                                                                                ACCEPTED
                                                                            12-15-00277-CV
                                                               TWELFTH COURT OF APPEALS
                                                                             TYLER, TEXAS
                                                                      12/22/2015 2:16:40 PM
                                                                                  Pam Estes
                                                                                     CLERK

                     Case Number 12-15-00277-CV

          IN THE TWELFTH DISTRICT COURT OF APPEALS
                                                 FILED IN
                                                   12th COURT OF APPEALS
                                                        TYLER, TEXAS
                              at Tyler             12/22/2015 2:16:40 PM
                                                          PAM ESTES
__________________________________________________________________
                                                            Clerk

           In Re AAA Texas County Mutual Insurance Company,

                               Relator.

__________________________________________________________________

Original Proceeding from Cause Number 2014-1365-A pending in the 188th
                 Judicial District Court of Gregg County
__________________________________________________________________

                RELATOR AAA TEXAS COUNTY MUTUAL
                 INSURANCE COMPANY’S REPLY BRIEF
__________________________________________________________________



                                 WALTERS, BALIDO & CRAIN, L.L.P.

                                                        Gregory R. Ave
                                            State Bar Number 01448900
                                            greg.ave@wbclawfirm.com
                                        Meadow Park Tower, Suite 1500
                                       10440 North Central Expressway
                                                    Dallas, Texas 75231
                                      Telephone Number (214) 347-8310
                                       Facsimile Number (214) 347-8311

                           ATTORNEYS FOR RELATOR AAA TEXAS
December 22, 2015        COUNTY MUTUAL INSURANCE COMPANY
                                      TABLE OF CONTENTS

TABLE OF CONTENTS..................................................................................................i

INDEX OF AUTHORITIES ........................................................................................... ii

ARGUMENT & AUTHORITIES ..................................................................................... 1

A.      Introduction & Overview ............................................................................ 1

B.      AAA’S Offer Was To Fully Conclude Thomas’s UIM Claim ................ 2

C.      Jackson’s Rejection Of AAA’s Offer And Jackson’s Counter-
        Offer Were Before The Trial Court ............................................................ 7

CERTIFICATE OF COMPLIANCE ................................................................................ 11

CERTIFICATE OF SERVICE ........................................................................................ 12




                                                         i
                                 INDEX OF AUTHORITIES

                                                 Cases

American Nat’l Ins. Co. v. Warnock, 114 S.W.2d 1161 (Tex. 1938) ...................... 5

Blackstone v. Thalman,
949 S.W.2d 470 (Tex. App.--Houston [14th Dist.] 1997, no writ) ..................... 6

Donzis v. McLaughlin, 981 S.W.2d 58
(Tex. App.--San Antonio 1998, no pet.) ............................................................... 4

Figueroa v. Davis, 318 S.W.3d 53
(Tex. App.--Houston [1st Dist.] 2010, no pet.) .................................................... 7

Gardner v. Martin, 345 S.W.2d 274 (Tex. 1961) ................................................... 8

Gulf Coast Farmers Co-op v. Valley Co-op Oil Mill,
572 S.W.2d 726 (Tex. Civ. App.--Corpus Christi 1978, no writ) ....................... 5

Hernandez v. Telles, 663 S.W.2d 91
(Tex. App.--El Paso 1983, no writ) ....................................................................... 5

In re C.S., 208 S.W.3d 77
(Tex. App.--Fort Worth 2006, pet. denied) ......................................................... 8

Legal Sec. Life Ins. Co. v. Ward,
373 S.W.2d 693 (Tex. Civ. App.--Austin 1963, no writ) ................................. 6-7

Liberty Mut. Ins. Co. v. Burk,
295 S.W.3d 771 (Tex. App.--Fort Worth 2009, no pet.) ...................................... 8

Sierad v. Barnett, 164 S.W.3d 471 (Tex. App.--Dallas 2005, no pet.) ............. 8-9

Thurmond v. Wieser, 699 S.W.2d 680 (Tex. App.--Waco 1985, no writ)............ 6




                                                     ii
                                        OTHER AUTHORITIES

AMERICAN HERITAGE® DICTIONARY
OF THE ENGLISH LANGUAGE, Fifth Edition ............................................................ 3


COLLINS ENGLISH DICTIONARY ................................................................................ 3

MERRIAM-WEBSTER NEW AMERICAN DICTIONARY ................................................ 3

RANDOM HOUSE KERNERMAN WEBSTER’S
COLLEGE DICTIONARY, © 2010 ................................................................................ 3

