

Petition for Writ of Mandamus
Denied and Memorandum Opinion filed September 20, 2011.
 
 
In The
 
Fourteenth Court of
Appeals
____________
 
NO. 14-11-00713-CV
____________
 
IN RE CYPRESS TEXAS LLOYDS, Relator
 
 

ORIGINAL PROCEEDING
WRIT OF MANDAMUS
11th District Court
Harris County, Texas
Trial Court Cause No. 2009-33364
 
 
 

M E M O R
A N D U M   O P I N I O N
            This proceeding arises from a dispute over the amount of the
covered loss under a homeowner’s insurance policy.  On August 19, 2011, relator
Cypress Texas Lloyds, filed a petition for writ of mandamus in this court.  See
Tex. Gov’t Code § 22.221; see also Tex. R. App. P. 52.  In its petition,
Cypress Texas Lloyds asks this court to compel the respondent, the Honorable
Mike Miller, presiding judge of the 11th District Court of Harris County, to
abate the underlying proceedings until an appraisal to determine the amount of
the covered loss has been completed.  We deny the requested relief.
            Less than a month after Hurricane Ike damaged their home, Amber
Knight and Quintin Prior (“the Knights”), the real parties in interest, filed a
homeowners’ insurance claim with Cypress Texas Lloyds.  On October 28, 2008, Cypress
Texas paid the Knights the amount it believed was owing under the policy.  On May
28, 2009, the Knights filed suit, but failed to serve Cypress Texas until August
19, 2009.  Upon being served, Cypress Texas invoked appraisal on September 14,
2009, and requested abatement of the case until appraisal was completed.  On
August 12, 2011, the trial court signed an order granting the motion to compel
appraisal, but denying the motion to abate the litigation pending appraisal.
            Mandamus relief is available if the trial court abuses its
discretion, either in resolving factual issues or in determining legal
principles, when there is no other adequate remedy at law.  See Walker v.
Packer, 827 S.W.2d 833, 839–40 (Tex. 1992).  A trial court 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 or
apply the law correctly.  In re Cerberus Capital Mgmt., L.P., 164 S.W.3d
379, 382 (Tex. 2005).
            In
In re Cont’l Cas. Co., No. 14-10-00709-CV, 2010 WL 3703664, at *5 (Tex.
App.—Houston [14th Dist.] Sept. 23, 2010, orig. proceeding) (memo. op.), and In
re Slavonic Mut. Fire Ins. Ass’n, 308 S.W.3d 556, 564–65 (Tex. App.—Houston
[14th Dist.] 2010, orig. proceeding), this court granted mandamus relief as to
both (1) the trial court’s denial of an insurer’s motion to compel appraisal,
and (2) the trial court’s denial of an insurer’s request that that the case be
abated during the appraisal process.  But after this court issued these
opinions, the Supreme Court of Texas held that mandamus will not lie regarding
the grant or denial of a motion to abate under these circumstances. 
Specifically addressing a motion to abate for an insurance appraisal, the court
held that “[t]he trial court’s failure to grant the motion to abate is not
subject to mandamus, and the proceedings need not be abated while the appraisal
goes forward.”  In re Universal Underwriters of Texas Ins. Co., No.
10-0238, 2011 WL 1713278, *7 n. 5 (Tex. May 6, 2011); see also In re Cypress
Tex. Lloyds, No. 14-11-00544-CV; 2011 WL 2650724 (Tex. App.—Houston [14th
Dist.] July 7, 2011, orig. proceeding); In re Liberty Mutual Group, Inc.,
No. 14-11-00310-CV; 2011 WL 2149482 (Tex. App.—Houston [14th Dist.] May 26,
2011, orig. proceeding) (memo. op.). Therefore, the parts of our two prior
opinions in which this court granted mandamus relief as to the trial court’s
failure to abate during the appraisal process are no longer good law.  Compare
In re Universal Underwriters of Texas Ins. Co., 2011 WL 1713278, *7 n. 5,
with In re Cont’l Cas. Co., 2010 WL 3703664, at *5, and In re
Slavonic Mut. Fire Ins. Ass’n, 308 S.W.3d at 564–65.
Relator has not established entitlement to the extraordinary
relief of a writ of mandamus.  Accordingly, we deny Cypress Texas Lloyds’
petition for writ of mandamus.
 
                                                                        PER
CURIAM
 
Panel
consists of Chief Justice Hedges and Justices Frost and Seymore.

