                                                                                  ACCEPTED
                                                                              12-17-00117-CV
                                                                  TWELFTH COURT OF APPEALS
                                                                               TYLER, TEXAS
                                                                           7/31/2017 12:00 AM
                                                                                    Pam Estes
                                                                                       CLERK

             CAUSE NO. 12-17-117-CV

                                    In The                     FILED IN
                                                        12th COURT OF APPEALS
                               Court of Appeals              TYLER, TEXAS
                                                        7/29/2017 9:28:08 AM
                                    for the                    PAM ESTES
                                                                 Clerk
                           Twelfth Appellate District
                                 Tyler, Texas


     IN RE:

           PHILADELPHIA INDEMNITY
           INSURANCE COMPANY


              RELATOR'S REPLY TO
             REAL PARTY'S REPLY TO
             RELATOR'S RESPONSE TO
                 REAL PARTY'S
             MOTION FOR REHEARING
TO THE HONORABALE JUDGES OF SAID COURT:

     NOW COMES PHILADELPHIA INDEMNITY INSURANCE CO.,

Relator in the above styled and numbered cause, files this its RELATOR'S

REPLY TO REAL PARTY'S REPLY TO RELATOR'S RESPONSE TO

REAL PARTY'S MOTION FOR REHEARING, demonstrating Real Party's

continuing failure to take responsibility for its own conduct, and would


                                       1
respectfully show unto this Court as follows:

[A] Having Stuck Head in Sand, Claimant Still Refuses to Take Responsibility

      Circumstantial evidence often possesses equal or even greater probative

value than direct evidence. Brown v. State, 911 S.W.2d 744, 745-46 (Tex. Cr.

App. 1995). The circumstantial evidence herein demonstrates that Claimant took

its non suit in the trial court after this Court ordered it to respond to Surety's

mandamus petition. Claimant has failed, and continues to fail, to explain the

timing of its action, or to even explain why it took a non suit against Surety.

      Likewise, the uncontested evidence demonstrates that Claimant possessed

knowledge of this proceeding, and failed to do anything. This Court received

proof of service, and Real Party has not denied such receipt. To avoid such

failures, Claimant blames this Court for sending the notice to a wrong email.1

Claimant further blames Surety for failing to inform this Court of the non suit,

when Surety disagrees with Claimant's contention on mootness, and the

uncontested evidence concerning the applicable standard of care demonstrates

actual knowledge of this Court's order to respond.2

      Indeed, Claimant goes so far as to imply that Surety should have prepared

and filed Claimant's response to Surety's mandamus petition.


1
  In the "skeptical words of Saturday Night Live's Church Lady, 'How convenient!'" U.S. v.
Nacchio, 2007 WL 841802 at 1 (D.Colo. 2007).
2
  Why else would Claimant be receiving filings for this proceeding?
                                            2
          "To us, the duty of being informed is tantamount to the duty of taking some

action based on being informed." Peck v. Ray, 601 S.W.2d 165, 168 (Tex. Civ.

App.--Corpus Christi 1980, writ ref'd n.r.e.).                  Having been informed of the

pendency of this action, and that she was not summarily dismissed, Claimant

should have taken action to file a response. It cannot now shift blame to this Court

and Surety.

[B] Claimant's Silence is Deafening

          As pointed out in Surety's rehearing response, the trial court's order is not

moot because Claimant will be forced to file another lawsuit in Henderson County.

Tex. Civ. Prac. & Rem. Code §17.001(a). In response, Claimant concedes that this

Court reached the correct decision, i.e. venue is mandatory outside of Henderson

County.3 Claimant then asserts that mandatory venue can be asserted again, when

it refiles in Henderson County. But Claimant completely ignores the res judicata

effect of the trial court's venue order, despite having been expressly informed of

the applicable law in Surety's response.

          As previously noted, a trial court's venue determination possesses preclusive

effect. In re Team Rocket, L.P., 256 S.W.3d 257, 260 (Tex. 2008); Miller v. State

and County Mut. Fire Ins. Co., 1 S.W.3d 709, 712 (Tex. App.--Fort Worth 1999,

pet. denied). The erroneous nature of a judgment or order does not destroy its


3
    Claimant does not explain why it filed suit in the wrong venue in the first place.
                                                    3
preclusive effect. Schein v. American Restaurant Group, Inc., 852 S.W.2d 496,

497 n. 1 (Tex. 1993). "That the judgment may have been wrong or premised on a

legal principle subsequently overruled does not affect application of res judicata."

