                      No. 03'15'00451'CV

                            IN THE                           FILED IN
                                                      3rd COURT OF APPEALS
                                                          AUSTIN, TEXAS
                  THIRD COURT OF APPEALS             10/27/2015 10:49:03 AM
                     AT AUSTIN, TEXAS                   JEFFREY D. KYLE
                                                              Clerk



                  ANGELA BROOKS'BROWN,
                        Appellant,

                               v.

               USAA TEXAS LLOYD’S COMPANY,
                         Appellee.

          Appealed from the 146TH Judicial District Court of
                        Bell County, Texas
________________________________________________________________

                       APPELLANT’S BRIEF
________________________________________________________________


                                    Danny Ray Scott
                                    State Bar No. 24010920
                                    350 Pine Street, Suite 300
                                    Beaumont, Texas 77701
                                    Telephone: (409) 833'5400
                                    Facsimile: (409) 833'5405
                                    danny@scottlawyers.com

                                    Attorney for Appellant
                            No. 03'15'00451'CV

                                 IN THE

                        THIRD COURT OF APPEALS
                           AT AUSTIN, TEXAS



                         ANGELA BROOKS'BROWN,
                               Appellant,

                                    v.

                  USAA TEXAS LLOYD’S COMPANY,
                            Appellee.

              IDENTITIES OF PARTIES AND COUNSEL

Appellant:                           Angela Brooks'Brown

Appellee:                            USAA Texas Lloyd’s Company

Counsel for Appellant:               Danny Ray Scott
                                     State Bar No. 24010920
                                     350 Pine Street, Suite 300
                                     Beaumont, Texas 77701
                                     409.833.5400
                                     409.833.5405
                                     danny@scottlawyers.com

Counsel for Appellee:                Lisa A. Songy
                                     State Bar No. 00793122
                                     2811 McKinney Avenue, Suite 250 W
                                     Dallas, Texas 75204
                                     214.665.0100
                                     214.665.0199


                                                                     ii
                                       TABLE OF CONTENTS


IDENTITIES OF PARTIES AND COUNSEL .....................................................ii
TABLE OF CONTENTS .......................................................................................iii
INDEX OF AUTHORITES ...................................................................................iv
STATEMENT OF THE CASE............................................................................... 1
ISSUES PRESENTED FOR REVIEW ................................................................... 2
STATEMENT OF FACTS...................................................................................... 3
SUMMARY OF THE ARGUMENT..................................................................... 6
ARGUMENT .......................................................................................................... 8
CONCLUSION & PRAYER................................................................................ 11
CERTIFICATION................................................................................................. 14
CERTIFICATE OF COMPLIANCE ................................................................... 14
CERTIFICATE OF SERVICE .............................................................................. 15




                                                                                                                  iii
                                        INDEX OF AUTHORITES


CASES
Dolenz v. Continental Nat’l Bank of Fort Worth, 620 S.W.2d 572, 575 (Tex.
 1981)...................................................................................................................... 8
Tel. Equip. Network, In. v. TA/Westchase Place, Ltd., 80 S.W.3d 601, 607 (Tex.
 App.—Houston [1st Dist.} 2002, no pet.)........................................................ 10
TMC Worldwide L.P. v. Gray, 178 S.W.3d 29, 36 (Tex. App.—Houston [1st
 Dist.] 2005, no pet.) ....................................................................................... 9, 10
Wyatt v. Shaw Plumbing Co., 760 S.W.2d 245, 247 (Tex. 1998). ......................... 8




                                                                                                                           iv
                        STATEMENT OF THE CASE

  Nature of the case.   Appellant, Angela Brooks'Brown, originally sued

Appellee, USAA Texas Lloyd’s Company, for breach of contract, breach of

the duty of good faith and fair dealing, fraud, violations of the Texas

Deceptive Trade Practice Act and violations of the Texas Insurance Code.

Appellant subsequently amended her petition to include only the breach of

contract claim. Appellee filed a general denial. Appellant will be referred

to as “Appellant” or “Plaintiff.” Appellee will be referred to as “Appellee,”

“Defendant” or “USAA.”

  Course of the proceedings.      Appellant demanded appraisal of her

insurance claim pursuant to the provisions of the insurance policy.

Appellant subsequently filed a nonsuit of her claims without prejudice.

After filing the nonsuit, and Appellant asked a judge in Jefferson County,

Texas (the “Jefferson County Lawsuit” or “Jefferson County action”) to

appoint an umpire in the appraisal proceeding. Appellee then asked the

Bell County trial court to appoint an umpire and filed an application for

temporary injunction asking the Bell County court to enjoin Appellant



                                                                            1
from proceeding on her Petition to Appoint Umpire in Appraisal

Proceeding that she filed in Jefferson County. Appellant then filed a plea

in abatement asking the Bell County Court to abate the Bell County

proceeding and to allow the Jefferson County court to appoint an umpire

in the appraisal proceeding.

  Trial court disposition.     The trial court denied Appellant’s plea in

abatement, granted Appellee’s motion for appointment of umpire and

granted Appellee’s application for temporary injunction.

                   ISSUES PRESENTED FOR REVIEW

  1.   The trial court erred when it denied Plaintiff’s Plea in Abatement to

Defendant’s Motion for Appointment of Umpire for Insurance Appraisal

Proceeding.

  2.   The trial court erred when it granted Defendant USAA Texas

Lloyd’s Company’s Application for Temporary Injunction.

  3.   The trial court’s order granting Defendant USAA Texas Lloyd’s

Company’s Motion for Appointment of Umpire for Insurance Appraisal

Proceeding is void.



                                                                           2
                          STATEMENT OF FACTS

   Appellant purchased homeowner insurance policy number 0242343 40

74 90A from Appellee. (CR 272). The insurance policy insured Appellant’s

property located at                                          and provided

coverage for damage caused by wind and hail. (CR 582). On or about May

12, 2014, Plaintiff’s property sustained windstorm and hail damage. (CR

272).   Plaintiff’s roof sustained extensive damage during the storm

including damage to the shingles, roof jack, drip edge, chimney and other

structural parts of the roof. (CR 272). Plaintiff’s property also sustained

exterior damage to the cornice and siding, dryer vent, windows, fence,

garage door and a/c unit. (CR 273). After the storm, Plaintiff filed a claim

with her insurance company, USAA, for the damages to her home caused

by the storm. (CR 272).

   Plaintiff submitted claims to USAA against the Policy for damage

caused to the property as a result of the fire and the wind and hail. (CR

272). Plaintiff asked USAA to cover the cost of repairs to the Property

pursuant to the Policy and any other available coverages under the Policy.



                                                                           3
(CR 272).   USAA assigned claim number 024234074'3 to Plaintiff’s fire

claim and claim number 024234074'4 to Plaintiff’s wind and hail claim.

(CR 273).

  Appellant sued Appellee for breach of contract in Bell County, Texas.

(CR 275). Appellant’s petition did not ask the Bell County court to appoint

an appraisal umpire. Appellant presented documentation of damages to

the property caused by fire and hail, the value of which substantially

exceed the amount USAA originally paid Appellant for the damage caused

by the hailstorm (CR 20'24, 84'99). Appellant demanded appraisal of the

loss. (CR 432). The parties appointed appraisers and the appraisers did

not come to an agreement as to the amount of loss.          (CR 434, 436).

Furthermore, the appraisers did not agree upon the appointment of an

umpire to determine the amount of loss.

  The insurance policy at issue contained the following provision:

“If you and we fail to agree on the amount of loss, either may demand an

appraisal of the loss. In this event, each party will choose a competent and

impartial appraiser within 20 days after receiving a written request from



                                                                           4
the other. 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 court of record in the state where the “residence

premises” is located. (CR 605). The appraisers will separately set the

amount of the loss. (CR 605). If the appraisers submit a written report of

an agreement to us, the amount agreed upon will be the amount of loss.

(CR 605). If they fail to agree, they will submit their differences to the

umpire. (CR 605). A decision agreed to by any two will set the amount of

loss. (CR 605).”

  Appellant nonsuited her claims in Bell County, Texas and filed a

petition in Jefferson County, Texas. (CR 418, 640).   The Jefferson County

petition only asked that court to appoint an umpire in the appraisal

proceeding. (CR 640). The Jefferson County petition did not include any of

the causes of action or allegations asserted in the previously filed and

nonsuited Bell County petition.

  Appellee then asked the Bell County trial court to appoint an umpire

and filed an application for temporary injunction asking the Bell County



                                                                         5
court to enjoin Appellant from proceeding on her Petition to Appoint

Umpire in Appraisal Proceeding that she filed in Jefferson County. (CR

420, 569). Appellant then filed a plea in abatement asking the Bell County

Court to abate the Bell County proceeding and to allow the Jefferson

County court to appoint an umpire in the appraisal proceeding. (CR 687).

The trial court denied Appellant’s plea in abatement, granted Appellee’s

motion for appointment of umpire and granted Appellee’s application for

temporary injunction. (CR 927, 948).

                    SUMMARY OF THE ARGUMENT

   Appellant’s first argument challenges the trial court’s denial of

Appellant’s plea in abatement. Appellee unilaterally drafted an insurance

contract that gave the parties the right to ask any judge in the state of Texas

to appoint an appraisal umpire.       (CR 605).    Appellant first asked the

Jefferson County court to appoint an umpire and the Jefferson County

action was therefore already pending when the Appellee asked the Bell

County court to appoint an appraisal umpire. (CR 640) The Bell County

court was therefore required to abate Appellee’s request to have the Bell



                                                                              6
County court appoint an umpire and to allow the Jefferson County action

to proceed.

   Appellant’s second argument challenges the trial court’s grant of

Appellee’s Application for Temporary Injunction.           To be entitled to

injunctive relief, the applicant must plead a cause of action recognized by

Texas courts. Because Appellee did not plead a viable cause of action, the

trial court had no authority to enjoin Appellant from proceeding in the

Jefferson County action.

   Appellant’s third argument challenges the trial court’s grant of

Appellee’s Motion for Appointment of Umpire for Insurance Appraisal

Proceeding. Because Appellant first asked the Jefferson County court to

appoint an umpire and that request was pending prior to Appellee’s filing

of its request for the Bell County court to do the same, the trial court should

have abated the Bell County action and should not have appointed an

umpire.




                                                                              7
                                ARGUMENT

   Issue 1: The trial court erred when it denied Plaintiff’s Plea in

Abatement to Defendant’s Motion for Appointment of Umpire for

Insurance Appraisal Proceeding.

                          ARGUMENT & AUTHORITIES

   When an inherent interrelationship of the subject matter exists in two

pending lawsuits, a plea in abatement in the second action must be

granted. Wyatt v. Shaw Plumbing Co., 760 S.W.2d 245, 247 (Tex. 1998). In

reviewing a trial court’s ruling on a plea in abatement, an appeals court

must consider whether an identity exists between the issues in the two

causes. Dolenz v. Continental Nat’l Bank of Fort Worth, 620 S.W.2d 572, 575

(Tex. 1981).

   The insurance policy that USAA sold to appellant provided that either

party could ask any judge in the State of Texas to appoint an appraisal

umpire. (CR 605). The insured property is located in the state of Texas.

(CR 582).      The Jefferson County Lawsuit only asked the Jefferson County

court to appoint an umpire. (CR 640). After appellant filed her lawsuit in



                                                                          8
Jefferson County for the appointment of an appraisal umpire, USAA filed a

motion in Bell County asking that court to appoint an appraisal umpire.

(CR 420). USAA never filed a lawsuit in Bell County and USAA did not

have any pending requests for affirmative relief in Bell County when

Appellant filed the Jefferson County lawsuit. Because the second motion to

appoint an appraisal umpire shared an inherent relationship with the

subject matter of the Jefferson County Lawsuit, the Bell County court was

required to abate the Bell County lawsuit while the Jefferson County

lawsuit was pending.

  Issue 2: The trial court erred when it granted Defendant USAA Texas

Lloyd’s Company’s Application for Temporary Injunction.

  A temporary injunction’s purpose is to preserve the status quo of the

litigation’s subject matter pending a trial on the merits. TMC Worldwide

L.P. v. Gray, 178 S.W.3d 29, 36 (Tex. App.—Houston [1st Dist.] 2005, no

pet.). A temporary injunction is an extraordinary remedy and does not

issue as a matter of right.   Id.   To obtain a temporary injunction, the

applicant must plead and prove three specific elements: (1) a cause of



                                                                         9
action against the defendant, (2) a probable right to the relief sought; and

(3) a probable, imminent, and irreparable injury in the interim. Id. .) A

probable right to recovery to the relief sought is shown by alleging a cause

of action and presenting evidence that tends to sustain it.      Tel. Equip.

Network, In. v. TA/Westchase Place, Ltd., 80 S.W.3d 601, 607 (Tex. App.—

Houston [1st Dist.} 2002, no pet.).

   In seeking its temporary injunction against Appellant, USAA never filed

a lawsuit against Appellant seeking any type of affirmative relief and did

not assert a cause of action against Appellant. Therefore, USAA failed to

satisfy the first and second elements for temporary injunctive relief. The

trial court was therefore required to deny USAA’s application and it

abused its discretion by failing to do so.

   Issue 3: The trial court’s order granting Defendant USAA Texas Lloyd’s

Company’s Motion for Appointment of Umpire for Insurance Appraisal

Proceeding is void.

   The trial court erred in denying Appellant’s plea in abatement. The

granting of Appellant’s plea in abatement would have halted the Bell



                                                                          10
County umpire proceeding and would have allowed the Jefferson County

Lawsuit to address the umpire appointment. The trial court’s error in

denying Appellant’s plea in abatement therefore renders the Bell County

umpire appointment void.

