Case Information
*0 FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 2/23/2015 1:20:01 PM JEFFREY D. KYLE Clerk NO. 03-15-00017-CV THIRD COURT OF APPEALS 2/23/2015 1:20:01 PM JEFFREY D. KYLE 03-15-00017-CV AUSTIN, TEXAS *1 ACCEPTED [4247198] CLERK IN THE COURT OF APPEALS FOR THE THIRD DISTRICT OF TEXAS AT AUSTIN
Rose Ena Cantu, Appellant vs.
Southern Insurance Company and Steve Dollery, Appellees Appeal from the 21 st Judicial District Court, Bastrop County, Texas Trial Court Cause No. 29,358 Hon. Carson Campbell, Presiding APPELLANT’S UNOPPOSED MOTION TO DISMISS APPEAL TO THE HONORABLE COURT OF APPEALS:
Appellant, Rose Ena Cantu, submits this unopposed Motion to Dismiss Appeal pursuant to Rule 42.1 of the Texas Rules of Appellate Procedure. Upon
conference with counsel for Appellees, they are unopposed to the dismissal of this
appeal.
Background Litigation between Rose Ena Cantu and Southern Insurance Company has
occurred in the 21 st District Court, the 193 District Court, the 335 th District Court, and in
this Court. Trial courts have assigned some five different cause numbers to controversies
involving Mrs. Cantu and Insurance Company (one court assigned two due to a
severance from its initial case), some of which also involve Adjuster. The first
counterclaim appearing in Plaintiff’s case file for litigation against Southern Insurance
Company and Dollery following their severance from the original litigation in the 193 rd
District Court was Defendants’ filing of February 4, 2015, denominated “Defendants
Southern Insurance Company’s and Steve Dollery’s Second Amended Answer and
Counterclaim”. This was, obviously, not present on December 10, 2014, when the
Honorable Judge Carson Campbell granted Defendant Southern Insurance Company’s
and Steve Dollery’s Plea in Abatement, Motion to Dismiss and Motion to Sever and
signed an Order to that effect – dismissing all Ms. Cantu’s claims. Two different lawyers
examined the file, found no counterclaim in it, and agreed that the Order disposed of all
claims and parties to the severed case. Appeal was taken. Exhibit A shows the contents of Plaintiff’s file of the appealed case.
Following Plaintiff’s Original Petition in the 193 rd District Court (Cause No. DC-13-
07869), Defendants Southern Insurance Company (“Insurance Company”) and Steve
Dollery (“Adjuster”) filed an Answer on August 16, 2013. That Answer included no
counterclaim. Ex. B. On November 5, 2013, the 193 rd District Court entered an Order
severing Cantu’s claims from other plaintiffs’ claims in that case. Ex. C. The Order
required the severed case to be captioned Rose Ena Cantu v. Southern Insurance
Company and Steve Dollery . Ex. C, p.2. The 193 District Court assigned Rose Ena
Cantu v. Southern Insurance Company and Steve Dollery the cause number DC-14-
10431. Although the 193 rd District Court did not grant Insurance Company’s or
Adjuster’s Motion to Transfer Venue, it did grant – following Insurance Company’s and
Adjuster’s severance from their case, but before any action had been taken to correct or
amend the caption in Cause No. DC-13-07869 – Allstate’s and its adjusters’ Motion to
Transfer venue. That case was transferred to the 21 st District Court in Bastrop, Texas and
assigned the Cause No. 29,358. On February 4, 2015, Insurance Company and Appraiser served a
Counterclaim on Ms. Cantu. See Exs. A and D. She was unaware of a prior
counterclaim. Upon service of Insurance Company’s and Adjuster’s Motion seeking fees
in this Court, counsel for Ms. Cantu reviewed movants’ exhibits and saw that Adjuster
had made a counterclaim against Ms. Cantu on November 17, 2014 in Cause No. 29,358
before the 21 st District Court. When served on Ms. Cantu originally, it had been filed
with the materials in the Allstate case from which Insurance Company’s case was
severed by the 193 District Court, and consequently not found with the materials in the
case that included Insurance Company. Ex. C. There is now pending before the 21 st
District Court a Motion to Sever the claims dismissed in the Order of December 10,
2014; that Motion is set to be heard March 4, 2015. If granted, it would render the
December 10, 2015 Order appealable.
Governing Law 4. Premature appellate filings are not per se abusive as intimated by Insurance Company’s and Adjuster. The Texas Rules of Appellate Procedure contain two
provisions expressly addressing premature appellate filings. “In a civil case, a
prematurely filed notice of appeal is effective and deemed filed on the day of, but after,
the event that begins the period for perfecting the appeal.” Rule 27.1(a), Tex. R. App. P.
Moreover, “[t]he appellate court may treat actions taken before an appealable order is
signed as relating to an appeal of that order and give them effect as if they had been taken
after the order was signed.” Rule 27.2, Tex. R. App. P.
5. Appellants are free to request dismissal by Motion. Rule 42.1(a)(1), Tex.
R. App. P. Since the dispute over fees is likely to require counsel to spend more time and
expend more costs and require their clients to incur more fees than simply re-filing the
inadvertently premature Notice of Appeal following the date the underlying matter
becomes appealable, Ms. Cantu prefers to dismiss and later re-file this appeal than to
waste her time and this Court’s on a fee dispute simply to stand on Rules 27.1(a) and 27.2
to render her appeal timely.
Conclusion and Prayer Appellant’s premature Notice of Appeal was filed in the good-faith belief that the Order from which relief was sought was a final, appealable Order and that it
disposed of all claims and all parties, and the Rules provide that this premature Notice of
Appeal should be deemed filed as soon as the subject Order does, in fact, become
appealable. However, in the interest of preventing unnecessary disputes, Appellant has
voluntarily filed a Motion to Dismiss the instant appeal so that an appeal can be taken at a
later time when it is unlikely to generate unnecessary, delaying, and cost-generating
controversy unrelated to its merits. The Court should grant the Motion, which is
unopposed.
WHEREFORE, PREMISES CONSIDERED, Appellant Rose Ena Cantu respectfully requests that her appeal be dismissed by her request, and for such other and
further relief to which is may be justly entitled.
Respectfully submitted, __________________________ ROBERT L. COLLINS Texas Bar No. 04618100 Audrey Guthrie Texas Bar No. 24083116 P.O. Box 7726 Houston, TX 77270 Telephone: (713) 467-8884 Fax: (713) 467-8883 E-mail: HoustonLaw2@aol.com CHRISTOPHER D. LEWIS Texas Bar No. 24032546 1721 West T.C. Jester Blvd. Houston, Texas 77008 E-mail: Lewis@Alumni.Duke.edu A TTORNEYS FOR A PPELLANT , R OSE E NA C ANTU *6 CERTIFICATE OF COMPLIANCE I certify that this document was produced on a computer using Microsoft Word and contains 1140 words, as determined by the computer software's word-
count function.
______________________________ Attorney for Rose Ena Cantu Dated: February 23, 2015 *7 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing instrument was served upon the parties listed below through the Texas.gov Electronic Filing
System of the Court of Appeals for the Fifth District of Texas and/or by e-mail on
the 23 day of February, 2015.
Mr. Eric S. Peabody
Ms. Catherine L. Hanna
Hanna & Plaut, L.L.P.
211 East Seventh Street
Suite 600
Austin, TX 78701
______________________________ Robert L. Collins