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.

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

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

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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:

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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.