                       CONCLUSION & PRAYER

  The Jefferson County Lawsuit and the Bell County Lawsuit each asked

those respective courts to appoint an umpire in the appraisal proceeding

governing Appellant’s insurance claim.     The Jefferson County Lawsuit

requested that court to appoint an umpire prior to USAA requesting the

same in the Bell County Lawsuit. Therefore, the trial court was required to

grant Appellant’s plea in abatement and refrain from appointing an umpire

for the appraisal proceeding.

  In seeking it temporary injunction, USAA never alleged a cause of

action against Appellant and therefore never proved its probable right to

recovery to any relief sought. Because USAA failed to satisfy two essential

elements to obtaining temporary injunctive relief, the trial court erred in

granting the application.



                                                                         11
  For these reasons, Appellant asks this Court to reverse the trial court’s

denial of Appellant’s plea in abatement, reverse the trial court’s grant of

USAA’s application for temporary injunction and remand this proceeding

for further action consistent with this Court’s ruling.       In addition,

Appellant asks this court to render the trial court’s order appointing an

umpire in the appraisal proceeding void.




                                                                         12
Respectfully Submitted,

SCOTT LAW OFFICES
350 Pine Street, Suite 300
Beaumont, Texas 77701
Telephone: (409) 833'5400
Facsimile: (409) 833'5405

______________________________
  /s/ Danny Ray
Danny Ray Scott
State Bar No. 24010920
Email: danny@scottlawyers.com
SEAN M. PATTERSON
State Bar No. 24073546
Email: sean@scottlawyers.com
VIRGINIA IZAGUIRRE
State Bar No. 24083230
Email: virginia@scottlawyers.com

Attorneys for Appellant




                               13
                             CERTIFICATION

     I certify that I have reviewed the petition and have concluded that

every factual statement made in the petition is supported by competent

evidence included in the appendix or the record.



                                          /s/Danny Ray Scott
                                          Danny Ray Scott

                    CERTIFICATE OF COMPLIANCE

     I certify that this document was produced on a computer using

Microsoft Word and contains 2,397 words, as determined by the computer

software’s word'count function, excluding sections of the document listed

in Texas Rule of Appellate Procedure 9.4(i)(l).




                                           /s/ Danny Ray
                                          ______________________________
                                          Danny Ray Scott




                                                                       14
                      CERTIFICATE OF SERVICE

  I certify that on October 19, 2015, I served a copy of Appellant’s Brief on

the parties listed below by electronic service and that the electronic

transmission was reported as complete.             My email address is

danny@scottlawyers.com.

Lisa A. Songy
TOLLEFSON BRADLEY MITCHELL & MELENDI, LLP
2811 McKinney Ave., Suite 250 West
Dallas, Texas 75204
E'mail Address: lisas@tbmmlaw.com




                                          /s/ Danny Ray
                                         ______________________________
                                         Danny Ray Scott




                                                                           15
                           No. 03-15-00451-CV

                                  IN THE

                      THIRD COURT OF APPEALS

                          AT AUSTIN, TEXAS


                      ANGELA BROOKS-BROWN,

                                Appellant,

                                     v.

                  USAA TEXAS LLOYD’S COMPANY,
                            Appellee.

             Appealed from the 146TH Judicial District Court of
                           Bell County, Texas
                 APPENDIX TO APPELLANT’S BRIEF

  Appellant, Angela Brooks0Brown, submits the following documents in
support of her appellant’s brief.

                        LIST OF DOCUMENTS

  1. Plaintiff’s Third Amended Original Petition, dated May 19, 2015.

  2. Defendant USAA Texas Lloyd’s Company’s Answer and Jury
     Demand, dated October 2, 2014.

  3. Plaintiff’s Original Petition for Appointment of Appraisal Umpire,
     dated June 8, 2015.

  4. Defendant USAA Texas Lloyd’s Company’s Motion for Appointment
     of Umpire for Insurance Appraisal Proceeding, dated June 9, 2015.

  5. Defendant USAA Texas Lloyd’s Company’s Verified Application for
     Temporary Injunction Against Plaintiff, dated June 26, 2015.
6. Plaintiff’s Plea in Abatement to Defendant’s Motion for Appointment
   of Umpire for Insurance Appraisal Proceeding, dated July 9, 2015.

7. Plaintiff’s Response to Defendant’s Verified Application        for
   Temporary Injunction Against Plaintiff, dated July 9, 2015.

8. Order on Defendant USAA Texas Lloyd’s Company’s Motion for
   Appointment of Umpire for Insurance Appraisal Proceeding, dated
   July 10, 2015.

9. Order Granting Defendant USAA Texas Lloyd’s Company’s Verified
   Application for Temporary Injunction Against Plaintiff, dated June
   15, 2015.

10. Order on Plaintiff’s Plea in Abatement to Defendant’s Motion for
    Appointment of Umpire for Insurance Appraisal Proceeding, dated
    July 27, 2015.
Respectfully Submitted,

SCOTT LAW OFFICES
350 Pine Street, Suite 300
Beaumont, Texas 77701
Telephone: (409) 833d5400
Facsimile: (409) 833d5405

______________________________
  /s/ Danny Ray Scott
Danny Ray Scott
State Bar No. 24010920
Email: danny@scottlawyers.com
SEAN M. PATTERSON
State Bar No. 24073546
Email: sean@scottlawyers.com
VIRGINIA IZAGUIRRE
State Bar No. 24083230
Email: virginia@scottlawyers.com

Attorneys for Plaintiff
                                                                                      Filed 5/19/2015 4:53:11 PM
                                                                                      Joanna Staton, District Clerk
                                                                                      District Court - Bell County, TX
                                                                                      by Lacey Martindale , Deputy



                                     CAUSE NO. 272,6930B

ANGELA BROOKS0BROWN                          §              IN THE DISTRICT COURT
                                             §
                                             §
v.                                           §              146th JUDICIAL DISTRICT
                                             §
                                             §
USAA TEXAS LLOYD’S COMPANY                   §                 BELL COUNTY, TEXAS

                  PLAINTIFF’S THIRD AMENDED ORIGINAL PETITION

TO THE HONORABLE JUDGE OF SAID COURT:

      NOW COMES ANGELA BROOKS0BROWN (herein after referred to as “Plaintiff”),

complaining of Defendant, USAA TEXAS LLOYD’S COMPANY, (hereinafter referred to as

“USAA”) and hereby respectfully shows unto the Court and Jury as follows:

                                   DISCOVERY CONTROL PLAN

       1.      Plaintiff intends for discovery to be conducted under Level 3 of Rule 190 of the

Texas Rules of Civil Procedure. This case involves complex issues and will require extensive

discovery. Therefore, Plaintiff asks the Court to order that discovery be conducted in

accordance with a discovery control plan tailored to the particular circumstances of this suit.

                                             PARTIES

       2.      Plaintiff, ANGELA BROOKS0BROWN, is an individual and resident of Bell

County and citizen of the state of Texas.

       3.      Defendant, USAA TEXAS LLOYD’S COMPANY, hereinafter “USAA,” is a

domestic insurance carrier, incorporated and engaging in the business of insurance in the State

of Texas. Defendant USAA has been served and is properly before the court.




                                                                                        Page 1 of 6
                                   JURISDICTION AND VENUE

       4.      This Court has Jurisdiction over this case in that the amount in controversy

exceeds the minimum jurisdictional limits of this Court.

       5.      Venue is mandatory and proper in Bell County, Texas, because all or a

substantial part of the events giving rise to the lawsuit occurred in this county (see Tex. Civ.

Prac. & Rem. Code § 15.002).

                                    CONDITIONS PRECEDENT

       6.      All conditions precedent to recovery have been performed, waived, or have

occurred.

                                              FACTS

       7.      Plaintiff is the owner of a homeowner insurance policy, policy number 0242343

40 74 90A, issued by the Defendant (hereinafter referred to as the “Policy”).

       8.      Plaintiff owned the insured property that is specifically located at

                     (hereinafter referred to as the “Property”).

       9.      Defendant or its agent sold the Policy, insuring the property, to Plaintiff.

       10.     On or about April 4, 2014, Plaintiff’s property sustained fire damage, specifically

to the fence. Plaintiff filed a claim with her insurance company, USAA for the damages to her

property caused by the fire.

       11.     On or about May 12, 2014, Plaintiff’s property sustained windstorm and hail

damage. Plaintiff’s roof sustained extensive damage during the storm including damage to the

shingles, roof jack, drip edge, chimney and other structural parts of the roof.           Plaintiff’s

property also sustained exterior damage to the cornice and siding, dryer vent, windows, fence,



                                                                                         Page 2 of 6
garage door and a/c unit. After the storm, Plaintiff filed a claim with her insurance company,

USAA, for the damages to her home caused by the storm.

        12.     Plaintiff submitted claims to USAA against the Policy for damage caused to the

property as a result of the fire and the wind and hail. Plaintiff asked USAA to cover the cost of

repairs to the Property pursuant to the Policy and any other available coverages under the

Policy. USAA assigned claim number 02423407403 to Plaintiff’s fire claim and claim number

02423407404 to Plaintiff’s wind and hail claim.

        13.     On or about April 15, 2014, Gene Swanson (“SWANSON”), on behalf of USAA,

inspected the property in question pursuant to Plaintiff’s fire claim. The fire caused significant

damage to the fence, which required that it be removed and replaced. SWANSON did not

conduct a thorough inspection and only allowed the minimum cost to repair the fence. As a

result of SWANSON’s unreasonable and brief investigation, Plaintiff was wrongly denied the

full cost to replace the fence.

        14.     On or about May 16, 2014, Steen Schumacher (“SCHUMACHER”), on behalf of

USAA, inspected the property in question pursuant to Plaintiff’s wind and hail claim. The

storm caused significant damage to the roof, including pitting and loss of granules to the

shingles. The hail pitting damage bruised the shingles, while removing and crushing the

granules. Wind damage uplifted and detached shingles, which would not allow the shingles to

reseal to prevent water intrusion.

        15.     The storm caused extensive damage to the exterior of the property. Specifically,

it caused damage to the cornice and siding, dryer vent, windows, fence, garage door, and a/c

unit. SCHUMACHER did not conduct a thorough exterior inspection and only allowed the



                                                                                       Page 3 of 6
minimum cost to repair the windows and seal and paint the garage door opening and trim. As a

result of SCHUMACHER’s unreasonable exterior investigation, Plaintiff was wrongly denied

the full cost to repair the damage to the exterior of the property. SCHUMACHER also denied

Plaintiff the full cost for construction cleanup, debris removal, a job permit, and temporary

utilities, although all of the cost was covered under the Policy.

       16.     Despite documenting extensive damage to the roof, SCHUMACHER failed to

conduct a reasonable exterior inspection of the Property. SCHUMACHER failed to give Plaintiff

an allowance for obvious damage caused by the storm to the fence, garage door, a/c unit, dryer

vent, cornice and siding. SCHUMACHER conducted an insufficient inspection and prematurely

closed Plaintiff’s claim. At the time if the investigation, premature closing of claims was part of

a pattern and practice of claims handling by USAA.

       17.     USAA failed to properly adjust the claims and Defendant has denied at least a

portion of the claims without an adequate investigation, even though the Policy provided

coverage for losses such as those suffered by Plaintiff. Furthermore, USAA underpaid portions

of Plaintiff’s claims by not providing full coverage for the damages sustained by Plaintiff, as

well as under0scoping the damages during its investigation.

       18.     To date, USAA continues to delay in the payment for the damages to the

Property. As such, Plaintiff’s claim(s) still remain unpaid and Plaintiff still has not been able to

properly repair the Property.

       19.     Defendant failed to perform its contractual duty to adequately compensate

Plaintiff under terms of the policy. Specifically, Defendant failed and refused to pay any of the

proceeds of the Policy, although due demand was made for proceeds to be paid in an amount



                                                                                         Page 4 of 6
sufficient to cover the damaged Property and all conditions precedent to recovery upon the

Policy had been carried out and accomplished by Plaintiff. Defendant’s conduct constitutes a

breach of the insurance contract between Defendant and Plaintiff.

                                COUNT ONE: BREACH OF CONTRACT

        20.    Plaintiff incorporates paragraphs 10019 herein.

        21.    At the time of the April 4, 2014 and May 12, 2014 incidents, Plaintiff had in place

a policy issued by USAA. The premiums were current. All conditions precedent to recovery

were made. Defendant wrongfully failed to comply with the terms of the contract. Defendant

is, therefore, in breach of the contract of insurance issued to Plaintiff.

        22.    Defendant’s conduct constitutes a breach of contract resulting in damages to the

Plaintiff.

                                              DAMAGES

        23.    The exact amount of Plaintiff’s damages are unknown. Based on the information

currently available to Plaintiffs, Plaintiff seeks only monetary relief of $ 100,000 or less,

including damages of any kind, penalties, costs, expenses, pre0judgment interest, and attorney

fees. Plaintiff reserves the right to decrease or increase this amount as further information

becomes available.

                                           JURY DEMAND

        24.    Plaintiff previously requested a trial by jury and paid the jury fee.

                                               PRAYER

        25.    For these reasons, Plaintiff asks that she have judgment against Defendant for

her economic damages and all other relief to which Plaintiff may show herself entitled.



                                                                                       Page 5 of 6
                                                Respectfully Submitted,

                                                SCOTT LAW OFFICES
                                                350 Pine Street, Suite 300
                                                Beaumont, Texas 77701
                                                Telephone: (409) 83305400
                                                Facsimile: (409) 83305405


                                                   /s/Danny Ray Scott
                                                __________________________
                                                Danny Ray Scott
                                                State Bar No. 24010920
                                                danny@scottlawyers.com
                                                Virginia Izaguirre
                                                State Bar No. 24083230
                                                virginia@scottlawyers.com
                                                Sean M. Patterson
                                                State Bar No. 24073546
                                                sean@scottlawyers.com

                                                Attorneys for Plaintiff



                               CERTIFICATE OF SERVICE

       This is to certify that a true and correct copy of the above and foregoing has been
forwarded to the following counsel of record in compliance with the Texas Rules of Civil
Procedure on this the 19th day of May, 2014.

