                                                                                         ACCEPTED
                                                                                     14-15-00922-CV
                                                                     FOURTEENTH COURT OF APPEALS
                                                                                  HOUSTON, TEXAS
                                                                               10/29/2015 4:02:13 PM
                                                                               CHRISTOPHER PRINE
                                                                                              CLERK



                            No. __________-CV
                                                                   FILED IN
                                                            14th COURT OF APPEALS
                                                               HOUSTON, TEXAS
                               IN THE                       10/29/2015 4:02:13 PM
                      ______ COURT OF APPEALS               CHRISTOPHER A. PRINE
                          HOUSTON, TEXAS                             Clerk




      IN RE AMERICAN RISK INSURANCE
              COMPANY, INC.

             Original Proceeding from Cause No. 14-DVC-213947
            In the 268th District Court of Fort Bend County, Texas
                  Honorable Brady G. Elliot, Presiding Judge


                 PETITION FOR WRIT OF MANDAMUS


Kevin F. Risley                         Spencer E. Dunn
State Bar No. 16941200                  State Bar No. 00797848
Andrew L. Johnson                       4669 Southwest Freeway, Suite 700
State Bar No. 24060025                  Houston, Texas 77027
George H. Arnold                        Telephone: (713) 559-0705
State Bar No. 00783559                  Facsimile: (713) 481-8768
Thompson, Coe, Cousin & Irons, LLP      sdunn@americanriskins.com
One Riverway, Suite 1400
Houston, Texas 77056
Telephone: (713) 403-8210
Facsimile: (713) 403-8299
garnold@thompsoncoe.com
krisley@thompsoncoe.com
ajohnson@thompsoncoe.com


COUNSEL FOR RELATOR AMERICAN RISK INSURANCE COMPANY, INC.
                   IDENTITY OF PARTIES AND COUNSEL

Relator:                   American Risk Insurance Company, Inc.

Relator’s Counsel:         Kevin F. Risley
                           Andrew L. Johnson
                           George H. Arnold
                           Thompson, Coe, Cousin & Irons, LLP
                           One Riverway, Suite 1400
                           Houston, Texas 77056

                           Spencer E. Dunn
                           4669 Southwest Freeway, Suite 700
                           Houston, Texas 77027

Respondent:                The Honorable Brady G. Elliot
                           268th Judicial District Court Fort Bend County, Texas
                           301 Jackson Street
                           Richmond, Texas 77469

Real Party in Interest:    Hussam Barazi

Real Party in Interest’s   Clint Brasher
Counsel:                   Joe Muckleroy
                           P.O. Box 2237
                           Beaumont, Texas 77704




                                         -i-
                                           TABLE OF CONTENTS
                                                                                                                        Page

Identity of Parties and Counsel ................................................................................ i

Table of Contents .................................................................................................... ii

Table of Authorities ................................................................................................ iii

Statement of the Case ...............................................................................................iv

Statement of Jurisdiction ..........................................................................................iv

Issue Presented .......................................................................................................... v

Statement of Facts ..................................................................................................... 1

Summary of Argument ............................................................................................. 4

Argument.................................................................................................................... 5

         I.        Mandamus Standard ............................................................................. 5

         II.       The Trial Court Clearly Abused Its Discretion by

                   Denying ARI’s Motion to Compel Appraisal ....................................... 5

                   A.        Texas Law Strongly Favors Appraisal ....................................... 5

                   B.        Application of Law to Facts ....................................................... 7

         III.      There Is No Adequate Remedy by Appeal ........................................ 12

Prayer ...................................................................................................................... 12

Certificate of Service .............................................................................................. 14

Certificate of Compliance ....................................................................................... 15

Appendix
Trial Court’s Order Denying Motion to Compel Appraisal




                                                            - ii -
                                TABLE OF AUTHORITIES
                                                                                                 Page

In re Allstate Cnty. Mut. Ins. Co., 85 S.W.3d 193 (Tex. 2002) ......................... 5, 12

In re GuideOne Mut. Ins. Co., 09-12-00581-CV, 2013 WL 257371
       (Tex. App.—Beaumont Jan. 24, 2013, no pet.) ...................................8, 9, 12

