ACCEPTED
12-15-00277-CV
TWELFTH COURT OF APPEALS
TYLER, TEXAS
12/22/2015 2:16:40 PM
Pam Estes
CLERK
Case Number 12-15-00277-CV
IN THE TWELFTH DISTRICT COURT OF APPEALS
FILED IN
12th COURT OF APPEALS
TYLER, TEXAS
at Tyler 12/22/2015 2:16:40 PM
PAM ESTES
__________________________________________________________________
Clerk
In Re AAA Texas County Mutual Insurance Company,
Relator.
__________________________________________________________________
Original Proceeding from Cause Number 2014-1365-A pending in the 188th
Judicial District Court of Gregg County
__________________________________________________________________
RELATOR AAA TEXAS COUNTY MUTUAL
INSURANCE COMPANY’S REPLY BRIEF
__________________________________________________________________
WALTERS, BALIDO & CRAIN, L.L.P.
Gregory R. Ave
State Bar Number 01448900
greg.ave@wbclawfirm.com
Meadow Park Tower, Suite 1500
10440 North Central Expressway
Dallas, Texas 75231
Telephone Number (214) 347-8310
Facsimile Number (214) 347-8311
ATTORNEYS FOR RELATOR AAA TEXAS
December 22, 2015 COUNTY MUTUAL INSURANCE COMPANY
TABLE OF CONTENTS
TABLE OF CONTENTS..................................................................................................i
INDEX OF AUTHORITIES ........................................................................................... ii
ARGUMENT & AUTHORITIES ..................................................................................... 1
A. Introduction & Overview ............................................................................ 1
B. AAA’S Offer Was To Fully Conclude Thomas’s UIM Claim ................ 2
C. Jackson’s Rejection Of AAA’s Offer And Jackson’s Counter-
Offer Were Before The Trial Court ............................................................ 7
CERTIFICATE OF COMPLIANCE ................................................................................ 11
CERTIFICATE OF SERVICE ........................................................................................ 12
i
INDEX OF AUTHORITIES
Cases
American Nat’l Ins. Co. v. Warnock, 114 S.W.2d 1161 (Tex. 1938) ...................... 5
Blackstone v. Thalman,
949 S.W.2d 470 (Tex. App.--Houston [14th Dist.] 1997, no writ) ..................... 6
Donzis v. McLaughlin, 981 S.W.2d 58
(Tex. App.--San Antonio 1998, no pet.) ............................................................... 4
Figueroa v. Davis, 318 S.W.3d 53
(Tex. App.--Houston [1st Dist.] 2010, no pet.) .................................................... 7
Gardner v. Martin, 345 S.W.2d 274 (Tex. 1961) ................................................... 8
Gulf Coast Farmers Co-op v. Valley Co-op Oil Mill,
572 S.W.2d 726 (Tex. Civ. App.--Corpus Christi 1978, no writ) ....................... 5
Hernandez v. Telles, 663 S.W.2d 91
(Tex. App.--El Paso 1983, no writ) ....................................................................... 5
In re C.S., 208 S.W.3d 77
(Tex. App.--Fort Worth 2006, pet. denied) ......................................................... 8
Legal Sec. Life Ins. Co. v. Ward,
373 S.W.2d 693 (Tex. Civ. App.--Austin 1963, no writ) ................................. 6-7
Liberty Mut. Ins. Co. v. Burk,
295 S.W.3d 771 (Tex. App.--Fort Worth 2009, no pet.) ...................................... 8
Sierad v. Barnett, 164 S.W.3d 471 (Tex. App.--Dallas 2005, no pet.) ............. 8-9
Thurmond v. Wieser, 699 S.W.2d 680 (Tex. App.--Waco 1985, no writ)............ 6
ii
OTHER AUTHORITIES
AMERICAN HERITAGE® DICTIONARY
OF THE ENGLISH LANGUAGE, Fifth Edition ............................................................ 3
COLLINS ENGLISH DICTIONARY ................................................................................ 3
MERRIAM-WEBSTER NEW AMERICAN DICTIONARY ................................................ 3
RANDOM HOUSE KERNERMAN WEBSTER’S
COLLEGE DICTIONARY, © 2010 ................................................................................ 3
TEXAS CIVIL PRACTICE & REMEDIES CODE ANN. § 154.071(a) ............................. 3
TEXAS RULE OF EVIDENCE 201.................................................................................. 3
iii
A. INTRODUCTION AND OVERVIEW
In the face of well-established Texas precedent, Real-Party-in-Interest
Thomas Jackson (“Jackson”) can only marshal naked assertions that the
settlement offer made by Relator AAA Texas County Mutual Insurance
Company (“AAA”) was as to the undisputed amount Jackson is
purportedly entitled to recover, and was not an offer to settle his claim for
underinsured motorist (“UIM”) benefits. Moreover, Jackson incorrectly
argues AAA’s settlement offer (of April 28, 2014) and his rejection (of May
2, 2014) were not considered by the trial court when it denied AAA’s
motion to sever and abate.