TEXAS CIVIL PRACTICE & REMEDIES CODE ANN. § 154.071(a) ............................. 3

TEXAS RULE OF EVIDENCE 201.................................................................................. 3




                                                     iii
A.    INTRODUCTION AND OVERVIEW

      In the face of well-established Texas precedent, Real-Party-in-Interest

Thomas Jackson (“Jackson”) can only marshal naked assertions that the

settlement offer made by Relator AAA Texas County Mutual Insurance

Company (“AAA”) was as to the undisputed amount Jackson is

purportedly entitled to recover, and was not an offer to settle his claim for

underinsured motorist (“UIM”) benefits. Moreover, Jackson incorrectly

argues AAA’s settlement offer (of April 28, 2014) and his rejection (of May

2, 2014) were not considered by the trial court when it denied AAA’s

motion to sever and abate.

B.    AAA’S OFFER WAS TO FULLY CONCLUDE THOMAS’S UIM CLAIM

      Jackson’s response precariously rests on the legally erroneous

premise that he and AAA agreed that AAA’s $20,000.00 settlement offer

merely represented an undisputed portion of his UIM claim. This ignores

the plain language of the settlement offer and established Texas

jurisprudence – a counter-offer constitutes, as a matter of law, the rejection

of the prior offer.




                                      1
     Jackson appears to believe that he alone possessed the unilateral right

to characterize AAA’s settlement offer as he sees fit (i.e., that AAA’s offer

was not to resolve his entire UIM claim), and that if he characterizes the

offer as only as to the “undisputed amount” enough times, it somehow

becomes true. Yet, this ignores the specific terms of AAA’s offer. AAA’s

straightforward settlement offer was (1) a rejection of Jackson’s per person

UIM limits demand, (2) a counter-offer to resolve Jackson’s UIM claim in

its entirety, and (3) an attempt to conclude Jackson’s UIM claim:

           We have had an opportunity to thoroughly review
           the facts and circumstances surrounding the
           referenced loss as well the medical documentation
           you have provided. Unfortunately, we are unable
           to accept your demand.

           However, in an effort to resolve this matter, we are
           willing to offer [Jackson] $20,000.00 UIM to resolve
           his claim. This offer is additional to the $30,000.00
           paid by the adverse carrier and the $5,000.00
           Personal Injury Protection (PIP) benefits previously
           paid.

           Please present our offer to your client and contact
           me at the telephone number listed below so we may
           discuss and conclude this matter.

[MR 1] (emphasis added).




                                      2
     It is apparent the $20,000.00 offer was to “conclude” Jackson’s UIM

claim in its entirety and to “resolve this matter” – both of which are the

hallmarks of an offer to settle and not a piecemeal resolution or partial

payment of Jackson’s UIM claim.          Indeed, the commonly understood

meaning of “resolve” is:

           &     “to settle” or “to bring a matter to conclusion”
                 (MERRIAM-WEBSTER           NEW        AMERICAN
                 DICTIONARY);

           &     “to bring to a usually successful conclusion,”
                 (AMERICAN HERITAGE® DICTIONARY OF THE
                 ENGLISH LANGUAGE, Fifth Edition); and

           &     “to bring to an end, conclude” (COLLINS
                 ENGLISH DICTIONARY).

     Similarly, the word “conclude” is generally understood to mean:

           &     “to bring to an end,” “to bring about a final
                 agreement or settlement,” “to come to an end”
                 (AMERICAN HERITAGE® DICTIONARY OF THE
                 ENGLISH LANGUAGE, Fifth Edition);

           &     “to come or cause to come to an end or
                 conclusion,” “to arrange finally, settle”
                 (COLLINS ENGLISH DICTIONARY); and

           &     “to bring to an end, finish,” “to bring to a
                 decision or settlement,” “to decide, determine,
                 or resolve,” “to come to an end” (RANDOM
                 HOUSE KERNERMAN WEBSTER’S COLLEGE
                 DICTIONARY, © 2010).


                                     3
         As is apparent, AAA’s offer was to bring finality, to settle, resolve,

end, and conclude Jackson’s UIM claim in exchange for $20,000.00.

Jackson’s efforts to frame AAA’s settlement offer a partial resolution of his

claim is nonsensical, flies in the face of logic, and completely ignores the

specific wording and terms of the settlement offer.          Based on a plain

reading of the settlement, it is clear it was an offer to settle Jackson’s entire

UIM claim.

         Nevertheless, to support his contention that AAA’s $20,000.00 offer

represented a “partial settlement,” Jackson asserts a breach of contract

claim, insisting AAA’s failure “to tender [the $20,000.00] . . . forms the basis

of [his] breach of contract claims[.]” [MR 131.] However, for there to be a

settlement or a “partial” settlement agreement – even one made orally – all

of the requirements for a valid and enforceable contract must be present.