In re GuideOne Nat'l Ins. Co., 07-15-00281-CV, 2015 WL 5766496,
       (Tex. App.—Amarillo Sept. 29, 2015, no. pet. h.) (mem. op.) .................... 11

In re Prudential Ins. Co. of Am., 148 S.W.3d 124 (Tex. 2004) ............................... 5

In re Pub. Serv. Mut. Ins. Co., 03-13-00003-CV, 2013 WL 692441,
       (Tex. App.—Austin Feb. 21, 2013, no pet.) ................................... 7, 8, 9, 10

In re Taylor, 113 S.W.3d 385,
       (Tex. App.—Houston [1st Dist.] 2003, no pet.) ............................................ 4

In re Texas Windstorm Ins. Ass’n, 14-13-00632-CV, 2013 WL 4806996,
       (Tex. App.—Houston [14th Dist.] Sept. 10, 2013, no pet.) .................. 10, 12

In re Universal Underwriters of Texas Ins. Co.,
       345 S.W.3d 404 (Tex. 2011) ...................................................... v, 6, 8, 10, 12

State Farm Lloyds v. Johnson, 290 S.W.3d 886 (Tex. 2009) ...........................10, 11




                                                 - iii -
                             STATEMENT OF THE CASE

Underlying Proceeding:                   This is a suit brought by Real-Party-in-Interest
                                         Hussam Barazi for claims allegedly arising
                                         from Relator American Risk Insurance
                                         Company, Inc.’s handling of an insurance
                                         claim.

Respondent:                              The Honorable Brady G. Elliot, 268th Judicial
                                         District Court of Fort Bend County, Texas.

Action from Which                        On February 20, 2015, the trial court denied
Relief Is Sought:                        Relator’s Motion to Compel Appraisal. R. Tab
                                         5 at MANDAMUS 00189.1


                          STATEMENT OF JURISDICTION
       The Court has jurisdiction to issue a writ of mandamus in this case under

Article V, Section 6 of the Texas Constitution, Section 22.221(b)(1) of the Texas

Government Code, and Texas Rule of Appellate Procedure 52.




1
  “R.” refers to the Record in Support of Petition for Writ of Mandamus filed with this petition.
For the Court’s convenience, the pages of the record are consecutively bates labeled in the lower
right-hand corner beginning with MANDAMUS 00001.


                                             - iv -
                               ISSUE PRESENTED
      Relator American Risk Insurance Company, Inc. is entitled to a writ of

mandamus ordering the trial court to grant Relator’s motion to compel appraisal

because it is well-settled “appraisals can provide a less expensive, more efficient

alternative to litigation, and . . . should generally go forward without preemptive

intervention by the courts.”    In re Universal Underwriters of Texas Ins. Co.,

345 S.W.3d 404, 407 (Tex. 2011). Based on the importance and utility of appriasal

clauses, Texas courts routinely grant conditional mandamus relief against trial

courts that refuse to enfore appraisal clauses. Hence, it is inarguable that the trial

court in the present case clearly abused its discretion by denying the motion to

compel appraisal, and there is no adequate remedy by appeal for the erroneous

denial of a motion to compel appraisal.




                                          -v-
                            STATEMENT OF FACTS

      Relator American Risk Insurance Company, Inc. (“ARI”) issued a Texas

homeowner’s insurance policy to Real-Party-in-Interest Hussam Barazi, covering

his house (“the Property”) with an effective date of March 27, 2012 through

March 27, 2013 (“the Policy”). R. Tab 1A at MANDAMUS 00009. Pertinently,

the Policy contains the following appraisal provision:

      7. Appraisal. If you [Barazi] or we [ARI] fail to agree on the actual
      cash value, amount of loss, or cost of repair or replacement, either can
      make a written demand for appraisal. Each will then select a
      competent, independent appraiser and notify the other of the
      appraiser’s identity within 20 days of receipt of written demand. The
      two appraisers will choose an umpire. If they cannot agree upon an
      umpire within 15 days, you or we may request that the choice be made
      by a judge of a district court of a judicial district where the loss
      occurred. The two appraisers will then set the amount of loss, stating
      separately the actual cash value and loss to each item. If you and we
      request that they do so, the appraisers will also set:
             a.     The full replacement cost of the dwelling.
             b.     The full replacement cost of any other building upon
                    which loss is claimed.
             c.     The full cost of repair or replacement of loss of such
                    building, without deduction for depreciation.
      If the appraisers fail to agree, they will submit their differences to the
      umpire. An itemized decision agreed to by any two of these three and
      filed with us will set the amount of the loss. Such award shall be
      binding on you and us.
      Each party will pay its own appraiser and bear the other expenses of
      the appraisal and umpire equally.
See R. Tab 1A at MANDAMUS 00044–00045.2