B. AAA’S OFFER WAS TO FULLY CONCLUDE THOMAS’S UIM CLAIM
Jackson’s response precariously rests on the legally erroneous
premise that he and AAA agreed that AAA’s $20,000.00 settlement offer
merely represented an undisputed portion of his UIM claim. This ignores
the plain language of the settlement offer and established Texas
jurisprudence – a counter-offer constitutes, as a matter of law, the rejection
of the prior offer.
1
Jackson appears to believe that he alone possessed the unilateral right
to characterize AAA’s settlement offer as he sees fit (i.e., that AAA’s offer
was not to resolve his entire UIM claim), and that if he characterizes the
offer as only as to the “undisputed amount” enough times, it somehow
becomes true. Yet, this ignores the specific terms of AAA’s offer. AAA’s
straightforward settlement offer was (1) a rejection of Jackson’s per person
UIM limits demand, (2) a counter-offer to resolve Jackson’s UIM claim in
its entirety, and (3) an attempt to conclude Jackson’s UIM claim:
We have had an opportunity to thoroughly review
the facts and circumstances surrounding the
referenced loss as well the medical documentation
you have provided. Unfortunately, we are unable
to accept your demand.
However, in an effort to resolve this matter, we are
willing to offer [Jackson] $20,000.00 UIM to resolve
his claim. This offer is additional to the $30,000.00
paid by the adverse carrier and the $5,000.00
Personal Injury Protection (PIP) benefits previously
paid.
Please present our offer to your client and contact
me at the telephone number listed below so we may
discuss and conclude this matter.
[MR 1] (emphasis added).
2
It is apparent the $20,000.00 offer was to “conclude” Jackson’s UIM
claim in its entirety and to “resolve this matter” – both of which are the
hallmarks of an offer to settle and not a piecemeal resolution or partial
payment of Jackson’s UIM claim. Indeed, the commonly understood
meaning of “resolve” is:
& “to settle” or “to bring a matter to conclusion”
(MERRIAM-WEBSTER NEW AMERICAN
DICTIONARY);
& “to bring to a usually successful conclusion,”
(AMERICAN HERITAGE® DICTIONARY OF THE
ENGLISH LANGUAGE, Fifth Edition); and
& “to bring to an end, conclude” (COLLINS
ENGLISH DICTIONARY).
Similarly, the word “conclude” is generally understood to mean:
& “to bring to an end,” “to bring about a final
agreement or settlement,” “to come to an end”
(AMERICAN HERITAGE® DICTIONARY OF THE
ENGLISH LANGUAGE, Fifth Edition);
& “to come or cause to come to an end or
conclusion,” “to arrange finally, settle”
(COLLINS ENGLISH DICTIONARY); and
& “to bring to an end, finish,” “to bring to a
decision or settlement,” “to decide, determine,
or resolve,” “to come to an end” (RANDOM
HOUSE KERNERMAN WEBSTER’S COLLEGE
DICTIONARY, © 2010).
3
As is apparent, AAA’s offer was to bring finality, to settle, resolve,
end, and conclude Jackson’s UIM claim in exchange for $20,000.00.
Jackson’s efforts to frame AAA’s settlement offer a partial resolution of his
claim is nonsensical, flies in the face of logic, and completely ignores the
specific wording and terms of the settlement offer. Based on a plain
reading of the settlement, it is clear it was an offer to settle Jackson’s entire
UIM claim.
Nevertheless, to support his contention that AAA’s $20,000.00 offer
represented a “partial settlement,” Jackson asserts a breach of contract
claim, insisting AAA’s failure “to tender [the $20,000.00] . . . forms the basis
of [his] breach of contract claims[.]” [MR 131.] However, for there to be a
settlement or a “partial” settlement agreement – even one made orally – all
of the requirements for a valid and enforceable contract must be present.
