ACCEPTED
03-15-00017-CV
4295677
THIRD COURT OF APPEALS
AUSTIN, TEXAS
2/26/2015 12:11:11 PM
JEFFREY D. KYLE
CLERK
CASE NO. 03-15-00017-CV
FILED IN
3rd COURT OF APPEALS
IN THE THIRD COURT OF APPEALS AUSTIN, TEXAS
2/26/2015 12:11:11 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
Appellees’ Reply to Appellant’s Response to Motion to Award Costs
TO THE HONORABLE COURT OF APPEALS:
1. In response to the motion to dismiss this appeal and award costs of
Appellees Southern and Dollery (collectively, “Southern”), Appellant Cantu has
filed an “unopposed” motion to dismiss the appeal and a response to the motion for
costs. While Southern agrees that the appeal should be dismissed,1 Southern asks
the Court to award its costs for having to respond to Cantu’s groundless appeal and
for her failure to verify the jurisdictional basis of her appeal both before filing her
notice and after the defect was brought to her attention.
1
As discussed infra, Southern disagrees with Cantu’s assertion that the severance she has requested in the Bastrop
trial court will render the December 10, 2014 order appealable.
2. Cantu’s Response ignores the facts that Southern alerted her to the
jurisdictional defects in her appeal, asked her, in writing, to voluntarily dismiss the
appeal on two separate occasions, and waited more than two weeks with no
response before filling its motion. See Appellees’ Motion, Ex. C. Cantu also
willfully ignored trial court rulings and the procedural posture of this suit when she
filed her appeal. Cantu suggests that she was confused about whether her claims
had been severed from those of other plaintiffs before the suit was transferred from
Dallas to Bastrop and assigned Cause No. 29,358, and that this confusion caused
her to overlook Southern’s counterclaim electronically filed in Cause No. 29,358
on November 17, 2014. See Appellant’s Response ¶¶ 2-3.2 But the interlocutory
dismissal order Cantu has attempted to appeal is from that same cause number.
She received Southern’s motion, notice of hearing, and reply and filed her own
response to Southern’s motion to dismiss in that cause number. The Dallas trial
court also instructed Cantu that her claims would need to go forward in the case
transferred to Bastrop. As the misstatements in her Response highlight, Cantu
2
Cantu’s assertion that her claims were severed and re-docketed while this case was pending in Dallas is not true.
See Appellant’s Response ¶ 2. Because Ms. Cantu did not pay the filing fee as ordered by the Dallas trial court, the
severance was never effected and Cantu’s claims were transferred to Bastrop with the rest of the case. See
Appellant’s Response, Ex. C (Dallas court order of severance); see also McRoberts v. Ryals, 863 S.W.2d 450, 453
n.3 (Tex.1993) (court can condition “the effectiveness of the severance on a future certain event, such as . . .
payment of fees associated with the severance”). Accordingly, the Dallas court abated and administratively closed
the new cause number when Cantu later paid the filing fee. See Exhibit “1,” Order in Cause No. DC-14-10431,
attached hereto. Southern filed its counterclaim in Bastrop Cause No. 29,358 on November 17, 2014 – the same day
the Dallas court told Cantu that her claims would need to go forward in Bastrop in the transferred case.
Appellees’ Reply to Appellant’s Response to Motion for Costs Page 2
chose to believe her own narrative of the case rather than confirm the procedural
status of the suit and jurisdictional basis for her appeal – even after Southern
brought these issues to her attention.
3. Although Cantu does not request that the Court abate her appeal, her
arguments that the appeal was only slightly premature and that the severance she
has requested in the Bastrop trial court will make the interlocutory December 10,
2014 order appealable are incorrect. See Appellant’s Response and Appellant’s
Motion to Dismiss. ¶¶ 3-6. Southern still has pending counterclaims against Cantu
and opposes severance of just her affirmative claims; the trial court is unlikely to
sever Cantu’s dismissed causes of action without also severing Southern’s
counterclaims pertaining to those causes of action. An order of severance will not
create a final judgment out of the interlocutory December 10, 2014 order.
4. Despite her professed desire to avoid “unnecessary disputes” and this
“unnecessary, delaying, and cost-generating controversy” regarding her appeal,
Cantu’s own conduct created the dispute and made Southern’s motions necessary.
Cantu did not timely respond to Southern’s requests that she voluntarily dismiss
this appeal. Her failure to respond has caused Southern and this Court to incur
needless expense, which could have been easily avoided if Cantu had made the
least effort either before or after filing her notice of appeal to confirm the
jurisdictional basis for the appeal. Only after Southern again expended
Appellees’ Reply to Appellant’s Response to Motion for Costs Page 3
unnecessary time and money – and with the threat of sanctions over her head – did
Cantu bother to review her filings. Southern asks that the Court award it the
modest fees requested for the inconvenience and expense caused by Cantu’s
intransigence and failure to follow minimum procedural standards.
WHEREFORE, PREMISES CONSIDERED, Appellees Southern Insurance
Company and Steve Dollery respectfully pray that the Court 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.
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
Appellees’ Reply to Appellant’s Response to Motion for Costs Page 4
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing Appellees’
Reply to Appellant’s Response to Motion to Award Costs has been forwarded by
e-service and/or facsimile on the 26th 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
Appellees’ Reply to Appellant’s Response to Motion for Costs Page 5
Exhibit 1
CAUSE N° DC-14-10431
ROSE CANTU
In the District Court
vs. TEXAS SOUTHERN INSURANCE COMPANY
of Dallas County, Texas
et al 193rd Judicial District
ORDER TO ABATE AND TO CLERK
TO ADMINISTRATIVELY CLOSE CASE
ON THIS DAY, this Court hereby considers and GRANTS a Plea in Abatement
requested by a Party to this cause. This cause is hereby ABATED until further Order Of
the Court.
IT IS, THEREFORE, ORDERED, ADJUDGED AND DECREED by the Court
that, while retaining jurisdiction over the case, the clerk of the Court shall close this file
and remove it from the active docket of pending cases assigned to this Court until further
Order of the Court.
So ORDERED this 11/17/2014
&;.*meg
:v ° X-
The Honorable Carl Ginsberg
193rd Judicial District Court
EXHIBIT
b
.0-45
a