Case Information

*1

NO. 03-15-00017-CV

| IN THE COURT OF APPEALS FOR THE THIRD DISTRICT OF TEXAS AT AUSTIN | FILED IN
3rd COURT OF APPEALS
AUSTIN, TEXAS
2/23/2015 3:10:57 PM
JEFFREY D. KYLE
Clerk | | :--: | :--: |

Rose Ena Cantu, Appellant vs. Southern Insurance Company and Steve Dollery, Appellees

Appeal from the ${21}^{\text{st}}$ 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

1. Litigation between Rose Ena Cantu and Southern Insurance Company has occurred in the ${21}^{\text{st}}$ District Court, the ${193}^{\text{rd}}$ District Court, the ${335}^{\text{th}}$ District Court, and in this Court. Trial courts have assigned some five different cause numbers to controversies

*2 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 ${193}^{\text{rd}}$ 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. 2. Exhibit A shows the contents of Plaintiff's file of the appealed case. Following Plaintiff's Original Petition in the ${193}^{\text{rd}}$ District Court (Cause No. DC-1307869), 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 ${193}^{\text{rd}}$ 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 ${193}^{\text{rd}}$ District Court assigned Rose Ena

*3 Cantu v. Southern Insurance Company and Steve Dollery the cause number DC-1410431. Although the ${193}^{\text{rd}}$ 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 ${21}^{\text{st}}$ District Court in Bastrop, Texas and assigned the Cause No. 29,358. 3. 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 ${21}^{\text{st}}$ 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 ${193}^{\text{rd}}$ District Court, and consequently not found with the materials in the case that included Insurance Company. Ex. C. There is now pending before the ${21}^{\text{st}}$ 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.

*4

Governing Law

1. 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.
2. 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

1. 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

*5 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 | | ATORNEYS FOR APPELLANT, | | ROSE ENA CANTU |

*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 wordcount 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 ${23}^{\text{rd}}$ 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

*8 Exhibit A

*9 | 2013–07–16 Original Petition | | | --- | --- | | 2013–08–16 Southern & Dollery Original Answer FAX.pdf | | | 2013–09–23 Southern Ins Mot to Sever SCAN fr Lenahan.pdf | | | 2013–09–24 Defs Notice of Hearing–Sever FAX.pdf | | | 2013–09–24 Southern’s Notice of Hearing–Sever FAX.pdf | | | 2013–09–27 Southern’s Amended Nts of Hearing–Sever FAX.pdf | | | 2013–10–23 Plf’s Resp to Southern’s Mot to Sever and Abate | | | 2013–11–05 ORDER Severing Dollery and Southern.pdf | | | 2013–11–05 ORDER on severance, with Cause No. DC–14–10431 in filestamp.pdf | | | 2014–10–08 Plf Notice of Depo – Dollery_FINAL.doc | | | 2014–10–10 Plf Notice of Depo – Dollery FINAL.doc | | | 2014–10–16 Dollery MT Reconsider Abatement & Dismiss DRAFT FOR REVIEW.pdf | | | 2014–10–16 Peabody ltr to clerk FILED.pdf | | | 2014–10–16 Peabody ltr w–Original Petition FILED.pdf | | | 2014–10–17 Dollery MT Reconsider Abatement & DismissFILED.pdf | | | 2014–10–21 NOH on Dollery MT Abate–Dismiss FILED.pdf | | | 2014–10–23 Amended NOH on Dollery MT Abate–Dismiss FILED.pdf | | | 2014–11–05 Amended notice of Depo Dollery change to 2pm DRAFT.doc | | | 2014–11–11 Defs’ First Amended Plea in Abatement and Motion to Dism FAX.pdf | | | 2014–11–11 Defs’ First Amended Plea in Abatement and Motion to DismFILED.pdf | | | 2014–11–11 Sec Amended Nts of Hrg on Defs’ First Amended Plea in Abatement and Mot to Dismiss FAX.pdf | | | 2014–11–12 Plf’s Resp to Dollery’s MF Recon of Abate & Def’s MT Dismiss | | | 2014–11–14 Defs’ Reply to Plf’s Resp Abatement and Dismiss FILED.pdf | | | 2014–12–03 resp to motion to abate and sever | | | 2014–12–10 Order Dismissing Southern & Dollary SIGNED.pdf | | | 2015–02–04 Southern’s & Dollery’s 2nd Amended Answer and Counterclaim FILED.pdf | | | 2015–02–13 Pifs Motion to Sever FILED.doc | | | 2015–02–17 NoH on Pifs Motion to Sever FINAL.doc | |

*10 Exhibit B

*11

CAUSE NO. DC-13-07869

DEFENDANTS SOUTHERN INSURANCE COMPANY'S AND STEVE DOLLERY'S ORIGINAL ANSWER

TO THE HONORABLE JUDGE OF SAID COURT: COME NOW Defendants Southern Insurance Company ^[1] and Steve Dollery and file this their Original Answer 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.