Via Facsimile: (214) 665G0199
Lisa A. Songy
TOLLEFSON BRADLEY MITCHELL & MELENDI, LLP
2811 McKinney Ave., Suite 250 West
Dallas, Texas 75204
Telephone: (214) 66500107
Email: lisas@tbmmlaw.com



                                                /s/ Danny Ray Scott

                                                DANNY RAY SCOTT



                                                                                Page 6 of 6
                                           CAUSE NO. 272,693-B

ANGELA BROOKS-BROWN,                                §           IN THE DISTRICT COURT OF
                                                    §
        Plaintiff                                   §
                                                    §
v.                                                  §           BELL COUNTY, TEXAS
                                                    §
USAA TEXAS LLOYD’S COMPANY                          §
                                                    §
        Defendant                                   §
                                                    §           146TH JUDICIAL DISTRICT



                    DEFENDANT USAA TEXAS LLOYD’S COMPANY’S
                           ANSWER AND JURY DEMAND


TO THE HONORABLE JUDGE OF SAID COURT:

        Defendant, USAA TEXAS LLOYD’S COMPANY (“USAA”) files this Answer and Jury

Demand as follows:

                                                    I.

                                           GENERAL DENIAL

        Pursuant to TEXAS RULE OF CIVIL PROCEDURE 92, USAA generally denies the allegations

contained in Plaintiff’s Original Petition and demands strict proof by a preponderance of the

evidence of all Plaintiff’s allegations.

                                                    II.

                                               DEFENSES

                                              Policy Defenses

        Some or all of Plaintiff’s claims are excluded or limited by applicable policy terms,

conditions, and exclusions of the policy issued to Plaintiff by USAA and in effect on May 12, 2014,

USAA will more specifically identify which particular policy terms, condition and exclusions



USAA’S ANSWER AND JURY DEMAND                                                              PAGE 1
exclude or limit some or all of Plaintiff’s claims within a reasonable time after Plaintiff discloses

what specific damage Plaintiff alleges USAA failed to cover.

                                              Payment

        Plaintiff’s claims have been fully adjusted and appropriate payment tendered.

                                          Limit of Liability

        Plaintiff’s damages, if any, must be limited by the amount set forth in the policy limitations

provisions of the applicable policy.

                           Failure of Conditions Precedent to Coverage

        Pursuant to Rule 54 of the TEXAS RULES OF CIVIL PROCEDURE, USAA specifically denies

that Plaintiff satisfied one or more conditions precedent to recovery. Plaintiff failed to cooperate in

the investigation and settlement of the claim as required by the applicable policy. Cooperation as

required by the contract is a condition precedent to USAA’s obligations under the contract.

Therefore, USAA is excused from performing under the contract. Accordingly, Plaintiff has no

cause of action against USAA for which relief can be granted. Additionally, and in the alternative,

USAA has fully performed any obligations owed to Plaintiff.

                                        Offset and/or Credit

        Plaintiff’s damages, if any, must be offset by the amount of applicable policy deductibles.

Further, any award to Plaintiff must be offset by all prior payments tendered by USAA regarding

the claims that form the basis of Plaintiff’s lawsuit and by all payments and credits otherwise

available.

                                            Due Process

        To the extent that Plaintiff prays for exemplary damages, USAA invokes its rights under the

due process clause of the Fifth Amendment of the United States Constitution as applied to the states

through the Fourteenth Amendment of the United States Constitution. USAA affirmatively pleads

USAA’S ANSWER AND JURY DEMAND                                                                  PAGE 2
that Plaintiff’s pleading of exemplary damages is violative of the due process clauses of the Fifth

and Fourteenth Amendments inasmuch as exemplary damages can be assessed:

       1.      In an amount left to the discretion of the jury and judge;

       2.      In assessing such penalty or exemplary awards, Plaintiff need only prove the
               theory of gross negligence on a “clear and convincing evidence” standard
               and not “beyond a reasonable doubt” standard as should be required in
               assessing a punishment award;

       3.      The assessment of such a punishment and/or exemplary award is not based
               upon a clearly defined statutory enactment setting forth a specific means
               requirement and/or the prerequisites of criminal fine and in effect, allow the
               assessment of such awards even though there are no special standards, limits
               or other statutory requirements set forth that define the means and scope and
               limit of such awards. Therefore, the awards are unduly vague and do not
               meet with requirements of due process; and

       4.      In essence, USAA is subject to all of the hazards and risks of what amounts
               to a fine, and in fact, such awards often exceed normal, criminal fines, but
               USAA receives none of the basic rights accorded to a criminal USAA when
               being subjected to possible criminal penalties.

                                         Equal Protection

       To the extent Plaintiff prays for punitive, exemplary, or otherwise enhanced damages, such

request should be denied because it violates the equal protection rights guaranteed by the Fifth and

Fourteenth Amendments to the Constitution of the United States and the provisions of the Eighth

Amendment to the Constitution of the United States.

                                   Punitive Damage Limitation

       With respect to Plaintiff’s claims for damages, any award of punitive damages must be

limited to the greater of: (1) two times the amount of economic damages plus an amount equal to

any non-economic damages found by the jury, not to exceed $750,000; or (2) $100,000, pursuant to

the statutory mandates of Chapter 41 of the TEXAS CIVIL PRACTICES AND REMEDIES CODE. USAA

reserves the right to seek a bifurcation of any punitive damage issues at the trial of this case as

permitted by Chapter 41 of the TEXAS CIVIL PRACTICES AND REMEDIES CODE.

USAA’S ANSWER AND JURY DEMAND                                                                   PAGE 3
                                         Damages Limitation

          By way of affirmative defense, if such be necessary, Plaintiff has specifically pled that her

damages do not exceed $74,500 inclusive of damages of any kind, penalties, costs, expenses,

prejudgment interest and attorney’s fees. Thus, pursuant to TEXAS RULE          OF   CIVIL PROCEDURE

169(b), Plaintiff’s damages are limited as set forth by the statute.

                                  Liability Not “Reasonably Clear”

          Under Texas law, an insured bringing an action against its insurer for an alleged breach of a

duty of good faith and fair dealing must carry the burden of proof to establish that the insurer

unreasonably denied or delayed payment of an insurance claim when the insurer’s liability had

become reasonably clear. At all times material to this lawsuit, USAA’s liability was not “reasonably

clear.”

                  Lack of Written Notice to Trigger the Prompt Payment Statute

          Plaintiff’s claims under Section 542 of the TEXAS INSURANCE CODE (“Prompt Payment of

Claims”) are barred, in whole or in part, because Plaintiff did not provide a written notice of claim

reasonably apprising USAA of the facts relating to the claim or delayed in providing such notice.

                                                  III.

                                           JURY DEMAND

          USAA requests a jury in this case. The jury fee has been paid.

                                               PRAYER

          USAA, Defendant, respectfully prays that Angela Brooks-Brown, Plaintiff, take nothing by

reason of her suit herein, and that USAA recover its costs.




USAA’S ANSWER AND JURY DEMAND                                                                  PAGE 4
                                                 Respectfully submitted,

                                                 / s / Lisa A. Songy
                                                 Lisa A. Songy
                                                 State Bar No. 00793122
                                                 lsongy@shannongracey.com
                                                 Crystal L. Vogt
                                                 State Bar No. 24048768
                                                 cvogt@shannongracey.com
                                                 SHANNON, GRACEY, RATLIFF & MILLER LLP
                                                 Bank of America Plaza
                                                 901 Main Street, Suite 4600
                                                 Dallas, Texas 75202
                                                 Telephone 214.245.3090
                                                 Facsimile 214.245.3097
                                                 ATTORNEYS FOR DEFENDANT USAA
                                                 TEXAS LLOYD’S COMPANY


                                CERTIFICATE OF SERVICE

       I hereby certify that a true and correct copy of has been served upon counsel of record via
facsimile on this 2nd day of October, 2014.

       Danny Ray Scott
       danny@scottlawyers.com
       Virginia Izaguirre
       virginia@scottlawyers.com
       Sean M. Patterson
       sean@scottlawyers.com
       Scott Law Offices
       350 Pine Street, Suite 300
       Beaumont, Texas 77701
       Facsimile 409.833.5405

                                             / s / Lisa A. Songy
                                              Lisa A. Songy




USAA’S ANSWER AND JURY DEMAND                                                             PAGE 5
                                                                            FILED FOR RECORD
                                                                            Carolyn L. Guidry
                                                                            6/8/2015 12:00:00 AM
                                                                            COUNTY CLERK
                                                                            JEFFERSON COUNTY
                                            0127771
                             CAUSE NO. ______________________
                                                                            0127771



ANGELA BROOKS-BROWN                          §            IN THE COUNTY COURT
                                             §
                                             §
v.                                           §            AT LAW NO. 1
                                             §
                                             §
USAA TEXAS LLOYD’S COMPANY                   §            JEFFERSON COUNTY, TEXAS

     PLAINTIFF’S ORIGINAL PETITION FOR APPOINTMENT OF APPRAISAL UMPIRE

TO THE HONORABLE JUDGE OF SAID COURT:

      NOW COMES ANGELA BROOKS-BROWN (herein after referred to as “Plaintiff”),

complaining of Defendant, USAA TEXAS LLOYD’S COMPANY, (hereinafter referred to as

“USAA”) and hereby respectfully show unto the Court as follows:

                                  DISCOVERY CONTROL PLAN

        1.     Plaintiff intends for discovery to be conducted under Level 1 of Rule 190 of the

Texas Rules of Civil Procedure.

                                             PARTIES

        2.     Plaintiff, ANGELA BROOKS-BROWN, is an individual and resident of Bell

County and citizen of the state of Texas.

        3.     Defendant, USAA TEXAS LLOYD’S COMPANY, hereinafter “USAA,” is a

domestic insurance carrier, incorporated and engaging in the business of insurance in the State

of Texas, and may be served with process by serving its President, Laura M. Bishop, 9800

Fredericksburg Road, San Antonio, Texas 78288.

                                             VENUE

        4.     Venue is proper in Jefferson County, Texas, because the insurance contract



                                                                                    Page 1 of 4

                                                                                                   hj
drafted by the defendant grants the parties the right to petition a judge of a court of record in

the state where the “residence premises” is located to appoint an appraisal umpire.

                                              FACTS

       5.      Plaintiff is the owner of a homeowner insurance policy, policy number 0242343

40 74 90A, issued by the Defendant (hereinafter referred to as the “Policy”).

       6.      Plaintiff owned the insured property that is specifically located at

                     (hereinafter referred to as the “Property”).

       7.      Defendant or its agent sold the Policy, insuring the property, to Plaintiff.

       8.      On or about April 4, 2014, Plaintiff’s property sustained fire damage, specifically

to the fence. Plaintiff filed a claim with her insurance company, USAA for the damages to her

property caused by the fire.

       9.      On or about May 12, 2014, Plaintiff’s property sustained windstorm and hail

damage. Plaintiff’s roof sustained extensive damage during the storm including damage to the

shingles, roof jack, drip edge, chimney and other structural parts of the roof.           Plaintiff’s

property also sustained exterior damage to the cornice and siding, dryer vent, windows, fence,

garage door and a/c unit. After the storm, Plaintiff filed a claim with her insurance company,

USAA, for the damages to her home caused by the storm.

       10.     Plaintiff submitted claims to USAA against the Policy for damage caused to the

property as a result of the fire and the wind and hail. Plaintiff asked USAA to cover the cost of

repairs to the Property pursuant to the Policy and any other available coverages under the

Policy. USAA assigned claim number 024234074-3 to Plaintiff’s fire claim and claim number

024234074-4 to Plaintiff’s wind and hail claim.



                                                                                         Page 2 of 4
       11.     On March 5, 2015, plaintiff communicated to defendant that plaintiff disagreed

with defendant’s determination of the amount of loss with respect to plaintiff’s insurance claim.

Plaintiff also communicated to defendant that plaintiff wished to invoke the insurance policy’s

appraisal clause.

       12.     The insurance policy’s appraisal clause states the following: “If you and we fail

to agree on the amount of loss, either may demand an appraisal of the loss. In this event, each

party will choose a competent and impartial appraiser within 20 days after receiving a written

request from the other. 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 court

of record in the state where the “residence premises” is located. The appraisers will separately

set the amount of the loss. If the appraisers submit a written report of an agreement to us, the

amount agreed upon will be the amount of loss. If they fail to agree, they will submit their

differences to the umpire. A decision agreed to by any two will set the amount of loss.”

       13.     The requisite period of time has expired and the appraisers have not agreed

upon an umpire. Plaintiff therefore requests that this Court select an umpire in accordance with

and as allowed by the policy’s provisions.

                                             PRAYER

       14.     For these reasons, Plaintiff asks that this Court appoint an umpire for the

insurance appraisal. Plaintiff also asks the Court to issue orders as necessary to validate any

decision the umpire makes and to issue any orders necessary to conclude this matter at the

appropriate time.




                                                                                      Page 3 of 4
Respectfully Submitted,

SCOTT LAW OFFICES
350 Pine Street, Suite 300
Beaumont, Texas 77701
Telephone: (409) 833-5400
Facsimile: (409) 833-5405


   /s/Danny Ray Scott
__________________________
Danny Ray Scott
State Bar No. 24010920
danny@scottlawyers.com
Virginia Izaguirre
State Bar No. 24083230
virginia@scottlawyers.com
Sean M. Patterson
State Bar No. 24073546
sean@scottlawyers.com

Attorneys for Plaintiff




                             Page 4 of 4
                                     CAUSE NO. 272,693-B

ANGELA BROOKS-BROWN,                            §         IN THE DISTRICT COURT OF
                                                §
        Plaintiff                               §
                                                §
v.                                              §         BELL COUNTY, TEXAS
                                                §
USAA TEXAS LLOYD’S COMPANY                      §
                                                §
        Defendant                               §
                                                §         146TH JUDICIAL DISTRICT



DEFENDANT USAA TEXAS LLOYD’S COMPANY’S MOTION FOR APPOINTMENT
        OF UMPIRE FOR INSURANCE APPRAISAL PROCEEDING


        Comes Now, Defendant USAA Texas Lloyd’s Company (“USAA Texas Lloyd’s”), and

respectfully files this Motion for Appointment of Umpire for Insurance Appraisal Proceeding

and in support, respectfully shows the following:

                                             I.
                                        BACKGROUND

     A. Plaintiff’s Request for Appraisal.

        This is a residential property insurance dispute involving Angela Brooks-Brown

(“Plaintiff”). Plaintiff is the property owner of a home located at

       (the “Property”). The Property is alleged to have been damaged by a wind and hail storm

(which occurred on or about May 12, 2014), as well as a fire (which occurred on or about April

4, 2014). See Pltf’s Original Pet. ¶¶ 10, 11.

