Petition for Writ of Mandamus Conditionally Granted and Memorandum
Opinion filed July 26, 2018.




                                     In The

                    Fourteenth Court of Appeals

                               NO. 14-18-00362-CV



            IN RE ALLSTATE INDEMNITY COMPANY, Relator


                         ORIGINAL PROCEEDING
                           WRIT OF MANDAMUS
                        County Civil Court at Law No. 1
                            Harris County, Texas
                        Trial Court Cause No. 1102999

                        MEMORANDUM OPINION

      On May 7, 2018, relator Allstate Indemnity Company filed a petition for writ
of mandamus in this court. See Tex. Gov’t Code Ann. § 22.221 (West Supp. 2017);
see also Tex. R. App. P. 52. In the petition, relator asks this court to compel the
Honorable George Barnstone, presiding judge of County Civil Court at Law No. 1
of Harris County, to set aside his February 21, 2018 order (1) denying Allstate’s plea
in abatement; and (2) awarding real parties in interest Holly Holt and David Cabrera
$2,500 in attorney’s fees as a sanction against Allstate for filing a frivolous plea.
We conditionally grant the petition.1

                                     I. BACKGROUND

       The underlying case involves a dispute over the amount Allstate paid for Holt
and Cabrera’s claim for damage to their condominium resulting from Hurricane
Harvey. On December 12, 2017, Holt and Cabrera filed suit against Allstate for
breach of contract, fraud, violations of the DTPA, and violations of Chapter 541 of
the Texas Insurance Code.

       On January 5, 2018, Allstate filed an answer and, on February 5, 2018, a
verified plea in abatement. Allstate argued in its plea in abatement that Holt and
Cabrera did not provide written presuit notice in accordance with the Texas
Insurance Code. Holt and Cabrera filed a response, on February 12, 2018, asserting
that they had provided presuit notice, and also requesting attorney’s fees as sanctions
for having to respond to Allstate’s plea, which they argued was frivolous. On
February 21, 2018, the trial court denied Allstate’s plea in abatement and awarded
Holt and Cabrera $2,500 in attorney’s fees as a sanction against Allstate for filing a
plea without merit. The order advised that the trial court would strike Allstate’s


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         On May 10, 2018, this court requested a response from Holt and Cabrera to be filed on
or before May 24,2018. They did not file any response to the petition for writ of mandamus. See
Tex. R. App. P. 52.4 (“The court must not grant relief—other than temporary relief—before a
response has been filed or requested by the court.”).
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answer and a judgment of liability would be entered in favor of Holt and Cabrera if
Allstate did not pay the attorney’s fees within fifteen days of the order. Allstate paid
the attorney’s fees.

      In this mandamus proceeding, Allstate asserts that the trial court abused its
discretion by denying its plea in abatement and sanctioning Allstate for filing a
baseless plea.

                              II. STANDARD OF REVIEW

      Generally, a relator seeking mandamus relief must demonstrate that (1) the
trial court clearly abused its discretion; and (2) the relator has no adequate remedy
by appeal. In re Nat’l Lloyds Ins. Co., 507 S.W.3d 219, 226 (Tex. 2016) (orig.
proceeding) (per curiam). A trial court clearly abuses its discretion if it reaches a
decision so arbitrary and unreasonable as to amount to a clear and prejudicial error
of law or if it clearly fails to analyze the law correctly or apply the law correctly to
the facts. In re H.E.B. Grocery Co., L.P., 492 S.W.3d 300, 302–03 (Tex. 2016)
(orig. proceeding) (per curiam); In re Cerberus Capital Mgmt., L.P., 164 S.W.3d
379, 382 (Tex. 2005) (orig. proceeding) (per curiam).

      When a claimant fails to give a statutory notice that is a prerequisite to filing
suit and the trial court denies the defendant’s timely request for abatement, the
defendant is entitled to seek review of the court’s denial by mandamus. In re
Cypress Tex. Lloyds, 437 S.W.3d 1, 5 (Tex. App.—Corpus Christi 2011, orig.
proceeding). When a trial court abuses its discretion by denying a plea in abatement,
the relator does not have an adequate remedy by appeal. See In re Liberty Mut. Fire

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Ins. Co., No. 14-09-00876-CV, 2010 WL 1655492, at *6 (Tex. App.—Houston
[14th Dist.] Apr. 27, 2010, orig. proceeding) (mem. op.).

                                    III. ANALYSIS

A.    Presuit Notice

      Allstate asserts that Holt and Cabrera did not provide notice of their claims to
Allstate prior to filing their lawsuit in compliance with the Texas Insurance Code.
Effective September 1, 2017, the Texas Legislature enacted Chapter 542A of the
Insurance Code, entitled “Certain Consumer Actions Related to Claims for Property
Damage.” See Tex. Ins. Code Ann. §§ 542A.001–.007 (West Supp. 2017). Chapter
542A applies to an action on a claim against an insurer, or an agent, including actions
alleging breach of contract, negligence, misrepresentation, or breach of a common
law duty or an action brought under certain subchapters of the Chapters 541 and 542
of the Texas Insurance Code and the Texas Deceptive Trade Practices Act. Tex. Ins.
Code Ann. § 542A.002(a).

      Section 542A.003(a)–(c) sets forth the following requirements for presuit
written notice by the claimant:

      (a) In addition to any other notice required by law or the applicable
      insurance policy, not later than the 61st day before the date a claimant
      files an action to which this chapter applies in which the claimant seeks
      damages from any person, the claimant must give written notice to the
      person in accordance with this section as a prerequisite to filing the
      action.

      (b) The notice required under this section must provide:
      (1) a statement of the acts or omissions giving rise to the claim;
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      (2) the specific amount alleged to be owed by the insurer on the claim
      for damage to or loss of covered property; and

      (3) the amount of reasonable and necessary attorney’s fees incurred by
      the claimant, calculated by multiplying the number of hours actually
      worked by the claimant’s attorney, as of the date the notice is given and
      as reflected in contemporaneously kept time records, by an hourly rate
      that is customary for similar legal services.

      (c) If an attorney or other representative gives the notice required under
      this section on behalf of a claimant, the attorney or representative shall:
      (1) provide a copy of the notice to the claimant; and

      (2) include in the notice a statement that a copy of the notice was
      provided to the claimant.

Tex. Ins. Code Ann. § 542A.003(a)–(c).

      Holt and Cabrera argue they provided sufficient presuit notice in a letter dated
September 28, 2017, and two emails dated November 1, 2017, and December 4,
2017. A review of the letter and emails reflects that Holt and Cabrera’s notice does
not comply with section 542A.003. Therefore, the trial court abused its discretion
by denying Allstate’s plea in abatement.

      Moreover, when a trial court abuses its discretion by denying a plea in
abatement, the relator does not have an adequate remedy by appeal. See Liberty
Mut. Fire Ins. Co., 2010 WL 1655492, at *6. We also conclude that Allstate does
not have an adequate remedy by appeal.




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B.    Attorney’s Fees

      The trial court also awarded Holt and Cabrera attorney’s fees as a sanction
against Allstate on the finding that the plea in abatement is frivolous. Because the
trial court abused its discretion by denying Allstate’s plea in abatement, the trial
court’s award of attorney’s fees is insupportable.

                                   IV. CONCLUSION

      We conditionally grant Allstate’s petition for writ of mandamus and direct the
trial court to set aside the February 21, 2018 order. The writ will issue only if the
trial court fails to act in accordance with this opinion.


                                    PER CURIAM

Panel consists of Justices Boyce, Christopher, and Busby.




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