2
 The appraisal provision located at R. Tab 1A at MANDAMUS 00044–00045 is found within an
endorsement that replaces the appraisal clause located at R. Tab 1A at MANDAMUS 00025–

                                         -1-
       In or around early February 2013, Barazi submitted a claim with ARI for

alleged Property damage caused by a hail storm on June 11, 2012. R. Tab 1B at

MANDAMUS 00063. On February 12, 2013, independent adjuster Chris Cotter

inspected the Property. R. Tab 1C at MANDAMUS 00066–00067. Cotter drafted

an estimate that included amounts to repair certain portions of the Property. R.

Tab 1C. at MANDAMUS 00066.                  Because Cotter’s estimated allowance for

repairs did not exceed Barazi’s deductible, Cotter recommended ARI not make any

payment. R. Tab 1C at MANDAMUS 00068. On February 15, 2013, ARI sent a

letter to Barazi explaining, “At this time no payment will be issued because the

Actual Cash Value of the repairs is below your deductible.”                  R. Tab 1D at

MANDAMUS 00119. On or around March 11, 2013, Barazi’s public adjuster

prepared a report containing a preliminary repair cost assessment that exceeded

Cotter’s estimate. R. Tab 1E at MANDAMUS 00136.

       Thereafter, Cotter re-inspected the Property and, on May 7, 2013, issued a

supplemental estimate in which he recommended ARI not make any payment

because the loss occurred outside the policy period. R. Tab 1F at MANDAMUS

00137. On May 10, 2010, ARI received a forensic meteorologist’s report that hail

damage did not occur to the Property during the policy period. R. Tab 1G at

MANDAMUS 00163. On May 13, 2013, ARI sent Barazi a letter explaining

00026. For purposes of compelling appraisal and this original proceeding, there is no material
difference between the provisions.


                                            -2-
Cotter’s and the meteorologist’s findings and advising that ARI would not be

paying Cotter’s claim. R. Tab 1H at MANDAMUS 00167.

      Almost a year later, on April 14, 2014, Barazi filed his Original Petition

against ARI, asserting claims for breach of contract, violations of the Deceptive

Trade Practices Act and Texas Insurance Code, breach of the duty of good faith

and fair dealing, and fraud. R. Tab 2 at MANDAMUS 00171. After being served

with the Original Petition, ARI filed an answer. R. Tab 3 at MANDAMUS 00184.

      On October 7, 2015, ARI properly transmitted to Barazi notice that ARI was

invoking its contractual right to appraisal. R. Tab 1I at MANDAMUS 00169. On

October 13, 2015, Barazi notified ARI that he was opposed to participating in the

appraisal, arguing that ARI’s demand is untimely and appraisal is inappropriate

because there is no dispute as to the amount of loss. R. Tab 1J at MANDAMUS

00170.

      On October 14, 2015, ARI filed its Motion to Compel Appraisal with

supporting exhibits. See R. Tab 1 and R. Tabs 1A–1J. ARI’s Motion to Compel

Appraisal was set for an oral hearing on October 30, 2015 at 9:00 a.m. R. Tab 4 at

MANDAMUS 00187. Nevertheless, prior to the hearing, and before Barazi filed a

response, the trial court sua sponte signed an order on October 22, 2015 denying

the Motion to Compel Appraisal. See R. Tab 5 at MANDAMUS 00189.




                                       -3-
       On October 27, 2015, Barazi filed a response to the Motion to Compel

Appraisal. R. Tab 6 at MANDAMUS 00190.3

       Docket call for this lawsuit is presently set for November 13, 2015, and a

jury trial is set for November 16, 2015. R. Tab 7 at MANDAMUS 00243. This is

the first trial setting. ARI intends on filing in the trial court an emergency motion

to stay trial pending the outcome of this petition for writ of mandamus. If the trial

court denies the emergency motion, ARI intends on filing an emergency motion to

stay with this Court.

