ACCEPTED
03-15-00451-CV
7237746
THIRD COURT OF APPEALS
AUSTIN, TEXAS
10/5/2015 4:59:18 PM
JEFFREY D. KYLE
CLERK
NO. 03-15-00451-CV
ANGELA BROOKS-BROWN § IN THE THIRD
FILED IN
3rd COURT OF APPEALS
§ AUSTIN, TEXAS
V. § COURT OF APPEALS
10/5/2015 4:59:18 PM
§ JEFFREY D. KYLE
USAA TEXAS LLOYD’S COMPANY § Clerk
AUSTIN, TEXAS
APPELLEE USAA TEXAS LLOYD’S COMPANY’S REPLY
IN SUPPORT OF MOTION TO DISMISS
TO THE HONORABLE COURT OF APPEALS:
Appellee, USAA Texas Lloyd’s Company (“USAA Texas Lloyd’s”) makes
the following reply to Appellant Angela Brooks-Brown’s Response to Appellee’s
Motion to Dismiss and would show the following:
SUMMARY
Appellant does not contest the mootness of the present dispute, and concedes
the Court’s authority to dismiss the present appeal. (Response, p.1). Instead,
Appellant argues that the case falls within an exception to the mootness doctrine
because the issue on appeal is “capable of repetition, yet will continue to evade
review.” (Response, pp. 1-2). The exception is narrow; and applies only in rare
circumstances. Williams v. Lara, 52 S.W.3d 171, 184 (Tex. 2001); Texas A&M
Univ. — Kingsville v. Yarbrough, 347 S.W. 3d 289, 290 (Tex. 2011). The challenged
act must be of such short duration that the appellant cannot obtain review before the
issue becomes moot. Blum v. Lanier, 997 S.W.2d 259, 264 (Tex. 1999). There must
APPELLEE USAA TEXAS LLOYD’S COMPANY’S REPLY IN SUPPORT OF MOTION TO DISMISS
PAGE 1
also be reasonable expectation that the same action will occur again, to the same
complaining party, if the issue is not considered. In re Uresti, 377 S.W.3d 696 (Tex.
2012); Yarbrough, 347 S.W.3d at 290; Williams, 52 S.W.3d at 184.
In addition, the Supreme Court has recognized the exception is typically
limited to challenging unconstitutional acts performed by the government. See
General Land Office v. Oxy USA, Inc., 789 S.W.2d 569 (Tex. 1990); see also Trulock
v. City of Duncanville, 277 S.W.3d 920 (Tex. App. – Dallas 2009, no pet.).
The present appeal does not fall within the limited exception to the mootness
doctrine. Instead, Appellant’s argument is based on a skewed rendering of the facts
and an apparent representation that Appellant’s counsel own conduct is what will be
repeated.
The facts are set out at length in Appellee’s motion. To summarize, however,
Appellant Brooks-Brown filed suit in Bell County against USAA Texas Lloyd’s,
asserting claims related to a hail loss at her property in Bell County. (CR 7). By
amended pleading, she added claims related to a fire loss, closely related in time to
the hail loss. (CR 107). While her suit was pending, Brooks-Brown demanded
appraisal of those claims and appointed an appraiser. (CR 420, 434). USAA Texas
Lloyd’s also appointed an appraiser. (CR 420, 436). The appraisers, however, did
not agree on valuation and could not agree on an umpire. (CR 420, 421).
APPELLEE USAA TEXAS LLOYD’S COMPANY’S REPLY IN SUPPORT OF MOTION TO DISMISS
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Brooks-Brown then filed a second suit, in Jefferson County, seeking
appointment of an umpire for the appraisal of the claims. (CR 569, 640). At about
the same time, Brooks-Brown attempted to non-suit the Bell County suit. (CR 569,
695). Although omitted from Appellant’s response, the Jefferson County suit was
not, and to date has not been, served on USAA Texas Lloyd’s.
While the Jefferson County suit remained unserved, USAA Texas Lloyd’s
filed a motion in Bell County, in the lawsuit that Brooks-Brown had previously filed,
and sought appointment of an umpire. (CR 420).
After hearing the Court appointed an umpire, consistent with the terms of the
policy. (CR 686). In addition, in response to an Application for Temporary
Injunction filed by USAA Texas Lloyd’s, the Court enjoined Appellant Brooks-
Brown from proceeding in the Jefferson County action. (CR 928). Brooks-Brown
did not seek a stay of the proceedings pending appeal.1 The order appointing an
umpire was entered July 10, 2015. (CR 686). The temporary injunction was entered
July 17, 2015. (CR 928). The Court also required that the appraisal be completed
1
Brooks-Brown did file a plea in abatement, asserting that the matter was pending in another
forum, and that Jefferson County had “dominant jurisdiction.” (CR 687). The plea was denied.