        Plaintiff is the policy holder insured pursuant to the terms of USAA Texas Lloyd’s

homeowner insurance policy number LLYD 02423 40 74 90A (the “Policy”), which was in

effect on the date of losses. See Policy Declaration Page and Appraisal Provision, Ex. A.


DEFENDANT USAA TEXAS LLOYD’S COMPANY’S MOTION FOR APPOINTMENT OF UMPIRE FOR
INSURANCE APPRAISAL PROCEEDING                                            1
        On or about March 5, 2015, Plaintiff invoked her right to an appraisal pursuant to Section

I “Conditions,” Paragraph 8 of the Policy (the “Appraisal Provision”). See Mar. 5, 2015 letter

from Pltf’s counsel, Ex. B. Plaintiff then designated Darrell Quinney to serve as her appraiser on

or about April 20, 2015. See Apr. 20, 2015 letter from Pltf’s counsel, Ex. C. Mr. Quinney’s

company, Loss Solutions, provided the estimate which forms the basis of Plaintiff’s alleged

damages in this lawsuit and has been retained by Plaintiff as a testifying expert. As such, USAA

Texas Lloyd’s objected to Mr. Quinney serving as an appraiser. 1 See Apr. 23, 2015 letter from

USAA Texas Lloyd’s counsel, Ex. D.                Nonetheless, in compliance with the Policy, USAA

Texas Lloyd’s designated Mark West as its appraiser. See id.

        The appraisers met, inspected the property, and exchanged estimates, but have been

unable to agree upon a scope and pricing with respect to the conditions observed. Both appraisers

inspected the property but they have fundamental disagreements on what constitutes storm

damage and fire damage, as well as the costs to repair same. Thus, an umpire is necessary to

resolve the differences. USAA Texas Lloyd’s now seeks the appointment of a competent and

impartial umpire to complete the appraisal process which was initiated by Plaintiff.

    B. The Policy’s Appraisal Provision and Umpire Requirement.

        While the parties have chosen their respective appraisers, no umpire has been selected

pursuant to the Policy. Specifically, the relevant portion of the Appraisal Provision provides:

                 Appraisal. If [Plaintiff] and [USAA Texas Lloyd’s] fail to agree on
                 the amount of loss, either may demand an appraisal of the loss. In
                 this event, each party will choose a competent and impartial
                 appraiser within 20 days of receiving a written request from the
                 other. The two appraisers will choose an umpire. If they cannot
                 agree upon an umpire within 15 days, [Plaintiff] or [USAA
                 Texas Lloyd’s] may request that the choice be made by a judge
1
 USAA Texas Lloyd’s reserves it right to challenge whether Mr. Quinney is impartial and competent to serve as an
appraiser, as required by the Policy.

DEFENDANT USAA TEXAS LLOYD’S COMPANY’S MOTION FOR APPOINTMENT OF UMPIRE FOR
INSURANCE APPRAISAL PROCEEDING                                            2
                 of a court of the record in the state where the “residence
                 premises” is located.
                                            ***

See Ex. A. (emphasis added).

        USAA Texas Lloyd’s appraiser, Mr. West, reached out to Plaintiff’s appraiser numerous

times to discuss the issue. Mr. West has nominated the following umpires2:

                  Ret. Judge Carolyn Marks Johnson;

                  Ret. Judge Don Wittig;

                  Ret. Judge Rick Morris;

                  Mr. Cecil Parker, I.A.; and

                  Mr. Jim Beneke, S.P.P.A.

See Apr. 13, 2015 email from Mr. West, Ex. E. Each of Mr. West’s proposed umpires is

competent to handle the matter involved. See, e.g., Curriculum vitae of Ret. Judge Morris, Ex.

F; biography of Ret. Judge Wittig, Ex. G; biography Mr. Beneke, Ex. H. However, to date, no

umpire has been agreed upon by Mr. West and Mr. Quinney. As such, USAA Texas Lloyd’s

now requests that the Court appoint an umpire pursuant to the Policy.

                                             II.
                                  ARGUMENT AND AUTHORITIES

    A. A Court-Appointed Umpire is Proper under the Policy and Texas law.

        In order for the parties to complete the appraisal process as outlined in the Policy, a court

-appointed umpire is required.           The procedures established in the Appraisal Provision are

enforceable and favored under Texas law. See In re Universal Underwriters of Texas Ins. Co.,

345 S.W.3d 404, 406-07 (Tex. 2011) (orig. proceeding). Pursuant to the Appraisal Provision,

2
 Mr. West and Mr. Quinney have been designated as appraisers in multiple lawsuits filed by Plaintiff’s counsel in
Bell County, Texas. Mr. West proposed these umpires to Mr. Quinney in all USAA matters in Bell County.

DEFENDANT USAA TEXAS LLOYD’S COMPANY’S MOTION FOR APPOINTMENT OF UMPIRE FOR
INSURANCE APPRAISAL PROCEEDING                                            3
USAA Texas Lloyd’s and Plaintiff’s appraisers were required to agree upon and select an umpire

by May 8, 2015—i.e., 15 days after the last appraiser was designated, which was on April 23,

2015. See Ex. A. Despite USAA Texas Lloyd’s appraiser’s efforts to reach an agreement with

Plaintiff’s appraiser, the umpire selection process has ended at an impasse. Plaintiff’s appraiser,

Mr. Quinney, rejected every umpire proposed by Mr. West. Therefore, under the unambiguous

language of the Policy, USAA Texas Lloyd’s may now request judicial intervention for the

selection of an umpire. See Ex. A (“If [the appraisers] cannot agree upon an umpire within 15

days, [Plaintiff] or [USAA] may request that the choice be made by a judge…”). As such,

USAA Texas Lloyd’s now seeks to exercise its right under the Policy to have the Court appoint

an umpire and commence the appraisal process.

       Additionally, USAA Texas Lloyd’s requests that the Court appoint one of the following

umpires:

                 Ret. Judge Carolyn Marks Johnson;

                 Ret. Judge Don Wittig;

                 Ret. Judge Rick Morris;

                 Mr. Cecil Parker, I.A.; and

                 Mr. Jim Beneke P.A.

       These individuals were previously nominated by Mr. West and are highly qualified. See,

e.g., Ex. E-H.

                                               III.
                                           CONCLUSION

       As shown above, USAA Texas Lloyd’s is entitled to a court-appointed umpire to

commence the appraisal process. The appointment of an umpire is supported by the Policy and



DEFENDANT USAA TEXAS LLOYD’S COMPANY’S MOTION FOR APPOINTMENT OF UMPIRE FOR
INSURANCE APPRAISAL PROCEEDING                                            4
Texas law. USAA Texas Lloyd’s therefore, respectfully requests that the Court grant this

Motion and appoint either Judge Carolyn Marks Johnson, Judge Don Wittig, Judge Rick Morris,

Mr. Cecil Parker, I.A., or Mr. Jim Beneke, S.P.P.A. as umpire, as well as all other relief the

Court deems just and equitable.

                                             Respectfully submitted,

                                             /s/ Lisa A. Songy
                                             Lisa A. Songy
                                             State Bar No. 00793122
                                             LisaS@tbmmlaw.com
                                             Donnie M. Apodaca, II
                                             State Bar No. 24082632
                                             DonnieA@tbmmlaw.com

                                             TOLLEFSON BRADLEY MITCHELL & MELENDI, LLP
                                             2811 McKinney Avenue, Suite 250 West
                                             Dallas, Texas 75204
                                             (214) 665-0100 Telephone
                                             (214) 665-0199 Facsimile
                                             ATTORNEYS FOR DEFENDANT USAA
                                             TEXAS LLOYD’S COMPANY

                                  CERTIFICATE OF SERVICE

        I hereby certify that a true and correct copy of has been served upon counsel of record via
electronic service and facsimile on this 9th day of June, 2015.

Attorneys for Plaintiff
Danny Ray Scott
danny@scottlawyers.com
Virginia Izaguirre
virginia@scottlawyers.com
Sean M. Patterson
sean@scottlawyers.com
Scott Law Offices
350 Pine Street, Suite 300
Beaumont, Texas 77701
Facsimile 409.833.5405

                                             / s / Lisa A. Songy
                                              Lisa A. Songy


DEFENDANT USAA TEXAS LLOYD’S COMPANY’S MOTION FOR APPOINTMENT OF UMPIRE FOR
INSURANCE APPRAISAL PROCEEDING                                            5
EXHIBIT
0901119c9008fad1
0901119c9008fad1
EXHIBIT
EXHIBIT
EXHIBIT
EXHIBIT
EXHIBIT
RICK MORRIS
Senior District Judge                                                                    P.O. Box 1163
Mediator and Arbitrator                                                        Salado, Texas 76571
                                                                               Cell: (254) 718-3388
                                                                             Phone: (254) 947-1023
www.judgerickmorris.com                                           Rick.Morris@JudgeRickMorris.com




JUDICIAL EXPERIENCE

       Judicial Judge, 146th Judicial District of Texas                                       1989 – 2013
       Elected six times without opposition. The 146th District Court is a court of general jurisdiction.
       Docket consists of one-half of all civil cases, 25% of all domestic relations cases, assistance with
       criminal cases, as needed, and the entire Texas Department of Protective and Regulatory Services,
       Child Protective Services docket. Presided over civil cases involving personal injury, legal and
       medical malpractice, commercial, banking, employment, consumer, real estate, contract,
       governmental, products liability, DTPA, all aspects of family law and criminal law.



LEGAL EXPERIENCE

       Assistant United States Attorney                               March, 1989 - May, 1989
       U.S. Department of Justice, United States Attorney's Office, Gulf Coast Drug Task Force,
       Southern District of Texas.

       Private Practice of Law, Killeen Texas                                May, 1975 - February, 1989
       Engaged in private practice of law in Killeen, Texas; general civil practice, with emphasis in later
       years on real estate, construction, corporate, banking and general civil litigation. Earlier years of
       practice included the above, as well as criminal law and domestic relations.

       Licensed to practice law in the State of Texas                                           May, 1975
       Admitted to practice in Federal Court, Western District of Texas.




EDUCATION

       Juris Doctorate Degree, Baylor University School of Law, Waco, Texas                       May 1975
       Dean's Honor List - Summer and Fall 1974

       Bachelor of Business Administration, University of Texas, Austin, Texas           December 1972
       Major: Finance
       Dean's Honor List - Summer 1972

       Killeen High School, Killeen, Texas                                                             1969
RICK MORRIS, Senior District Judge
Page 2

PROFESSIONAL AFFILIATIONS, HONORS AND SERVICES

            o   State Bar of Texas
            o   Judicial Section, State Bar of Texas
            o   Arbitrator – JWA Arbitrations (Judicial Workplace Arbitrations, Inc.)
            o   Alternative Dispute Resolution Section; Family Law Section; Litigation Section;
                Consumer and Commercial Law Section
            o   Local Administrative District Judge, 1995 – 2012 - Bell County District Courts
            o   Judge, Bell County Drug Court; 2009 to present
            o   President, Bell County Bar Association, 2009-2010; President–Elect: 2008-2009;
                Secretary-Treasurer: 2007-2008; Board of Directors: 2003-2007
            o   Bell County Public Sector Lawyer of the Year - 2012
            o   Bell County Public Sector Lawyer of the Year - 2007
            o   Director, Judicial Section, State Bar of Texas, 2008-2011
            o   Director, Texas Center for the Judiciary, Inc., 1994-1997
            o   Texas College of Judicial Studies Graduate – 2004
            o   Basic Mediation Certification: University of Texas School of Law – Center for Public
                Policy Dispute Resolution-2012
            o   Advanced Family Mediation Training – Alternative Dispute Resolution, Worklife
                Institute-2012
            o   Drug Court Judicial Training, The National Drug Court Institute, National Judicial
                College, Reno, NV
            o   Bell-Lampasas Counties Community Justice Council – 1995 to 2012
            o   Bell County Juvenile Board – 1989 to 2012
            o   The College of the State Bar of Texas
            o   Pre-Trial Judge for 3rd, 6th and 7th Administrative Judicial Regions, 1999-2000, Benlate
                cases
            o   Texas Supreme Court Advisory Committee on Child Support and Visitation Guidelines
                (1992-1993)
            o   Bell-Lampasas-Mills Counties Bar Association (President, 1982; President-Elect, 1981;
                Secretary-Treasurer 1979-1980) Board of Directors 2004-2008;
            o   District 8-C Grievance Committee of the State Bar of Texas (1982-1989)
            o   Texas Bar Foundation
            o   Commission Director, Greater Killeen Chamber of Commerce (1984-1987);
                Vice-President (1987)
            o   Selective Service Commission (1987-1989)

SPEECHES AND ARTICLES

            o   An Evening with the Judges, 1999 – “What judges look for in Motions & Briefs”;
                “Common Mistakes of Lawyers”
            o   Fall Bench Bar Conference, 2002 – “Court’s Charge Update”
            o   Fall Bench Bar Conference, 2007 – “Civil Legislation Update”
            o   Law Office 101, 2008 – “Practice in the District Courts”
            o   Spring Bench Bar – 2009;; “DWOP’s, Motions to Withdraw and Discovery Control Plans”