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

*12

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. Hanha 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 facsimile on this the ${16}^{\text{th}}$ day of August 2013 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 Exhibit C

*14

CAUSE NO. DC-13-07869

ORDER REGARDING MOTION TO SEVER AND PLEA IN ABATEMENT

ON THIS DAY came on for consideration the Motion to Sever and Plea in Abatement of Defendants Southern Insurance Company and Steve Dollery, and this Court, having considered the motion and plea, the response, the reply, the evidence on file, and the arguments of counsel, finds that the motion and plea should be GRANTED in part and DENIED in part.

Accordingly, it is ORDERED, ADJUDGED, and DECREED that Southern Insurance Company's and Steve Dollery's Motion to Sever is GRANTED, and that all Plaintiff Rosa Ena Cantu's claims and causes of action against these Defendants are hereby severed from the claims and causes of action of the remaining plaintiffs against the remaining defendants and shall be docketed under a separate cause number in accordance with local rule.

It is further ORDERED, ADJUDGED, and DECREED that Defendants' Plea in Abatement is GRANTED as to Southern Insurance Company, and that Plaintiff Cantu's claims and causes of action against Defendant Southern Insurance Company in the severed case are hereby abated.

*15

It is further ORDERED, ADJUDGED, and DECREED that Defendants' Plea in Abatement is DENIED as to Defendant Steve Dollery in the severed case.

The Court directs the Clerk to file a copy of this order in both this case, Cause No. DC-13-07869, and the severed case, to be styled Rose Ena Cantu v. Southern Insurance Company and Steve Dollery, with the cause number to be assigned as per local rule.

SIGNED this $$ day of $$ 2013.

JUDGE PRESIDING

CRIGINAL SIGNED BY JUDGE

*16 Exhibit D

*17

CAUSE NO. 29,358

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

TO THE HONORABLE JUDGE OF SAID COURT:

COME NOW Defendants Southern Insurance Company ^[1] and Steve Dollery and file this Second 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

*18

against Plaintiff Rose Ena Cantu in the ${335}^{\text{th}}$ 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 ${335}^{\text{th}}$ 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.
COUNTERCLAIMS

Frivolous Claims under the Texas Insurance Code Claims and DTPA.

Defendants Southern and Dollery allege that Plaintiff Cantu's causes of action under the Texas Insurance Code and Consumer Protection-Deceptive Trade Practices Act are groundless, 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 §

*19 541.153; Tex. Bus. &; Com. Code § 17.50(c). Before Plaintiff Cantu filed her suit in Dallas, she had filed suit against Southern and Dollery in this Court. See Cause No. 28,370; Rose Ena Cantu v. Southern Insurance Company and Steve A. Dollery, In the ${21}^{\text{st}}$ 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 extra-contractual claims - including her Insurance Code and DTPA claims - reasserting these causes of action after the appraisal in a new suit and against a Defendant Cantu failed to serve rather than litigating the merits of those clams in the original suit demonstrates that they were brought in an attempt to manipulate venue and to harass. Because those claims were based on the alleged underpayment of her claim, which the appraisal award resolved, they were also groundless.

Cantu also fails to distinguish Dollery's conduct from Southern's alleged failure to properly investigate or pay the amount to which she asserts she was entitled, which forms the only basis for her Insurance Code and DTPA claims. See Petition $\mathbf{\nabla }\mathbf{\nabla }\mathbf{8}\mathbf{a},16-17$ . 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 and DTPA claims are without basis in either fact or law.

*20 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 and DTPA are groundless, brought in bad faith, or brought for the purposes of harassment.

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

*21

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 $4^{\text{th}}$ day of February 2015 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: 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., Steve Dollery, and Ty Harlan Fletcher

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

NOTES

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

${}^1$ 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 and complete the severance, they were transferred with those of the other Plaintiffs to this Court.