                               SUMMARY OF ARGUMENT

       This is a simple petition for the Court to resolve because Texas precedent

inarguably establishes that ARI is entitled to mandamus relief. The trial court

clearly abused its discretion by denying ARI’s Motion to Compel Appraisal

because the appraisal clause was binding and enforceable and had not been waived.

ARI did not unreasonably delay its demand for appraisal. Moreover, Barazi has

not established that he was prejducied by any delay. Finally, ARI has no adequate



3
 ARI includes Barazi’s response in the mandamus record as a matter of courtesy. However, the
Court may not consider the response in resolving this original proceeding because the response
was filed after the trial court issued the order that is the subject of this petition. See In re Taylor,
113 S.W.3d 385, 392 (Tex. App.—Houston [1st Dist.] 2003, no pet.) (“In an original proceeding
on petition for writ of mandamus, we must focus on the record that was before the trial court.
We will not consider exhibits that were not part of the trial court record at the time of the hearing
on the motion that is the subject of this original proceeding.” (citation omitted)). Regardless,
none of the arguments raised or evidence cited in the response defeats ARI’s right to invoke
appraisal.


                                                 -4-
remedy by appeal because the trial court’s denial vitiated ARI’s ability to defend

against Barazi’s claims.

                                   ARGUMENT

I.    Mandamus Standard

      To be entitled to mandamus relief, a litigant must show (1) the trial court

clearly abused its discretion and (2) there is no adequate remedy by appeal. In re

Prudential Ins. Co. of Am., 148 S.W.3d 124, 135–36 (Tex. 2004).

II.   The Trial Court Clearly Abused Its Discretion by Denying ARI’s
      Motion to Compel Appraisal

      A.     Texas Law Strongly Favors Appraisal

      Over a decade ago, the Supreme Court of Texas considered an insurers’

request for mandamus relief regarding the trial court’s denial of the insurers’

motion to compel appraisal. In re Allstate Cnty. Mut. Ins. Co., 85 S.W.3d 193

(Tex. 2002). The subject insurance policy contained an appraisal clause which

could be invoked by the insurers or insureds (as does Barazi’s Policy). Id. at 195.

The insureds filed suit against the insurers, asserting claims for fraud, violations of

the Deceptive Trade Practices Act and Texas Insurance Code, breach of the duty of

good faith and fair dealing, breach of contract, and civil conspiracy.              Id.

Thereafter, the insurers filed a motion to compel appraisal. Id. The trial court

denied the motion, concluding it was unenforceable as a matter of law. Id.




                                         -5-
      In a straightforward and simple opinion, the Supreme Court held that the

trial court clearly abused its discretion because Texas has long enforced appraisal

clauses. Id. at 195–96. The Court also held that no adequate appellate remedy

existed because preventing the insurers from exercising their contracted-for right to

appraisal vitiated their ability to defend against the insureds’ claim for breach of

contract. Id. at 196.

      In 2011, the Supreme Court again conditionally granted an insurer’s request

for mandamus relief from the trial court’s denial of a motion to compel appraisal.

In re Universal Underwriters of Texas Ins. Co., 345 S.W.3d 404 (Tex. 2011). In

addressing whether the insurer waived its right to invoke the appraisal clause, the

Court explained the significant benefit of appraisal: “Appraisals can provide a less

expensive, more efficient alternative to litigation, and . . . should generally go

forward without preemptive intervention by the courts.”         Id. at 407 (citation

omitted) (noting further, “Indeed, appraisals have proceeded for well over a

century with little judicial involvement.”).

      The Court, recognizing that waiver is the intentional relinquishment of

known right or intentional conduct inconsistent with claiming that right,

determined that a party may waive its right to appraisal if the party does not invoke

the clause within a reasonable time after the “point of impasse.” Id. at 408–10.




                                         -6-
The Court defined “impasse” as “a mutual understanding that neither [party] will

negotiate further.” Id. at 410.

