Rosa Ena Cantu v. Southern Insurance Company and Steve Dollery ( 2015 )

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:
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* * * Communication Result Report ( Jan, 23, 2015 11:27AM ) * * *
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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
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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
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