                                                                                             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
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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
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                         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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