Donzis v. McLaughlin, 981 S.W.2d 58, 61 (Tex. App.–San Antonio 1998, no

pet.).

         “If parties reach a settlement agreement it is enforceable in the same

manner as any other written contract.” TEX. CIV. PRAC. & REM. CODE ANN. §

154.071(a). For there to be an enforceable agreement to settle a dispute,

“there must be an offer of compromise, a meeting of the minds of the

                                        4
parties, and an unconditional acceptance within the time and on the terms

offered.” Hernandez v. Telles, 663 S.W.2d 91, 93 (Tex. App.--El Paso 1983, no

writ).     A binding settlement agreement must have an offer and an

acceptance, and the offer must be accepted in compliance with its terms.

American Nat’l Ins. Co. v. Warnock, 114 S.W.2d 1161, 1164 (Tex. 1938). The

offer must be clear and definite, just as there must be a clear and definite

acceptance of all terms contained in the offer. Gulf Coast Farmers Co-op v.

Valley Co-op Oil Mill, 572 S.W.2d 726, 737 (Tex. Civ. App.–Corpus Christi

1978, no writ).

         Here, it is obvious Jackson did not accept all of the terms of AAA’s

offer. [MR 2.] That is, four days after AAA made the offer to resolve the

entire UIM claim, Jackson made a counteroffer and, as a matter of law,

rejected AAA’s $20,000.00 offer to settle his UIM claim. [MR 2.] Jackson’s

rejection of AAA’s offer necessarily terminated AAA’s offer.

              This letter is to request that you forward a check in
              the amount of [AAA’s] evaluation payable to this
              firm and your insured, [Jackson]. Because [Jackson]
              vehemently disagrees with AAA’s evaluation of the
              value of his claim, the payment of this amount is in
              no way to be considered “settlement” of [Jackson]
              [sic] UIM claim with AAA for the injuries that he
              sustained in the subject collision.



                                        5
            Please confirm in writing that you will forward the
            $20,000.00 payment as requested and that [Jackson]
            may negotiate the check without the negotiation
            being considered any type of release of her [sic]
            rights to seek additional amounts under the policy
            in the future.

[MR 2.]

      Jackson did not accept the terms of AAA’s offer, as required to create

an enforceable settlement agreement.       The parties disagreed as to the

monetary valuation of Jackson’s UIM claim; therefore, there could not be a

meeting of the minds, and Jackson clearly did not unconditionally accept

AAA’s offer.

      A “counteroffer constitutes a rejection, not an acceptance, of the

original offer.” Blackstone v. Thalman, 949 S.W.2d 470, 473 (Tex. App.–

Houston [14th Dist.] 1997, no writ). An offeree’s power of acceptance is

terminated by the making of a counteroffer, unless the offeror has

manifested a contrary intention or unless the counteroffer manifests a

contrary intention of the offeree. Thurmond v. Wieser, 699 S.W.2d 680, 682

(Tex. App.--Waco 1985, no writ).      Once it has been terminated by the

making of a counteroffer, an offeree’s power to accept the original offer

cannot be revived by later accepting the offer. See Legal Sec. Life Ins. Co. v.



                                      6
Ward, 373 S.W.2d 693, 698 (Tex. Civ. App.–Austin 1963, no writ) (rejection

of an offer terminates it, and it cannot be revived by later acceptance); see

also Figueroa v. Davis, 318 S.W.3d 53, 68-69 (Tex. App.–Houston [1st Dist.]

2010, no pet.).   Thus, Jackson’s counter-offer (i.e, change in the terms

proffered by AAA) means AAA’s settlement offer no longer existed.

      Simply from a public policy perspective, permitting Jackson to

unilaterally change the terms of AAA’s offer and self-servingly re-

characterize it as an enforceable agreement to settle a portion of a claim –

without any clear and express language stating as much – would have a

chilling effect on a party’s ability to make an offer to settle or to even enter

into settlement negotiations and rather than avoid litigation, it would

actually promote litigation. By its clear and explicit terms and established

Texas precedent, AAA’s offer was a settlement offer to conclude, resolve,

and bring to a conclusion Jackson’s claim for UIM benefits.

