
NO. 07-04-0271-CV



IN THE COURT OF APPEALS



FOR THE SEVENTH DISTRICT OF TEXAS



AT AMARILLO



PANEL A



JUNE 29, 2004



______________________________





IN RE CALIBER ONE INDEMNITY COMPANY, RELATOR



_________________________________





Before JOHNSON, C.J., and REAVIS and CAMPBELL, JJ.

CONCURRING OPINION

As the majority notes, the record in this case differs from that before us in 
Vanguard
.  Here, McDougal’s Original Petition is before us, Caliber One’s Answer is not, and no contractual claim is being made against Caliber One.  Moreover, Caliber One does not claim that its contract with McDougal contains a provision which precludes this type of suit from proceeding until after the appraisal provision is complied with.  

To the extent that the majority opinion can be read to say that Caliber One does not have a contractual right to appraisal, or that its contractual appraisal right is inapplicable so long as McDougal does not make a contractual claim, I would not go so far in this mandamus proceeding.  I agree that, given the timing of the motion, the status of the lawsuit’s progress, and the circumstances presented to the trial court as demonstrated by this mandamus record, the trial court did not abuse its discretion in denying Caliber One’s motion seeking to invoke the appraisal provision. 
See
 
Terra Nova
, 992 S.W.2d at 742.



Phil Johnson

Chief Justice



  
 