PERSONAL INFORMATION

Born:    September 20, 1950, Killeen, Texas
Married: July 16, 1971
Spouse: Karen Boydstun Morris;
         University of Mary-Hardin Baylor graduate; teacher, Harker Heights High School
         Two children and four grandchildren
Hobbies: Fly Fishing and Golf
EXHIBIT
Don Wittig                                                                                                                        Page 1 of 2



                                                                            WELCOME        APPOINTMENTS        LEO C. SALZMAN   DON WITTIG

                                                                       CHARL E WILLETTE         FEE SCHEDULE     DIRECTIONS     CONTACT US




      LEGAL EXPERIENCE

      - 37 years trial and appellate experience as advocate and judge including:
      - 3 years as Justice, 14th Court of Appeals
      - 11 years as Judge, 125th District Court
      - 23 years as trial lawyer including 3 years in United States Marine Corps

      LEGAL EDUCATION

      - United States Naval Academy, 1960, 1961
      - B A , with Honors, St Mary's University, 1963
      - J D , The School of Law, St Mary's University, 1965
      - United States Naval Justice School, with Honors
      - Post Graduate Studies: Economics (33 hours); Theology (12 hours); Judicial Studies
        (15 hours); and Advanced studies in Mediation and Arbitration

      PROFESSIONAL ACTIVITIES

      - A B A Certified Mediator/Arbitrator, 2001 to present
      - Senior Appellate Justice, over five years combined service on 14th, 13th, 12th, 10th,
        9th, 8th, and 3rd Courts of Appeals
      - Senior State District Judge, eleven years service on 125th District Court
      - Twenty two years trial practice
      - First State District Judge in Texas to be Double Board Certified
      - Former Deputy Chief Prosecutor, First Marine Division, RVN

      HONORS

      - Joe C Bettencourt Award, Best All Around Student
      - Associate Editor, The Paduan
      - Editor in-Chief, St Mary's University School of Law, Barrister News
      - Author of over 500 Texas Appellate Opinions




http://www.leosalzman.com/Don_Wittig.html                                                                                          5/20/2015
Don Wittig                                                                                                          Page 2 of 2



      - Author and Speaker on Multiple CLE Presentations
      - Author: One Hundred and Two Ways to Survive Big City Life
      - Pi Gamma Mu, National Honor Society in Government
      - Omicron Dela Epsilon, National Honor Society in Economics
      - Who's Who in American Law
      - Navy Achievement Medal with Combat "V"



                                                                    CONTENT COPYRIGHT 2015. LEO C. SALZMAN. ALL RIGHTS RESERVED.




http://www.leosalzman.com/Don_Wittig.html                                                                            5/20/2015
EXHIBIT
Jim Beneke, SPPA, President at Beneke/Adjusters International | Adjusters International                                         Page 1 of 2




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                                Professional Profile
                                Jim Beneke is a strong and effective advocate for commercial property owners in the aftermath of a


                                integrity in negotiating a fair and proper insurance settlement for his clients.




                                property loss for the first time.




                                Professional Distinctions




                                review and report on issues affecting the function, operation, and administration of claims procedures




http://ai-texas.com/bio/jim-beneke/                                                                                               5/20/2015
Jim Beneke, SPPA, President at Beneke/Adjusters International | Adjusters International   Page 2 of 2




                                      California                    Mississippi
                                      Colorado
                                      Florida                       New York




                                      Kansas




http://ai-texas.com/bio/jim-beneke/                                                        5/20/2015
                                    CAUSE NO. 272,693-B

ANGELA BROOKS-BROWN,                           §          IN THE DISTRICT COURT OF
                                               §
       Plaintiff,                              §
                                               §
v.                                             §          BELL COUNTY, TEXAS
                                               §
USAA TEXAS LLOYD’S COMPANY                     §
                                               §
       Defendant.                              §          146TH JUDICIAL DISTRICT


            DEFENDANT USAA TEXAS LLOYD’S COMPANY’S
VERIFIED APPLICATION FOR TEMPORARY INJUNCTION AGAINST PLAINTIFF



       Comes Now, Defendant USAA Texas Lloyd’s Company (“USAA Texas Lloyd’s”), and

files this, its Verified Application for Temporary Injunction against Plaintiff Angela Brooks-

Brown (“Brooks-Brown”), and respectfully shows the Court as follows:

                                         A. PARTIES


1.     Plaintiff is Angela Brooks-Brown. Brooks-Brown is a resident of Bell County, Texas

       and a citizen of the State of Texas. Brooks-Brown has appeared in this matter through

       her counsel of record.



2.     Defendant is USAA Texas Lloyd’s Company. Defendant has appeared in this matter

       through its counsel of record.


                                B. JURISDICTION & VENUE


3.     Jurisdiction exists and venue is proper because:

           a. Brooks-Brown filed the underlying lawsuit in this Court;

DEFENDANT USAA TEXAS LLOYD’S COMPANY’S VERIFIED APPLICATION FOR TEMPORARY
INJUNCTION AGAINST PLAINTIFF                                           1
        b. No order of dismissal has been signed by this Court;

        c. The Court’s plenary power has not expired;

        d. Prior to a final judgment, a trial court, in the exercise of its plenary power, can

            issue an anti-suit injunction;

        e. The Court has dominant jurisdiction for the appointment of an umpire;

        f. The property in question (located at 707 Aries Ave., Killeen, Texas 76542) is in

            Bell County, Texas (the “Property”);

        g. A substantial part of the events or omissions giving rise to this claim occurred in

            Bell County, Texas; and

        h. The appraisal at issue is occurring in Bell County, Texas.


                                         C. FACTS


4.   On or about September 11, 2014, Brooks-Brown filed the underlying insurance lawsuit

     seeking damages from USAA Texas Lloyd’s.

5.   Brooks-Brown’s lawsuit generally alleges the following:

        a. Brooks-Brown is the owner of a homeowner insurance policy, policy number

            0242343 40 74 90A (the “Policy”);

        b. Brooks-Brown owned the insured property that is specifically located at

                                         ;

        c. On or about April 4, 2014, the Property sustained fire damage. Brooks-Brown

            filed a claim with USAA Texas Lloyd’s related to this fire;

        d. On or about May 12, 2014, the Property sustained windstorm and hail damage.

            Brooks-Brown filed a claim with USAA Texas Lloyd’s related to this occurrence;


DEFENDANT USAA TEXAS LLOYD’S COMPANY’S VERIFIED APPLICATION FOR TEMPORARY
INJUNCTION AGAINST PLAINTIFF                                           2
        e. Brooks-Brown’s property damage is covered by the Policy; and

        f. USAA Texas Lloyd’s has not properly calculated the amount owed Plaintiff under

            the Policy.

6.   The Policy at issue has an appraisal clause, which provides, in part, as follows:




DEFENDANT USAA TEXAS LLOYD’S COMPANY’S VERIFIED APPLICATION FOR TEMPORARY
INJUNCTION AGAINST PLAINTIFF                                           3
See Plaintiff’s Insurance Policy, Ex. A.


7.     On or about March 5, 2015, Brooks-Brown invoked her right to an appraisal pursuant to

       Section I “Conditions,” Paragraph 8 of the Policy. See Ex. B.

8.     Brooks-Brown then designated Darrell Quinney to serve as her appraiser on or about

       April 20, 2015. Mr. Quinney’s company, Loss Solutions, provided the estimate which

       forms the basis of Brooks-Brown’s alleged damages in this lawsuit and has been retained

       by Brooks-Brown as a testifying expert. As such, USAA Texas Lloyd’s objected to Mr.

       Quinney serving as an appraiser. See Ex. C.

9.     Nonetheless, in compliance with the Policy, USAA Texas Lloyd’s designated Mark West

       as its appraiser. See Ex. D.

10.    The appraisers met, inspected the property, and exchanged estimates, but have been

DEFENDANT USAA TEXAS LLOYD’S COMPANY’S VERIFIED APPLICATION FOR TEMPORARY
INJUNCTION AGAINST PLAINTIFF                                           4
      unable to agree upon a scope and pricing with respect to the conditions observed.

      Further, the appraisers exchanged names of potential umpires but have been unable to

      agree on an umpire to resolve their differing opinions regarding the scope and pricing for

      repairs to the property.

11.   On or about June 9, 2015, pursuant to the Policy, USAA Texas Lloyd’s filed a Motion for

      Appointment of Umpire for Insurance Appraisal Proceeding.

12.   Brooks-Brown filed a Notice of Non-Suit without Prejudice in the above-referenced

      lawsuit on June 8, 2015.

13.   Brooks-Brown then filed a new lawsuit in Jefferson County regarding the same parties

      and subject matter as this lawsuit. See Ex. E.

14.   Jefferson County is not a proper venue under the Texas venue provisions or the Policy.

15.   Upon information and belief, this Court has not signed a dismissal order.

16.   Upon information and belief, this Court’s plenary power has not expired.

17.   USAA Texas Lloyd’s attaches an affidavit as Exhibit F that proves the allegations in this

      application for injunctive relief and incorporates it by reference.


                 D. APPLICATION FOR TEMPORARY INJUNCTION


18.   USAA Texas Lloyd’s application for a temporary injunction is authorized by Texas law.

19.   USAA Texas Lloyd’s asks the court to enjoin Brooks-Brown and Brooks-Brown’s

      counsel from seeking the appointment of an umpire from any other court and from

      proceeding any further with an umpire appointed by another court.

20.   The appraisal will set the amount of damages subject to the terms and conditions of the

      policy after this Court appoints an umpire.


DEFENDANT USAA TEXAS LLOYD’S COMPANY’S VERIFIED APPLICATION FOR TEMPORARY
INJUNCTION AGAINST PLAINTIFF                                           5
21.   If USAA Texas Lloyd’s application is not granted, harm is imminent because USAA

      Texas Lloyd’s will have to appear and respond in a mirror lawsuit and there is the risk of

      two umpires being appointed in two different courts (one of which is not a proper venue).

22.   The harm that will result if the temporary injunction is not issued is irreparable.

23.   Additionally, by filing her Jefferson County Lawsuit and seeking relief which is outside

      of the terms of the Policy, Brooks-Brown has breached the Policy.

24.   This anti-suit injunction is appropriate for the following reasons:


       a.     the Jefferson County court is a threat to this Court's jurisdiction and final

              judgments;


       b.     public policy (and the Texas venue statutes) requires that umpires be appointed by

              judges sitting in the same county as the insured property;


       c.     To prevent a multiplicity of court appointed umpires and court proceedings; and


       d.     To protect USAA Texas Lloyd’s from Brooks-Brown’s vexatious and harassing

              litigation.


25.   Additionally, this Court has dominant jurisdiction because appraisal was first invoked in

      this lawsuit in Bell County, Texas, and appraisal has been proceeding within the confines

      of this lawsuit.

26.   USAA Texas Lloyd’s has no adequate remedy at law.

27.   USAA Texas Lloyd’s is willing to post bond.




DEFENDANT USAA TEXAS LLOYD’S COMPANY’S VERIFIED APPLICATION FOR TEMPORARY
INJUNCTION AGAINST PLAINTIFF                                           6
                         E. REQUEST FOR TEMPORARY INJUNCTION


28.      USAA Texas Lloyd’s asks this Court to set its application for temporary injunction for a

         hearing and, after the hearing, issue a temporary injunction against Brooks-Brown.

29.      USAA Texas Lloyd’s has joined all indispensable parties under Texas Rule of Civil

         Procedure 39.


                                           F. PRAYER


      30. For these reasons, USAA Texas Lloyd’s asks that Brooks-Brown be cited to appear and

         answer and, on final trial, that USAA Texas Lloyd’s be awarded a judgment against

         Brooks-Brown for a temporary injunction and all other relief to which USAA Texas

         Lloyd’s is entitled.


                                              Respectfully submitted,


                                              /s/ Lisa A. Songy
                                              Lisa A. Songy
                                              State Bar No. 00793122
                                              LisaS@tbmmlaw.com
                                              Donnie M. Apodaca, II
                                              State Bar No. 24082632
                                              DonnieA@tbmmlaw.com

                                              TOLLEFSON BRADLEY MITCHELL & MELENDI, LLP
                                              2811 McKinney Avenue, Suite 250 West
                                              Dallas, Texas 75204
                                              (214) 665-0100 Telephone
                                              (214) 665-0199 Facsimile
                                              ATTORNEYS FOR DEFENDANT USAA
                                              TEXAS LLOYD’S COMPANY




DEFENDANT USAA TEXAS LLOYD’S COMPANY’S VERIFIED APPLICATION FOR TEMPORARY
INJUNCTION AGAINST PLAINTIFF                                           7
                                CERTIFICATE OF SERVICE


        I hereby certify that a true and correct copy of has been served upon counsel of record via
electronic service and facsimile on this 26th day of June, 2015.

Attorneys for Plaintiff
Danny Ray Scott
danny@scottlawyers.com
Virginia Izaguirre
virginia@scottlawyers.com
Sean M. Patterson
sean@scottlawyers.com
Scott Law Offices
350 Pine Street, Suite 300
Beaumont, Texas 77701
Facsimile 409.833.5405

                                             / s / Lisa A. Songy
                                              Lisa A. Songy




DEFENDANT USAA TEXAS LLOYD’S COMPANY’S VERIFIED APPLICATION FOR TEMPORARY
INJUNCTION AGAINST PLAINTIFF                                           9
EXHIBIT
EXHIBIT
EXHIBIT
EXHIBIT
EXHIBIT
EXHIBIT
STATE OF TEXAS                §
COUNTY OF DALLAS              §


                                  AFFIDAVIT OF LISA SONGY

       BEFORE ME, the undersigned authority, on this day personally appeared Lisa Songy,

who swore and affirmed to tell the truth and stated as follows:

       1.      “My Name is Lisa Songy. I am over the age of 18 years and of sound mind and

capable of making this sworn statement. I have personal knowledge of the facts written in this

statement, and these statements are true and correct.