Donzis v. McLaughlin, 981 S.W.2d 58, 61 (Tex. App.–San Antonio 1998, no
pet.).
“If parties reach a settlement agreement it is enforceable in the same
manner as any other written contract.” TEX. CIV. PRAC. & REM. CODE ANN. §
154.071(a). For there to be an enforceable agreement to settle a dispute,
“there must be an offer of compromise, a meeting of the minds of the
4
parties, and an unconditional acceptance within the time and on the terms
offered.” Hernandez v. Telles, 663 S.W.2d 91, 93 (Tex. App.--El Paso 1983, no
writ). A binding settlement agreement must have an offer and an
acceptance, and the offer must be accepted in compliance with its terms.
American Nat’l Ins. Co. v. Warnock, 114 S.W.2d 1161, 1164 (Tex. 1938). The
offer must be clear and definite, just as there must be a clear and definite
acceptance of all terms contained in the offer. Gulf Coast Farmers Co-op v.
Valley Co-op Oil Mill, 572 S.W.2d 726, 737 (Tex. Civ. App.–Corpus Christi
1978, no writ).
Here, it is obvious Jackson did not accept all of the terms of AAA’s
offer. [MR 2.] That is, four days after AAA made the offer to resolve the
entire UIM claim, Jackson made a counteroffer and, as a matter of law,
rejected AAA’s $20,000.00 offer to settle his UIM claim. [MR 2.] Jackson’s
rejection of AAA’s offer necessarily terminated AAA’s offer.
This letter is to request that you forward a check in
the amount of [AAA’s] evaluation payable to this
firm and your insured, [Jackson]. Because [Jackson]
vehemently disagrees with AAA’s evaluation of the
value of his claim, the payment of this amount is in
no way to be considered “settlement” of [Jackson]
[sic] UIM claim with AAA for the injuries that he
sustained in the subject collision.
5
Please confirm in writing that you will forward the
$20,000.00 payment as requested and that [Jackson]
may negotiate the check without the negotiation
being considered any type of release of her [sic]
rights to seek additional amounts under the policy
in the future.
[MR 2.]
Jackson did not accept the terms of AAA’s offer, as required to create
an enforceable settlement agreement. The parties disagreed as to the
monetary valuation of Jackson’s UIM claim; therefore, there could not be a
meeting of the minds, and Jackson clearly did not unconditionally accept
AAA’s offer.
A “counteroffer constitutes a rejection, not an acceptance, of the
original offer.” Blackstone v. Thalman, 949 S.W.2d 470, 473 (Tex. App.–
Houston [14th Dist.] 1997, no writ). An offeree’s power of acceptance is
terminated by the making of a counteroffer, unless the offeror has
manifested a contrary intention or unless the counteroffer manifests a
contrary intention of the offeree. Thurmond v. Wieser, 699 S.W.2d 680, 682
(Tex. App.--Waco 1985, no writ). Once it has been terminated by the
making of a counteroffer, an offeree’s power to accept the original offer
cannot be revived by later accepting the offer. See Legal Sec. Life Ins. Co. v.
6
Ward, 373 S.W.2d 693, 698 (Tex. Civ. App.–Austin 1963, no writ) (rejection
of an offer terminates it, and it cannot be revived by later acceptance); see
also Figueroa v. Davis, 318 S.W.3d 53, 68-69 (Tex. App.–Houston [1st Dist.]
2010, no pet.). Thus, Jackson’s counter-offer (i.e, change in the terms
proffered by AAA) means AAA’s settlement offer no longer existed.
Simply from a public policy perspective, permitting Jackson to
unilaterally change the terms of AAA’s offer and self-servingly re-
characterize it as an enforceable agreement to settle a portion of a claim –
without any clear and express language stating as much – would have a
chilling effect on a party’s ability to make an offer to settle or to even enter
into settlement negotiations and rather than avoid litigation, it would
actually promote litigation. By its clear and explicit terms and established
Texas precedent, AAA’s offer was a settlement offer to conclude, resolve,
and bring to a conclusion Jackson’s claim for UIM benefits.
