                                                                                          ACCEPTED
                                                                                      03-15-00451-CV
                                                                                              7070314
                                                                           THIRD COURT OF APPEALS
                                                                                      AUSTIN, TEXAS
                                                                                 9/23/2015 7:55:29 PM
                                                                                    JEFFREY D. KYLE
                                                                                               CLERK
                              NO. 03-15-00451-CV

                                                                   FILED IN
ANGELA BROOKS-BROWN                         §            IN THE  THIRD
                                                             3rd COURT OF APPEALS
                                            §                  AUSTIN, TEXAS
                                                            9/23/2015 7:55:29 PM
v.                                          §            COURTJEFFREY
                                                                OF APPEALS
                                                                        D. KYLE
                                            §                       Clerk

USAA TEXAS LLOYD’S COMPANY                  §            AUSTIN, TEXAS

                      APPELLANT’S RESPONSE TO
                    APPELLEE’S MOTION TO DISMISS

     Appellant asks the Court to deny appellee’s motion to dismiss the

appeal.

                               A. INTRODUCTION

     1.   Appellant is Angela Brooks-Brown (Appellee or Plaintiff); appellee

is USAA Texas Lloyd’s Company (“USAA,” Appellee, or Defendant).

                         B. ARGUMENT & AUTHORITIES

     2.   Although the Court has authority to dismiss an appeal if the appeal

is moot, this is not a case in which the Court should do so. See Nat’l

Collegiate Athletic Ass’n v. Jones, 1 S.W.3d 83, 86 (Tex. 1999).

     3.   This appeal comes under an exception to the mootness doctrine

because the issue in this appeal is capable of repetition, yet will continue to

evade review. Blum v. Lanier, 997 S.W.2d 259, 264 (Tex. 1999); State v. Lodge,


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608 S.W.2d 910, 912 (Tex. 1980). Specifically, the exception applies because

(1) the challenged conduct is of such short duration that it could not be

reviewed before the appeal became moot, and (2) there is a reasonable

expectation that the challenged conduct will occur again if the appeal is not

considered. Blum, 997 S.W.2d at 264.

  4.   USAA issued an insurance policy to appellant that contained the

following appraisal clause:

“If you and we fail to agree on the amount of loss, either may demand an

appraisal of the loss. In this event, each party will choose a competent and

impartial appraiser within 20 days after receiving a written request from

the other. The two appraisers will choose an umpire. If they cannot agree

upon an umpire within 15 days, you or we may request that the choice be

made by a judge of a court of record in the state where the “residence

premises” is located. The appraisers will separately set the amount of the

loss. If the appraisers submit a written report of an agreement to us, the

amount agreed upon will be the amount of loss. If they fail to agree, they




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will submit their differences to the umpire. A decision agreed to by any

two will set the amount of loss.” (CR 893).

  5.   Appellant demanded appraisal of the loss on March 5, 2015 and

provided USAA with the identity of its appraiser on April 20, 2015. (CR

432, 434). USAA identified its appraiser on April 23, 2015. (CR 638). On or

about June 6, 2015, appellant filed a petition in County Court at Law No. 1

of Jefferson County, Texas asking that court to appoint an umpire. (CR

534, 841).   USAA then filed a Motion for Appointment of Umpire in

Appraisal Proceeding in the 146th Judicial District Court of Bell County,

Texas on June 9, 2015. (CR 420). In addition, USAA filed an application for

temporary injunction in Bell County asking that court to enjoin appellant

from proceeding in the Jefferson County action. (CR 569). The Bell County

court granted USAA’s application for temporary injunction and granted

USAA’s motion for appointment of appraisal umpire. (CR 928). The Bell

County court quickly appointed an umpire on July 10, 2015. (CR 686).

Appellant filed her notice of appeal on July 21, 2015. (CR 932). The umpire

issued an appraisal award on August 13, 2015, which was one day after the



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clerk’s record was filed and twenty days before the reporter’s record was

filed in this court of appeals.   See Exhibit A to Appellee’s Motion to

Dismiss.

  6.   The conduct of defendant that plaintiff challenges in this appeal

was of such short duration that it could not be reviewed before the appeal

became moot. Plaintiff filed her notice of appeal on July 21, 2015. (CR 932).

The appraisal umpire issued an award on August 13, 2015, which was

twenty days before the reporter’s record was filed. Once the Bell County

court appointed an umpire, the extrajudicial appraisal process proceeded

with lighting speed and rendered a review of defendant’s conduct an

impossibility.

  7.   Counsel for plaintiff is lead counsel on several other cases pending

in Bell County, Texas in which a USAA insurance company is defendant.

Each of these cases involves insurance policies that contain appraisal

language that is identical to the appraisal language contained in the

insurance policy at issue in this appeal. Counsel for plaintiff, on behalf of

the plaintiffs in one or more of those cases, intends to ask courts located



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outside of the counties in which those properties are located to appoint

umpires for appraisal proceedings. In addition, in future lawsuits that

plaintiff’s counsel files against USAA, plaintiff’s counsel intends to follow

the same course of action if the insurance policies in those cases expressly

allow either party to ask any court in the state of Texas to appoint an

appraisal umpire. Therefore, there is a reasonable expectation that the

challenged conduct will occur again if the appeal is not considered.

                         C. CONCLUSION & PRAYER

  8.   USAA has sold insurance policies to consumers that contain

language which expressly allows USAA’s insureds to ask any judge in the

state of Texas to appoint an appraisal umpire. When an insured asks a

Texas court to appoint an umpire, USAA then files an injunction

application and asks a different court to appoint an umpire. Once the

application for injunction is granted and the court that USAA petitioned

appoints an umpire, the umpire makes a quick decision and allows USAA

to argue on appeal that the case is moot. This strategy allows USAA to

deny its policyholders rights to which they are entitled under the policy.



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Because the challenged conduct is of such short duration that it could not

be reviewed before the appeal became moot, and because there is a

reasonable expectation that the challenged conduct will occur again if the

appeal is not considered, the court should apply an exception to the

mootness doctrine and consider the appeal.

  9.   For these reasons, appellant asks the Court to deny appellee’s

motion and continue with this appeal.




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Respectfully Submitted,

SCOTT LAW OFFICES
350 Pine Street, Suite 300
Beaumont, Texas 77701
Telephone: (409) 833-5400
Facsimile: (409) 833-5405


 /s/ Danny Ray Scott
______________________________
Danny Ray Scott
State Bar No. 24010920
Email:danny@scottlawyers.com
SEAN M. PATTERSON
State Bar No. 24073546
Email: sean@scottlawyers.com
VIRGINIA IZAGUIRRE
State Bar No. 24083230
Email: virginia@scottlawyers.com

Attorneys for Plaintiff




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                      CERTIFICATE OF SERVICE

      I hereby certify that a true and correct copy of the foregoing
document was served on the parties listed below electronically though the
court’s electronic-filing manager on September 23, 2015:

Lisa A. Songy
TOLLEFSON BRADLEY MITCHELL & MELENDI, LLP
2811 McKinney Avenue, Suite 250 West
Dallas, Texas 75204
E-Mail Address: LisaS@tbmmlaw.com


                                        /s/ Danny Ray Scott
                                       ______________________________
                                       Danny Ray Scott




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