       2.      I am counsel of record for USAA Texas Lloyd’s in this matter.

       3.      Danny Ray Scott, Jr. represents Angela Brooks-Brown in the following lawsuits:

               (1) Angela Brooks-Brown v. USAA Texas Lloyd’s Company; Cause No. 272,693-

                   B; In the 146th Judicial District Court Bell County, Texas; and

               (2) Angela Brooks-Brown v. USAA Texas Lloyd’s Company; Cause No. 0127771;

                   In the County Court at Law No. 1, Jefferson County, Texas.

       4.      According to the file-stamped copy of Plaintiff’s Original Petition, Angela

Brooks-Brown filed her first lawsuit (the “Bell County Lawsuit”) on September 11, 2014. A true

and correct copy of the Original Petition filed in the Bell County Lawsuit is attached hereto as

Exhibit A.

       5.      According to the file-stamped copy Plaintiff’s Original Petition for Appointment

of Umpire, Angela Brooks-Brown filed her second lawsuit (the “Jefferson County Lawsuit”) on

June 8, 2015. A true and correct copy of the Jefferson County Lawsuit is attached hereto as

Exhibit B.

       6.      Both lawsuits involve Angela Brooks-Brown’s residence, which is located at



                                                 1
                                    . Further, both lawsuits concern the occurrence of two events.

The first event was a fire, which Angela Brooks-Brown alleges occurred on April 4, 2014. The

Second event was a wind and hailstorm, which Angela Brooks-Brown alleges occurred on May

12, 2014.

       7.      On or about March 5, 2015, I received a letter from Danny Ray Scott, Jr.,

invoking the Appraisal Provision of Angela Brooks-Brown’s homeowner insurance, Policy

Number LLYD 02423 40 74 90A (the “Policy”). A true and correct copy of the letter is attached

hereto as Exhibit C.

       8.      On or about April 20, 2015, I received a letter from Danny Ray Scott, Jr.’s

Paralegal, Jo Ann Haynes, designating Darrell Quinney of Loss Solutions as Angela Brooks-

Browns’ appraiser for the insurance appraisal proceeding. A true and correct copy of the letter is

attached hereto as Exhibit D.

       9.      On or about April 23, 2015, I sent Danny Ray Scott Jr. a letter objecting to his use

of Darrell Quinney as an appraiser and designating Mark West as USAA Texas Lloyd’s

Company’s appraiser for the insurance appraisal proceeding. A true and correct copy of the

letter is attached hereto as Exhibit E.

       10.     Mark West and Darrell Quinney have been unable to agree on an umpire for the

insurance appraisal proceeding.

       11.     On or about June 9, 2015, on behalf of USAA Texas Lloyd’s Company, I filed a

Motion for Appointment of Umpire for Insurance Appraisal Proceeding because the appraisers

were unable to agree on an umpire.

       12.     On or about June 10, 2015, I received a letter from Danny Ray Scott, Jr.

demanding that I withdraw the Motion for Appointment of Umpire for Insurance Appraisal



                                                 2
EXHIBIT
EXHIBIT
EXHIBIT
EXHIBIT
EXHIBIT
EXHIBIT
                                                                                             Filed 7/9/2015 3:07:09 PM
                                                                                             Joanna Staton, District Clerk
                                                                                             District Court - Bell County, TX
                                                                                             /s/ Bonnie Sather



                                         CAUSE NO. 272,6930B

ANGELA BROOKS0BROWN                              §                IN THE DISTRICT COURT
                                                 §
v.                                               §                146TH JUDICIAL DISTRICT
                                                 §
USAA TEXAS LLOYD’S COMPANY                       §                BELL COUNTY, TEXAS

 PLAINTIFF’S PLEA IN ABATEMENT TO DEFENDANT’S MOTION FOR APPOINTMENT
              OF UMPIRE FOR INSURANCE APPRAISAL PROCEEDING

     Plaintiff, Angela Brooks0Brown, asks the Court to abate defendant USAA Texas Lloyd’s

Company’s motion for appointment of umpire for insurance appraisal proceeding because the

matter is already pending in another forum.

                                       INTRODUCTION & BACKGROUND

     1.   Plaintiff, Angela Brooks0Brown, sued defendant, USAA Texas Lloyd’s Company

(“USAA”), for breach of contract, violations of the Texas Insurance Code, violation of the Texas

Deceptive Trade Practices Act, and common law fraud.

     2.   On March 5, 2015, plaintiff invoked the insurance policy’s appraisal provision and

notified defendant in accordance with the policy’s requirements. See Exhibit A. On June 6, 2015,

plaintiff’s counsel filed a notice of nonsuit of all of plaintiff’s claims. See Exhibits B and C.

     3.   The contract of insurance that governs plaintiff’s claim is a contract that defendant USAA

Texas Lloyd’s Company unilaterally drafted and sold to plaintiff. In this insurance contract, USAA

Texas Lloyd’s Company granted express permission to plaintiff to ask any judge in the state of

Texas to appoint an umpire in the appraisal proceeding. See Exhibit D (Bates No. UTLC000110).

     4.   On June 6, 2015, plaintiff’s counsel filed a petition in Jefferson County, Texas asking a

Jefferson County judge to appoint an umpire in the appraisal. See Exhibits E and F. Although



 FWD TO CC 7/10/15                                                          7/10/2015
                                                                                                Page 1 of 5
plaintiff filed the petition on Saturday, June 6, 2015, the clerk did not file stamp the document until

midnight on June 8, 2015. Id. Simultaneously with the filing of the petition, plaintiff asked the

Jefferson County Clerk to serve USAA Texas Lloyd’s Company with the petition and plaintiff paid

the fees associated with that request. See Exhibit E. After plaintiff filed the petition in Jefferson

County asking a court to appoint an appraisal umpire, on June 8, 2015, defendant filed its motion

in this Court asking the court to appoint an umpire for appraisal. See Defendant’s Motion.

                                    ARGUMENT & AUTHORITIES

A. THE COURT SHOULD ABATE DEFENDANT’S MOTION BECAUSE THE JEFFERSON COUNTY COURT
HAS DOMINANT JURISDICTION


   5.    The Court should abate defendant’s motion because plaintiff has already filed a petition

in Jefferson County, Texas asking a court to appoint an appraisal umpire, giving that court

dominant jurisdiction. Dominant jurisdiction belongs to the first court in which suit is properly

filed. In re Puig, 351 S.W.3d 301, 305 (Tex. 2011); Wyatt v Shaw Plumbling Co., 760 S.W.2d 245, 248

(Tex. 1988). When the subject matter of two suits is inherently interrelated, the court where the

second suit was filed must grant a motion to abate. In re Puig, 351 S.W.3d at 3050306. Any

subsequent suit involving the same parties and the same controversy must be dismissed if a party

to that suit calls the second courtfs attention to the pendency of the prior suit by a plea in

abatement. In re Sims, 88 S.W.3d 297, 302 (Tex. App.—San Antonio 2002, no pet.).

   6.    In State Farm Lloyds v. Johnson and Gilbert Texas Construction v Underwriters at Lloyds, the

Supreme Court of Texas emphasizes the contractual nature of the appraisal right. See State Farm

Lloyds v. Johnson, 290 S.W.3d 886 (Tex. 2009); Gilbert Texas Const., L.P. v. Underwriters at LloydCs

London, 327 S.W.3d 118, 126 (Tex. 2010). The Court states, “The principles courts use when




                                                                                            Page 2 of 5
interpreting an insurance policy are well established. Those principles include construing the

policy according to general rules of contract construction to ascertain the partiesf intent. First, we

look at the language of the policy because we presume parties intend what the words of their

contract say.” Gilbert Texas Const., L.P. v. Underwriters at LloydCs London, 327 S.W.3d at 895. The

Court urges courts to honor the partiesf agreement and not remake their contract by reading

additional provisions into it. Id. Like any other contractual provision, appraisal clauses should be

enforced. State Farm Lloyds v. Johnson, 290 S.W.3d at 895.

   7.    Defendant, USAA Texas Lloyd’s Company drafted and granted plaintiff express

permission to ask any judge of a court of record in the state where the “residence premises” is

located to appoint an appraisal umpire.       Specifically, the insurance policy’s appraisal clause

states the following: “If you and we fail to agree on the amount of loss, either may demand an

appraisal of the loss. In this event, each party will choose a competent and impartial appraiser

within 20 days after receiving a written request from the other. 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 court of record in the state where the “residence premises” is

located. See Exhibit D (Bates No. UTLC000110).

   8.    Exercising this right granted to plaintiff by defendant, on June 6, 2015, plaintiff’s

counsel filed a petition in Jefferson County, Texas asking a Jefferson County judge to appoint an

umpire in the appraisal. Later, on June 8 2015, defendant filed a motion in this Court to appoint an

appraisal umpire. Since plaintiff has previously asked a Jefferson County court to appoint an

appraisal umpire, the Jefferson County court has dominant jurisdiction over the issue of the

appointment of an appraisal umpire. The policy, written by defendant, expressly grants plaintiff



                                                                                           Page 3 of 5
the right to ask any court in this state to appoint an umpire for appraisal. As a court notes, Texas

does not have a statue that exclusively vest jurisdiction to appoint an appraisal umpire in the

county where the loss occurred. Fire AssCn of Philadelphia v. Ballard, 112 S.W.2d 532, 534 (Tex.

App.— Waco 1938, no pet.).

                                           CONCLUSION

   9.    Plaintiff has filed a petition in Jefferson County asking the court to appoint an umpire

for appraisal. Defendant expressly granted plaintiff the right to ask any court in the state to

appoint an appraisal umpire. Since plaintiff requested a court in Jefferson County to appoint an

umpire before defendant, the Jefferson County court has dominant jurisdiction.

                                              PRAYER

   10.   For these reasons, plaintiff asks the Court, after a hearing, to abate defendant’s motion

for appointment of an appraisal umpire.




                                                     Respectfully submitted,

                                                     SCOTT LAW OFFICES
                                                     350 Pine Street, Suite 300
                                                     Beaumont, Texas 77701
                                                     Telephone: (409) 83305400
                                                     Facsimile: (409) 83305405

                                                     /s/Danny Ray Scott
                                                     __________________________
                                                     DANNY RAY SCOTT
                                                     State Bar No. 24010920
                                                     danny@scottlawyers.com
                                                     VIRGINIA IZAGUIRRE
                                                     State Bar No. 24083230
                                                     virginia@scottlawyers.com
                                                     SEAN M. PATTERSON



                                                                                         Page 4 of 5
                                                      State Bar No. 24073546
                                                      sean@scottlawyers.com

                                                      Attorneys for Plaintiff

                                  CERTIFICATE OF SERVICE

        This is to certify that a true and correct copy of the above and foregoing has been served on
all counsel of record in accordance with the Texas Rules of Civil Procedure on July 9, 2015.



                                                      /s/ Danny Ray Scott

                                                      DANNY RAY SCOTT




                                                                                          Page 5 of 5
                                                                                            Filed 6/8/2015 12:00:00 AM
                                                                                            Joanna Staton, District Clerk
                                                                                            District Court - Bell County, TX
                                                                                            by Bonnie Sather , Deputy




                                            CAUSE NO. 272,693-B

      ANGELA BROOKS-BROWN                          §               IN THE DISTRICT COURT
                                                   §
                                                   §
      v.                                           §               146th JUDICIAL DISTRICT
                                                   §
                                                   §
      USAA TEXAS LLOYD’S COMPANY                   §                 BELL COUNTY, TEXAS

                       PLAINTIFF’S NOTICE OF NON-SUIT WITHOUT PREJUDICE

              Plaintiff, Angela Brooks-Brown, files this Notice of Non-suit without Prejudice.

              At this time, Plaintiff does not desire to pursue the claims in this cause against

      Defendant USAA Texas Lloyd’s Company. Texas Rule of Civil Procedure 162 provides that “at

      any time before the plaintiff has introduced all of its evidence…, the plaintiff may dismiss a

      case, or take a non-suit, which shall be entered in the minutes. Notice of the dismissal or non-

      suit shall be served…without necessity of court order.” Plaintiff hereby exercises the right to

      non-suit USAA Texas Lloyd’s Company without prejudice from the claims asserted in this

      specific case.

              For these reasons, Plaintiff hereby nonsuits plaintiff’s claims against defendant USAA

      Texas Lloyd’s Company without prejudice to the refiling of plaintiff’s claims at a later date.




