appeals Docket Number 03-15-0017-CV; Rose Ena Cantu v. Southern Insurance Company and Steve Dollery.

Number of Pages including this cover page: 3 Comments:

*18

1 x Communication Result Report (Jan. 23, 2015 11:27AM) x x x

$2 ∣$ Hanan &; Plaut. L.P.

Date/Time: Jan. 23, 2015 11:26AM File No. Mode Destination $P_{E} (s)$ Result Page 2992 Memory TX 917134670003 P. 3 OK

FACSIMILE COVER SHISET

HanNa &; Plaut, L.L.P.

Astronep at Law 211 2bat Sermonk Street, Solon 600 Aistiln, Texas 78701 Telephone (212) 472-7700 Pensindia (212) 472-0203 If there is a problem with cancellation or if all pages are not received, please call (212) 472-7700 for re-ancarization.

| TO: | Robert L. Collins | PAX NO.: | 713.467 .8085 | | :-- | :-- | :-- | :-- | | | M. Chad-Garke | | | | | Andrew B. Gialcelis | | | | | Clarissipho D. Lewis | | 713.467 .8085 | | | | | | | FROM: | Malecie Wada | DATE: | January 21, 2015 | | | For Eric E. Prabusy | | |

RIS: Ceeon Ho, 22,959; Rose Ewa Canta, Robanta Ghelound, Goll Schloenen-Poodo, Wilma Meyes, Adala and Don Thoren, and Altele and William Chshinn v. Thase Denham Insurance Company, Allman Teany Lloyd's Inc., Dava Dollary, Ty Hanlon Flanker, and Josh Kandall; In the $21^{st}$ Inelieial District Court of Deatrop Cicstry, Tmax. Third Court of Agenda Docket Number 65-15-0517-CV; Rose Ewa Canta v. Denham Insurance Company and Dava Dollary.

Another of Pages including this cover page:

$x$ Commenta:

*19

Eric Peabody

Counsel:

I am following up on my correspondence of January 23, 2015, regarding your notice of appeal in Bastrop Cause No. 29,358. Please let us know if you will voluntarily dismiss this premature appeal.

Regards,

Eric Peabody Hanna &; Plaut, L.L.P. Southwest Tower 211 E. Seventh St., Ste. 600 Austin, Texas 78701 Tel: (512) 472-7700 Fax: (512) 472-0205 http://epeabody@hannaplaut.com

HANNA &; PLAUT LLP

The information contained in this electronic message may be attorney privileged and confidential information intended only for the use of the owner of the email address listed as the recipient of this message. If you are not the intended recipient, or the employee or agent responsible for delivering this message to the intended recipient, you are hereby notified that any disclosure, dissemination, distribution, or copying of this communication is strictly prohibited. If you have received this transmission in error, please immediately notify us by telephone at 512-472-7700, permanently delete the message, and return any printed copies of the original message to us at Hanna &; Plaut, L.L.P., 211 E. Seventh Street, Suite 600, Austin, TX 78701 via the United States Postal Service.

NOTES

$^{1}$ Southern Insurance Company has been misnamed as Texas Southern Insurance Company.

$^{2}$ Before the Dallas court transferred this cause, the court had ordered that Plaintiff Cantu's claims against Southern and Dollery be severed and that the claims against Southern be abated. Because Cantu never paid the fee to re-docket those claims, they were transferred with those of the other Plaintiffs to this Court. Southern and Dollery request that the Court re-order the severance of Cantu's claims against Southern and Dollery if necessary and dismiss Cantu's claims against both of them based on the dominant jurisdiction of the $335^{th}$ District Court.

This message is intended only for the use of the individual or entity to which it is addressed, and may contain information that is PRIVILEGED, CONFIDENTIAL and exempt from disclosure under applicable law. If the reader of this message is not the intended recipient, or the employee or agent responsible for delivering the message to the intended recipient, you are hereby notified that any dissemination, distribution or copying of this communication is strictly prohibited. If you have received this communication in error, please notify us immediately by telephone, and return the original to us by mail without making a copy. Thank you.

CERTIFICATE OF CONFERENCE

CERTIFICATE OF SERVICE

CAUSE NO. 29,358

ORDER

CAUSE NO. 29,358

DEFENDANTS SOUTHERN INSURANCE COMPANY'S AND STEVE DOLLERY'S FIRST AMENDED ANSWER AND COUNTERCLAIM

I. GENERAL DENIAL

II. PLEA IN ABATEMENT

III. COUNTERCLAIM

ATTORNEYS FOR DEFENDANTS SOUTHERN INSURANCE COMPANY AND STEVE DOLLERY

CERTIFICATE OF SERVICE

HANNAZPLAUT LLP

ATTURNEYS AT LAW

Via Facsimile: 713.467 .8883

Counsel:

FACSIMILE COVER SHEET

1 x Communication Result Report (Jan. 23, 2015 11:27AM) x x x

FACSIMILE COVER SHISET

HanNa &; Plaut, L.L.P.

Another of Pages including this cover page:

Eric Peabody

Counsel:

Regards,

HANNA &; PLAUT LLP

NOTES

I.
GENERAL DENIAL

II.
PLEA IN ABATEMENT

III.
COUNTERCLAIM