                                                                                                       ACCEPTED
                                                                                                  03-15-00017-CV
                                                                                                         4247198
                                                                                        THIRD COURT OF APPEALS
                                                                                                   AUSTIN, TEXAS
                                                                                             2/23/2015 1:20:01 PM
                                                                                                JEFFREY D. KYLE
                                                                                                           CLERK
                                  NO. 03-15-00017-CV

                                                              FILED IN
                                                       3rd COURT OF APPEALS
                           IN THE COURT OF APPEALS         AUSTIN, TEXAS
                       FOR THE THIRD DISTRICT OF TEXAS 2/23/2015 1:20:01 PM
                                   AT AUSTIN             JEFFREY D. KYLE
                                                               Clerk


                           Rose Ena Cantu, Appellant
                                     vs.
            Southern Insurance Company and Steve Dollery, Appellees


          Appeal from the 21st Judicial District Court, Bastrop County, Texas
                            Trial Court Cause No. 29,358
                          Hon. Carson Campbell, Presiding


       APPELLANT’S UNOPPOSED MOTION TO DISMISS APPEAL


TO THE HONORABLE COURT OF APPEALS:

       Appellant, Rose Ena Cantu, submits this unopposed Motion to Dismiss

Appeal pursuant to Rule 42.1 of the Texas Rules of Appellate Procedure. Upon

conference with counsel for Appellees, they are unopposed to the dismissal of this

appeal.

                                       Background

       1.     Litigation between Rose Ena Cantu and Southern Insurance Company has

occurred in the 21st District Court, the 193rd District Court, the 335th District Court, and in

this Court. Trial courts have assigned some five different cause numbers to controversies
involving Mrs. Cantu and Insurance Company (one court assigned two due to a

severance from its initial case), some of which also involve Adjuster. The first

counterclaim appearing in Plaintiff’s case file for litigation against Southern Insurance

Company and Dollery following their severance from the original litigation in the 193rd

District Court was Defendants’ filing of February 4, 2015, denominated “Defendants

Southern Insurance Company’s and Steve Dollery’s Second Amended Answer and

Counterclaim”. This was, obviously, not present on December 10, 2014, when the

Honorable Judge Carson Campbell granted Defendant Southern Insurance Company’s

and Steve Dollery’s Plea in Abatement, Motion to Dismiss and Motion to Sever and

signed an Order to that effect – dismissing all Ms. Cantu’s claims. Two different lawyers

examined the file, found no counterclaim in it, and agreed that the Order disposed of all

claims and parties to the severed case. Appeal was taken.

      2.     Exhibit A shows the contents of Plaintiff’s file of the appealed case.

Following Plaintiff’s Original Petition in the 193rd District Court (Cause No. DC-13-

07869), Defendants Southern Insurance Company (“Insurance Company”) and Steve

Dollery (“Adjuster”) filed an Answer on August 16, 2013. That Answer included no

counterclaim. Ex. B. On November 5, 2013, the 193rd District Court entered an Order

severing Cantu’s claims from other plaintiffs’ claims in that case. Ex. C. The Order

required the severed case to be captioned Rose Ena Cantu v. Southern Insurance

Company and Steve Dollery. Ex. C, p.2. The 193rd District Court assigned Rose Ena



                                           -2-
Cantu v. Southern Insurance Company and Steve Dollery the cause number DC-14-

10431.     Although the 193rd District Court did not grant Insurance Company’s or

Adjuster’s Motion to Transfer Venue, it did grant – following Insurance Company’s and

Adjuster’s severance from their case, but before any action had been taken to correct or

amend the caption in Cause No. DC-13-07869 – Allstate’s and its adjusters’ Motion to

Transfer venue. That case was transferred to the 21st District Court in Bastrop, Texas and

assigned the Cause No. 29,358.