                                                                             6/8/2015

                                                                                                 Page 1 of 2



FWD TO CC 6/8/15
Respectfully submitted,

SCOTT LAW OFFICES
350 Pine Street, Suite 300
Beaumont, Texas 77701
Telephone: (409) 833-5400
Facsimile: (409) 833-5405




/s/ Danny Ray Scott
DANNY RAY SCOTT
State Bar No. 24010920
VIRGINIA IZAGUIRRE
State Bar No. 24083230
SEAN M. PATTERSON
State Bar No. 24073546



ATTORNEYS FOR PLAINTIFF




                             Page 2 of 2
7/4/2015                                                           ProDoc® eFiling 2 - Filing Details
                                                                          Petition


                                  Filing Fees                                                            Filing Information
    Copies -­ Service ($1.00 x 4)                                    $4.00                 Current Status:   accepted
    Issue Citation -­ Certified Mail                                 $4.00         Accepted Date/Time: 6/8/2015 8:18:26 AM
    Service -­ Constable -­ All Other                              $65.00              Filing Description: Petition to Appoint Appraisal Umpire
                                          Total Filing Fees:       $73.00             Reference Number: Angela Brooks-­Brown
                                                                                     Comments for Clerk:




                                                                 Document Information
        Document(s) Filed:
        Lead Document:
           Original -­ Angela Brooks-­Brown Pet to Appoint Umpire.docx.pdf [Exhibit -­                                 Angela Brooks-­Brown Petition
                                                                                              Document Description:
           Contains sensitive data]                                                                                    to Appoint Umpire.pdf
           Transmitted -­ Angela Brooks-­Brown Pet to Appoint Umpire.docx.pdf                                          Angela Brooks-­Brown Petition
                                                                                              Document Description:
           [Exhibit -­ Contains sensitive data]                                                                        to Appoint Umpire.pdf
        Attachments:
           Angela Brooks-­Brown Cover sheet.pdf [Exhibit -­ Contains sensitive                                         Angela Brooks-­Brown
                                                                                              Document Description:
           data]                                                                                                       Cover_sheet.pdf
           Transmitted -­ Angela Brooks-­Brown Cover sheet.pdf [Exhibit -­ Contains                                    Transmitted -­ Angela Brooks-­
                                                                                              Document Description:
           sensitive data]                                                                                             Brown Cover_sheet.pdf


   -­


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https://www.prodocefile.com/ViewFiling.aspx?param=5573310                                                                                               2/2
                                                                            FILED FOR RECORD
                                                                            Carolyn L. Guidry
                                                                            6/8/2015 12:00:00 AM
                                                                            COUNTY CLERK
                                                                            JEFFERSON COUNTY
                                            0127771
                             CAUSE NO. ______________________
                                                                            0127771



ANGELA BROOKS-BROWN                          §            IN THE COUNTY COURT
                                             §
                                             §
v.                                           §            AT LAW NO. 1
                                             §
                                             §
USAA TEXAS LLOYD’S COMPANY                   §            JEFFERSON COUNTY, TEXAS

     PLAINTIFF’S ORIGINAL PETITION FOR APPOINTMENT OF APPRAISAL UMPIRE

TO THE HONORABLE JUDGE OF SAID COURT:

      NOW COMES ANGELA BROOKS-BROWN (herein after referred to as “Plaintiff”),

complaining of Defendant, USAA TEXAS LLOYD’S COMPANY, (hereinafter referred to as

“USAA”) and hereby respectfully show unto the Court as follows:

                                  DISCOVERY CONTROL PLAN

        1.     Plaintiff intends for discovery to be conducted under Level 1 of Rule 190 of the

Texas Rules of Civil Procedure.

                                             PARTIES

        2.     Plaintiff, ANGELA BROOKS-BROWN, is an individual and resident of Bell

County and citizen of the state of Texas.

        3.     Defendant, USAA TEXAS LLOYD’S COMPANY, hereinafter “USAA,” is a

domestic insurance carrier, incorporated and engaging in the business of insurance in the State

of Texas, and may be served with process by serving its President, Laura M. Bishop, 9800

Fredericksburg Road, San Antonio, Texas 78288.

                                             VENUE

        4.     Venue is proper in Jefferson County, Texas, because the insurance contract



                                                                                    Page 1 of 4

                                                                                                   hj
drafted by the defendant grants the parties the right to petition a judge of a court of record in

the state where the “residence premises” is located to appoint an appraisal umpire.

                                              FACTS

       5.      Plaintiff is the owner of a homeowner insurance policy, policy number 0242343

40 74 90A, issued by the Defendant (hereinafter referred to as the “Policy”).

       6.      Plaintiff owned the insured property that is specifically located at

                     (hereinafter referred to as the “Property”).

       7.      Defendant or its agent sold the Policy, insuring the property, to Plaintiff.

       8.      On or about April 4, 2014, Plaintiff’s property sustained fire damage, specifically

to the fence. Plaintiff filed a claim with her insurance company, USAA for the damages to her

property caused by the fire.

       9.      On or about May 12, 2014, Plaintiff’s property sustained windstorm and hail

damage. Plaintiff’s roof sustained extensive damage during the storm including damage to the

shingles, roof jack, drip edge, chimney and other structural parts of the roof.           Plaintiff’s

property also sustained exterior damage to the cornice and siding, dryer vent, windows, fence,

garage door and a/c unit. After the storm, Plaintiff filed a claim with her insurance company,

USAA, for the damages to her home caused by the storm.

       10.     Plaintiff submitted claims to USAA against the Policy for damage caused to the

property as a result of the fire and the wind and hail. Plaintiff asked USAA to cover the cost of

repairs to the Property pursuant to the Policy and any other available coverages under the

Policy. USAA assigned claim number 024234074-3 to Plaintiff’s fire claim and claim number

024234074-4 to Plaintiff’s wind and hail claim.



                                                                                         Page 2 of 4
       11.     On March 5, 2015, plaintiff communicated to defendant that plaintiff disagreed

with defendant’s determination of the amount of loss with respect to plaintiff’s insurance claim.

Plaintiff also communicated to defendant that plaintiff wished to invoke the insurance policy’s

appraisal clause.

       12.     The insurance policy’s appraisal clause states the following: “If you and we fail

to agree on the amount of loss, either may demand an appraisal of the loss. In this event, each

party will choose a competent and impartial appraiser within 20 days after receiving a written

request from the other. 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 court

of record in the state where the “residence premises” is located. The appraisers will separately

set the amount of the loss. If the appraisers submit a written report of an agreement to us, the

amount agreed upon will be the amount of loss. If they fail to agree, they will submit their

differences to the umpire. A decision agreed to by any two will set the amount of loss.”

       13.     The requisite period of time has expired and the appraisers have not agreed

upon an umpire. Plaintiff therefore requests that this Court select an umpire in accordance with

and as allowed by the policy’s provisions.

                                             PRAYER

       14.     For these reasons, Plaintiff asks that this Court appoint an umpire for the

insurance appraisal. Plaintiff also asks the Court to issue orders as necessary to validate any

decision the umpire makes and to issue any orders necessary to conclude this matter at the

appropriate time.




                                                                                      Page 3 of 4
Respectfully Submitted,

SCOTT LAW OFFICES
350 Pine Street, Suite 300
Beaumont, Texas 77701
Telephone: (409) 833-5400
Facsimile: (409) 833-5405


   /s/Danny Ray Scott
__________________________
Danny Ray Scott
State Bar No. 24010920
danny@scottlawyers.com
Virginia Izaguirre
State Bar No. 24083230
virginia@scottlawyers.com
Sean M. Patterson
State Bar No. 24073546
sean@scottlawyers.com

Attorneys for Plaintiff




                             Page 4 of 4
                                                                                             Filed 7/9/2015 2:57:10 PM
                                                                                             Joanna Staton, District Clerk
                                                                                             District Court - Bell County, TX
                                                                                             /s/ Melissa Wallace



                                         CAUSE NO. 272,6930B

ANGELA BROOKS0BROWN                              §                IN THE DISTRICT COURT
                                                 §
v.                                               §                146TH JUDICIAL DISTRICT
                                                 §
USAA TEXAS LLOYD’S COMPANY                       §                BELL COUNTY, TEXAS

PLAINTIFF’S RESPONSE TO DEFENDANT’S VERIFIED APPLICATION FOR TEMPORARY
                      INJUNCTION AGAINST PLAINTIFF

     Plaintiff, Angela Brooks0Brown, asks the Court to deny defendant USAA Texas Lloyd’s

Company’s application for temporary injunction against plaintiff because defendant has failed to

show it has a right to the relief sought.

                                       INTRODUCTION & BACKGROUND

     1.   Plaintiff, Angela Brooks0Brown, sued defendant, USAA Texas Lloyd’s Company

(“USAA”), for breach of contract, violations of the Texas Insurance Code, violation of the Texas

Deceptive Trade Practices Act, and common law fraud.

     2.   On March 5, 2015, plaintiff invoked the insurance policy’s appraisal provision and

notified defendant in accordance with the policy’s requirements. See Exhibit A. On June 6, 2015,

plaintiff’s counsel filed a notice of nonsuit of all of plaintiff’s claims. See Exhibits B and C.

     3.   The contract of insurance that governs plaintiff’s claim is a contract that defendant USAA

Texas Lloyd’s Company unilaterally drafted and sold to plaintiff. In this insurance contract, USAA

Texas Lloyd’s Company granted express permission to plaintiff to ask any judge in the state of

Texas to appoint an umpire in the appraisal proceeding. See Exhibit D (Bates No. UTLC000110).

     4.   On June 6, 2015, plaintiff’s counsel filed a petition in Jefferson County, Texas asking a

Jefferson County judge to appoint an umpire in the appraisal. See Exhibits E and F. Although




                                                                                                Page 1 of 7
plaintiff filed the petition on Saturday, June 6, 2015, the clerk did not file stamp the document until

midnight on June 8, 2015. Id. Simultaneously with the filing of the petition, plaintiff asked the

Jefferson County Clerk to serve USAA Texas Lloyd’s Company with the petition and plaintiff paid

the fees associated with that request. See Exhibit E. After plaintiff filed the petition in Jefferson

County asking a court to appoint an appraisal umpire, on June 8, 2015, defendant filed its motion

in this Court asking the court to appoint an umpire for appraisal. See Defendant’s Motion for

Appointment Umpire for Insurance Appraisal Proceeding. Now defendant files an application for

temporary injunction against plaintiff, asking this Court to restrict plaintiff from exercising the

contractual right defendant expressly granted to plaintiff.

                                    ARGUMENT & AUTHORITIES

   5.    The purpose of a temporary injunction is to preserve the status quo of the litigationes

subject matter pending a trial on the merits. Butnari v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex.

2002). A temporary injunction is an extraordinary remedy and does not issue as a matter of

right. Id. An applicant for temporary injunction must plead and prove (1) a cause of action

against the defendant, (2) a probable right to the relief sought, and (3) a probable, imminent,

and irreparable injury in the interim. Id. An injury is irreparable if the injured party cannot be

compensated adequately in damages or if the damages cannot be measured by any certain

pecuniary standard. Id. To demonstrate probable injury or harm, an applicant must show an

injury for which there can be no real legal measure of damages or none that can be determined

with a sufficient degree of certainty. Marketshare Telecom, L.L.C. v. Ericsson, Inc., 198 S.W.3d 908,

9250926 (Tex. App.0Dallas 2006, no pet.). At a temporary injunction hearing, the trial court

considers whether the applicant has shown a probability of success and irreparable injury. Id. at



                                                                                            Page 2 of 7
922. Defendant’s application should be denied because defendant has failed to show it has a

right to the relief sought.

A. Defendant Expressly Granted Plaintiff the Right to Request a Jefferson County Judge to
Appoint an Umpire for the Appraisal Process.

    6.    Plaintiff has a contractual right to request a Jefferson County judge to appoint an

umpire. Defendant, USAA Texas Lloyd’s Company drafted and granted plaintiff express

permission to ask any judge of a court of record in the state where the “residence premises” is

located to appoint an appraisal umpire.       Specifically, the insurance policy’s appraisal clause

states the following: “If you and we fail to agree on the amount of loss, either may demand an

appraisal of the loss. In this event, each party will choose a competent and impartial appraiser

within 20 days after receiving a written request from the other. 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 court of record in the state where the “residence premises” is

located. See Exhibit D (Bates No. UTLC000110). Exercising this right granted to plaintiff by

defendant, on June 6, 2015, plaintiff’s counsel filed a petition in Jefferson County, Texas asking a

Jefferson County judge to appoint an umpire in the appraisal.

    7.    In State Farm Lloyds v. Johnson and Gilbert Texas Construction v Underwriters at Lloyds, the

Supreme Court of Texas emphasizes the contractual nature of the appraisal right. See State Farm

Lloyds v. Johnson, 290 S.W.3d 886 (Tex. 2009); Gilbert Texas Const., L.P. v. Underwriters at LloydEs

London, 327 S.W.3d 118, 126 (Tex. 2010). The Court states, “The principles courts use when

interpreting an insurance policy are well established. Those principles include construing the

policy according to general rules of contract construction to ascertain the partiese intent. First, we




                                                                                           Page 3 of 7
look at the language of the policy because we presume parties intend what the words of their

contract say.” Gilbert Texas Const., L.P. v. Underwriters at LloydEs London, 327 S.W.3d at 895. The

Court urges courts to honor the partiese agreement and not remake their contract by reading

additional provisions into it. Id. Like any other contractual provision, appraisal clauses should be

enforced. State Farm Lloyds v. Johnson, 290 S.W.3d at 895.

    8.    Because the insurance contract was drafted by USAA provided express contractual

language authorizing plaintiff to ask a judge in Jefferson County to appoint an umpire, plaintiff

has the contractual authority to request a judge in Jefferson County to appoint an umpire.

Defendant has not produced any evidence that plaintiff waived this contractual right.

B. Dominant Jurisdiction

    9.    Defendant incorrectly argues that this Court has dominant Jurisdiction. Plaintiff

demanded appraisal pursuant to the terms of the insurance policy. On March 5, 2015, plaintiff

invoked appraisal pursuant to the terms of the insurance policy. See Exhibit A. On June 6, 2015,

plaintiff’s counsel filed a notice of nonsuit of all of plaintiff’s claims. See Exhibits B and C. On June

6, 2015, plaintiff’s counsel filed a petition in Jefferson County, Texas asking a Jefferson County

judge to appoint an umpire in the appraisal. See Exhibits E and F. Although plaintiff filed the

petition on Saturday, June 6, 2015, the clerk did not file stamp the document until midnight on

June 8, 2015. Simultaneously with the filing of the petition, plaintiff asked the Jefferson County

Clerk to serve USAA Texas Lloyd’s Company with the petition and plaintiff paid the fees

associated with that request. See Exhibit E. After plaintiff filed the petition in Jefferson County

asking a court to appoint an appraisal umpire, on June 8, 2015, defendant filed its motion in this

Court asking the court to appoint an umpire for appraisal.



