ACCEPTED
03-15-00017-CV
4250128
THIRD COURT OF APPEALS
AUSTIN, TEXAS
2/23/2015 3:10:57 PM
JEFFREY D. KYLE
CLERK
NO. 03-15-00017-CV
FILED IN
3rd COURT OF APPEALS
IN THE COURT OF APPEALS AUSTIN, TEXAS
FOR THE THIRD DISTRICT OF TEXAS 2/23/2015 3:10:57 PM
AT AUSTIN JEFFREY D. KYLE
Clerk
Rose Ena Cantu, Appellant
vs.
Southern Insurance Company and Steve Dollery, Appellees
Appeal from the 21st 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 21st District Court, the 193rd District Court, the 335th 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 193rd
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 193rd 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 193rd 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 193rd District Court assigned Rose Ena
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Cantu v. Southern Insurance Company and Steve Dollery the cause number DC-14-
10431. Although the 193rd 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 21st 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 21st 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 193rd District Court, and consequently not found with the materials in the
case that included Insurance Company. Ex. C. There is now pending before the 21st
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.
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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
6. 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
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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
ATTORNEYS FOR APPELLANT,
ROSE ENA CANTU
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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
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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 23rd 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
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Exhibit A
Exhibit B
Exhibit C
Exhibit D
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 SECOND AMENDED ANSWER AND COUNTERCLAIM
TO THE HONORABLE JUDGE OF SAID COURT:
COME NOW Defendants Southern Insurance Companyl 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-13-
07869). Before Plaintiffs filed this suit in Dallas, Southern had filed a declaratory action
1 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
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 §
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.
Defendants Southern Insurance Company's and Steve Dollery's Page 2 of 5
Second Amended Answer and Counterclaim
541.153; Tex. Bus. & Corn. 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 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 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 iftif 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
and DTPA claims are without basis in either fact or law.
Defendants Southern Insurance Company's and Steve Dollery's Page 3 of 5
Second Amended Answer and Counterclaim
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
Defendants Southern Insurance Company's and Steve Dollery's Page 4 of 5
Second Amended Answer and Counterclaim
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 4th day of February 2015 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'
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
Eric S. Peabody
Defendants Southern Insurance Company's and Steve Dollery's Page 5 of 5
Second Amended Answer and Counterclaim