      The Court also held that, before waiver is established, the party claiming

waiver must prove it was prejudiced by the other party’s unreasonable delay in

demanding appraisal. Id. at 411. “If the insured has suffered no prejudice due to

delay, it makes little sense to prohibit appraisal when it can provide a more

efficient and cost-effective alternative to litigation.” Id.

      B.      Application of Law to Facts

      It was Barazi’s burden to prove that ARI waived its right to invoke the

appraisal process. In re Pub. Serv. Mut. Ins. Co., 03-13-00003-CV, 2013 WL

692441, at *5 (Tex. App.—Austin Feb. 21, 2013, no pet.) (“[T]the burden of

showing waiver is on the party challenging the right to appraisal.”).          It is

inarguable Barazi did not meet this burden because he did not file a response to

ARI’s Motion to Compel appraisal prior to the trial court’s denial of the motion.

Moreover, the mandamus record proves ARI did not waive appraisal.

      First, impasse never occurred before ARI demanded appraisal. Impasse did

not occur in May 2013 when ARI sent its decision letter to Barazi because nothing

in the letter affirmatively indicated ARI would not consider additional requests for

resolution.   In fact, ARI expressly stated additional information would be

considered:



                                          -7-
      If there is information you think was not considered, please submit for
      us to review. By specifying these grounds, [ARI] does not intend to
      waive, but hereby expressly reserves all of its rights and defenses
      under this insurance policy.
            Because you are a valued customer, it is important to us that
      you fully understand the information provided herein. If you have any
      questions concerning this matter, please contact us.

R. Tab 1H at MANDAMUS 00168; see In re Pub. Serv., 2013 WL 692441, at *6

(concluding insurer did not unconditionally deny claim because “[insurer] invited

further information to evaluate the claim in the event of [insured’s] disagreement

with [insurer’s] estimate of the loss”). There is nothing else in the mandamus

record that indicates either party made an unconditional denial of recovery prior to

ARI demanding appraisal.      See Universal Underwriters, 345 S.W.3d at 410

(recognizing neither party ever expressed that it refused to discuss resolution

further); In re GuideOne Mut. Ins. Co., 09-12-00581-CV, 2013 WL 257371, at *1

(Tex. App.—Beaumont Jan. 24, 2013, no pet.) (per curiam) (“The mandamus

record contains no explicit rejection of appraisal by GuideOne.”). “We will not

infer waiver where neither explicit language nor conduct indicates that such was

the party’s intent.” Universal Underwriters, 345 S.W.3d at 410.

      Second, even if impasse did occur at the time Barazi filed suit in April 2014

(or before), ARI did not wait an unreasonable length of time to demand appraisal

by making demand in October 2015. The Beaumont Court of Appeals has held

that an insurer did not wait an unreasonable time to invoke appraisal when it made


                                        -8-
its demand over four years after suit was filed and two months before the trial

setting. In re GuideOne, 2013 WL 257371, at *1–2. There, the insurer filed an

answer in 2007 but did not invoke the appraisal process until May 2012, shortly

before the July 2012 trial setting. Id. Nevertheless, the court of appeals explained

that no evidence supported waiver because nothing in the mandamus record proved

the insurer made an explicit rejection of appraisal. Id. at *1.

      Similarly, the Austin Court of Appeals concluded that, even if impasse

occurred when suit was filed in March 2012, an insurer’s invocation of appraisal

on September 19, 2012—one month before the October 22, 2012 trial setting—was

not made an unreasonable time after impasse. In re Pub. Serv., 2013 WL 692441,

at *2, *5. Furthermore, as in both In re GuideOne and In re Public Service, the

appraisal clause in the Policy here placed no time limit on when appraisal could be

invoked. See 2013 WL 257371, at *1; 2013 WL 692441, at *5.

      Third, even if ARI did wait an unreasonable time after impasse to demand

appraisal, no waiver occurred because Barazi has not met his burden of

establishing that the delay caused him prejudice.          There is nothing in the

mandamus record that supports a finding of prejudice. Further, the Supreme Court

has recognized the seeming impossibility of proving prejudice when the appraisal

clause provides both parties an equal ability to demand appraisal:

      Moreover, it is difficult to see how prejudice could ever be shown
      when the policy, like the one here, gives both sides the same

                                         -9-
      opportunity to demand appraisal. If a party senses that impasse has
      been reached, it can avoid prejudice by demanding an appraisal itself.
      This could short-circuit potential litigation and should be pursued
      before resorting to the courts.