                                                                                             Page 4 of 7
   10.    Dominant jurisdiction belongs to the first court in which suit is properly filed. In re Puig,

351 S.W.3d 301, 305 (Tex. 2011); Wyatt v Shaw Plumbling Co., 760 S.W.2d 245, 248 (Tex. 1988). Since

plaintiff has previously asked a Jefferson County court to appoint an appraisal umpire, the

Jefferson County court has dominant jurisdiction over the issue of the appointment of an appraisal

umpire.

C. Venue is Proper in Jefferson County

   11.    As stated above, the policy drafted by USAA expressly grants plaintiff the right to

request a Jefferson County judge to appoint an umpire for appraisal. Strangely, defendant does not

mention the policy provision that granted plaintiff this right in its motion. Defendant has not

shown any evidence that plaintiff waived this right, which was granted to plaintiff by defendant.

Since the policy expressly stated that plaintiff could request “a judge of court of record in the state

where the “residence premises” is located” to appoint an appraisal umpire, venue is proper in

Jefferson County. In exchange for monetary insurance premium payments, USAA gave plaintiff

the right to ask any judge in the state of Texas to appoint an umpire. If USAA wished to restrict

umpire0appointing authority to judges located in Bell County, it could have easily drafted a

contract that would have contained that restriction. Now that plaintiff has availed herself of the

privileges afforded her under that contract of insurance, USAA now seeks to punish her and/or

her attorneys for taking an action that is expressly allowed by the contract.

   12.    Defendant also erroneously argues that public policy and Texas venue statutes

requires that umpires be appointed by judges sitting in the same county as the insured

property. Defendant offers no authority to support this contention. Defendant deliberately

confuses the issues of (1) the proper venue for plaintiff’s contractual and extra0contractual



                                                                                            Page 5 of 7
claims contained in plaintiff’s original petition filed in Bell County; and (2) the proper venue for

the appointment of an umpire in the appraisal proceeding. It is obvious that the proper venue

for plaintiff’s contractual and extra0contractual claims contained in her original petition is Bell

County, Texas. However, the contract that defendant USAA Texas Lloyd’s Company drafted

and for which it accepted financial compensation from plaintiff in exchange for insuring

plaintiff’s property, granted plaintiff express permission to ask any judge in any one of 254

Texas counties to appoint an umpire in the appraisal proceeding. See Exhibit D (Bates No.

UTLC000110). As a court notes, Texas does not have a statue that exclusively vest jurisdiction to

appoint an appraisal umpire in the county where the loss occurred. Fire AssEn of Philadelphia v.

Ballard, 112 S.W.2d 532, 534 (Tex. App.— Waco 1938, no pet.).

                                              PRAYER

   13.   For these reasons, plaintiff asks the Court to deny defendant’s application for

temporary injunction.

                                                     Respectfully submitted,

                                                     SCOTT LAW OFFICES
                                                     350 Pine Street, Suite 300
                                                     Beaumont, Texas 77701
                                                     Telephone: (409) 83305400
                                                     Facsimile: (409) 83305405

                                                     /s/Danny Ray Scott
                                                     __________________________
                                                     DANNY RAY SCOTT
                                                     State Bar No. 24010920
                                                     danny@scottlawyers.com
                                                     VIRGINIA IZAGUIRRE
                                                     State Bar No. 24083230
                                                     virginia@scottlawyers.com
                                                     SEAN M. PATTERSON
                                                     State Bar No. 24073546



                                                                                         Page 6 of 7
                                                      sean@scottlawyers.com

                                                      Attorneys for Plaintiff

                                  CERTIFICATE OF SERVICE

        This is to certify that a true and correct copy of the above and foregoing has been served on
all counsel of record in accordance with the Texas Rules of Civil Procedure on July 9, 2015.



                                                      /s/ Danny Ray Scott

                                                      DANNY RAY SCOTT




                                                                                          Page 7 of 7
                                                                                            Filed 6/8/2015 12:00:00 AM
                                                                                            Joanna Staton, District Clerk
                                                                                            District Court - Bell County, TX
                                                                                            by Bonnie Sather , Deputy




                                            CAUSE NO. 272,693-B

      ANGELA BROOKS-BROWN                          §               IN THE DISTRICT COURT
                                                   §
                                                   §
      v.                                           §               146th JUDICIAL DISTRICT
                                                   §
                                                   §
      USAA TEXAS LLOYD’S COMPANY                   §                 BELL COUNTY, TEXAS

                       PLAINTIFF’S NOTICE OF NON-SUIT WITHOUT PREJUDICE

              Plaintiff, Angela Brooks-Brown, files this Notice of Non-suit without Prejudice.

              At this time, Plaintiff does not desire to pursue the claims in this cause against

      Defendant USAA Texas Lloyd’s Company. Texas Rule of Civil Procedure 162 provides that “at

      any time before the plaintiff has introduced all of its evidence…, the plaintiff may dismiss a

      case, or take a non-suit, which shall be entered in the minutes. Notice of the dismissal or non-

      suit shall be served…without necessity of court order.” Plaintiff hereby exercises the right to

      non-suit USAA Texas Lloyd’s Company without prejudice from the claims asserted in this

      specific case.

              For these reasons, Plaintiff hereby nonsuits plaintiff’s claims against defendant USAA

      Texas Lloyd’s Company without prejudice to the refiling of plaintiff’s claims at a later date.




                                                                             6/8/2015

                                                                                                 Page 1 of 2



FWD TO CC 6/8/15
Respectfully submitted,

SCOTT LAW OFFICES
350 Pine Street, Suite 300
Beaumont, Texas 77701
Telephone: (409) 833-5400
Facsimile: (409) 833-5405




/s/ Danny Ray Scott
DANNY RAY SCOTT
State Bar No. 24010920
VIRGINIA IZAGUIRRE
State Bar No. 24083230
SEAN M. PATTERSON
State Bar No. 24073546



ATTORNEYS FOR PLAINTIFF




                             Page 2 of 2
7/4/2015                                                           ProDoc® eFiling 2 - Filing Details
                                                                          Petition


                                  Filing Fees                                                            Filing Information
    Copies -­ Service ($1.00 x 4)                                    $4.00                 Current Status:   accepted
    Issue Citation -­ Certified Mail                                 $4.00         Accepted Date/Time: 6/8/2015 8:18:26 AM
    Service -­ Constable -­ All Other                              $65.00              Filing Description: Petition to Appoint Appraisal Umpire
                                          Total Filing Fees:       $73.00             Reference Number: Angela Brooks-­Brown
                                                                                     Comments for Clerk:




                                                                 Document Information
        Document(s) Filed:
        Lead Document:
           Original -­ Angela Brooks-­Brown Pet to Appoint Umpire.docx.pdf [Exhibit -­                                 Angela Brooks-­Brown Petition
                                                                                              Document Description:
           Contains sensitive data]                                                                                    to Appoint Umpire.pdf
           Transmitted -­ Angela Brooks-­Brown Pet to Appoint Umpire.docx.pdf                                          Angela Brooks-­Brown Petition
                                                                                              Document Description:
           [Exhibit -­ Contains sensitive data]                                                                        to Appoint Umpire.pdf
        Attachments:
           Angela Brooks-­Brown Cover sheet.pdf [Exhibit -­ Contains sensitive                                         Angela Brooks-­Brown
                                                                                              Document Description:
           data]                                                                                                       Cover_sheet.pdf
           Transmitted -­ Angela Brooks-­Brown Cover sheet.pdf [Exhibit -­ Contains                                    Transmitted -­ Angela Brooks-­
                                                                                              Document Description:
           sensitive data]                                                                                             Brown Cover_sheet.pdf


   -­


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https://www.prodocefile.com/ViewFiling.aspx?param=5573310                                                                                               2/2
                                                                            FILED FOR RECORD
                                                                            Carolyn L. Guidry
                                                                            6/8/2015 12:00:00 AM
                                                                            COUNTY CLERK
                                                                            JEFFERSON COUNTY
                                            0127771
                             CAUSE NO. ______________________
                                                                            0127771



ANGELA BROOKS-BROWN                          §            IN THE COUNTY COURT
                                             §
                                             §
v.                                           §            AT LAW NO. 1
                                             §
                                             §
USAA TEXAS LLOYD’S COMPANY                   §            JEFFERSON COUNTY, TEXAS

     PLAINTIFF’S ORIGINAL PETITION FOR APPOINTMENT OF APPRAISAL UMPIRE

TO THE HONORABLE JUDGE OF SAID COURT:

      NOW COMES ANGELA BROOKS-BROWN (herein after referred to as “Plaintiff”),

complaining of Defendant, USAA TEXAS LLOYD’S COMPANY, (hereinafter referred to as

“USAA”) and hereby respectfully show unto the Court as follows:

                                  DISCOVERY CONTROL PLAN

        1.     Plaintiff intends for discovery to be conducted under Level 1 of Rule 190 of the

Texas Rules of Civil Procedure.

                                             PARTIES

        2.     Plaintiff, ANGELA BROOKS-BROWN, is an individual and resident of Bell

County and citizen of the state of Texas.

        3.     Defendant, USAA TEXAS LLOYD’S COMPANY, hereinafter “USAA,” is a

domestic insurance carrier, incorporated and engaging in the business of insurance in the State

of Texas, and may be served with process by serving its President, Laura M. Bishop, 9800

Fredericksburg Road, San Antonio, Texas 78288.

                                             VENUE

        4.     Venue is proper in Jefferson County, Texas, because the insurance contract



                                                                                    Page 1 of 4

                                                                                                   hj
drafted by the defendant grants the parties the right to petition a judge of a court of record in

the state where the “residence premises” is located to appoint an appraisal umpire.

                                              FACTS

       5.      Plaintiff is the owner of a homeowner insurance policy, policy number 0242343

40 74 90A, issued by the Defendant (hereinafter referred to as the “Policy”).

       6.      Plaintiff owned the insured property that is specifically located at

                     (hereinafter referred to as the “Property”).

       7.      Defendant or its agent sold the Policy, insuring the property, to Plaintiff.

       8.      On or about April 4, 2014, Plaintiff’s property sustained fire damage, specifically

to the fence. Plaintiff filed a claim with her insurance company, USAA for the damages to her

property caused by the fire.

       9.      On or about May 12, 2014, Plaintiff’s property sustained windstorm and hail

damage. Plaintiff’s roof sustained extensive damage during the storm including damage to the

shingles, roof jack, drip edge, chimney and other structural parts of the roof.           Plaintiff’s

property also sustained exterior damage to the cornice and siding, dryer vent, windows, fence,

garage door and a/c unit. After the storm, Plaintiff filed a claim with her insurance company,

USAA, for the damages to her home caused by the storm.

       10.     Plaintiff submitted claims to USAA against the Policy for damage caused to the

property as a result of the fire and the wind and hail. Plaintiff asked USAA to cover the cost of

repairs to the Property pursuant to the Policy and any other available coverages under the

Policy. USAA assigned claim number 024234074-3 to Plaintiff’s fire claim and claim number

024234074-4 to Plaintiff’s wind and hail claim.



                                                                                         Page 2 of 4
       11.     On March 5, 2015, plaintiff communicated to defendant that plaintiff disagreed

with defendant’s determination of the amount of loss with respect to plaintiff’s insurance claim.

Plaintiff also communicated to defendant that plaintiff wished to invoke the insurance policy’s

appraisal clause.

       12.     The insurance policy’s appraisal clause states the following: “If you and we fail

to agree on the amount of loss, either may demand an appraisal of the loss. In this event, each

party will choose a competent and impartial appraiser within 20 days after receiving a written

request from the other. 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 court

of record in the state where the “residence premises” is located. The appraisers will separately

set the amount of the loss. If the appraisers submit a written report of an agreement to us, the

amount agreed upon will be the amount of loss. If they fail to agree, they will submit their

differences to the umpire. A decision agreed to by any two will set the amount of loss.”

       13.     The requisite period of time has expired and the appraisers have not agreed

upon an umpire. Plaintiff therefore requests that this Court select an umpire in accordance with

and as allowed by the policy’s provisions.

                                             PRAYER

       14.     For these reasons, Plaintiff asks that this Court appoint an umpire for the

insurance appraisal. Plaintiff also asks the Court to issue orders as necessary to validate any

decision the umpire makes and to issue any orders necessary to conclude this matter at the

appropriate time.




                                                                                      Page 3 of 4
Respectfully Submitted,

SCOTT LAW OFFICES
350 Pine Street, Suite 300
Beaumont, Texas 77701
Telephone: (409) 833-5400
Facsimile: (409) 833-5405


   /s/Danny Ray Scott
__________________________
Danny Ray Scott
State Bar No. 24010920
danny@scottlawyers.com
Virginia Izaguirre
State Bar No. 24083230
virginia@scottlawyers.com
Sean M. Patterson
State Bar No. 24073546
sean@scottlawyers.com

Attorneys for Plaintiff




                             Page 4 of 4
                                                                                Filed 7/27/2015 2:49:26 PM
                                                                                Joanna Staton, District Clerk
                                                                                District Court - Bell County, TX
                                                                                 /s/ Lacey Martindale



                                   CAUSE NO. 272,693-B

ANGELA BROOKS-BROWN                        §             IN THE DISTRICT COURT
                                           §
                                           §
v.                                         §             146TH JUDICIAL DISTRICT
                                           §
                                           §
USAA TEXAS LLOYD’S COMPANY                 §             BELL COUNTY, TEXAS

     ORDER ON PLAINTIFF’S PLEA IN ABATEMENT TO DEFENDANT’S MOTION FOR
       APPOINTMENT OF UMPIRE FOR INSURANCE APPRAISAL PROCEEDING

        On July 10, 2015 came on to be heard Plaintiff’s Plea in Abatement to Defendant’s

Motion for Appointment of Umpire for Insurance Appraisal Proceeding. The Court, having

carefully considered the Plea in Abatement, any responses or replies of the parties, and the

arguments of counsel herein, finds that it should be DENIED.




                                                  _______________________________________
                                                  JUDGE PRESIDING




                7/28/2015
FWD TO CC 7/27/15