C. JACKSON’S REJECTION OF AAA’S OFFER AND JACKSON’S COUNTER-
OFFER WERE BEFORE THE TRIAL COURT
Jackson attached AAA’s offer of settlement (of April 28, 2014) and his
rejection (of May 2, 2014) to his original petition, first amended petition,
and, by reference, his second amended petition. [MR 220, 8-9, 220, 224-26,
7
232.] Moreover, in his response to AAA’s motion to sever and abate,
Jackson expressly referenced AAA’s settlement offer, as well as his
counter-offer. [MR 129, 131.] Simply put, AAA’s offer and Jackson’s
rejection and counter-offer are part of the record.1
“It is well recognized that a trial court may take judicial notice of its
own records in a cause involving the same subject matter between the
same, or practically the same, parties.” Gardner v. Martin, 345 S.W.2d 274,
276 (Tex. 1961) (citations omitted). In fact, it is appropriate for a court to
take judicial notice of a file in order to show that the documents in the file
are a part of the court’s files, that they were filed with the court on a certain
date, and that they were before the court at the time of the hearing. In re
C.S., 208 S.W.3d 77, 81 (Tex. App.–Fort Worth 2006, pet. denied); see also
TEXAS RULE OF EVIDENCE 201. In fact, a trial court may sua sponte take
judicial notice of the documents, exhibits, and evidence in its file, and in
doing so the trial court is considered to have had such evidence before it
when it makes an order. See Liberty Mut. Ins. Co. v. Burk, 295 S.W.3d 771,
779 (Tex. App.–Fort Worth 2009, no pet.); Sierad v. Barnett, 164 S.W.3d 471,
1 AAA’s $20,000.00 settlement offer was the central subject of the hearing on AAA’s
request to sever and abate. [See MR 191-99.]
8
481 (Tex. App.–Dallas 2005, no pet.). Thus, once the trial court took judicial
notice of its file, the settlement offer was evidence before the trial court
when it denied AAA’s motion to sever and abate.
More specifically, in the trial court’s order denying AAA’s motion to
sever and abate the extra-contractual claim, the trial court specifically
stated that:
The court, after reviewing the arguments of counsel
and reviewing the documents on file, is of the
opinion that said motion should be DENIED.
[Tab A & MR 138] (emphasis added).
The trial court unquestionably had before it evidence demonstrating
AAA’s offer to settle Jackson’s UIM claim in its entirety, and that the offer
was not a “partial settlement,” and that Jackson’s counter-offer constituted
a rejection of same. Therefore, the trial court abused its discretion when it
denied AAA’s request that it sever and abate Jackson’s extra-contractual
claims.
9
Respectfully submitted,
WALTERS, BALIDO & CRAIN, L.L.P.
BY: /s/ Gregory R. Ave
GREGORY R. AVE
Texas Bar No.: 01448900
greg.ave@wbclawfirm.com
JAY R. HARRIS
Texas Bar No.: 00793907
Meadow Park Tower, Suite 1500
10440 North Central Expressway
Dallas, Texas 75231
Telephone: 214-347-8310
Facsimile: 214-347-8311
ATTORNEYS FOR RELATOR AAA TEXAS
COUNTY MUTUAL INSURANCE
COMPANY
10
CERTIFICATE OF COMPLIANCE
Pursuant to Texas Rule of Appellate Procedure 9.4(i)(3), the
undersigned certifies that this brief complies with the type-volume
limitations of Texas Rule of Appellate Procedure 9.4(i)(2)(B). Exclusive of
the exempt portions identified by Texas Rule of Appellate Procedure
9.4(i)(1), this brief contains 1,790 words, including footnotes, headings, and
quotations. In providing this word-count, the undersigned is relying on
the word count generated by the computer program used to prepare the
brief.
This brief has been prepared in proportionally spaced type, 14-point
text, and in Book Antiqua font, using the computer program known as
Microsoft Word (2010 version).
Acknowledged: December 22, 2015.
/s/ Gregory R. Ave
GREGORY R. AVE
11
CERTIFICATE OF SERVICE
This is to certify that on this the 22nd day of December, 2015 a true
and correct copy of the above document has been forwarded to all counsel
of record in compliance with the Texas Rules of Civil Procedure.
The Honorable Judge David Brabham Via hand delivery
Judge of the 188th Judicial District Court of Gregg County
Gregg County Courthouse
101 East Methvin, Suite 408
Longview, Texas 75601
Justin A. Smith, Esquire Via E-Serve
Glenn A. Perry, Esquire
Sloan, Bagley, Hatcher & Perry Law Firm
101 East Whaley Street
Longview, Texas 75601
ATTORNEYS FOR REAL PARTY
IN INTEREST THOMAS JACKSON
/s/ Gregory R. Ave
Gregory R. Ave
12
in Re: AAA Texas County Mutual Insurance Company
Combined Opinion