      3.      On February 4, 2015, Insurance Company and Appraiser served a

Counterclaim on Ms. Cantu.       See Exs. A and D.        She was unaware of a prior

counterclaim. Upon service of Insurance Company’s and Adjuster’s Motion seeking fees

in this Court, counsel for Ms. Cantu reviewed movants’ exhibits and saw that Adjuster

had made a counterclaim against Ms. Cantu on November 17, 2014 in Cause No. 29,358

before the 21st District Court. When served on Ms. Cantu originally, it had been filed

with the materials in the Allstate case from which Insurance Company’s case was

severed by the 193rd District Court, and consequently not found with the materials in the

case that included Insurance Company. Ex. C. There is now pending before the 21st

District Court a Motion to Sever the claims dismissed in the Order of December 10,

2014; that Motion is set to be heard March 4, 2015. If granted, it would render the

December 10, 2015 Order appealable.




                                           -3-
                                     Governing Law

       4.     Premature appellate filings are not per se abusive as intimated by Insurance

Company’s and Adjuster.        The Texas Rules of Appellate Procedure contain two

provisions expressly addressing premature appellate filings.          “In a civil case, a

prematurely filed notice of appeal is effective and deemed filed on the day of, but after,

the event that begins the period for perfecting the appeal.” Rule 27.1(a), Tex. R. App. P.

Moreover, “[t]he appellate court may treat actions taken before an appealable order is

signed as relating to an appeal of that order and give them effect as if they had been taken

after the order was signed.” Rule 27.2, Tex. R. App. P.

       5.     Appellants are free to request dismissal by Motion. Rule 42.1(a)(1), Tex.

R. App. P. Since the dispute over fees is likely to require counsel to spend more time and

expend more costs and require their clients to incur more fees than simply re-filing the

inadvertently premature Notice of Appeal following the date the underlying matter

becomes appealable, Ms. Cantu prefers to dismiss and later re-file this appeal than to

waste her time and this Court’s on a fee dispute simply to stand on Rules 27.1(a) and 27.2

to render her appeal timely.

                                 Conclusion and Prayer

       6.     Appellant’s premature Notice of Appeal was filed in the good-faith belief

that the Order from which relief was sought was a final, appealable Order and that it

disposed of all claims and all parties, and the Rules provide that this premature Notice of



                                            -4-
Appeal should be deemed filed as soon as the subject Order does, in fact, become

appealable. However, in the interest of preventing unnecessary disputes, Appellant has

voluntarily filed a Motion to Dismiss the instant appeal so that an appeal can be taken at a

later time when it is unlikely to generate unnecessary, delaying, and cost-generating

controversy unrelated to its merits. The Court should grant the Motion, which is

unopposed.

       WHEREFORE, PREMISES CONSIDERED, Appellant Rose Ena Cantu

respectfully requests that her appeal be dismissed by her request, and for such other and

further relief to which is may be justly entitled.

                                                     Respectfully submitted,


                                                     __________________________
                                                     ROBERT L. COLLINS
                                                     Texas Bar No. 04618100
                                                     Audrey Guthrie
                                                     Texas Bar No. 24083116
                                                     P.O. Box 7726
                                                     Houston, TX 77270
                                                     Telephone: (713) 467-8884
                                                     Fax: (713) 467-8883
                                                     E-mail: HoustonLaw2@aol.com

                                                     CHRISTOPHER D. LEWIS
                                                     Texas Bar No. 24032546
                                                     1721 West T.C. Jester Blvd.
                                                     Houston, Texas 77008
                                                     E-mail: Lewis@Alumni.Duke.edu

                                                     ATTORNEYS FOR APPELLANT,
                                                     ROSE ENA CANTU

                                              -5-
                     CERTIFICATE OF COMPLIANCE

      I certify that this document was produced on a computer using Microsoft
Word and contains 1140 words, as determined by the computer software's word-
count function.



                                    ______________________________
                                    Attorney for Rose Ena Cantu
                                    Dated: February 23, 2015




                                      -6-
                         CERTIFICATE OF SERVICE

       I hereby certify that a true and correct copy of the foregoing instrument was
served upon the parties listed below through the Texas.gov Electronic Filing
System of the Court of Appeals for the Fifth District of Texas and/or by e-mail on
the 23rd day of February, 2015.

      Mr. Eric S. Peabody
      Ms. Catherine L. Hanna
      Hanna & Plaut, L.L.P.
      211 East Seventh Street
      Suite 600
      Austin, TX 78701



                                              ______________________________
                                              Robert L. Collins




                                        -7-