In re Universal Underwriters, 345 S.W.3d at 412.

      Fourth, the appraisal process was not waived or rendered inapplicable on the

basis that ARI is contesting coverage only and not the amount of any loss. First,

this is incorrect. There is no evidence in the mandamus record that proves ARI

definitively agrees in whole or part with Barazi’s public adjuster’s damages

estimate.   Instead, the evidence shows there is a disparity between Cotter’s

estimate and the public adjuster’s estimate. Compare R. Tab 1C, with R. Tab 1E.

      Moreover, even if coverage is disputed, ARI is still entitled to invoke the

appraisal process: “Any appraisal necessarily includes some causation element

because setting the ‘amount of loss’ requires appraisers to decide between damages

for which coverage is claimed from damages caused by everything else.” State

Farm Lloyds v. Johnson, 290 S.W.3d 886, 892 (Tex. 2009). “Appraisers must

allocate damages between covered and excluded perils; causation always is a

consideration because an appraisal is for damages caused by a particular

occurrence.”   In re Texas Windstorm Ins. Ass’n, 14-13-00632-CV, 2013 WL

4806996, at *2 (Tex. App.—Houston [14th Dist.] Sept. 10, 2013, no pet.) (per

curiam) (mem. op.); In re Pub. Serv., 2013 WL 692441, at *4 (“[C]ausation must

always be a consideration for appraisers, at least initially, because an appraisal is


                                       - 10 -
for damages caused by a particular occurrence, not every repair that a property

might require.”).   Obviously, if appraisals were limited to a determination of

damages without consideration of whether the damages were covered, the appraisal

would be useless to the parties:

      [If] appraisers can never allocate damages between covered and
      excluded perils, then appraisals can never assess hail damage unless a
      roof is brand new. That would render appraisal clauses largely
      inoperative, a construction we must avoid.

Johnson, 290 S.W.3d at 892–93.

      Fifth and finally, regardless of ARI’s actions, ARI did not waive its right to

appraisal because of the Policy’s non-waiver clause:

      4. Waiver or Change of Policy Provisions. Changes in this policy
      may be made and perils added only by attaching a written
      endorsement properly executed by our authorized agent. No provision
      of this policy may be waived unless the terms of the policy allow the
      provision to be waived. Our request for an appraisal or examination
      will not waive any of our rights.

See R. Tab 1A at MANDAMUS 00033. The Policy contains no endorsement

waiving or removing the appraisal clause.

      Only one month ago, the Amarillo Court of Appeals recognized that non-

waiver clauses “have long been held to be valid” and, because the policy contained

a similar non-waiver clause, held that the trial court clearly abused its discretion by

finding the insurer waived appraisal. In re GuideOne Nat’l Ins. Co., 07-15-00281-

CV, 2015 WL 5766496, at *3 (Tex. App.—Amarillo Sept. 29, 2015, no. pet. h.)



                                        - 11 -
(mem. op.); see also In re GuideOne Mut. Ins. Co., 2013 WL 257371, at *1 (“The

policy also expressed the parties’ intention that waiver not be implied, as the

insurance policy expressly provides that the policy’s terms ‘can be amended or

waived only by endorsement issued by us and made a part of this policy.’”).

       In sum, for the foregoing five separate reasons, the trial court clearly abused

its discretion by denying ARI’s Motion to Compel Appraisal.

III.   There Is No Adequate Remedy by Appeal

       ARI cannot obtain any adequate remedy by appeal because it is well-settled

that a trial court’s denial vitiates an insurer’s ability to defend against the insured’s

breach-of-contract claims.     See In re Allstate, 85 S.W.3d at 196 (holding no

adequate appellate remedy existed because trial court’s denial of motion to compel

appraisal vitiated insurer’s ability to defend against the insureds’ claim for breach

of contract); see also In re Universal Underwriters, 345 S.W.3d at 412 (same); In

re Texas Windstorm, 2013 WL 4806996, at *1–2 (same). “[D]enying an appraisal

altogether deprives [an insurer] of a contractual right that cannot be remedied by

appeal.” In re GuideOne, 2013 WL 257371, at *2. Therefore, ARI has proved it

has no adequate remedy by appeal.