Segrest v. Segrest, 649 S.W.2d 610, 612 (Tex. 1983), cert. denied, 464 U.S. 894,

104 S.Ct. 242, 78 L.Ed.2d 232 (1983). Thus, even though the trial court erred, its

venue denial still possesses the effect of authorizing venue in Henderson County.

      Claimant never explains why or how res judicata does not apply herein.

      Second, more than thirty (30) days have passed since the trial court entered

its order, transferring venue.     After thirty (30) days have passed, an order

transferring venue is final and cannot be set aside. In re Team Rocket, L.P., supra;

In re Southwestern Bell Telephone Co., 35 S.W.3d 602, 605 (Tex. 2000).

Claimant never explains why or how such principle does not bar relief herein.

      Third, Claimant is requesting that this Court enter a writ of mandamus,

directing the trial court to set aside its order transferring venue. Prior to obtaining

relief, the party seeking relief must present a demand to the trial court (which

Claimant has never done). In re Fain, 514 S.W.3d 917, 919 (Tex. App.--Fort

Worth 2017, no pet.); Newton v. Calhoun, 203 S.W.3d 382, 386 (Tex. App.--El

Paso 2006, no pet). Claimant never explains why or how such principle does

not bar relief herein.

      Finally, in its motion for rehearing, Surety pointed out that Brooks County


                                          4
I.S.D. is now a party to this lawsuit, and thus mandatory venue rests in Brooks

County.     Claimant's response herein to how such joinder affects this case is

unintelligible. But regardless of such response, Claimant again does not address

the point: this Court possesses not jurisdiction to correct an errorless judgment or

order. Estate of Clifton v. Southern Pac. Transp. Co., 709 S.W.2d 636, 639 (Tex.

1986); Davis v. Bryan & Bryan, Inc., 730 S.W.2d 643, 644 (Tex.1987).

       There is one, and only one, way for this controversy to be moot: Claimant

must forever forego its claims against Surety, arising out of this controversy.

However, any such concession is conspicuously absent. As a result, Claimant's

request for a rehearing should be denied.

       WHEREFORE,          PREMISES             CONSIDERED,     PHILADELPHIA

INDEMNITY INSURANCE CO., Relator in the above styled and numbered

cause, respectfully prays that Real Party's Motion for Rehearing be DENIED, and

for all other and further relief, either at law or in equity, to which Relator shows

itself justly entitled.

                                      Respectfully submitted,

                                      __/s/__Ricardo A. Ramos__________
                                      Ricardo A. Ramos, Attorney at Law
                                      State Bar Number: 16508100
                                      4712 N. McCall Rd., McAllen, Texas 78504
                                      Tel: (956) 618-2214; Fax: (956) 618-2218
                                      Email: raramoslaw@gmail.com



                                            5
                                     KEITH C. LIVESAY
                                     State Bar No. 12437100
                                     LIVESAY LAW OFFICE
                                     BRAZOS SUITES NO. 9
                                     517 West Nolana
                                     McAllen, Texas 78504
                                     (956) 928-0149
                                     RGVAppellateLaw@yandex.com

                                     Attorneys for Relator
                                     PHILADELPHIA INDEMNITY
                                     INSURANCE COMPANY


                CERTIFICATE OF COMPLIANCE
      This is to certify that the above and foregoing document was generated

utilizing Word 2007, with 14 point font (12 point for footnotes) and contains 1174

words.

                                     __/s/__Ricardo A. Ramos__________
                                     Ricardo A. Ramos, Attorney at Law

                    CERTIFICATE OF SERVICE
      I hereby certify that the foregoing has been served electronically and/or by
facsimile transmission on the following in accordance with the Texas Rules of
Appellate Procedure, to-wit:

Carlos A. Balido, 10440 North Central Expressway
Meadow Park Tower, Suite 1500 Dallas, TX. 75231
Ph. (214) 749-4805 Fax (214) 760-1670 Email: carlos.balido@wbclawfirm.com

John A. Rigney, 4712 N. McColl Rd. McAllen, TX. 78504
Ph. (956) 638-6421 Fax (956) 618-2218 Email: RigneyLaw@aol.com



                                        6
Judge Dan Moore,
100 E. Tyler, Suite 207
Athens, Texas 75751

                          __/s/__Ricardo A. Ramos__________
                          Ricardo A. Ramos, Attorney at Law




                            7