C.    JACKSON’S REJECTION OF AAA’S OFFER           AND   JACKSON’S COUNTER-
      OFFER WERE BEFORE THE TRIAL COURT

      Jackson attached AAA’s offer of settlement (of April 28, 2014) and his

rejection (of May 2, 2014) to his original petition, first amended petition,

and, by reference, his second amended petition. [MR 220, 8-9, 220, 224-26,



                                       7
232.]    Moreover, in his response to AAA’s motion to sever and abate,

Jackson expressly referenced AAA’s settlement offer, as well as his

counter-offer.      [MR 129, 131.]     Simply put, AAA’s offer and Jackson’s

rejection and counter-offer are part of the record.1

        “It is well recognized that a trial court may take judicial notice of its

own records in a cause involving the same subject matter between the

same, or practically the same, parties.” Gardner v. Martin, 345 S.W.2d 274,

276 (Tex. 1961) (citations omitted). In fact, it is appropriate for a court to

take judicial notice of a file in order to show that the documents in the file

are a part of the court’s files, that they were filed with the court on a certain

date, and that they were before the court at the time of the hearing. In re

C.S., 208 S.W.3d 77, 81 (Tex. App.–Fort Worth 2006, pet. denied); see also

TEXAS RULE     OF   EVIDENCE 201. In fact, a trial court may sua sponte take

judicial notice of the documents, exhibits, and evidence in its file, and in

doing so the trial court is considered to have had such evidence before it

when it makes an order. See Liberty Mut. Ins. Co. v. Burk, 295 S.W.3d 771,

779 (Tex. App.–Fort Worth 2009, no pet.); Sierad v. Barnett, 164 S.W.3d 471,



1 AAA’s $20,000.00 settlement offer was the central subject of the hearing on AAA’s
request to sever and abate. [See MR 191-99.]


                                           8
481 (Tex. App.–Dallas 2005, no pet.). Thus, once the trial court took judicial

notice of its file, the settlement offer was evidence before the trial court

when it denied AAA’s motion to sever and abate.

      More specifically, in the trial court’s order denying AAA’s motion to

sever and abate the extra-contractual claim, the trial court specifically

stated that:

               The court, after reviewing the arguments of counsel
               and reviewing the documents on file, is of the
               opinion that said motion should be DENIED.

[Tab A & MR 138] (emphasis added).

      The trial court unquestionably had before it evidence demonstrating

AAA’s offer to settle Jackson’s UIM claim in its entirety, and that the offer

was not a “partial settlement,” and that Jackson’s counter-offer constituted

a rejection of same. Therefore, the trial court abused its discretion when it

denied AAA’s request that it sever and abate Jackson’s extra-contractual

claims.




                                        9
Respectfully submitted,

WALTERS, BALIDO & CRAIN, L.L.P.


BY:       /s/ Gregory R. Ave
       GREGORY R. AVE
       Texas Bar No.: 01448900
       greg.ave@wbclawfirm.com
       JAY R. HARRIS
       Texas Bar No.: 00793907
       Meadow Park Tower, Suite 1500
       10440 North Central Expressway
       Dallas, Texas 75231
       Telephone: 214-347-8310
       Facsimile: 214-347-8311

      ATTORNEYS FOR RELATOR AAA TEXAS
      COUNTY MUTUAL INSURANCE
      COMPANY




 10
                    CERTIFICATE OF COMPLIANCE

       Pursuant to Texas Rule of Appellate Procedure 9.4(i)(3), the
undersigned certifies that this brief complies with the type-volume
limitations of Texas Rule of Appellate Procedure 9.4(i)(2)(B). Exclusive of
the exempt portions identified by Texas Rule of Appellate Procedure
9.4(i)(1), this brief contains 1,790 words, including footnotes, headings, and
quotations. In providing this word-count, the undersigned is relying on
the word count generated by the computer program used to prepare the
brief.

      This brief has been prepared in proportionally spaced type, 14-point
text, and in Book Antiqua font, using the computer program known as
Microsoft Word (2010 version).

     Acknowledged: December 22, 2015.

                                            /s/ Gregory R. Ave
                                           GREGORY R. AVE




                                     11
                      CERTIFICATE OF SERVICE

      This is to certify that on this the 22nd day of December, 2015 a true
and correct copy of the above document has been forwarded to all counsel
of record in compliance with the Texas Rules of Civil Procedure.

The Honorable Judge David Brabham               Via hand delivery
Judge of the 188th Judicial District Court of Gregg County
Gregg County Courthouse
101 East Methvin, Suite 408
Longview, Texas 75601

Justin A. Smith, Esquire                      Via E-Serve
Glenn A. Perry, Esquire
Sloan, Bagley, Hatcher & Perry Law Firm
101 East Whaley Street
Longview, Texas 75601

ATTORNEYS FOR REAL PARTY
IN INTEREST THOMAS JACKSON

                                           /s/ Gregory R. Ave
                                           Gregory R. Ave




                                    12