                                       PRAYER

       The trial court clearly abused its discretion by denying Relator American

Risk Insurance Company, Inc.’s Motion to Compel Appraisal and there is no



                                         - 12 -
adequate appellate remedy for this erroneous ruling.             Accordingly, Relator

respectfully requests that the Court grant this Petition, order the trial court (1) to

withdraw its October 20, 2015 order denying the Motion to Compel Appraisal, (2)

to enter an order granting the Motion to Compel Appraisal, and (3) grant Relator

all other relief to which they are justly entitled, including an award of their costs.



                                        Respectfully submitted,

                                         /s/ Kevin F. Risley__________________
                                        Kevin F. Risley
                                        State Bar No. 16941200
                                        Andrew L. Johnson
                                        State Bar No. 24060025
                                        George H. Arnold
                                        State Bar No. 00783559
                                        Thompson, Coe, Cousin & Irons, LLP
                                        One Riverway, Suite 1400
                                        Houston, Texas 77056
                                        Telephone: (713) 403-8210
                                        Facsimile: (713) 403-8299
                                        garnold@thompsoncoe.com
                                        krisley@thompsoncoe.com
                                        ajohnson@thompsoncoe.com

                                        Spencer E. Dunn
                                        State Bar No. 00797848
                                        4669 Southwest Freeway, Suite 700
                                        Houston, Texas 77027
                                        Telephone: (713) 559-0705
                                        Facsimile: (713) 481-8768
                                        sdunn@americanriskins.com

                                        COUNSEL FOR RELATOR AMERICAN RISK
                                        INSURANCE COMPANY, INC.


                                         - 13 -
                         CERTIFICATE OF SERVICE
      I certify that a true and correct copy of the foregoing was served on the
following via certified mail, return receipt requested, on this, the 29th day of
October 2015.

The Honorable Brady G. Elliot
268th Judicial District Court Fort Bend County, Texas
301 Jackson Street
Richmond, Texas 77469
Respondent

Clint Brasher
Joe Muckleroy
P.O. Box 2237
Beaumont, Texas 77704
Counsel for Real Party in Interest


                                     /s/ Kevin F. Risley_____________________
                                     Kevin F. Risley




                                      - 14 -
                    CERTIFICATE OF COMPLIANCE

      The undersigned attorney certifies that this computer-generated document
has a word count of approximately 4,249 words, based upon the representation
provided by the word processing program that was used to create the document.

                                   /s/ Kevin F. Risley
                                   Kevin F. Risley




                                    - 15 -
                                VERIFICATION

STATE OF TEXAS  §
                §
COUNTY OF HARRIS§

 Before me, the undersigned authority, on this day personally appeared Spencer E.
Dunn who, after being duly swom upon his oath, stated as follows:

      1. My name is Spencer E. Dunn. I am over the age of twenty-one, of sound
mind, and in all ways competent to make this affidavit.

    2. I am one of the attomeys of record for Relator American Risk Insurance
Company, Inc. in the underlying case that gave rise to this proceeding.

       3. I have read the foregoing Petition for Writ of Mandamus. The factual
allegations set forth in the Petition are within my personal knowledge, based upon
my involvement in the case. Every factual statement in the Petition is supported by
competent evidence included in the record.

     4. All of the information set forth in this verification is within my personal
knowledge and is true and correct.




                                            .Spen~Dunn          \




      Subscribed and swom to before me on October1i_, 2015.
APPENDIX
MANDAMUS 00189
     Local Rule Notice of and Assignment of Related Case in Appeals


      As required by the Local Rules Relating to Assignment of Related Cases
to and Transfers of Related Cases between the First and Fourteenth Courts of
Appeals, I certify that the following related appeal or original proceeding has
been previously filed in either the First or Fourteenth Court of Appeals:


      [X]   None


      []    Caption:                 _________________________________


            Trial court
            case number:             _________________________________


            Appellate court
            case number:             _________________________________




                               /s/ Andrew L. Johnson                           _
                               [Signature of certifying attorney or pro se party]


                               October 29, 2015
                               [Date]
