Rosa Ena Cantu v. Southern Insurance Company and Steve Dollery

ACCEPTED
03-15-00017-CV
4080612
THIRD COURT OF APPEALS
AUSTIN, TEXAS
2/9/2015 4:54:16 PM
JEFFREY D. KYLE
CLERK
CASE NO. 03-15-00017-CV

FILED IN
IN THE THIRD COURT OF APPEALS 3rd COURT OF APPEALS
AUSTIN, TEXAS
2/9/2015 4:54:16 PM
AUSTIN, TEXAS JEFFREY D. KYLE
Clerk

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

On Appeal from the 21St 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 APPEALS:

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.

1. Appellees are Southern Insurance Company and Steve Dollery;

Appellant is Rose Ena Cantu.

2. The 21st Judicial District Court of Bastrop County, Texas, signed the

interlocutory order dismissing Appellant Cantu's claims against Appellees on
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

Motion to Dismiss and for Costs Page 2
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.

Motion to Dismiss and for Costs Page 3
 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

Motion to Dismiss and for Costs Page 4
 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 9th 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

Motion to Dismiss and for Costs Page 5
Exhibit A
 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

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 /O'4day of December, 2014,

FILEDVM: M
DATE_ /0 ict
Sara, Lou 1cs
Dtstriot Clerk, Bastrop Count
Exhibit B
 Electronically Filed 11/17/2014 5:51:48 PM
Sarah Loucks, District Clerk
Bastrop County, Texas
By: Tern Hocker, Deputy

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 and Steve Dollery and

file this First Amended Answer and Counterclaim to Plaintiffs' Original Petition, and

would respectfully show the Court the following:

GENERAL DENIAL

Pursuant to TEx, R. Dv. 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.

IL
PLEA IN ABATEMENT

This suit was transferred from Dallas District Court (Dallas Cause No. DC-13-

07869), Before Plaintiffs filed this suit in Dallas, Southern had filed a declaratory action

Southern Insurance Company has been misnamed as Texas Southern Insurance Company,
against Plaintiff Rose Ena Cantu in the 335th 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 335th 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

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

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 335th District Court,
Defendants Southern Insurance Company's and Steve Dollery's Page 2 of 5
First Amended Answer and Counterclaim
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 21st 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 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

IN 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.

Defendants Southern Insurance Company's and Steve Dollery's Page 3 of 5
First Amended Answer and Counterclaim
 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, anna
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 17th day of November 2014 to:

Via Facsimile: 713.467.8883 Via Facsimile: 214.295.2664
Robert L, Collins Marc C. Lenahan
P,O, Box 7726 P. Wes Black
Houston, Texas 77270-7726 M. Nathan Barbera
Attorney for Plaintiffs Kathleen M, Kearney
Lenahan Law, P.L.L.C.
Via Facsimile: 713,467.8883 2655 Villa Creek, Suite 204
Christopher D. Lewis Dallas, Texas 75234
1721 West T.C. Jester Blvd. Attorneys for Plaintiffs
Houston, Texas 77008
Attorney for Plaintiffs

Defendants Southern Insurance Company's and Steve Dollery's Page 4 of 5
First Amended Answer and Counterclaim
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

Eric S. Peabody

Defendants Southern Insurance Company's and Steve Dollery's Page 5 of 5
First Amended Answer and Counterclaim
Exhibit C
 HANNA&PLAUT LLP
ATTORNEYS AT LAW

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

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 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 21st
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.
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,

Eric S, Peabody

ESP/mw

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

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 21s` 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:

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.
 P. 1

* * * Communication Result Report ( Jan, 23, 2015 11:27AM ) * * *
1) Hanna & Plaut, L. P.
2)

Date/Time; Jan, 21 2015 11:26AM

File Page
No. Mode Destination Pg (s) Result Not Sent

2992 Memory TX 917134678883 P, 3 OK

Reason for error
E. 1) Hang up or 1 1 ne fai 1 E. Busy
E. 3) No answer E. 4 No facsimile connection
E. 5) Exceeded max, E—mail size E. 6 Destination does not support IP-- Fax

FACSIMILE COVER SHEET
HANNA &PLAUT, LI,P.
Attorneys arLew
211 /lest S valid; S trcd, Suite 600
Austin, Tones 78701

Telephone (512) 472-7700
Pacrimilo (512) 472-0205

If there is a paillem whit transmission or if all pages are not received, pi exte call (512)472-7700
for YO-1014MISSIOIL

TO; 1101mt I. Collins PAX NO. t 713.457.8883
M. Chad Gerice
Audrey E. esaitio
aristoplsa-D. Lewis 713A67.8085

PROM: Mal/tele Wade DATE: January 23,2015
Rollie S. Peabody

Cause No, 29,3581 Rosa Eno Cantu, Roberta Godward, Gall Schiavone-1'1411Se,
Wilma Mayes, Adele and Dan Thome, and Alexis and William Chstran v. Tatar
Saalterig Insurance Company, Allstate Toms mow, inc., Steve Dollar); Ty
Harlan Fletcher, and Josh Randall; In the 21" 'edictal District Court Of Bastrop
County, Tun.

Iltird Court of Appeals Dock& Nutnber 03-15-0017-CV; Rose Eno Cantu
Southern lasitiance Compury and Moo Dallery,

Number ofPages including this cover page; 3

Comments:

rhs.,uoks,n soo,u'a 9,0ins, qth,tnitrfigol or ma/ (*OW a At aid,
tor4 rotary 0,44Ittforriorlor
thot lsratviamo,cosirmartAcame,ftwomantontotatirrttuntreb101arAjlthe trait, eflAit riertrirlt
Ranh IrlsrdtdrieetrIt re ttrylryte .1,4.0ml:tool)filar thlirrrini rAt rmaria mnuittntdd rrelpIrri,yertrr
httrI7 roxifiti iltre 0/1, iltrartro405 yr awftrr of MU tArrPritrItettron Mal, Inwer944 ih.0 MI*
'writ( tAlt tar tr aro, plot, rotify ttt fesurattattt cud tAr rrftfror to at 0., matt
rerthig my. 7aastyoe
Eric Peabody

From: Eric Peabody
Sent: Thursday, February 05, 2015 4:09 PM
To: Robert L. Collins Esq. (HoustonLawl@aol.com); Christopher D. Lewis; Audrey Guthrie,
Esq.
Cc: Laura Tubbs; Melanie Wade
Subject: Cantu v. Southern

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 ATTORNEYS AT LAW
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.