(CR 948).
APPELLEE USAA TEXAS LLOYD’S COMPANY’S REPLY IN SUPPORT OF MOTION TO DISMISS
PAGE 3
within 30 days. (CR 928). The umpire’s awards were received by USAA Texas
Lloyd’s on August 25, 2015.2
ARGUMENT AND AUTHORITIES
Brooks-Brown contends, in part, that there was no proper opportunity for
appeal because of the expedited appraisal process. Brooks-Brown ignores the fact
that she invoked the appraisal process - - after filing suit in Bell County. In addition,
Brooks-Brown fails to explain why she did not seek a stay from the trial court or this
Court after filing a notice of appeal on July 21, 2015. Cf. City of Shoreacres v. Tex.
Comm. on Envtl. Quality, 166 S.W.3d 825, 839 (Tex. App.— Austin 2005, no pet.)
(citing Bayou Liberty Ass’n, Inc. v. U.S. Army Corps of Eng’rs, 217 F.3d 393, 398-
99 (5th Cir. 2000).
Perhaps more importantly, however, Brooks-Brown fails to explain how she
was deprived of any right, after invoking the appraisal process, by the fact of the
appraisal proceeding. To the extent that she has any complaint about the actual
competency of the appraisers or the propriety of the appraisal process, she fails to
explain why these arguments cannot be asserted by a challenge of the appraisal
2
Appellant references an appraisal award dated August 13, 2015. (Response, p.4). While there
were two awards, and one bears that date, it was not provided to the parties until the second
appraisal was completed.
APPELLEE USAA TEXAS LLOYD’S COMPANY’S REPLY IN SUPPORT OF MOTION TO DISMISS
PAGE 4
award itself, and an appeal from any judicial determination. It is the only temporary
injunction for which there was ever any jurisdictional basis for the present appeal.
Further, appellant’s argument that the issue is not moot, because it is capable
of repetition, appears to be based on an argument that Appellant’s counsel has other
cases involving lawsuits in Bell County, in which counsel intends to seek
appointment of umpires from courts in jurisdictions other than Bell County. Even
assuming that, in each of these hypothetical instances, counsel would first file suit
in Bell County and the Court would enter identical orders, it is not the impact upon
counsel but upon Brooks-Brown – the complaining party -- that determines whether
the exception to the mootness doctrine applies. Cf. Williams, 52 S.W.3d at 184. It is
entirely speculative to suggest that Brooks-Brown is likely to have another claim,
file suit in one county, seek appraisal, seek appointment of an umpire in another
county, and be subject to an injunction that expires before an appeal can be
considered. Even if such instances could be expected, it is pure conjecture to suggest
that in each case there would be a temporary injunction, and that the injunction
would expire before the appeal could be pursued.
Therefore, the present appeal is moot and does not fall within any recognized
exception to the mootness doctrine. The appeal should be dismissed and costs
awarded to USAA Texas Lloyd’s.
APPELLEE USAA TEXAS LLOYD’S COMPANY’S REPLY IN SUPPORT OF MOTION TO DISMISS
PAGE 5
Respectfully submitted,
/s/ Lisa A. Songy
Lisa A. Songy
State Bar No. 00793122
LisaS@tbmmlaw.com
Beth D. Bradley
State Bar No. 06243900
BethB@tbmmlaw.com
Donnie M. Apodaca, II
State Bar No. 24082632
DonnieA@tbmmlaw.com
TOLLEFSON BRADLEY MITCHELL &
MELENDI, LLP
2811 McKinney Avenue, Suite 250 West
Dallas, Texas 75204
(214) 665-0100 Telephone
(214) 665-0199 Facsimile
ATTORNEYS FOR DEFENDANT
USAA TEXAS LLOYD’S COMPANY
APPELLEE USAA TEXAS LLOYD’S COMPANY’S REPLY IN SUPPORT OF MOTION TO DISMISS
PAGE 6
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of has been served upon counsel
of record via electronic service and facsimile on this 5th day of October, 2015.
Attorneys for Plaintiff
Danny Ray Scott
danny@scottlawyers.com
Virginia Izaguirre
virginia@scottlawyers.com
Sean M. Patterson
sean@scottlawyers.com
Scott Law Offices
350 Pine Street, Suite 300
Beaumont, Texas 77701
Facsimile 409.833.5405
/s/ Lisa A. Songy
Lisa A. Songy
APPELLEE USAA TEXAS LLOYD’S COMPANY’S REPLY IN SUPPORT OF MOTION TO DISMISS
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